Notes 4

Question 1

Legislative powers

4

Answer 1

1. tax/spend
2. commerce
3. declare war
4. fed property

Question 2

When is a 2/3 majority of congress needed?

2

Answer 2

1. overrule a presidential veto

2. impeach

Question 3

When can a forced sale be imposed on tenants in common?

Answer 3

When a fair and equitable division of the property is not possible

Question 4

Rule of Perpetuities only applies to

5

Answer 4

1. Contingent remainders/ Class gifts
2. Option to purchase connected with a fee
3. Powers of appointment
4. Executory interests
5. Rights of first refusal

≠possibility of reverter (fee simple determinable)
≠rights of re-entry

Question 5

What does a jury need to find a breach of professional duty?

Exception?

Answer 5

Need expert testimony

≠ when negligence is so grossly apparent that the layman would have no difficulty in recognizing it

Question 6

Are purely economic losses recoverable in negligence actions?

Answer 6

No, purely economic losses are not recoverable

Question 7

When is a judgment creditor a BFP?

2

Answer 7

1. get an execution on the judgement (lien on prop)
   +
2. purchases the property at the foreclosure sale

Question 8

What is a novation?

What is the effect?
Valid if?

Answer 8

1. replaces an obligation to perform with a new obligation
   or
2. replacing a party to an agreement with a new party

Effect = discharges duties under the original agreement

Does not have to be in writing

Question 9

Merger of crimes only applies when?

Answer 9

At sentencing (conviction)
≠ at charge

Question 10

Solicitation requires what from the person being solicited

Answer 10

That the person who is being solicited knows what they are doing is a crime (or should know is a crime)

Question 11

Conspiracy mens rea?

Answer 11

Have to both want to bring about the specific result

Question 12

Blackening v. charred for an arson claim?

Answer 12

Blackening ≠ arson

Charred = arson

Question 13

Express Assumption of Risk v. Implied Assumption of risk

-effect on recovery?

Answer 13

1. Express = complete bar to recovery

2. Implied = not a complete bar (joint and several liability with pure comparative fault)

Question 14

Express Assumption of Risk occurs when?

Answer 14

Plaintiff relieves Defendant of any legal duty either

1. by contract, or
2. by some overt language agreeing to waive liability and not sue

Question 15

Implied Assumption of the Risk occurs when?

Answer 15

π voluntarily agrees to encounter a known risk

Question 16

Scienter means?

Answer 16

guilty knowledge

Question 17

Elements of misrepresentation

4

Answer 17

1. false representation of a past or present material fact
2. scienter
3. actual + justifiable reliance by π
   4 damages

Question 18

When can a misrepresentation claim be brought due to non-disclosure

Answer 18

When a fiduciary duty exists between the parties

Question 19

Res Ipsa Loquitur provides?
Establishes?
Procedural effect?

Answer 19

an inference of negligence
≠ presumption

Establishes duty + breach

Enough to avoid a directed verdict

Question 20

What must ∆ have for res ipsa loquitur to apply?

Answer 20

control over the instrumentality

• right to control
• actual control

Question 21

Will establishing res ipsa loquitur support a judgment for damages?

Answer 21

No, the jury must still determine that the ∆was negligent

Question 22

When computing the amount of goods for SOF? Per unit or total contract price?

Answer 22

Total contract price

Question 23

Prior consistent statements are admissible for

Answer 23

rehabilitation and substantive evidence (if made under of oath)

Question 24

When can prior consistent statements be used

Answer 24

If offered to rebut an express or implied charge against him or her of recent fabrication or improper influence or motive

Question 25

What crimes can be used to impeach a witness?

Answer 25

Felony or misdemeanors that involve dishonesty (last 10 years) Felony that does involve dishonesty (last 10 years + 403 balancing test) ≠misdemeanors that do not involve dishonesty

Question 26

Crimen Falsi means?

Answer 26

Crimes that involve dishonesty

Question 27

What are the rights of opposing counsel for 1. refreshing recollection? 2. past recollection recorded

Answer 27

Refreshing - Inspect the document - cross-examine with it - introduce relevant portions ONLY to impeach Past Recollection Recorded - Inspect the document - Cross-examine with it - introduce relevant portions as substantive evidence

Question 28

When a party request information by interrogatories that requires analyzing information, what can opposing party do?

Answer 28

The party receiving the request can specify which of its records contain the information and grant the requesting party access to the records for examination, copying, and analysis.

Question 29

How many interrogatories does each side have in Fed. Court?

Answer 29

25

Question 30

When does a person have the duty to control a third party? | 7

Answer 30

1. Jailer-prisoners 2. Common carrier-passengers 3. Innkeeper-guests 4. employer-employees 5. school-pupils 6. Landlord-tenant 7. Doctor-patient

Question 31

For a Non Public Forum: Content neutral regulation of time, place, manner of speech must be (2)

Answer 31

1. viewpoint neutral | 2. reasonably related to a legitimate government purpose

Question 32

What are public forums? Limited public forum? Non Public forum?

Answer 32

1. Public Forum = Streets, sidewalks, public parks 2. Limited Public Forum = schools courthouse, fairgrounds - opened by state on permanent/limited basis 3. Non Public Forum = military bases, city bus, airport terminals, government workplaces - most other public places

Question 33

Standard for evaluating a generally applicable law with incidental burden on religion?

Answer 33

Rational basis

Question 34

When can a Purchase Money Mortgage take priority?

Answer 34

if **recorded** Takes priority over earlier recorded mortgages and recording statutes

Question 35

When a senior mortgage is modified, what happens to junior interest?

Answer 35

If it does materially prejudice junior, senior stays in position If modification is prejudicial, remedy is that junior mortgage takes priority over the increase in debt

Question 36

Doctrine of continuing trespass says

Answer 36

one who takes another's property intending only to use it temporarily before restoring it unconditionally to its owner (i.e., one who normally is found not to have an intent to steal) may nevertheless be guilty of larceny if he later changes his mind and decides not to return the property after all.

Question 37

How can a party prevail by showing absence of evidence?

Answer 37

A party can prevail at summary judgment by showing the absence of admissible evidence in the discovery record to support a claim upon which the opposing party would have the burden of proof at trial.

Question 38

Sixth Amendment grants

Answer 38

Right to jury trial for "serious offenses" where imprisonment for more than six months is possible

Question 39

A guilty plea is only valid if | 2

Answer 39

1. voluntary | 2. defendant must understand the constitutional rights waived by the guilty plea (i.e. right to a jury trial)

Question 40

Only what is appealable?

Answer 40

Final judgments

Question 41

Is an order that disposes of fewer than all claims against all parties a final judgment

Answer 41

no

Question 42

Who is not protected by Fourteenth Amendment Privileges and Immunities Clause

Answer 42

Corporations nor aliens

Question 43

Bill of rights applies to who?

Answer 43

Aliens + citizens

Question 44

If there is a shared residence and one occupant gives consent to search and another physically present occupant says refuses consent, what is the result?

Answer 44

The police cannot search Objection beats consent

Question 45

When must adequate assurances pursuant to the UCC be provided?

Answer 45

Within 30 days