Themis Multiple Choice

Question 1

To recover under a theory of the public disclosure of private facts about someone, the plaintiff must show that

Answer 1

i) the defendant gave publicity to a matter concerning the private life of another,

AND

(ii) the matter publicized is of a kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public.

Question 2

Declarant must be unavailable for hearsay in which of the following circumstances

Answer 2

Statement against interest

former testimony

dying declaration

pedigree/family

forfeiture by wrongdoing

Past physical or mental condition - CA only

Threat of physical harm -CA only

Question 3

Younger abstention doctrine,

Answer 3

a court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute. Usually applies when the defendant

Question 4

Pullman abstention doctrine

Answer 4

federal court may refrain from ruling on a federal constitutional claim that depends on resolving an unsettled issue of state law best left to the state courts

Question 5

Younger abstention doctrine usually applies when the D

Answer 5

has been convicted of the crime for which he has been charged in state court

Question 6

A statement made by a party to the current litigation and its being offered by an opposing party is

Answer 6

not hearsay

Question 7

Compelled removal of the billboards’ message constitutes a content-based regulation of speech. The state may only regulate the content of speech if the regulation is

Answer 7

ecessary to achieve a compelling government interest and is narrowly tailored to meet that interest.

Question 8

Content-based regulation is generally only found constitutional when the speech to be regulated falls into one of the following categories:

Answer 8

obscenity, subversive speech, fighting words, defamation, or commercial speech

Question 9

General rule as it relates to a fixture

Answer 9

ownership of a fixture attached to real property passes to the buyer of the related real property

Question 10

Claim Preclusion : “VSS”

Question 11

Issue Preclusion : “SAFE”

Answer 11

Same issue

Actually Litigated

Final Judgement on the Merits

Essential to the Judgement (The Issue was essential)

Question 12

Private nussiance

Answer 12

substantial, unreasonable interference with another individual’s use or enjoyment of his property.

Question 13

what must the interference be with a private nussiance

Answer 13

The interference may be intentional, negligent, reckless, or the result of abnormally dangerous conduct.

Question 14

when does the waste doctine apply

Answer 14

is available only to individuals who both hold interests in the same property, such as a life tenant and a remainderman, or joint tenants.

Question 15

Constructive eviction is based upon the

Answer 15

landlord’s substantial interference with the tenant’s use and enjoyment of the leasehold premises by breaching a duty owed by the landlord to the tenant.

Question 16

Public nussiance requires that the D to

Answer 16

unreasonably interfere with the health, safety, or property rights of the community.

Question 17

When a statute on its face or in practice is discrimatory then the statute may be upheld if the state can establish:

Answer 17

(i) an important local interest is being served, and
(ii) no other nondiscriminatory means are available to achieve that purpose.

Question 18

Solicitation is the

Answer 18

enticing, encouraging, requesting, or commanding of another person to commit a crime with the intent that the other person commits the crime.

Question 19

How can you encourage someone for solicitation

Answer 19

The encouragement may take the form of enticement, incitement, request, or command. The crime is completed upon the encouragement.

Question 20

when is the crime completed under a solicitation

Answer 20

The crime is completed upon the encouragement.

Question 21

Does the person need to agree to the crime if there is a solicitation

Answer 21

no

Question 22

Firefighter rule

Answer 22

an emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the injury if the injury results from a risk inherent in the job.

Question 23

Contracts clause of Article 1 Section 10 prohibits

Answer 23

state legislation from retroactively impairing the obligation of contracts.

Question 24

Contracts clause does not apply to

Answer 24

federal action or court decision

Question 25

Can you use claim of right for Robbery

Answer 25

no

Question 26

Right to lateral support

Answer 26

A landowner has a right to lateral support from adjoining land. If the adjoining land has been improved (i.e., is not in its natural state), the excavating landowner is strictly liable for any damage caused by the excavation only if the land would have collapsed in its natural state (regardless of the improvement)

Question 27

Under Rule 23(b)(3), a class can be certified only if

Answer 27

questions of law or fact that are common to the class members predominate over any questions affecting only individual members.

Question 28

When does the 6A right to counsel attach

Answer 28

formal judicial proceedings have begun, whether that be at a post-arrest initial appearance before a judicial officer, or by way of formal charge, preliminary hearing, indictment, information, or arraignment.

Question 29

Generally, a contract for the commission of a tort is unenforceable as against public policy. However, if a party to the contract is unaware of the facts that make performance of the contract tortious, that party may recover under the contract if the

Answer 29

ther party to the contract had knowledge of such facts.

Question 30

Equitable servitudes are covenants about land use that are enforced in equity by

Answer 30

Injunction

Question 31

Consequential damages are recoverable if they were

Answer 31

the natural and probable consequences of breach, or if they were in the contemplation of the parties at the time the contract was made, or if they were otherwise foreseeable.

Question 32

Generally, religious activities conducted in public schools violate

Answer 32

Establishment clause because it promotes religion

Question 33

n a pure comparative negligence jurisdiction, a plaintiff’s contributory negligence is

Answer 33

not a bar to recovery

Question 34

How do you calculate damages in a pure comparative negligence JDX

Answer 34

calculated by the tier of fact & refuced by the amt. can recover

Question 35

Statement made by a declarant who is unavailable to testify at trial is not excluded as hearsay if

Answer 35

statement was against the declarant’s interest at the time it was made and would not have been made by a reasonable person unless he believed it to be true

Question 36

Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on

Answer 36

neutral, articulable standards, and its purpose is closely related to an issue affecting automobiles.

Question 37

In order to join defendants in a single action, the plaintiff’s right to relief must be asserted against

Answer 37

joint,severally or alternative with respect to or arising out of the same transaction or occurrence.

Question 38

when there is a forum selection clause and there is a motion to transfer the venue, what should the court do?

Answer 38

Consider the motion, because the court should weigh all factors including the presence of a forum clause to decide whether to grant the transfer

Question 39

when determining whether to do an erie analysis, the threshold question is whether there is a

Answer 39

controlling federal rule or federal statute

Question 40

what happens during erie if there is a controlling federal rule or statute

Answer 40

you apply it

Question 41

In the abscence of a controling federal rule or statue, the question then becomes in a erie analysis whether if it is

Answer 41

substantive or procedural

Question 42

if the court is sitting in diversity it must apply in erie problem

Answer 42

state substantive law of the state in which it sits on all substantive issue in a case, including conflict of law rules

Question 43

for all procedural issues, a federal court sitting in diversity must apply

Answer 43

federal procedural law

Question 44

When a potential erie analysis arises on the MBE what is determinative if a Erie analysis is needed

Answer 44

if fed question or diversity jdx

Question 45

when is additur allowed

Answer 45

only in state court

Question 46

Additur violates which amendement in federal court

Answer 46

7A

Question 47

For the purposes for Erie, is a judical standard a rule that affects federal procedure

Answer 47

No

Question 48

Contract formation is when there is a

Answer 48

offer, acceptance, consideration,

Question 49

What is an offer

Answer 49

an outward manifestation of our intent to enter into a contract.

Question 50

WHat can the outward manifestation be

Answer 50

action or word

Question 51

what do we need in addition to the manifestation of our intent

Answer 51

speific terms

Question 52

what are example of terms to show our manifestation of our intent

Answer 52

the price, the quantity, the description

Question 53

Are advertisment are considered an offe? If not, what r they considered

Answer 53

an invitation to offer; not an offer

Question 54

When does an advertisment graduate to an offer

Answer 54

very speific terms

Question 55

Once I make a valid offer to you, you have the

Answer 55

power of acceptance

Question 56

How can you terminate the offer

Answer 56

death lapse of reasonable time Rejection Counteroffeor Revocation (before the oferree accepts)

Question 57

Two types of revocation and explain

Answer 57

direct - where I tell you indirect - you learn that I made a deal with someone else

Question 58

where are 3 instances were the offer is not revocable

Answer 58

option contract Firm offer unilateral K

Question 59

option contract

Answer 59

option contract is where I promise you I'm gonna keep the offer open for a period of time and additional consideration

Question 60

For 50 bucks, I'll keep this offer open to you for 2 weeks," now is it valid?

Answer 60

yes because there is consideration and there is a promise

Question 61

Firm offer

Answer 61

a promise to keep it open + a writting signed by the merchant

Question 62

Firm offer applies to what type of contracts

Answer 62

Goods / UCC

Question 63

If there is a firm offer but no time i stated what time is it irrevocable for

Answer 63

3 months

Question 64

what if you pass the time for the irrevocabilit for the firm offer

Answer 64

it goes back to being revocable and you need to revoke it if you are not going to do it

Question 65

Unilateral K

Answer 65

promise for the act for preformace

Question 66

Bilater K

Answer 66

promise for a promise

Question 67

For a unilateral K, when does the contract become revocable

Answer 67

moment you begin preformance

Question 68

when is preformance due due from the offeror in a unilateral K

Answer 68

when the preformance has begun

Question 69

Mirror image rule

Answer 69

applies in CL acceptance has to mirror the offer

Question 70

WHat are the usual ways you can accept a K

Answer 70

silence - if the offeor knows its okay with it Preformance Mail

Question 71

Mailbox rule

Answer 71

acceptance is effective when sent

Question 72

Exception to Mailbox rule

Answer 72

when you send the rejection first and then an acceptance, whatever letter gets to the offer first is effective

Question 73

What does the UCC not have when there is a difference betwen overal contract information

Answer 73

Mirror image rule

Question 74

What does the UCC not have when there is a difference betwen overal contract information

Answer 74

Mirror image ruleU

Question 75

Under the UCC, do differnet terms and differnt methods of acceptance invalidate the K

Answer 75

No

Question 76

At the UCC, which terms changed affect if you have a K

Answer 76

Terms that materially affect the contract Objecting in a reasonable amt of time where the offer limits the acceptance (rare)

Question 77

Consideration is when there is

Answer 77

bargain for exchange between the parties

Question 78

Will the court invalidate the consideration based on the amt

Answer 78

yes

Question 79

Hypos that are consideration title

Answer 79

- Illusory promise - Gift - past or moral consideration - promise to pay a debt that was barred by the SOL - Promise to pay a debt that has been discharged by bankruptcy - forbearance to sue

Question 80

Illusory promise

Answer 80

is not valid consideration because the party retains control

Question 81

Modern term for illusory promise

Answer 81

as long as there is some interpretation that the promise can be interpreted to be valid

Question 82

The promise to give a gift is

Answer 82

invalid consideration

Question 83

If I have given you the gift it is

Answer 83

valid consideration

Question 84

past or moral consideration is

Answer 84

not consideration

Question 85

If I promise you something and you do it

Answer 85

valid consideration

Question 86

promise to pay a debt that was barred by the SOL or that has been discharged by bankruptcy is or is not valid consideration

Answer 86

is

Question 87

forbearance to sue even though you have the right to sue is or is not valid consideraiton

Answer 87

it is valid considertion

Question 88

Promissory estoppel

Answer 88

promise to you that induce you to rely to detriment

Question 89

promissory estoppel is NOT

Answer 89

consideration

Question 90

Accord and Satisfaction only applies to

Answer 90

Debt

Question 91

If the debt is not disputed, are you still required to pay the remaining under accord and satisification

Answer 91

yes

Question 92

If there's some sort of a settlement, compromise, negotiation, or dispute, some sort of back and forth between offer and oferee and there is a compromise then can you get the remain debt under accord and satisfication

Answer 92

no

Question 93

If the offeree believes that there is no debt, are you still required to pay the remaining for which you didnt give under accord and satisification

Answer 93

No

Question 94

Under the UCC a K for a sale of goods of 500 dollars or more must be evidence by a writting signed by the person against whom enforcement is sought. AN exception occurs if

Answer 94

it is between merchants and there is a writting and the recipient fails to object to the notice of confirmation within 10 days

Question 95

When can Insurance be admitted as evidence

Answer 95

when the D had motive

Question 96

the general rule is that when a person hires an independent contractor ordinarily is not liable for injury to a 3rd party caused by the contractors negligence unless

Answer 96

when the person directly influences the manner in which the contractor preforms the work so as to contribute to the creation of the danger that causes the third party injury

Question 97

when a claimant prevails (ie plaintiff) all related claims are

Answer 97

merged into the final judgement

Question 98

when the defendant previals all related claims are

Answer 98

barred by the final judgement

Question 99

If it is a defense under Rule 12 then the proper motion is an

Answer 99

answer

Question 100

If it is a defense under Rule 12 and relies on materials outside of the pleadings the proper motion is

Answer 100

m2dismiss and answer

Question 101

m2dismiss timing

Answer 101

30 days after the close of all discovery