Trouble Areas Flashcards
These cards are designed to remedy errors. (123 cards)
1
Q
What is the value of whether other neighbors have complained about a nuisance in establishing a defense?
A
Whether others have complained is relevant in establishing reasonableness.
2
Q
What happens if a contract fails to specify a delivery date under the UCC?
A
Where a delivery time is not specified the contract is valid and the seller must deliver the goods within a “reasonable time.”
3
Q
When does borrowing become larceny?
A
(1) When the time is unreasonable and (2) when used in a matter creating a substantial risk of loss.
4
Q
What risk of loss is present in driving a car?
A
Driving per se is not a substantial risk unless the driving is reckless. Otherwise ordinary or reasonable.
5
Q
What is the alienability of future interest in land as part of a potentially expanding class?
A
Even if the class may expand, the interest can be voluntarily or involuntarily transferred, including by creditors.
6
Q
What is the admissibility of former testimony under oath of an unavailable witness at a criminal trial?
A
The evidence is admissible for the truth of the matter asserted as a hearsay exception.
7
Q
What rights do the heirs of joint tenants have over the proceeds of a joint sale when one of the tenants dies before conveyance?
A
None. All rights and proceeds from a sale of a joint tenancy go to the survivor of the tenancy.
8
Q
What is the priority in an explicit subordination agreement between mortgagee-debtors when there is a recording statute?
A
The agreement will prevail despite the recording statute.
9
Q
Can the government adopt a statement that originates in one religion and refuse to adopt a statement that originates in another?
A
Yes because the government is free to choose which messages it will and will not convey absent any other prescriptions so long as it displays some diversity of religious expression.
10
Q
What is required to object when evidence is obtained illegally?
A
Standing. If evidence was obtained illegally in violation of another person’s rights, a different defendant may not be able to object to their admission.
11
Q
What can a prior inconsistent statement be used to do?
A
Any prior inconsistent statement may be used to impeach at any time including as a means of impeaching a statement that is an admissible hearsay statement.
12
Q
When can police search a car?
A
(1) Threat to officer safety, (2) threat of evidence destruction, and (3) searching for evidence associated with an arrest.
13
Q
What is the best defense against nuisance?
A
The plaintiff is hyper-sensitive.
14
Q
What is a bad defense against nuisance?
A
The plaintiff moved to the area. That ONLY counts as part of the calculus and is not determinative.
15
Q
What is the one term that may not be “gap-filled” in the UCC?
A
Quantity.
Price, time, etc. can all be gap-filled.
16
Q
What type of contract does the UCC disfavor?
A
Unilateral.
17
Q
What is one of the strongest defenses to defamation?
A
Invitation to comment. Even if false.
18
Q
What is the after-acquired property doctrine?
A
An heir may sell their interest in advance of the interest passing.
19
Q
What is the effect of a guilty plea on 4th Amendment rights?
A
None. Accepting a plea does not prevent a criminal defendant from asserting a civil claim against the government for a violation of their rights.
20
Q
What is an accord?
A
A new agreement to change how to fulfill a prior agreement.
21
Q
What is satisfaction?
A
The fulfillment of an accord.
22
Q
What is always relevant to breach for a negligence action?
A
The reasonableness of an action or response.
23
Q
What does co-tenancy give?
A
The ability to hold and possess the entire land regardless of the portion of interest.
24
Q
Under common law tort, who may sue for trespass?
A
Only the tenant or person in possession. In modern law, it can be the landlord.
25
What is the name of a sub-lease or non-assignment clause?
A lesser restraint on alienation. They are valid.
26
What is the order of priority in a foreclosure?
(1) Sale & legal expenses, (2) foreclosing party principal & accrued interest; (3) junior lienors in the order of priority; (4) mortgagor-debtor.
27
What happens when a foreclosure does not cover the loan amounts when there is an anti-deficiency statute?
(1) Senior mortgages attach to the land, (2) junior mortgages are wiped out, and (3) senior lenders can go after original lenders on a contractual basis.
28
To recover a deficiency after foreclosure, who can a senior lender sue?
(1) Debtor or assigns, and (2) current landholder as a surety. Recovery can only happen once.
29
What happens when a foreclosure does not cover the loan amounts in common law?
(1) Senior mortgages attach to the land, (2) junior mortgages can sue, but do not attach.
30
What happens to a mortgage priority if there is a modification?
Where there are multiple mortgages and a senior modifies the mortgage arrangement their debt is subordinated.
31
What happens to a real covenant when an adverse possessor takes title to the land?
Notice is irrelevant thus covenants only pass if adhered to by the adverse possessor prior to taking title.
32
What is required for an adverse possessor to take the title of an entire tract when they only possess part of the tract?
(1) Color of title, and (2) reasonable proportion between actually possessed part and the whole.
33
What is the default majority rule for property taxes in adverse possession?
An adverse possessor may successfully bring an action to quiet title even if they have not paid the property taxes.
34
What happens to a reverter if the holder takes no action despite knowing of the violation?
The person in violation of the fee simple determinable becomes an adverse possessor.
35
What is necessary for stand-your-ground defense?
The defendant must be in an area they are lawfully allowed to be and have special dominion such as home or work.
36
What are attributes of the parties contributing to the element of "extreme and outrageous" conduct?
If (1) tortfeasor is an authority, common carrier, or innkeeper or (2) victim is very young, old, or vulnerable.
37
What form of intent in torts is a court more likely to consider?
A lesser, but sufficient form of intent than pure malice.
38
What conditions are necessary for bystander IIED?
(1) The victim is a close family member of the plaintiff OR (2) the plaintiff suffered PHYSICAL symptoms.
39
What are the forms of interference that give rise to liability for conversion?
(1) Intentional interference through (a) preventing possession or control, (b) refusing to return, (c) exceeding scope of consent.
(2) Criminal interference through (a) accepting stolen goods, (b) fraud or duress, (c) destruction or arson.
(3) Unwittingly through (a) wrong return, (b) fundamentally altering the character, (c) exposing to unreasonable risk.
40
What is the rule for "consent implied by law" in an emergency?
(1) Apparently necessary contact in an emergency to prevent harm, and (2) no reason to believe consent would be declined.
41
What is the scope of private necessity defense?
A trespasser may intrude only for as long as the emergency exists. A failure to vacate after may create liability.
42
What damages are recoverable from a person involuntarily trespassing.
None. Trespass requires intent.
43
When does the law assume implied consent?
(1) If a reasonable person, (2) under the circumstances, (3) would assume consent.
44
What is not necessary to consider in determining consent in a non-emergency situation?
Alternatives to touch are irrelevant if within the expectations of a reasonable person in the circumstances.
(e.g. on a subway)
45
What language means an assault probably has not occurred?
Any past-tense description of becoming aware of an attempt. The assault perception must be immediate and concurrent.
46
Does a trespasser to chattles have to subjectively know their use violates anther's possessor rights?
No, so long as they intended the conduct that interfered with the owners rights.
47
What is the effect of a claim for trespass to chattles and conversion for the same property?
If the plaintiff prevails, only one may be awarded.
48
What is necessary for a consent to battery?
(1) Informed, (2) voluntary, and (3) of legal capacity [over 18].
49
Can a lawful borrower be held liable for conversion of chattles?
No, not unless they intentionally exceed the scope of consent.
If the person exercising dominion had lawful possession, that is per se not conversion because conversion requires unlawful possession.
50
In conversion, how does requisite intent attach?
Intent is attached only to the act depriving possession even if done on a mistake of fact about ownership.
51
Is it reasonable to leave a hospital in a hospital gown?
No, the ordinary person would not find that reasonable.
52
Can threats give rise to IIED?
Generally, no. Only vulnerable populations or under authority may make a claim for threats or insults.
53
What is necessary for a person to exploit hypersensitivities in IIED?
The person must intentionally, knowingly, or deliberately exploit that sensitivity.
54
What kind of intent is necessary for false imprisonment?
(1) The intent to confine, (2) the intent to commit a different tort resulting in confinement, or (3) failure to act where there is a duty.
55
Can a person assume the risk to intentional torts?
No there is only consent for intentional torts.
56
If an IIED claim is made in a workplace for offensive speech, what is dispositive?
Whether it was by a superior and subordinate. All other instances are given heightened scrutiny and unlikely to prevail without other factors.
57
What is the mailbox rule for options contracts?
Acceptance only happens upon receipt, not dispatch.
58
What is the forum-defendant rule?
Removal to federal court under diversity, fails if any defendant is a citizen of the state where it was filed. 28 U.S.C. § 1441(b)(2)
59
What foundation is required for a lay witness?
Facts to show the witness has personal knowledge through (1) direct perception of (2) opinions rationally based on observations or (3) opinions from experience.
60
What evidence requires a foundation?
All evidence.
61
Can a state court regulate and impose civil penalties on a federal agency?
Generally, no unless Congress waives federal immunity.
62
What is a show-up?
(1) Presentation of a suspect, (2) to a witness, (3) immediately or shortly after a crime has occurred, (4) for the purpose of identification.
63
Where can show-ups occur?
(1) Scene of the crime or (2) police station.
64
What are the federal limits on discovery without special leave?
(A) Unlimited RFAs, (B) 10 Depositions, (C) 25 Interrogatories including sub-parts. Anything more requires permission from the court.
65
When can the government appeal in a criminal case?
Only charges that have been dismissed without trial may be appealed.
66
What scrutiny is applied when a law incidentally burdens a religion?
Rational basis review.
67
What types of review are applied for free-exercise cases?
(1) Strict for any discrimination, (2) rational basis for incidental burdens.
68
When can a seller disclaim the implied warranty of merchantability under the UCC?
If (1) express, (2) conspicuous, and (3) between merchants.
69
What is the "alternative cause" doctrine?
Plaintiff must prove only one of the multiple defendants must have caused the injury shifting the burden to the individual defendants to prove they are not.
70
What is contribution?
Contribution only exists between jointly and severally liable defendants when one pays more than their share. Does not apply in vicarious liability.
71
What is a necessary prerequisite damage for economic harm in a negligence claim?
The plaintiff must have suffered physical injury (property or health) unless dealing with a professional.
72
What is the effect of adding an express disclaimer of the warranty of merchantability to a contract?
An express disclaimer of warranties materially alters the original terms.
73
What is the effect of changing delivery terms on the substance of a contract under the UCC?
Changing terms of delivery does not necessarily alter the material terms.
74
What is the mailbox rule for revocation?
An offer is revoked once it is in the possession of the offeree.
75
What is the mailbox rule for option contracts?
An offer is accepted only upon actual receipt and terminates after the specified date. Options are irrevocable during the period even if a prior rejection has occurred.
76
What is the distinction between an option contract and a merchant's firm offer?
An option contract requires both (1) a specific time period and (2) consideration. A merchants firm offer requires a writing, but no consideration, and will remain open for a reasonable period (3 Months.).
77
What is the subject matter of a merchants firm offer?
Only goods.
78
What is the effect of an act of nature destroying the work of a contractor?
Unless the contractor is renovating a preexisting structure the obligation to perform remains, but the date will be extended.
79
What is the best way to circumvent the preexisting duty rule?
By modifying the original consideration slightly.
80
What is sufficient consideration to discharge a debt?
An alternative payment method.
81
What is not sufficient consideration for an undisputed debt for a creditor to discharge the debt?
An agreement to pay a lesser amount. There must be additional consideration even if just how or when it is paid.
82
What is the modern rule for preexisting duties and third-persons?
Persons under a preexisting contract can contract with third-parties for consideration to fulfill that preexisting duty. Traditional rules do not allow this.
83
What is essential for SOF?
(1) A writing (2) reflecting material terms (3) signed by parties to be bound.
84
What is necessary to satisfy the SOF for a sale of land?
(1) Specificity of land, (2) price, (3) signatures.
85
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86
In an oral contract for special goods where there is part performance to produce to what degree is the breaching person liable?
They are liable to the degree that performance has been completed and accepted, not the entire oral contract.
87
What are exceptions to the UCC perfect tender rule permitting extensions of deadlines?
(1) Seller had reason to believe defective goods to be accepted, (2) buyer & seller had prior dealings, (3) ability to cure.
88
If a party submits a discovery plan does that preclude objections to deposition questions?
No, a party to litigation agreeing to a plan may still object.
89
In a sale for land contract where there is no "time is of the essence" clause what effect does missing the date of delivery?
The contract is breached, however the seller may have a "reasonable" amount of time to cure if the title is not marketable.
90
What is the scope of presidential pardons?
Can be a blanket pardon for even unnamed past federal crimes. Cannot be limited by Congress, and only limited from impeachment and constitutional issues.
91
What is the modern distinction between an accomplice and an accessory after the fact?
An accomplice intends the crime, an accessory after the fact only helps escape and is not guilty as an accomplice.
92
In a breach of warranty claim, what is covered?
Any "loss resulting in the normal course of events from the breach," this includes injuries to person & property without requiring a separate tort.
93
What duty is owed to a potential victim exposed to danger from a non-negligent action?
A duty to exercise reasonable care to prevent further harm.
94
Is a state's interest in fiscal integrity sufficient to justify a one-year waiting period for welfare or health benefits?
No, SCOTUS has a explicitly ruled it violates the Equal Protection Clause for interstate travel.
95
What kind of class is gender?
A quasi-suspect class.
96
What is the constitutionality of placing students in different high schools to promote diversity?
Unconstitutional. Diversity by itself is not sufficient, but at a college it may be taken into account so long as it is not predominant.
97
What is required for a state law to deny benefits based on alienage?
Strict scrutiny.
98
What types of government jobs may discriminate based on alienage?
Only jobs that involve "self-government, policymaking, or exercise of discretion important government function" other technical state jobs may not.
99
Are public school jobs allowed to discriminate based on alienage?
Yes.
100
What is the appellate review standard for a denied JMOL?
De Novo
101
What is the appellate review standard for a denied motion for new trial?
Abuse of discretion.
102
How many days from a judgement must a notice of appeal be filed?
Thirty (30) days.
103
If an attorney fails to object to jury instructions can the case be appealed on the basis of improper jury instructions?
Yes, but the standard is "plain error" affecting a substantial right rather than an "abuse of discretion."
104
When are vested remainders subject to total divestment?
If (1) there is a condition precedent, (2) capable of being fulfilled, and (3) the automatic reverted terminates the right to possess.
105
Are donees and heirs subject to real covenants?
Yes, even if the covenant is not recorded by deed.
106
What is Rule 26(f)?
In a federal suit parties must meet to discuss claims, defenses, possible settlements, initial disclosures, and a discovery plan.
107
When is testimony under oath admissible in a criminal trial?
When the person under oath has been cross examined in a meaningful manner to the defendant.
108
Can testimony of a witness at a grand jury be admitted to a criminal trial where they do not take the stand?
No. The 5th amendment requires the right to face accusers.
109
What is required to sell a fee simple determinable?
The signature of the grantor in whom the future interest of reverter lies.
110
When must a party make a JNOV?
At trial.
111
When is net worth of a defendant relevant for discovery?
When a plaintiff is seeking punitive damages, otherwise net worth may be protected
112
What is an assault for the purposes of the MBE?
(1) Even just the ATTEMPT to commit battery or (2) intentional creation of imminent reasonable apprehension of bodily harm or offensive contact beyond mere words.
113
What do remainders follow?
Generally, life estates.
114
In an MBE question involving evidentiary claims, what must you be on the lookout for?
Whether evidence introduced is inadmissible hearsay.
115
What is considered for procedural due process?
(1) The importance of the individual's interest
(ii) The value of specific procedural safeguards
(iii) The government's interest in fiscal and administrative efficiency.
116
Does the constitution grant a universal right to counsel in all deprivation hearings?
No.
117
What is more important to consider in determining if there was procedural due process, opportunity hearing or ambiguity in regulations?
Opportunity for hearing because an agency has some latitude and discretion.
118
Do states have a right to regulate state commerce?
States may regulate interstate commerce on a strict reading of the constitution, but the dormant commerce clause implies a general prohibition on discriminating against outside state businesses or unduly burdening interstate commerce.
119
What standard is applied in evaluating state regulations that affect interstate commerce?
(1) If congress has not acted, (2) is not discriminatory to out-of-state business, and (3) does not unduly burden interstate commerce.
120
Do states have a right to limit access to private in-state products?
No, that is a violation of the commerce clause.
121
What is a major municipal exception to the negative implications of the commerce clause?
A regulation favoring local governments when performing government functions, such as exempting local bonds from state tax while subjecting bonds of other states to a tax, is excepted from the negative implications of the Commerce Clause.
122
What level of variance is permissible for congressional districts according to the constitution?
Almost exact mathematical equality is required within a sate.
123
What is the exception to the strict scrutiny standard for voting rights?
Restrictions based on domicile are subject to rational review.
