Missed Questions Flashcards
(187 cards)
1
Q
Power of Appointment
A
Gives a life tenant the right to designate recipients of a beneficial property interest.
If the life tenant does not exercise this power, then the property will go to the remainder man.
2
Q
Negation Defense
A
- Challenges element of the crime (eg. alibi, lack of intent)
- 5th Amendment assigns burden to prosecution to prove element beyond a reasonable doubt.
3
Q
Conspiracy
A
Requires proof that
1) the D entered an agreement with the specific intent to commit a crime and
2) an overt act was committed in furtherance of that agreement
4
Q
Attorney-expert communications are privileged unless they:
A
1) relate to the expert’s compensation
OR
2) identify facts, data, or assumptions provided by the attorney that the expert considered or relied on in forming his/her opinions.
5
Q
Accomplice
A
An accomplice intentionally aids or encourages the principal before or during a crime with specific intent that the crime be completed. But mere presence at a crime scene does not make a person an accomplice.
6
Q
In a removal action, a party preserves its right to a jury trial by
A
1) demanding a jury in state court before removal
OR
2) serving a jury trial demand within 14 days after filing or being served with the notice of removal, so long as all necessary pleadings had been served before removal.
7
Q
The 1st Amendment shields the media from liability for publishing truthful information that was unlawfully obtained by a third party if
A
1) the information involves a matter of public concern
AND
2) the publisher neither obtained it unlawfully nor knows who did.
8
Q
Two Dismissal Rule
A
A voluntary dismissal of a second action operates as an adjudication on the merits when the plaintiff voluntarily dismissed
1) the first action in federal or state court without a court order
AND
2) the second action based on the same claim in federal court by filing a notice of dismissal
9
Q
Civil Forfeiture seizure of personal property
A
May be seized prior to providing notice and a hearing when:
- The seizure serves a signifcant government interest
- That interest would be frustrated by advance notice of the seizure,
AND
- the seizure is performed by the government.
10
Q
Civil Forfeiture seizure of real property
A
To determine if may be seized by the government prior to providing notice and a hearing, court must balance:
- the private interest affected by deprivation
- risk of erroneous deprivation of that interest through current procedures and the probable value of additional or substitute procedural safeguards
AND
- the government’s interest, including the fiscal and administrative burdens that other safeguards would entail.
11
Q
Heightened Scrutiny
A
Used when a law substantially impacts a fundamental right or intentionally discriminates against a quasi-suspect or suspect class
12
Q
Intentional discrimination
A
A law can:
- on its face (the language of law distinguishes between different classes (intent presumed))
- in its application (facially neutral law is purposefully applied differently to different classes
OR
- in its motive (an otherwise neutral law was enacted to disproportionately impact a protected class
13
Q
Laws Imposing Citizenship Requirements
A
Laws that impose these discriminate agasint noncitizens (a suspect class).
As a result, these laws violate the EPC unless they pass strict scrutiny (state must show law is necessary to achieve compelling state interest.)
14
Q
21st Amendment
A
Grants states broad authority to regulate alcohol within their borders. This authority includes the ability to prohibit the importation, transportation, or sale of alcohol within the state and to delegate such authority to local governments.
15
Q
State Electoral Regulation Standards
A
Must comply with 1st Am freedom of association and 14th Am EPC. The standard for reviewing depends on whether the burden imposed is ordinary (rational basis) or severe (strict scrutiny).
16
Q
EPC Challenges to Discriminatory State Taxes
A
Subject to rational basis review.
Although encouraging a growth of an industry within a state is permissible, promoting domestic (in-state) business by discriminating against nonresident competitors is unconstitutional
17
Q
Article 1 contains
A
Commerce Clause
18
Q
14th Am Limitation on Citizenship Revocation
A
Prohibits congress from revoking the citizenship of any U.S. citizen without their consent unless it was obtained by fraud or in bad faith
19
Q
Federal Officer
A
Someone who
1) Holds a continuing public office
AND
2) Has significant discretionary authority to administer or enforce laws (ie, executive powers).
Must be appointed by President or in a manner otherwise consistent with Art II appointments clause, so Congress can’t appoint.
20
Q
Art III Property Clause
A
Give sCongress complete power to dispose of and regulate federally owned land and territories.
(Includes power to regulate private property that affects federal public lands when such regulation is necessary to protect those lands.)
21
Q
Defenses that can be asserted anytime before end of trial
A
- Failure to join a required party
and - Failure to state a claim on which relief can be granted
22
Q
Intent for Attempted Murder
A
Attempt is a specific intent crime.
Therefore, attempted murder requires proof that the defendant acted with the intent to kill - no other form of malice aforethought will suffice.
23
Q
Durational Residency Requirements
A
Since they burden the fundamental right to travel, they are strictly scrutinized and almost always held unconstitutional under the EPC
24
Q
State Immunization from Federal Taxes
A
10th Am immunizes states from federal taxes that
- discriminate against states
OR
- unduly interfere with essential state functions
25
To appeal for sufficiency of the evidence, the party must
1) move for JMOL prior to submission to jury
AND
2) File renewed JMOL within 28 days after entry of final judgment
26
Legislator's Standing to sue
Has standing to challenge the constitutionality of government action when that action causes the legislator personal and concrete harm -
NOT institutional, abstract harm shared equally any all legislators in that respective body.
27
Class Action Fairness Act
Provides SMJ when:
1) the class contains at least 100 members
2) any class member is diverse from at least one defendant
AND
3) the amount in controversy exceeds $5 million when the members claims are aggregated.
28
Heinous Act Murder
Murder that results from an especially egregious act, such as ambush, torture, bombing, terrorism, or poisoning.
Constitutes 1st degree Murder
29
Unilateral Contract Notice
Notice is not required to effectively accept an offer by starting performance unless the offer so requires.
BUT if the offer should know that the offeror has no convenient way of learning within a reasonable time that performance has begun, the offer must notify the offeror. Otherwise, the offer's contractual duty will be discharged.
30
UCC No Oral Modification Clause
Generally enforceable when contained in a written, signed contract. As a result any attempt by the parties to modify the contract orally in violation of a no-oral-modification clause is unenforceable
31
False Imprisonment
Unlawful Confinement Without Consent
32
Res Ipsa Loquitur and Circumstantial Evidence
RIL allows D's negligence to be inferred from circumstantial evidence if
1) the plaintiff suffered a type of harm that is usually caused by negligence of someone in the defendant's position
AND
2) the evidence tends to eliminate other potential causes of that harm
33
Adverse Poss of Mineral Estates
If a mineral estate has previously been severed from the surface estate, then an adverse possessor can only acquire title to the mineral estate by actually possessing the minerals
34
Exception to Best Evidence Rule
Allows party to introduce there evidence of a document's content when the original
1) is in the possession of a person or entity that is not a party to the litigation
AND
2) cannot be obtained by any available judicial process
35
Best Evidence Rule
Applies when
A witness relies on a document's content while testifying
OR
When the content of a document is at issue
36
Art I Suspension Clause
Persons in federal custody can challenge their detention by filing a writ of habeas corpus in federal courts unless Congress has suspended the writ.
37
Establishment Clause Challenges
Generally reviewed under historical test .
BUT strict scrutiny can be used instead when a law directly benefits or burdens a particular religion.
38
"One Person, One Vote"
Art I Sect 2 - Congressional election - District size should be almost exact equality (<3% variance)
EPC - State and Local Elections - No unjustifiably larger inequality (<17% variance)
39
Facial Challenge of Free Speech
An ordinance restricting protected speech will be deemed facially invalid if it is either:
- Overbroad - the law restricts a substantial amount of constitutionally protected expression
OR
- Unduly vague - the law fails to give person of ordinary intelligence fair notice of prohibited expression.
40
Regulatory Taking Substantial Restriction
Evaluated under the totality of the circumstances, including:
- the character or nature of the government action
- the economic impact on the property
- the interference with the owner's reasonable investment backed expectations regarding the use of the property.
41
Shielding of Media
First Amendment shields the media from criminal and civil liability for publishing lawfully obtained private facts and other truthful information involving matters of public concern (Newsworthy events)
42
Legal vs Equitable Claims
If an action involves legal and equitable claims that raise issues of fact common to both, then under the 7th Am, the jury must be permitted to determine these issues by trying the legal claim first.
Thereafter, the court determines the equitable claim, but it is bound by the jury's findings of fact on the legal claim.
43
"Passing Through" exception
If a defendant is voluntarily present in the forum state and is served with process while there, then the state will generally have personal jurisdiction over the defendant. **However**, an exception occurs when the defendant is merely “**passing through**" to attend other judiciary proceedings
44
PJ over Foreign Defendant
Rule 4(k)(2) provides for personal jurisdiction by a federal court when no state court can exercise jurisdiction over the defendant, it requires both that:
- the claim against the defendant be based on federal law
AND
- that there be minimum contacts such that the exercise of personal jurisdiction in federal court is consistent with the laws of the United States and the United States Constitution.
45
Diversity Res Judicata (Claim Preclusion)
Federal common law requires that the claim-preclusive effect of a judgment by a federal court sitting in diversity must be governed by the law of claim preclusion of the federal court’s forum state, unless the state law is incompatible with federal interests.
46
Deposition Limitations
Without leave of the court, the plaintiffs and the defendants, each as a group, are limited to 10 depositions by oral or written examination.
Unless the parties agree to the deposition, leave of the court must be obtained to:
(i) exceed the 10-deposition limitation,
(ii) depose a witness a second time,
OR
(iii) depose a person before the deposing party has complied with its initial disclosure requirements under Rule 26(a).
47
Burglary Exit Force
Use of force to exit a dwelling after commission of a felony therein does not constitute a breaking
48
Voluntary Intoxication Defense
A defense to specific intent crimes when the intoxication prevented the person from forming such intent
49
Contract Misunderstanding
A misunderstanding occurs when the contracting parties attach different meanings to the same material term.
This prevents contract formation when neither OR both parties have reason to know of the misunderstanding
50
Bill of Attainder Clause
Prohibits legislative acts that inflict vicil or criminal punishment on named individuals - or easily identifiable groups of individuals - without a trial.
Exclusion form a profession or vocation is a type of civil punishment.
51
Prosecutorial Immunity
A prosecutor is absolutely immune from civil liability for damages resulting from his prosecutorial acts unless it is clear that the prosecutor did not have jurisdiction (Even if he acted with malice)
52
Requirements for Government Affirmative Action
For affirmative action based on race to serve, the relevant governmental entity must show more than a history of societal discrimination. The government must itself bw guilty of specific past discrimination against the group it is seeking to favor, and the remedy must be narrowly tailored to end that discrimination and eliminate its effects.
53
Restrictions to Commercial Speech
Commercial speech is entitled to intermediate 1A protection when it concerns lawful activity and is neither false nor misleading. Restrictions are valid if the regulation is narrowly tailored to serve a substantial governmental interest.
54
Nonpublic forum restrictions
Any public property that is not a traditional or designated public forum.
The government may regulate speech0related activities in nonpublic forums as long as the regulation is
- viewpoint-neutral
AND
- reasonably related to a legitimate governmental interest
55
Speech and Debate Clause
Art I Sect 6 - Protects the members of Congress from civil and criminal liability for statements and conduct made in the regular course of the legislative process.
However, this protection does not foreclose prosecution for crime, including the taking of bribes, when the crime does not require proof of legislative acts or inquiring into the motive behind those acts.
56
UCC Price Gap Filler
Reasonable price at time for delivery
57
Then existing state of mind - Emotional or Physical condition
Then existing condition such as fear pain, bodily health, or pregnancy, is admissible as substantive evidence.
58
When considering an initial or renewed motion for JMOL, the court must:
- view the evidence and draw all reasonable inferences in the light most favorable to the nonmoving
- disregard any evidence favorable to the movant that the jury is not required to believe
AND
- not consider the credibility of witnesses or evaluate the weight of evidence
59
Voting Protections
14th Ak - Prohibits substantial impairment of voting rights
15th A - Prohibits denial or abridgment of voting rights based on race, color, previous servitude
19th A - Prohibits denial or abridgment of voting rights based on sex
24th A - Abolishes poll taxes
26th - Establishes right to vote at 18
60
Juvenile Adjudication Admissibility
Nondefendant witness's juvenile adjudication is admissible to attack their character for truthfulness if:
1) the adjudication is offered in a criminal case, 2) an adult's conviction for that offense would be admissible to attack the witness's credibility, and 3) admitting the evidence is necessary to fairly determine guilt or innocence.
61
Sanctions on party who fails to make required disclosures
1) prohibit the use of the undisclosed evidence,
2) order the payment of the opposing party's reasonable expenses,
3) inform the jury of the nondisclosure,
and
4) impose any other appropriate sanction (except for contempt of court)
62
An accomplice's intent to aid the principal can be inferred when the accomplice:
1) provides highly specialized goods or services,
2) receives unusually large profits from a sale,
OR
3) has some greater interest in the crime's success
63
Time to file an answer after a motion to dismiss is denied:
14 Days
64
Prosecutor's expression of opinion
Prosecutor may not express opinion about the defendant's guilt or innocence
65
Self Executing Treaty
Treaty that does not need congress to enact legislation to implement it
66
Section 5 Enabling Clause of 14th Am
Permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the Fourteenth Amendment, as long as there is "congruence and proportionality" between the injury to be prevented or remedied and the means adopted to achieve that end. Congress may override state government action that infringes upon Fourteenth Amendment rights if the “congruence and proportionality” test is satisfied, but it may not regulate wholly private conduct under this amendment.
67
Wharton Rule
If a crime requires two or more participants, there isn conspiracy unless more parties than are necessary to complete th crime agree to commit the crime
68
noncitizen’s participation in government functions
A growing exception exists, however, for state laws that restrict or prohibit a noncitizen’s participation in government functions. Such laws need only have a rational relationship to a legitimate state interest, and are generally upheld as preventing noncitizens from having a direct effect on the functioning of the government.
69
Law that interferes with Freedom of speech:
Will be struck down on its face if it is over broad or unduly vague
70
Real property and C/L Larceny
A Defendant who unlawfully severs and then immediately carries away an item of real property is not guilty of larceny because such an item does not constitute personal property
71
Warranty of Merchantability
Always implied in all contracts for sale of goods under UCC if seller is a merchant
72
Exceptions to Final Judgment Rule
Mnemonic: In Certain Circumstances, An Appeal Can Be Made Prematurely
Injunction
Certification by district court
Class action certification
Appointment of receiver
Admiratly case
Collateral-order doctrine
Bankruptcy cases (certain orders)
Mandamus (petition for writ)
Patent infringement order (only accounting left)
73
Bivens Actions (Implied Causes of Action)
SCOTUS has only recognized 3:
- 4th A claim for unlawful search and seizure
- 5th A due process claim for sex based employment discrimination
- 8th A cruel and unusual punishment claim for failure to provide medical treatment
74
Rough Proportionality
Individualized and quantifiable findings show that the proposed development's impact non the community is roughly proportional to the imposed condition's impact on the landowner.
(For exception to Takings)
75
Sexual Misconduct Defendant
Evidence concerning past sexual assault or child molestation by a defendant in a case in which the claim for relief is based on the defendant's sexual misconduct is admissible.
76
Criminal Negligence
A grossly negligent action that puts another person at a significant risk of serious bodily injury or death
77
Involuntary Manslaughter Misdemeanor Manslaughter rule
A killing committed in the commission of a malum in se misdemeanor is involuntary manslaughter.
78
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
79
Collateral Order Doctrine
Interlocutory order will be final and immediately appealable if:
1) The order conclusively resolves an important issue;
2) That issue is separate from the merits of the underlying claim;
AND
3) The order cannot be effectively reviewed on appeal from a final judgment.
80
Stateless Persons
Diverse citizenship does not exist when a suit involves stateless persons, i.e.:
- noncitizens present in the U.S. but not citizens of a foreign country
OR
- U.S. citizens domiciled in a foreign country
81
Inconsistent Jury Verdict Challenge
A guilty verdict cannot be challenged on the round that it is inconsistent with another verdict rendered by the same jury
82
Exception to Voting as Fundamental Right
Courts will depart from voting as a fundamental right and apply rational basis scrutiny when a state or local law limits the right to vote in a governmental unit's election to its residents.
83
Third Party Standing Doctrine
Permits an injured plaintiff to assert the rights of a third party when:
1) the parties share an inextricably close relationship
AND
2) genuine obstacles prevent the third party from asserting his/her rights
84
Condition Precedent
Delays performance until a specified event occurs and requires the plaintiff to prove that the event occurred to prevail
85
Condition Subsequent
Excuses performance once a specified event occurs and requires the defendant to prove that the even occurred to avoid liability
86
Common Law "First in Time" rule
If a recording act does not apply, priority will be determined by giving earlier property interests priority over subsequent property interests.
87
Nonjusticiable Political Questions
Issues incapable of judicial resolution:
- Recognition of foreign governments
- Reception of ambassadors
- Nature of wars/hostilities
- Partisan gerrymandering
- Guarantee of republican form of government
- Recognition o fNative American tribes
- House/Senate Rules for impeachment
- Ratification process for constitutional amendments.
88
Political Question Doctrine
Federal courts cannot hear a suit that presents a nonjusticiable political questions, ie an issue that:
1) the Constitution reserves to another branch of government
and/or
2) lacks judicially discoverable and manageable standards for the issue to be resolved by a court.
89
Character Evidence in Civil Cases
The rule in Crim cases does not apply, Civil defendants may not introduce testimony regarding a pertinent character trait. E.g. "peacefulness in a civil battery claim"
90
Apportionment of Easment
Nonexclusive - the easement cannot be divided among multiple tansfereee
OR
Exclusive - Easement generally can be divided among multiple transferees
91
"One Stock" rule
Limits the collective use that the transferee can make of the easement to the use that the transferor made of the easement (for Exclusive easements)
92
Presumption Concerning Jurisdiction
A federal court must presume an absence of jurisdiction until it determines that the matter falls within its rightful jurisdiction. The burden is on the party seeking to invoke the court's jurisdiction.
93
State Legislator's Immunity
Immune from liability for actions within the sphere of legitimate legislative activity.
94
Defamation of Group
If the defamatory language applies to a group, then a member of the group can maintain a defamation action only if the group is so small that the matter can reasonably be understood to refer to that member, unless there is other evidence that the language refers to the particular member.
95
Multiparty, Multiforum Trial Jurisdiction Act of 2002
When civil action "arises from a single accident, where at least 75 natural persons have died in the accident at a discretion location," only one plaintiff need be of diverse citizenship from one defendant for a federal court to have diversity jurisdiction, provided a defendant resided in a state and a substantial part of the accident took place in another state or other location.
96
Bulge Provision
Applies to 3P Defendants
97
Relation back
Amended complaint will "relate back" to the date of the original complaint if 1) the same occurrence is at issue,
2) the new party received notice of the suit within 90 days after the original complaint was filed,
AND
3) the new party knew or should have know that it would have been named but for a mistake about its identity.
98
Standard for JMOL
Whether there is legally sufficient (substantial) evidence in the record to support a verdict for the nonmovant. The court must view the evidence and draw all reasonable inferences in the nonmovant's favor
99
Restriction on Campaign Contributions
Must survive intermediate scrutiny, so government must prove that restriction is closely drawn to see an important state interest
100
Expenditure Restrictions
Strict scrutiny standard
101
Amount in Controvrsey
Can include:
- Compensatory damages (always)
- Punitive Damages (If by law)
- Attorney's fees (If by contract or law)
- NEVER interests and costs
102
Easements Termination and Future Interests
An easement cannot be terminated by merger if there aer any future interests (or other outstanding interests) in the dominant or servant estate. Where there is a future interest, use of the easement is suspended until the future interest holder becomes entitled to possession
103
Motion to alter or amend final judgment
WIthin 28 days after judgment is entered, party can move to alter or amend when:
1. judgment is based in manifest error of law or fact,
2. it is necessary to prevent manifest injustice,
3. new evidence has been discovered,
OR
4. an intervening change in the controlling law has occurred.
104
Defamation - Proof of D's actions
Constitutionally required to prove that the defendant acted with fault if the plaintiff is a public official or figure (actual malice required) OR a matter of public concern is involved (at least negligence required).
105
Payment of Preexisting Mortgage Obligation
If a preexisting mortgage obligation rqueis the periodic payment of interest only, then the life tenant pays the interest and the future-interest holder pays the later-due principal. But if periodic payment of interest and pcrincipal is required, then both payments must be allocated between the patios based not he present value of each interest.
106
Refreshing Recollection Admissibility
A witness who once knew but cannot recall a fact or event can view any item to refresh his/her memory -- regardless of whether that item is admissible for substantive purposes.
107
2nd Amendment Right
Guarantees individuals the right to possess and use firearms for traditionally lawful purposes like self-defense in the home. But right is not absolute.
108
Final Equitable Relief Class Action Damages Calc
Valid if the suit also seeks incidental money damages (statutorily mandated damages). It is invalid if it seeks individualized monetary relief. (Where each P's damages would need to be determined)
109
Jury Instructions in Jury Trial
Court
1. may instruct the jury at any time before the jury is discharged,
2. must inform the parties of its proposed instructions before instructing the jury and closing arguments, and
3. must allow the parties to object on the record and outside the presence of the jury before the instructions and closing arguments are delivered.
110
13th Amendment
1) prohibits all government and private entities from engaging in slavery or involuntary servititued
AND
2) empowers Congress to ban any type of racial discrimination that can be reasonably viewed as a bade or incident of slavery
111
Challenging Religious Belief
The free exercise clause allows the government to question whether a religious belief is sincerely held but not whether that belief is reasonable or true
112
Mental Health Professionals Standard of Care
They have a duty to use reasonable care to identify and mitigate any foreseeable risk of physical harm that their patients pose to others.
113
Court calling Witnesses
A court may both call a witness sue spent or at the suggestion of. party and examine a witness to clarify or develop testimony. In doing so the court may not deprive a party of the opportunity to examine the witness or assume the role of an advocate.
114
Ineffective Assistance of Counsel - Conflict of Interest
To overturn conviction, D must show that the was an actual conflict of interest and that such conflict adversely affected the attorney's performance.
115
Ineffective Assistance of Counsel - General Standard
To reverse conviction, D must show that:
i. counsel's representation fell below an objective standard of reasonableness,
AND
ii. counsel's deficient performance prejudiced the defendant, resulting in the reasonable probability that the outcome would have been different.
116
"Paid Value" on Mortgages
Mortgagees are considered to have "paid value" and are protected by the recording acts, unless the mortgage is not given simultaneously with a loan.
117
Exception to Double Jeopardy in Charging
DJ Clause does not prohibit such prosecution where the defendant had been charged with the greater offense at the time that the defendant pleads guilty to the lesser included offense
118
Advertisement Becoming Offer
An advertisement is a general offer, not a mere invitation to negotiate, if it
1. specifies the subject matter, quantity, and price
AND
2. places a reasonable limit on who may accept the offer.
A revocation of a general offer is only effective if it is publicized at least as heavily as the offer.
119
Admitting Co-defendant confession
6th Amendment confrontation clause is violated in joint jury trial when a non-testifying co-D's prior statement implicating the other defendant in the crime is admitted at trial.
120
Minors Capacity to Contract
A minor lacks capacity to contract, so the minor can choose to:
1) Void the contract before or soon after turning 18
OR
2) ratify it after turning 18
If the contract is ratified by a promise to perform only part of the contract, enforcement is limited to that promise to partially perform.
121
Relation Back Application
SoLs are substantive issues governed by state law. However, whether an amended pleading relates back to avoid the expiration of a statute of limitations is a procedural issue governed by FRCP 15.
122
Battery, Bystanders, and Self-Defense
When acting in self defense, a defendant may be liable to a bystander for an intentional tort if the defendant intentionally uses force against the bystander. But otherwise, transferred intent will not apply.
123
Cotenant's rights to natural resources
Each cotenant's right to natural resources on the land is limited to the size of the cotenants ownership interest
124
Accomplices and Death Penalty for Felony Murder
Death penalty cannot be imposed on an accomplice to felony murder who did not kill or intend to kill UNLESS the accomplice:
1. significantly participated in the felony
AND
2. acted with reckless indifference to human life.
125
Depraved heart realization
In most jurisdictions, the defendant must actually realize the danger posed by his/her conduct to be convicted of common-law murder under depraved heart.
126
Negligence Per Se statute exception
A D's violation of an applicable statute or ordinance will be excused, and negligence per se will not apply, if the violation was reasonable in light of the defendant's childhood, physical disability, or physical incapacitation
127
Option contract becomes binding when
Becomes binding and irrevocable if
1. the offeror reasonably expected to induce rliance on the offer before acceptance,
2. the offer reasonably relied on the offer,
AND
3. reliance caused the offerree to suffer substantial detriment
128
Criminal Battery
The unlawful application of force to the victim's person -- including an object near, carried by, or attached to the victim -- that causes bodily harm or constitutes an offensive touching
129
Psychotherapist-patient Privilege Exceptions
Does not apply when:
1. the communication resulted from a court-ordered exam,
2. the case is a commitment proceeding against the patient,
OR
3. the patient's mental condition is at issue
130
Life tenant's duty to pay current charges
Life tenant must pay all current charges due during life tenancy (eg, property taxes, mortgage interest) up to financial benefit received from property
131
Treaty vs. State Laws
Once treaty is approved by 2/3 vote in Senate, it takes precedence over any conflicting state law pursuant to the supremacy clause
132
Consideration and Promise to Surrender Claim
A promise to surrender a claim or defense constitutes consideration for a settlement agreement so long as
1 .the claim or defense is valid or subject to a good-faith dispute
OR
2. the surrendering party believes hat the claim or defense may be valid.
133
Commercial Speech regulation
Government can only greulate protected commercial speech if the government shows that its regulation
1. directly advances a substantial government interest
AND
2. is not more extensive than necessary to serve that interest
(The second element is met if there is a reasonable first between the government interest and the means chosen to achieve it.)
134
Statements affecting an interest in property
Statements in documents that purport to affect a property interest are excepted from hearsay if
1. the matter stated was relevant to the document's purpose
AND
2. later dealings with the property do not contradict the truth of the statement or the purport of the document.
135
Providing Notice
Notice, as required by due process, means that. defendant must be reasonably apprised of the pending suit and afforded an opportunity to present objections. So if the plaintiff knows the defendant did not receive notice through service of process, then the plaintiff must take additional reasonable steps to provide notice.
136
Content Based Speech Restriction
Can exist when government singles out messages or subject matter for different treatment. These are subject to t strict scrutiny.
137
Easement termination by prescription
Requires the servant-estate owner to act in a manner inconsistent with the continued existence of the easement. The prescriptive activity must be hostile and adverse, open and notorious and continued without interruption for the statutory period.
138
Burglary of Open Business
Burglary requires that a braking and entering be unlawful--ie, without the owner's permission or legal privilege. A business gives the public permission to enter its premises during business hours, but not when it is closed.
139
Regulating private Speech by a Public Employee
When public employee is speaking as a private citizen, the government can only restrict that speech if its interest in efficient government function outweighs the employee's right to free speech. But when the employee is speaking pursuant to official duties, the government has greater latitude to regulate that speech.
140
Overbreadth Doctrine
A law is unenforceable against anyone -- including those engaged in unprotected speech -- if it restricts a substantial amount of constitutionally protected speech
141
11th Amendment
Generally grants states immunity from suits for damages. BUT Congress can abrogate this immunity when it clearly acts to enforce a Civil War Amendment BUT cannot do so through its other powers
142
5th Amendment and Documents
5th Am privilege against self-incrim protects suspects from compelled testimonial communication -- eg, the act of producing a document that would prove its existence, possession, and/or authenticity. However, self-incriminating testimony can still be compelled if the government grants use and derivative use immunity.
143
CL Burglary and Dwelling
Although the structure need not be occupied at the time of the breaking, it must not be abandoned
144
Suretyship and SOF
Unless a suretyship is made for the promisor's own economic advantage, it is subject to the SoF, (it must be in writing and signed by the party against whom enforcement is sought.)
145
Intent to Defraud
The intent to induce the owner of the property to permanently part with it. Therefore, such intent does not exist if the defendant either:
1. believes that he/she has the right to appropriate the property
OR
2. intends to and is able to return the property.
146
Public University and Right not to speak
1st Am protects the right to speak and not to speak. This means that the government cannot compel individuals to endorse, include, or finaincaily support private speech with which they disagree. However, a public univisserty can compel its students to pay an activity fee if the funds ar allocated in a veiwpoint-neutral manner.
147
Promise to Surrender Claim or Defense
Can serve as consideration so long as
1. the claim or defense is valid or subject to a good faith dispute
OR
2. the surrendering party honestly believes it may be valid.
148
State police Power
States possess the police power to enact and enforce laws that are reasonably elated to protecting public health, safety and welfare. But state cannot violate the constitutional provisions when exercising this power
149
Motion for Extraordinary Relief from. a Final Judgment
When based on mistake, inadvertence, surprise, or excusable neglect will be granted if the movant demonstrates a meritorious defense.
150
Life tenant and Waste
A life tenant has a duty to prevent waste so that the porepty can be delivered in essentially the same condition it was in when the life tenant took possession.
151
Chain conspiracy
A conspiracy can exist among individual who do not know each other when there is a community of interest in the achievement of the objective of the conspiracy. A community of interest typically exists when each alleged conspirator plasma role in reaching that objective
152
Procedure requirements for termination of public employee with property interest
Due process requires that they receive: notice their alleged misconduct, a pre-terimaint opportunity to respond, and a post-termination evidentiary hearing to determine if the termaint was warranted.
153
DJ Does not bar prosecution of greater offense when:
- The D was connected of a lesser offense at the first trial
- the cod trial involves a greater offense
AND
- the facts necessary to establish the greater offense did not exist at the time of the first trial.
154
SoL starts to run when
once all elements of the crime have occurred. (i.e., manslaughter does not start to run until the victim dies)
155
Claim Preclusion - Identical Parties
Claims are identical when they arise from the same transaction or occurrence.
Parties are identical if they (or their privies) occupy the same roles in both actions.
156
Speech and Debate Clause and Aides
Immunity extends to legislative aides who engage in conduct that would be immune if performed by a member of congress
157
Commerce Clause and Foreign Commerce
State laws that discriminate against foreign commerce are reviewed with the utmost scrutiny and are almost always invalid since it is imperative that the country speak with one voice in foreign affairs
158
Earnest Money
Typically constitutes liquidated damages, which are generally recoverable upon the buyer's breach. But if liquidated damages are deemed a penalty (when they exceed actual damages), then the seller may recover only actual damages
159
Judicial Notice Timing
Can be taken at any stage of a proceeding -- including on appeal, so long as it is not unfair to the opposing party and does not disrupt the fact finder's authority
160
Increase in Easement use
Easement holder may increase the manner, frequency, or intensity of an easements use so long as that increase does not unreasonably damage or interfere with the use or enjoyment of the servant estate.
161
Proving Typical Response to Recurring Situation
Evidence of an organization's routine practice is admissible to prove that the organization acted in accordance with that practice on a particular occasion.
162
Forgery
Occurs when a person:
- makes a false document of apparent legal significance
- with the intent to defraud
163
Application of Federal Common law to Diversity Actions
In extremely limited circumstances, substantive federal common law applies when a uniquely federal interest significantly conflicts with the operation of state law.
164
School Sponsored Prayer
Under the coercion test, school-sponsored prayer in pubic schools violates the establishment clause even when participation is voluntary.
165
Waiver and Strict Liability
An exculpatory agreement (eg. a waiver absolving a party of liability) does not bar an otherwise valid strict products liability claim for personal injury or property damage.
166
Habit Evidence and Sufficiently Specific
Habit evidence must be sufficiently regular response to a particular situation to qualify as a habit
167
UCC Buyer's Revocation of Partial Acceptance
A buyer may revoke an acceptance of goods if the nonconformity substantially impairs their value to the buyer and the buyer accepted the goods on the reasonable belief that the seller would cure the nonconformity, but the seller has failed to do so.
168
Service on U.S. in a Civil Action
Service must one made on the U.S. Attorney General as well as the U.S. attorney for the district in which the action has been filed.
169
Reliance on Evidentiary Support
Attonreys may rely on evidentiary support provided by their clients if an objectively reasonable attorney would do so
170
Cross Claim
A crossclaim is a claim for relief asserted against a cop arty that raised from the same transaction or occurrence as another claim in the lawsuit. A crossclaim that does not assert a claim for relief against a cop arty but merely asserts a defense against eh opposing party's claim is improper.
171
Void Judgment
A motion for extraordinary relief from a final judgment will be granted if that judgment is void. A judgment is void when the court that entered the judgment
1) did not have SMJ
2) lacked PJ
OR
3) violated due process
172
Final judgment to fews than all claims or parties.
When an action involves multiple claims or parite,s a district court may enter final judgment as to fewer than all claims or parties if it expressly determines that there is no just reason for delay. However, if this express determination is not made, any court order that disposes of those claims or parties is not immediately appealable.
173
Standard for JMOL
Whether there is legally sufficient evidence in the record to support a verdict for the nonmovant
174
ID of goods to a contract occurs when
1) for goods already existing and identified, when the contract is made or 2) for goods that are not already existing and identified (future goods), at the earliest of when the goods are marked, shipped, or otherwise designated by the seller
175
Probation Revocation Proceedings
FRE do not apply to probation revocation proceedings. (Except the ones about privilege.)
176
Testimonial Statements
Statements are testimonial if the declarant would reasonably expect it to be used in a prosecution
177
Economic Loss Doctrine
Strict products liability requires proof of physical harm. Claims for purely economic loss, including harm to the defective product itself and consequential damages arising therefrom, are not allowed.
178
Title Insurance
Extends to named insured and those who receive property by warranty deed or the heirs or devisees of the named insured
179
Determination of amount of Process that is Due
When an individual's protected interest is threatened by gov action, a court considers 3 factors:
i) the private interest affected by the gov action;
ii) the risk of erroneous deprivation of that interest using current procedures and the probable value of additional or substitute safeguards;
AND
iii) the burden involved in providing the addiontal process.
180
RAP and Leasees
Although RAP applies to options to purchase real property, it does not apply to an option to purchase the property that is held by a current leasehold tenant.
181
Judgment on Partial Findings
In a bench trial, a judge may enter a partial finding against the nonmoving after the nonmovinghas been fully heard on the issue. If that finding resolves a party's claim or defense, the cu0rt may then enter a judgment on partial findings.
182
Assortment of Goods
If the buyer fails to timey select the assortment of gods for deliver and the delay materials impacts the seller's performanc, then the seller can
1) proceed in any reasonable manner
OR
2) treat the failure as breach
183
To establish reckless disregard for the truthfulness of a statement
the plaintiff must prove that the defendant entertained serious doubts about the statement's truthfulness,; mere failure to check facts is not sufficient.
184
Determining AISG
SCOTUS ay constitutionally review a state court decision to determine whether such grounds exists
185
Gov Financial Assistance to Religious Instituttions
Permitted if the aid is secular in nature, used only for secular purposes, and when the aid is distributed among secular and religious institutions, the distribution criteria must be religiously neutral
186
To Legally Withdraw
an accomplice must
i) repudiate prior aid
ii) do all that is possible to countermand prior assistance, and
iii) do so before the chain of events is in motion and unstoppable.
187
