Week 7

Question 1

Defense of Duress, Criminal Law

Answer 1

1. Crime (other than murder) committed under imminent threat of serious bodily harm from human force.
2. Reasonable belief crime was ness. to prevent harm to self or others.
3. No reasonable opportunity to escape.

Question 2

Defense of Necessity, Criminal Law

Answer 2

1. Crime (other than murder) committed to prevent imminent & substantial harm from natural or human force.
2. No reasonable legal alternative available.
3. The harm caused is less than the harm avoided.

Question 3

Is duress or necessity ever a valid defense to murder?

Answer 3

No.

Question 4

What does the Art. 3 exceptions clause give congress the power to do for SCTOUS?

Answer 4

Art. 3 exceptions clause gives congress the power to regulate and make exceptions to the SCTOUS appellate jurisdiction.

Usually, the SCOTUS has appellate jurisdiction of final judgments of lower fed. cts. and the highest state courts when judgement turns on fed. law.

Question 5

What is the home court-advantage rules? Civ Pro.

Answer 5

Prohibits removal from state to fed. court when:
1. the fed court’s SMJ arises from diversity jdx.
AND
2. a D is a citizen of the state where the case was filed.

Ex.
- P and D diverse from each other.
- Case filed in state court in D’s home state.
- Even though fed diversity jdx exists, the case can’t be removed to fed court, because of home-court advantage rule.

Question 6

The taxing and spending clause gives congress broad power to spend fed. revenue, as long as the spending:

Answer 6

1. Is for the General Welfare
   AND
2. Does not violate any prohibitory language in the Constitution.

Question 7

An answer in Fed. Civ Pro must include what (4) ?; and may include what (2)?

Answer 7

Required:
1. Admissions and denials,
2. motions that have not been waived,
3. affirmative defenses,
AND
4. compulsory counterclaims.

Permitted:
1. Permissive counterclaims
2. Crossclaims

Question 8

10th amendment effect on federalism:

Answer 8

1. Reserves all powers not assigned to Fed. gov. by the US Const to states/people
2. Prohibits fed. gov from requiring states to enact laws or enforce fed. laws.
3. Immunizes states from fed. taxes that discriminate states or unduly interferes with essential state functions.

Question 9

For what purposes may a party pose a hypothetical questions to an expert?

Answer 9

1. To allow an expert to give an opinion on facts not known to the expert
2. To challenge bases for the expert’s opinion
3. To test the expert’s credibility or skill
   OR
4. Illustrate a party’s theory of the case.

A party may ask a hypo Q, so long as it includes any undisputed material fact.

IE: Omitting any reference to a childhood horse riding accident, when posing a hypo on the cause of a disability.

Question 10

In the absence of any contractual relationship between parties,

Courts have the power to construct an implied-in-fact (“quasi”) contract to prevent unjust enrichment when:

Answer 10

1. The P has conferred a measurable benefit (eg. medical services) on the D.
2. the P acted without gratuitous intent

AND

3. It would be unfair to let the D retain the benefit without compensating the Plaintiff.

Question 11

True or false? Strict products liability claims can only be brought against commercial suppliers or sellers?

Answer 11

True. Service providers are not subject to strict products liability.

Example: Manufacturer/supplier/seller of scissors can liable for strict products liability.

A barber who uses the scissors to provide a service cant be liable for strict products liability.

Question 12

At what time does a D waive a personal-jdx objection?

Answer 12

By failing to assert the objection to PJ in a pre-answer motion or answer, whichever occurs first.

Question 13

A party should move for a more definite statement when a pleading is what?

Answer 13

So vague or ambiguous that the party cannot reasonably draft a responsive pleading.

Question 14

Is it generally implied that a seller will convey marketable title to a buyer?

Answer 14

Yes, this is defined as title that is reasonably free from doubt and under no threat of litigation, such that a reasonable person would accept and pay for it.

Question 15

Is title obtained through adverse possession marketable?

Answer 15

No, unless it has been quieted (ie supported by judicial decree.)

Question 16

A person can expressly waive the right to sue over another person’s tortious conduct.

Such waivers are gen. valid unless what?

Answer 16

They violate public policy. - IE when the D:
1. is the P’s employer,
2. is a hotel or common carrier,
3. is a public servant or service,
OR
4. has substantially more bargaining power.

Question 17

When can a private individual prevail in an action for public nuisance?

Answer 17

If that individual can show harm different from that suffered by the public at large (ie special damage).

Generally, only a public entity can sue for public nuisance.

Scenario: golf course interfered with public right by polluting the water with golf balls.

But the child can bring a public nuisance suit cause he was injured but the golf balls, and suffered damages different than the public at large.

Question 18

Spousal immunity privilege in federal court. (MBE)

Purpose, privilege holder, duration, exceptions.

Answer 18

Aka- spousal testimonial privilege.

Purpose: protects witness-spouse from testifying against spouse in criminal case about matter that occurred before or during marriage.

Privilege holder: Witness-spouse.

Duration: Only during active marriage.

Exceptions: Not applicable when spouse is:
1. suing other spouse
OR
2. accused of a crime against other spouse or child of either.

Question 19

Marital communications privilege in fed. court (MBE)

Answer 19

Aka- Spousal communications privilege.

Purpose: Protects against disclosure of confidential spousal comms. made during marriage in criminal and civil cases.

Privilege holder: Both spouses

Duration: Continues after divorce

Exceptions:Not applicable when spouse is:
1. suing other spouse
OR
2. accused of a crime against other spouse or child of either.

Question 20

Sale of horse ranch scenario:

Buyer records equitable title from land sales contract.

Subsequently, a 3rd party obtains a judgment lien against the seller.

Can the land sales contract be preformed, and can the seller convey marketable title?

Answer 20

Rules: A buyer receives marketable title if the buyer’s interest has priority over competing interests in the same property.

And the buyer with a recorded equitable interest has priority over a subsequent judgment lien.

Result in case: As a result, the buyers property interest has priority over the 3rd party’s competing interest, and the seller can convey marketable title. The court should render judgment for the seller and order the buyer to specifically perform the land sale contract.

Question 21

Damages for promissory estoppel (2 types)

Answer 21

Damages for promissory estoppel may be limited as justice requires.

Reliance:

1. intended to put enforcing party in safe position as if promise has not been made.
2. measured by out of pocket expenses incurred by enfocing party in reliance on promise.
   (IE the out of pocket expense of removing the barn)

Expectation damages (rare):

1. intended to put enforcing party in same position as if promise has been performed.
2. measured by non-speculative expectation of enforcing party.
   (IE the value of a nonexistent building, estimated profits from nonexistent farm.)

Question 22

Negligent infliction of emo. distress (NIED) has what three theories of recovery?

Answer 22

1. Zone of Danger
2. Bystander
3. Special realtionship.

Question 23

NIED - Zone of Danger liability:

Answer 23

1. the D’s negligent conduct places the P in danger or immediate bodily harm

AND

2. that danger causes the P serious emotional distress.

Question 24

NIED - Bystander theory liability:

Answer 24

1. the D neg. causes serious bodily injury to Ps CLOSE RELATIVE,
2. the P contemporaneously witnesses that event,
   AND
3. the P consequently suffers serious emo. distress.

Question 25

NIED Special Relationship Liability :

Answer 25

The duty to avoid NIED exists without any threat of physical impact or physical symptoms in cases in which there is a special relationship between the P and the D. The most common examples are a mortician mishandling a corpse or a common carrier mistakenly reporting the death of a relative. Example: A physician negligently misdiagnoses a patient with a terminal illness that the patient does not have, and the patient goes into shock as a result.

Question 26

Does trespass require proof of harm?

Answer 26

No trespass does not require proof of harm, but the P can only recover nominal damages for harmless trespass. Mistaken belief that an entry was permissible is no defense, because trespass only requires intent to enter the land.

Question 27

What is the plenary power of the president? Can the other branches interfere with is power in any way?

Answer 27

The plenary (ie: absolute) power to grant reprieves and pardons to persons who commit federal offenses, (except in case of impeachment). The other branches of gov. cannot interfere with the President's plenary power. Any interference is unconstitutional.

Question 28

Congresses impeachment power, and non-justicable federal question

Answer 28

The impeachment and removal of federal judges, president, VP, and other fed. officials is a power solely reserved for Congress. There are non standards to help a court resolve an impeachment process issue, therefore a fed court will most likely deem a challenge to an impeachment proceeding as a non-justiciable political question.

Question 29

Location and relocation of easements, rights and exception.

Answer 29

The servient-estate (where easement is located) may relocate the easement at his/her own expense to permit normal use or development of the servient-estate. But this right has limits - eg. relocation cannot: 1. significantly lessen the easement's utility, 2. violate the easements terms 3. increase the burden on the dominant estate owners use or enjoyment of the easement, OR 4. frustrate the easements purpose.

Question 30

Unilateral mistake is not grounds to avoid a K unless:

Answer 30

1. the mistake would make enforcement of the K unconscionable OR 2. the non-mistaken party caused, or knew or had reason to know of, the mistake.

Question 31

When is evidence of subsequent remedial measures admissible?

Answer 31

Generally, evidence of sub. remedial measures is inadmissible to prove neg. or other culpable conduct. But this evidence is admissible to: 1. resolve a dispute about the feasibility of precautionary measures, 2. impeach a witness, OR 3. prove ownership or control. (ie, women cutting down rotted tree).

Question 32

A person is not criminally liable for failing to act unless what?

Answer 32

They had a legal duty to do so. A legal duty can be based on: 1. a special relationship, 2. assumption of care, 3. creation of the risk of harm, 4. a statute, OR 5. a contract.

Question 33

Multiparty, Multiforum Trial Jurisdiction Act diversity and rules.

Question 34

Double Hearsay Rule

Answer 34

When a hearsay statement is contained within another hearsay statement, (double hearsay) NEITHER statement is admissible unless BOTH are excluded or excepted from the hearsay rule.

Question 35

The UCC "fills the gap" for missing contract terms other than what terms? (3)

Answer 35

The terms that are essential are: 1. the parties, 2. the subject matter, AND 3. the QUANTITY. The quantity term must specify and amount that is certain or capable of being made certain by reference to objective facts.

Question 36

Fed. Gov. Affiliates are subject to state and municipal tax, unless? (3)

Answer 36

1. congress grants them immunity 2. the tax is discriminatory OR 3. the tax substantially interfers with thier federal purpose or duties. (Scenario, selling concessions on federal land, authorized to do so by federal statute.)

Question 37

LD's in a real estate contract "reasonable compensation"

Answer 37

LD's under the K are recoverable only if they reasonably compensate the injured party - eg, if the LD's is less than 15% of the purchase price.

Question 38

The scope of cross examination is limited to what (2)

Answer 38

1. the subject matter of direct exam, AND 2. matters affecting the witness's credibility

Question 39

When a criminal offense requires proof that the D acted with a particular mental state (ie, mens rea), does a more culpable mental state naturally encompass a lesser one?

Answer 39

Evidence that the D actually possessed a more culpable mental state will satisfy the mens rea requirement for the offense. Scale goes: Purposely, Knowingly, Recklessly, Negligently.

Question 40

Conversion definition

Answer 40

The: 1. intentional exertion of dominion or control 2. over the P's chattel 3. that so seriously interferes with the P's ownership rights that 4. the D is liable for the fair market value of the chattel at the time and place of the conversion.

Question 41

A D who has permission to use the P's chattel commits conversion when they: (2)

Answer 41

1. intentionally use the chattel in a way that exceeds the scope of permission, AND 2. seriously violates the P's right to control the chattel. The D is liable for the fair market value of the chattel at the time and place of conversion.

Question 42

Is consent a defense to defamation?

Answer 42

Yes, consent (apparent, actual, or implied) is a complete defense to defamation.