MBE practice wrong answers Flashcards
(219 cards)
1
Q
Who can issue a writ of habeas corpus?
A
Only a federal court
(A state court issuing a writ of habeas corpus would violate the Supremacy Clause)
2
Q
When does disclosure of material otherwise protected by the attorney-client privilege constitute a waiver of undisclosed material?
A
(1) the waiver is intentional
(2) the disclosed and undisclosed materials share the same subject matter
(3) the materials ought in fairness be considered together
3
Q
What is the forum-defendant rule?
A
A case filed in state court may not be removed to federal court under diversity jurisdiction if a defendant is a citizen of the state where the case was filed - even if a different defendant is trying to remove.
4
Q
In criminal law, what is constructive possession?
A
Constructive possession is legal possession of an object that is not in the possessor’s direct physical control, but the possessor still has knowledge and control over it.
5
Q
What are the four threshold matters a court must determine before admitting expert testimony?
A
(a) the expert’s knowledge is helpful to the factfinder
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
6
Q
When can bulge jurisdiction be applied?
A
When a party is joined under Rule 14 (third-party practice) or Rule 19 (required joinder)
7
Q
What is the best evidence rule?
A
When a party wants to admit the contents of a letter or other writing or recording, the actual writing or recording must be presented, unless the original is lost.
8
Q
Does the political question doctrine apply when the issue is the validity of a federal statute?
A
No
9
Q
How is the amount of an embezzlement calculated?
A
The value of the property at the time of the commission of the offense (as opposed to any appreciation or depreciation later)
10
Q
What is an implied-in-fact contract?
A
A contract where mutual promises are inferred through conduct
11
Q
What are the usual steps to prove service of process?
A
- Send a notice of complaint and request for waiver of service.
- If service is not waived within 60 days, properly serve the defendant
- File proof of service
- If the defendant does not file a motion or answer in a timely period, move for default
12
Q
Can a person commit conversion if they reasonably believe the property does not belong to the victim?
A
Yes
13
Q
When does a party forfeit a hearsay or Confrontation Clause Objection?
A
When the party engaged in wrongful conduct for the purpose of preventing the declarant from testifying
14
Q
When should a jury be instructed on a lesser included offense?
A
When the jury could rationally acquit the defendant of the charged offense but could convict of the lesser offense
15
Q
What is the standard of proof for admitting expert testimony?
A
Preponderance of the evidence
16
Q
What happens when a written contract fails to express the actual agreement of the parties?
A
A court may reform the writing to express the agreement
17
Q
When are punitive damages warranted in medical malpractice cases?
A
When the provider’s conduct was willful or wanton
18
Q
When can the addition of a party relate back to the date of the original complaint?
A
When the claim against the party arose out of the same events, and the party has notice and knew that it would be sued if not for mistaken identity
19
Q
What is the standard for an appeals court setting aside a court’s finding of fact?
A
Clear error - give due weight to judge’s determination of witness credibility
20
Q
Does an attorney have to object to a judge’s findings of fact in order to challenge them on appeal?
A
No
21
Q
What level of scrutiny applies to burdens on fundamental rights?
A
Strict
22
Q
Are mandatory presumptions allowed in criminal cases?
A
No
23
Q
What is continuing trespass?
A
Continuing trespass is when a person takes another’s property without the intent to permanently deprive the owner, but later develops such an intent, at which point larceny occurs
24
Q
When can a buyer reject goods under an installment contract?
A
UCC § 2-612(2): a buyer may reject any nonconforming installment if the nonconformity substantially impairs the value of the installment and it cannot be cured.
25
What is the best basis for Congress regulating the rental market, i.e. fair housing?
Commerce Clause: rentals constitute economic activity that, in the aggregate, has a substantial effect on interstate commerce
26
What notice is required for a default judgment hearing?
7 days if the party appeared in the action
27
How can a criminal defendant prove her own good character?
Reputation or opinion evidence if character is not an element of the crime
Specific acts, reputation or opinion if character is an element of the crime
28
What is common law murder?
1. Intentionally killing someone
2. Causing another's death by actions intended to cause serious bodily injury
29
What are the elements of a nuisance claim?
1. substantial and unreasonable interference
2. with use and enjoyment of property
30
Deed poll
A deed signed only by the grantor and not the grantee. If the grantee accepts it, he accepts all conditions that come with it.
31
Death escrow
Giving a deed to an escrow agent to be given to the recipient upon the grantor's death, in such a way that the deed is placed outside the grantee's control
32
What happens when an acceptance under the UCC contains an additional term?
The term becomes part of the contract unless
1. it materially alters the contract
2. the offer expressly limits the terms
3. the other party objects within a reasonable time
33
Does the exclusionary rule extend to grand jury proceedings?
No
34
When must an objection to proposed jury instructions be made?
After the court tells the parties about them, before giving them to the jury
35
What is one nondelegable duty?
A landowner who holds his land open to the public must keep the premises safe for business visitors
36
When does opposing counsel have a right to inspect a writing used to refresh a witness's memory?
The court has discretion to require production of the writing if it was used to refresh the witness's memory before she testifies.
The court must allow opposing counsel to see the writing if it is used to refresh the witness's recollection while she is on the stand.
37
When is a federal civil jury of fewer than six members appropriate?
When the parties stipulate to it
38
What is the effect of a second voluntary dismissal?
Adjudication on the merits - dismissed with prejudice
39
When is an employer liable for the actions of an independent contractor?
When the person directly influences the manner in which the contractor performs the work so as to contribute to the creation of the danger that causes the third party’s injury (the contractor is also still liable)
40
What is the effect on appeal if the parties do not object to proposed jury instructions?
Full appeal is waived, and appellate courts only look at whether there was (1) plain error that (2) affected a party's substantial rights
41
What is the standard for authentication of evidence?
Production of evidence sufficient to support a finding that the evidence is what the proponent claims it to be
42
When is nondisclosure of a fact tantamount to a misrepresentation?
When a person knows that disclosure of the fact is necessary to prevent some previous assertion from being a misrepresentation.
43
Can the parties stipulate to a non-unanimous jury verdict?
Yes
44
Traditional assumption of risk
Complete defense - if someone knowingly and voluntarily chose to encounter the risk, they cannot recover
45
Doctrine of exoneration
Encumbrances of a property conveyed by a will is discharged with funds from the originating estate, not from the property itself.
46
Under the UCC, when is a good identified to the contract?
When the seller ships, marks, or otherwise designates them as goods to which the contract refers
47
Whose law governs privilege in a federal diversity action?
State law
48
What kind of false information justifies avoiding a contract?
(1) fraudulent misrepresentation
(2) material misrepresentation (even if the other party also did not have the correct information)
49
Can records of illegal activity be admitted through the business records exception?
Yes
50
What will a court do if the parties to a contract leave a missing term in an otherwise-enforceable contract?
The court will supply a term that is reasonable to both parties under the circumstances
51
How can a scheduling order be modified?
(1) The moving attorney must show good cause, meaning the party acted diligently to try to meet the original deadline
(2) If good cause is shown, the opposing party must not be able to show that prejudice would result from modification
52
Does a mandatory meeting with a probation officer constitute custodial interrogation?
No, even though a probation or parole officer may compel attendance and truthful answers to questions, this is not custodial interrogation.
53
Are statements made during civil settlement negotiations admissible in a later criminal case?
No
54
Under the common law, when is a modification without consideration valid?
If the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made.
55
What investigations are admissible under the public records exception?
factual finding based upon an official investigation, except for criminal investigations by law enforcement
56
Can the deadline for a renewed judgment as a matter of law be extended?
No, under no circumstances
57
What duty permits rights to be fairly implied in order to carry out the intention of the parties?
Duty of good faith
58
What happens if a seller does not tender goods on the delivery date?
The buyer's duty to pay is discharged even if the seller tries to deliver the goods on a later date, unless the contract says otherwise
59
If a seller breaches and a buyer covers by acquiring alternate goods, what is the buyer's remedy?
The difference between the contracted price and the cover price
60
Whose law governs in determining whether an action qualifies as a class action?
In federal court, federal law
61
What are the requirements for admitting a witness's prior inconsistent statement for impeachment purposes?
The witness must be testifying and must have the opportunity to explain or deny the statement
62
What is the standard for modifying a final pretrial order?
Preventing manifest injustice
63
Is strict products liability available when a plaintiff's only loss is economic?
No
64
Who does a title insurance policy cover?
The named beneficiary plus the beneficiary's heirs and devisees so long as they own the property
65
What is the standard for a renewed JMOL?
Whether there is legally sufficient evidence to support the verdict
66
Can there be recovery under strict products liability if the only thing damaged was the product itself?
No
67
What is the remedy for tort conversion?
The value of the item before it was taken
68
When can a plaintiff recover for NIED when she was not in the zone of danger?
Situations in which people are especially likely to be distressed, such as a medical professional negligently misdiagnosing someone with a serious ailment
69
When may inadmissible evidence that forms the basis of an expert's opinion be disclosed to the jury?
When its probative value in helping the jury evaluate the expert’s opinion substantially outweighs its prejudicial effect
70
How does a junior mortgagee's foreclosure affect senior mortgages?
The senior mortgages remain in effect, even if the mortgagees are joined in the action
71
When does a police officer's lie to a suspect invalidate a confession?
When the lie overbears the suspect’s will and deprives the suspect of the ability to make a free choice
72
When must a Rule 12(b)(6) motion (failure to state a claim) be filed?
(1) in any pleading permitted under Rule 7(a),
(2) by a motion for judgment on the pleadings under Rule 12(c), or
(3) at trial. Fed. R. Civ. P. 12(h)(2)
The motion does not need to be consolidated with other Rule 12(b) motions.
73
When may a court correct a clerical error in a judgment?
Any time, though it must get permission from the appeals court if the appeal has been docketed
74
Can other damages be added to liquidated damages in a contract?
No
75
May a lay witness provide opinion testimony about a criminal defendant's mens rea?
Yes, though an expert witness may not
76
When can a party move for summary judgment?
Any time up until 30 days after the close of discovery
77
By what time must a seller cure a delivery of nonconforming goods that the buyer rejects?
by the end of the contract time, as long as the seller has reasonably informed the buyer of intent to cure (the buyer is obligated to accept)
78
When is a seller allowed a reasonable time to cure nonconforming goods (as opposed to being strictly held to the contract deadline)
When the seller reasonably believed the nonconforming tender would be acceptable
79
Can a sublessor be liable to a sublessee for violations of the original lease agreement?
No
80
When can a party to a contract for the sale of goods demand adequate assurances from the other party's legatee?
Any time - delegation is a circumstance creating reasonable grounds for insecurity and may without prejudice to his rights against the assignor demand assurances from the assignee
81
If a defendant removes a case to federal court before service of the complaint, when must service be effected?
90 days from the date of removal
82
What is merger by deed?
the terms of the deed govern over conflicting terms in the prior sale contract
83
When may a court admit evidence of a plaintiff's past sexual conduct or sexual predisposition in a civil case?
When the evidence’s probative value substantially outweighs the risk of harm to the victim (e.g., humiliation) and unfair prejudice to any party
84
When will a court enforce specific performance?
A court will not order specific performance unless (1) the terms of the contract are sufficiently definite, (2) the order will not be disproportionately burdensome for the court to enforce, and (3) damages will be inadequate
85
If an unconstitutional prior identification of a criminal defendant by a witness is suppressed, when can an in-court identification be admitted?
When the government proves, by clear and convincing evidence, that the in-court identification was not tainted by the unconstitutional out-of-court identification
86
What is the standard for admissibility of demonstrative evidence?
The evidence is a fair depiction or reasonable facsimile of the actual object.
87
If a sales contract provides for delivery of goods at the seller's place of business or the situs of the goods, when does the risk of loss pass to the buyer?
The risk of loss remains on the merchant “until actual receipt by the buyer, even though full payment has been made and the buyer notified that the goods are at his disposal.”
88
Is additur allowed in federal courts?
No because it violates the constitutional right to a jury trial
89
What is the deadline for filing a renewed motion for judgment as a matter of law?
28 days after the entry of judgment
90
How are challenges to federal laws under the Tenth Amendment evaluated?
Procedural immunity -- states are adequately protected from federal intrusion onto their sovereignty so long as the federal law resulted from a properly functioning political system in which the states, through their representatives, participated.
91
In evidence, what is the learned treatise exception?
If the court finds a publication to be a reliable authority, statements from it may be read into evidence, but the publication itself may not be received as an exhibit
92
When is jury unanimity required?
Six-person jury in a criminal trial
93
What is the effect of a fee simple determinable on marketability of title?
It makes title unmarketable
94
For what purpose can a prior inconsistent statement not made under oath be used?
Only for impeachment
95
What is common-law arson?
The malicious burning of the dwelling of another
96
What is the crime-fraud exception to attorney-client privilege?
Disclosure is REQUIRED if the client knowingly seeks legal services to further a crime or fraud
97
What is the standard of proof for admitting evidence as an adoptive admission?
there is sufficient evidence to support a jury’s finding that an individual had actual or apparent authority to act on behalf of the other person
98
What is the dying declaration exception?
A hearsay statement is admissible if made by a person speaking under the belief of imminent death, about the circumstances of the death
99
Can a defendant waive the right to counsel at a critical stage once it has attached?
Yes, if it is an intelligent waiver
100
Is substantial performance permissible to satisfy an express condition in a contract?
No, the express condition must be satisfied exactly
101
When is a statement inconsistent such that it is admissible as a prior inconsistent statement?
Any difference between the prior statement and the current testimony that has a reasonable bearing on the witness’s credibility is sufficient to render the statements inconsistent - up to the trial court's discretion, no particular showing need by made
102
If a party is trying to prove the contents of an official public document, when may the party introduce a copy of the document?
(1) is certified as correct by the custodian of the document or is self-authenticating, or
(2) is testified to be correct by a witness who compared the copy with the original.
103
What are the court's options if a jury's answers to written questions are consistent with each other but inconsistent with a general verdict?
(1) disregard the general verdict and enter judgment according to the answers,
(2) direct the jury to reconsider its answers and verdict, or
(3) order a new trial.
104
Can a mistake of law be justified if the defendant reasonably relied on the advice of a professional?
No
105
How can an opposing party appeal class certification?
By asking permission from the appeals court
106
What damages are available when there is a defense of private necessity?
The defendant must compensate the plaintiff for damage done to property, but will not be liable for punitive damages
107
What happens if a jury's answers to written questions are inconsistent with each other and with a general verdict?
(1) the judge may order a new trial
(2) the judge may order the jury to continue deliberations
108
What are the judge's options when a party files a renewed judgment as a matter of law?
(1) deny the motion and enter judgment
(2) grant JMOL
(3) order a new trial
109
What is required to appeal the resolution of one claim in a multi-claim litigation?
An express determination by the judge that there is no just reason for delay
110
Can conditional promises constitute consideration?
Yes, even if one or both parties never actually have to do anything
111
What three elements are required to void a contract for mutual mistake?
First, the mistake must concern a basic assumption on which the contract was made.
Second, the mistake must have a material effect on the agreed-upon exchange of performances.
Third, the adversely affected party must not bear the risk of the mistake.
112
When does a party to a contract bear the risk of mistake of fact?
(1) the parties agreed in the contract to allocate the risk to that party,
(2) a court allocates the risk to that party because the risk is reasonable under the circumstances, or
(3) the party was consciously ignorant of the relevant facts.
113
What damages are available to the non-breaching party in a lost-volume contract?
Lost profits, including reasonable overhead, that the seller would have made from the buyer’s full performance, including incidental damages but less any expenses saved by the buyer’s breach.
114
When does strict liability apply to livestock?
foreseeable personal injury or property damage caused by trespassing livestock
115
Can a buyer repudiate a contract for the sale of property before closing due to the seller being in violation of restrictive covenant?
No, only if the violation is still present and has not been remedied at closing
116
When may a temporary restraining order be issued without notice?
(1) specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(2) the movant’s attorney certifies in writing any efforts made to give notice and why it should not be required.
117
When is extrinsic evidence of prior inconsistent conduct admissible?
When it is offered to impeach a hearsay declarant
118
Are findings of fact and conclusions of law required for rulings on interlocutory injunctions?
Yes
119
What happens if a description of property is internally inconsistent?
The courts give precedence to descriptions in the following order:
(1) natural objects or landmarks,
(2) artificial monuments,
(3) adjacent boundaries,
(4) courses and distances, and
(5) descriptions of quantity.
120
What is clear error as it applies to reviewing a trial court's findings of fact?
The appeals court has a definite and firm conviction that the trial court was wrong
121
When do the parties to a contract become unable to modify a contract with an intended third-party beneficiary
When the beneficiary:
(1) materially changes his position in justifiable reliance on the promise,
(2) brings suit on it, or
(3) manifests assent to it at the request of the promisor or promisee.
122
What is the agency approach in felony murder?
If the homicide was committed by one of the felons, and if it was done in furtherance of the felony, then all of the co-felons are deemed responsible because each is considered to be the agent of the other.
123
How do you establish a due process violation from delays in charging a crime?
(1) the government deliberately delayed charging the defendant for tactical reasons or to harass the defendant, and
(2) the delay resulted in actual and substantial prejudice to the defendant.
124
What are the main topics of Supreme Court jurisdiction? (3)
1. cases involving foreign ambassadors,
2. cases involving other public ministers
3. consuls of foreign countries, and cases in which a state is a party.
(nothing else - Congress can't expand the Court's original jurisdiction)
125
Can an employer be vicariously liable in a criminal case?
Yes
126
Can a jury determine the authenticity of handwriting by comparing a specimen with authenticated specimens?
Yes
127
Can lower federal courts hear cases within the Supreme Court's original jurisdiction?
Yes
128
What is permissive intervention under Rule 24(b)?
A nonparty may intervene in an action if their claim shares common questions of law or fact
129
What is mandatory intervention under Rule 19?
A nonparty must intervene as an indispensable party (or the action is dismissed) if there is a risk to the nonparty's interests if they are kept out of the action
130
What are the elements of intrusion upon seclusion?
1. An act of prying or intruding by defendant upon plaintiff;
2. The intrusion would be objectionable to a reasonable person; and
3. The thing to which there is an intrusion or prying is “private.”
131
What are the elements of public disclosure of private facts?
1. Publication or public disclosure by defendant of private information about the plaintiff; and
2. The reasonable person would object to the facts being made public.
132
What priority does a purchase-money mortgage have over other liens?
Superpriority - paid off even before prior judgment liens
133
Without exigent circumstances, when can officers force their way into a house pursuant to an arrest warrant?
When they reasonably believe the suspect is at home at the time of entry
134
Can a joint tenancy be devised in a will?
No
135
What are the elements of private nuisance?
(1) substantial and unreasonable
(2) interference with the use and enjoyment of someone's property
(3) that the person actually possesses or has the right to possess
136
What happens if a TRO is expanded for more than 14 days?
It is treated as a preliminary injunction
137
What is the difference between derivative-use and transactional immunity?
(1) derivative-use immunity is when the prosecutor promises not to use any of the witness's testimony or any evidence derived from it, against the witness
(2) transactional immunity is when the prosecutor promises immunity from prosecution for any crime the witness discloses during testimony
138
What is the Bruton rule?
In a joint trial of multiple defendants, one defendant’s constitutional right to confront a nontestifying codefendant is violated by admission of that codefendant’s pretrial confession to if it implicates the defendant in the alleged crime, even if the trial court gives a limiting instruction to tell jurors not to consider the confession against the other defendant.
139
What are the integral parts of self-government that justify rational basis review for discrimination against lawful permanent residents?
1. Voting
2. Running for office
3. Serving on a jury
140
When does an easement by necessity arise?
When a landowner divides her land and conveys one parcel, and the parcel is landlocked (not connected to a public road), an easement by necessity arises to allow the new owner access to the road.
141
Can a jury in a criminal case be instructed to take a judicially noticed fact as conclusive?
No
142
When may a court take a fact as judicially noticed?
When the indisputability of a fact can be accurately and readily determined from sources whose accuracy cannot be questioned.
143
What happens if a deed is delivered to a nonexistent grantee?
The deed is void
144
Can just compensation for a taking include the cost of equipment or loss profits?
No
145
What is the standard for regulating commercial speech?
Intermediate: the restriction directly advances an important government interest and the restriction is not substantially more extensive than necessary to protect that interest.
146
What is the secondary effects doctrine?
Primarily in the context of adult entertainment, allows the government to regulate content-based speech with content-neutral scrutiny based on the effects of the speech, i.e. neighborhood deterioration
147
What is the standard for upholding a regulatory taking?
(1) there is an essential nexus between the condition and the state interest at issue and
(2) the extent of the condition is roughly proportional to the impact of the proposed development.
148
What must the findings in a preliminary injunction grant or denial contain?
(1) state the reasons why it was issued,
(2) state its terms specifically, and
(3) describe the acts restrained or required in reasonable detail, not by referring to the complaint or to another document
149
In a mortgage, can the right of redemption be waived?
No
150
In products liability, what must an adequate warning contain?
(1) the existence of any reasonably foreseeable risk associated with using or misusing the product;
(2) the nature and scope of the risk; and
(3) how the user can minimize or avoid the risk, if possible
151
In products liability, what three factors go into whether a warning is positioned to attract the average user's attention?
(1) the nature of the product,
(2) the information to convey, and
(3) the characteristics of the average user
152
What is interpleader?
A proceeding in which multiple parties (claimants) claim an interest in the same property (stake) possessed by a party (the stakeholder).
Interpleader joins the stakeholder on one side and the claimants on the other side. The stakeholder pays the stake into court, and the claimants litigate amongst themselves how to distribute the stake.
Avoids multiple liability on the part of the stakeholder
153
How does diversity jurisdiction work in interpleader actions?
(1) if under Rule 22, normal rules of diversity jurisdiction
(2) if statutory, a federal court can hear the case if the stake is worth more than $500 and one claimant is diverse from the stakeholder
154
In burglary, what is constructive breaking?
The defendant obtains entry through fraud, conspiracy, or threat of violence
155
Who may not be excluded from the courtroom upon a party's request?
(1) parties,
(2) a party’s designated representative if the party is not a natural person,
(3) a person whose presence is essential to the case (e.g., an expert witness), or
(4) a person authorized by statute to be present.
156
Are easements or leases that last less than one year subject to the statute of frauds?
No - even though they are interests in land
157
In products liability, what factors do courts consider in evaluating reasonability of an alternative design under the risk-utility test?
Whether the product was
(1) safer in the aggregate,
(2) technically feasible, and
(3) economically feasible.
Courts also require that the proposed alternative design be one that the manufacturer actually could have implemented before the product left its control.
158
What six elements must be proven for a restrictive covenant to run with the land?
(1) the covenant must be in writing,
(2) the original parties must have intended that the covenant run with the land (either expressly or through surrounding circumstances, such as a uniform plan of development),
(3) the covenant must touch and concern the land,
(4) the original parties must have been in horizontal privity,
(5) the owner of the servient estate must be in vertical privity with the original promisor, and
(6) the owner of the servient estate must have adequate notice of the covenant.
159
Under the First Amendment, what is the standard for a content-neutral regulation?
The regulation is
(1) is narrowly tailored to burden no more speech than necessary,
(2) serves a significant or substantial government interest, and
(3) leaves open ample alternative channels of communication
160
What is the burden in chain of custody issues?
The party offering the exhibit must demonstrate that the chain of custody was substantially unbroken
161
What is a diminished capacity defense?
a defendant alleges that, although he or she is responsible for the prohibited act, his or her mental capacity was sufficiently diminished by intoxication, mental disease, or trauma that the defendant did not possess the specific mental state or intent essential to the particular offense charged
162
In contracts, how are advertisements treated?
As an invitation to offer, not an offer itself -- unless there is something in the advertisement that makes it an offer, e.g. first-come first-serve
163
What must a party do before moving to compel discovery under Rule 37?
Demonstrate that it made a good faith effort to meet and confer
164
What is the deadline for responding to interrogatories?
30 days, unless the parties stipulated or the court ordered a different deadline
165
In constitutional law, what is the fair cross-section requirement?
The jury pool must be a fair cross-section of the defendant's community, even if the jury itself is not.
166
When is a sale for goods more than $500 enforceable even if it does not satisfy the statute of frauds?
When payment has already been made or the goods have been received and accepted
167
What is the helpless peril doctrine?
If an actor places a victim in a state of helpless peril, the actor has an affirmative duty to seek out help -- even if the actor did not negligently cause the peril
168
What must happen in a delegation for the original party to be released from liability on the contract?
The other party must agree to release the first party from liability
169
What factors do courts use to evaluate a sentence's proportionality under the Eighth Amendment?
(1) the gravity of the offense compared to the harshness of the penalty,
(2) the sentence imposed on a particular defendant compared to the sentences imposed for various offenses within the same jurisdiction, and
(3) the sentence imposed on a particular defendant compared to the sentences imposed for the same or similar offenses in other jurisdictions.
170
When does the implied warranty of marketability kick in on an installment land contract?
At closing, i.e. when the installments are paid off
171
When may the remainderman of a life estate sue to eject an adverse possessor?
When the life estate holder dies and the remainderman's interest becomes possessory
172
What is the standard for excluding evidence of past sexual assault in a criminal sexual assault case?
The evidence’s unfair prejudice substantially outweighs its probative value.
173
If a grantor delivers a deed to an escrow agent with instructions to deliver it to a grantee upon a condition, and the grantor dies before the condition happens, when does the grantee get title?
Title relates back to the date of delivery to the escrow agent once the condition occurs
174
Is personal service on corporations outside the United States permitted?
No
175
When are contracts not freely assignable?
If the assignment would materially (1) change the obligor’s duty,
(2) increase the obligor’s contractual burden or risk,
(3) impair the obligor’s chance of obtaining return performance, or
(4) reduce the value of the assignor’s return performance to the obligor
176
What does a request for waiver of service have to contain? (6)
(1) identify the court where the complaint is filed;
(2) inform the recipient of the consequences of waiving or not waiving service;
(3) provide the recipient a reasonable amount of time to respond to the request for waiver, at least 30 days for requests sent within the United States and 60 days for requests sent outside the United States.
(4) attach to the request a copy of the complaint,
(5) attach two copies of the Rule 4 waiver form,
(6) attach a prepaid method for returning the form. Fed. R. Civ. P. 4(d)(1).
177
What's the burden of proof for an affirmative defense in a criminal case?
Preponderance of the evidence (establishes reasonable doubt)
178
Can consideration for a contract consist of an invalid legal claim?
Yes, as long as the claim was made in good faith
179
What law governs the claim preclusive effect of a federal court adjudication?
Federal common law (even if second case heard in state court)
180
When can a state pass a law impairing the obligation of contracts under the Contracts Clause (whether or not it is a party)?
(1) the law serves a significant and legitimate public purpose and
(2) the impairment is reasonable and appropriately tailored to that purpose.
181
In torts, what is the duty of care for common carriers?
In some jurisdictions, much higher than reasonably prudent - do everything possible to protect passengers
182
What is burglary under the MPC?
Entering of a building or occupied structure with the intent to commit a crime, unless the premises are, at the time, open to the public.
183
When may a court impose sanctions under Rule 16?
When a party
(1) fails to appear at a scheduling or other pretrial conference;
(2) is substantially unprepared to participate, or does not participate in good faith, in the conference; or
(3) fails to obey a scheduling or other pretrial order.
184
In many jurisdictions, can a law impose a civil penalty in order for negligence per se to apply?
No
185
In contracts, what are restitution damages?
The benefit that a breaching party has conferred by way of part performance or reliance in excess of the loss that he has caused by his own breach.
186
Can accumulation of multiple harmless errors warrant reversal of a conviction?
Yes
187
When is a federal tax law valid under the taxing and spending clause?
Almost always, as long as it
(1) produces some revenue and
(2) does not impose a penalty
188
What are the elements of an easement by prescription and how is it different from adverse possession?
Elements:
(1) open and notorious,
(2) adverse to the property owner’s rights (even if the owner is mistaken as to their own rights), and
(3) continuous for the applicable period
Adverse possession requires exclusive possession whereas easements by prescription do not.
189
When may a plaintiff recover the full amount of damages in a comparative negligence jurisdiction even if the plaintiff was also negligent?
1. In medical malpractice cases when the provider was treating a negligently self-inflicted injury
2. When the defendant is under a duty to protect the plaintiff from his own negligence
190
When is there a quasi-contract?
1) a measurable benefit was conferred on the defendant,
(2) under circumstances in which the defendant’s retention of the benefit without payment would be unjust, because
(3) the defendant impliedly or expressly requested the benefit be conferred.
191
Will physical evidence derived from a Miranda violation be suppressed at trial?
No
192
What happens if a prior estate terminates before a contingent remainder vests?
At common law, the contingent remainder was destroyed.
In most states, the grantor gets a reversion until the contingent remainder vests
193
What is the rule in Shelley's case?
An attempt to create a life estate in a grantee and a fee simple remainder in the grantee’s heirs will result in the grantee holding the property in fee simple absolute.
194
What is the doctrine of worthier title?
If a grantor conveys property and, in the same instrument, creates a future interest in the grantor’s heirs, the future interest is void and the grantor holds a reversion.
195
Does the Privileges and Immunities Clause apply to corporations?
No
196
When is a prior consistent statement admissible?
To:
(1) refute allegations of recent fabrication or improper motive, or
(2) rehabilitate credibility, if attacked on other grounds.
197
When can a statement against interest be admitted?
When the declarant is unavailable
198
May prior consistent statements be used as substantive evidence?
Yes, once admitted
199
When may a party terminate a contract that calls for successive performances but does not specify for how long?
Upon adequate notice to the other party
200
Is a possibility of reverter subject to the Rule Against Perpetuities?
No
201
Does an intended beneficiary have to be named at the time the contract is made?
No
202
When does the party to a contract assume the risk of mistake?
(1) the terms of the contract expressly allocate the risk to the party,
(2) the court allocates the risk to the party upon finding that it is reasonable to do so, or
(3) the party proceeds with the contract despite conscious ignorance of the relevant facts.
203
When does a mistrial NOT terminate jeopardy?
When granted on the defendant’s motion, or with the defendant’s consent, even if the mistrial is based on prosecutorial or judicial error
204
What is the standard for federal question jurisdiction if the claim arises under state law?
(1) the claim necessarily raises a federal issue,
(2) the federal issue is substantial and in actual dispute, and
(3) the exercise of federal jurisdiction will not disturb “any congressionally approved balance of federal and state judicial responsibilities.”
205
If something other than a writing is used to refresh recollection, is the other party entitled to examine it?
No
206
What must be proven for the residual hearsay exception to apply?
(1) the judge must determine that the proffered statement has sufficient guarantees of trustworthiness;
(2) the statement must be the most effective way to prove a material fact, despite reasonable efforts to find otherwise admissible evidence; and
(3) the statement’s proponent must give notice of the intent to use the statement at trial.
207
When will a condition in a contract be waived upon its non-occurrence?
(1) the occurrence of the condition is not a material part of the agreed-upon exchange and
(2) forfeiture would otherwise result
208
Is specific performance available if a seller of real estate cannot convey marketable title?
Yes - the court can order that the seller convey whatever interest he has, and the purchase price is abated
209
How does one renounce a conspiracy under the MPC?
Renunciation occurs if the defendant thwarts the conspiracy’s success, provided the circumstances indicate complete, voluntary renunciation of the conspiracy’s unlawful purpose
210
What is false light?
(1) publicizing to a wide audience
(2) false information about the victim, and
(3) the false portrayal would be highly offensive to a reasonable person.
211
What is the foregone conclusion exception to the privilege against self-incrimination?
A document can be compelled if the government has independent knowledge of
(1) the documents’ existence,
(2) the documents’ authenticity, and
(3) the witness’s custody or control of the documents.
212
What is the applied warranty of merchantability?
Ensures the product is not unreasonably dangerous due to a defect of the kind that would give rise to products liability in tort.
Applies to any foreseeable user, not just the purchaser
213
When does the partial performance exception to the statute of frauds for the conveyance of land apply?
When the grantee does two of the following:
(1) taking possession of the property,
(2) paying some or all of the purchase price, and
(3) making substantial improvements to the property.
AND the grantee's actions are explained by the contract
214
When a party to a contract does not perform on the due date and the other party suspends performance, when does the other party NOT have to wait a reasonable time after the due date before terminating the contract?
(1) time is of the essence,
(2) cure is impossible or apparently not forthcoming, or
(3) the breaching party repudiates the contract.
215
When would the federal government prosecuting a defendant for the same crime as a state violate double jeopardy?
When one sovereign so dominated the actions of the other that the jurisdictions were not acting independently - and thus the federal prosecution is for the sole purpose of getting around double jeopardy
216
In a defamation action involving a public figure, what is the burden of proof for falsity?
The plaintiff must prove falsity by clear and convincing evidence
217
What kinds of interest could potentially be subject to the RAP?
(1) contingent remainders,
(2) executory interests,
(3) options to purchase property,
(4) class gifts,
(5) rights of first refusal, and
(6) powers of appointment
218
How can a non-defendant witness assert the privilege against self-incrimination?
By asserting the privilege in response to every question
219
What is marshalling?
The order in which a mortgagee must foreclose on properties, unless the combined value of the properties does not pay off the mortgage:
(1) parcels on which no subordinate interests exist,
(2) parcels with subordinate interests created more recently in time, and
(3) parcels with subordinate interests created earlier in time.
