Wrong Rules Flashcards
1
Q
4 Categories of activities which Congress can constitutionally regulate under the Commerce Clause
A
- channels of interstate commerce
- Instrumentalities of interstate commerce
- Articles moving in interstate commerce
- Activities having a substantial effect on interstate commerce.
2
Q
If a law creates a classification then use
A
Equal Protection, not Due Process
3
Q
Commercial speech, if not misleading or concerning unlawful activity is under what scrutiny?
A
Intermediate Scrutiny
So Substantial governmental interest that is reasonably tailored to achieve that objective.
4
Q
Congress’ Spending Power is linked to its
A
General Welfare and has plenary power to spend so long as their choice can reasonably be said to serve the general welfare and not violate any prohibition in the Constitution
5
Q
Taxpayers generally don’t have standing except
A
When the challenged federal spending violates the Establishment Clause of the First Amendment
6
Q
Intentional and Reckless infliction of emotional distress:
A
- Intentional or reckless disregard for the consequences
- Extreme and outrageous conduct
- Which caused severe emotional distress.
7
Q
Public nuisance can be raised by a private party if
A
The public nuisance causes a unique harm to the P that differs from the general harm to the public. Remedy is usually damages
8
Q
Even with vicarious liability can still be indemnified if:
A
You are found 0% negligent and your employee was 100% negligent
9
Q
A party is not entitled to depose what kind of experts?
A
Consulting experts- those who are retained in anticipation of litigation, but will not testify at trial.
10
Q
Under a notice statute, who prevails over a prior grantee who failed to record?
A
A subsequent BFP- a person who gives valuable consideration and has no notice of the prior grantee
11
Q
Reformation is a proper remedy when
A
The writing incorrectly summarizes the parties’ joint understanding (ex. clerical error), not when the parties fundamentally disagree on what the deal is.
12
Q
A witness cannot be compelled to provide potentially incriminating testimony unless
A
The witness is granted use and derivative-use immunity.
13
Q
Battery is caused by an intentional harmful or offensive touching of a person or ____ without consent or privilege.
A
an extension of the person
14
Q
Defenses which must be presented in the first pre-answer motion, or if no pre-answer motion then in the answer are:
A
Lack of personal jurisdiction, improper venue, insufficient process, and insufficient service
15
Q
A Doctor’s license is _____
A
property within the meaning of the 14th amendment
16
Q
Assignment of contractual rights are effective even if the contract prohibits assignments unless
A
- The clause makes assignments “void” or
2. The assignee had notice
17
Q
State courts are courts of ____ jurisdiction
A
General jurisdiction and have concurrent jurisdiction to decide federal questions
18
Q
Admission of a party opponent is admissible to:
A
- impeach the defendant AND
- as substantive evidence
Definition: a statement made by a party cannot be excluded as hearsay when offered against him by the opponent if the statement is probative.
19
Q
In a notice jurisdiction, will a Subsequent bona fide purchaser prevail over an unrecorded interest, even if the BFP also didn’t record?
A
Yes.
20
Q
Estoppel by Deed –
A
If grantor conveys title to real property before he owns it, the title will automatically vest in the grantee as soon as grantor acquires title.
21
Q
Race-Notice Statute Jurisdiction→
A
a subsequent bona fide purchaser (no notice + pays value) is protected ONLY IF he records before the prior guarantee.
22
Q
Race Statute Jurisdiction→
A
whomever records first prevails (notice is irrelevant).
23
Q
Notice Statute Jurisdiction→
A
a subsequent bona fide purchaser (no notice + pays value) will prevail over a prior grantee that failed to record.
24
Q
Sub-lessee
A
when a tenant (sublessor) transfers ONLY SOME of his remaining lease interest.
− Tenant may freely sublet UNLESS a provision in the lease states otherwise.
-Sublessee is NOT liable to the landlord for rent or other covenants (there is no privity of estate).
− Sublessor (original tenant) remains liable to landlord for rent (privity of contract).
25
Assignment of a Lease
– when a tenant transfers ALL of his remaining lease interest to a third-party.
− A lease may be freely assigned UNLESS the lease states otherwise.
Liability for Rent / Breach:
− Assignee→liable to the landlord for rent and all
other covenants that run with the land (privity of
estate).
− Assignor (Original Tenant)→also remains
liable for rent to the landlord (privity of contract).
26
Nonexclusive Profit-
The grantee of such a profit cannot convey any profit rights to a third party unless agreed to by grantor.
27
A cotenant who makes ____ repairs to property usually may recover from a non-contributing cotenant
Necessary repairs. Cannot recover if it was just improvements even if it raised the value of the land.
28
Easement Repairs
Holder of easement has the right to repair and improve it whenever reasonably required for use. Liable for any negligent damages.
29
Overburdened Easement
An easement is overburdened any time that it is used to benefit land other than the dominant parcel.
30
Profit
Easement right to come onto land and remove property. Not a license because there are no limitations on the right to remove property.
31
When personal property/equipment is affixed to real property in a leasehold it becomes real property but,
It is presumed that the parties did not intend for the easily detachable fixture to be incorporated into the property
32
Encumbrances and foreclosure
Take free of junior encumbrances to the mortgage after foreclosure, but still subject to any encumbrances senior to the mortgage.
33
Murders are:
1. Murder with intent to kill
2. Murder with intent to inflict serious bodily harm
3. Depraved-heart murder
4. Felony murder
FIGS
34
What is never sufficient alone to be sufficient provocation?
Words
35
Obtaining money by false pretenses
(1) obtain title, (2) to personal property of another, (3) through an intentional false statement of material fact, (4) with intent to defraud.
36
Larceny by Trick
obtain possession (not title) of the personal property of another by trick or deception
37
Kidnapping –
```
is the (1) confining, restraining, or moving of a person, (2) without authority of law.
− MPC→abducting another person: (a) for ransom; (b) to facilitate a felony; (c) to inflict bodily injury or terrorize; OR (d) to interfere with a government/political function.
```
38
At common law what crimes are sufficient for burglary?
BRAKERS AND Larceny
39
Subcontractor/Contractor
1. Offers, even those supported by no consideration can be irrevocable where there was ddetrimental reliance.
2. Genearl contractor is not free to delay acceptance after awarded teh general contract. Cannot reopen bargaining with he subcontractor, will lose thhe power to accept the sub-contractor's bid
40
Silence cannot equal an acceptance of a contract unless
The offeror grants the offeree power to accept by silence.
41
Promissory Estoppel (2)
1. Substitute for consideration
| 2. Rarely applied absent an unconscionable result.
42
JMOL standard:
Find that no reasonable jury could reach a result different from that reached by the judge. i.e. reasonable minds could not differ as to which party should prevail.
43
If a Jury verdict is inconsistent
If the answers are inconsistent with each other and on or more is also inconsistent with the general verdict, court must direct the jury to further consider its answers and verdict, or must order a new trial.
44
In order to show that there is a genuine dispute of material fact ___ is not enough for summary judgment standard
Mere re-assertion of a denial of facts contained in the answer.
45
Filing for a motion of a new trial standard:
1) OUTSIDE prejudicial information was improperly brought to the jury's attention,
2) outside influence was improperly brought to bear on the jury,
OR
3) a mistake was made in entering the information on the verdict sheet
46
A renewed motion for judgment as a matter of law may renew the motion after the verdict but____
... only on the grounds made in the motion for judgment as a matter of law during the trial.
47
Harmless error rule
Permits an appellate court to deny relief, despite finding error unless the error had an impact on the outcome of the proceeding.
48
In disclosure, there is a duty to correct a statement made in a _____ but no duty to correct a statement in a _____
Answer..... Deposition.
49
Privilege against self-incrimination extends only to
testimonial or communicative communications.
50
The standard for restricting commercial speech:
The law is narrowly tailored to serve a substantial government interest.
51
Can a judge testify in a trial over which he is proceeding over?
No
52
Who is liable under a mortgage assumption?
Assumption of a Mortgage → may be express or implied.
If a buyer “assumes” the mortgage, he is primarily and personally liable on the mortgage.
− Seller remains secondarily liable.
− Express Mortgage Assumption – occurs if there is an express agreement for grantee to (1) take the real property, AND (2) continue making mortgage payments.
− Implied Mortgage Assumption (only allowed in a few states) – occurs if: (1) no express agreement exists; (2) grantee/buyer pays the seller only the equity in the home; AND (3) grantee continues to make payments to the lender on the balance of the mortgage.
Assumption with novation is when the new buyer is the only one liable.
53
Can't introduce evidence that a person was insured is generally not admissible to prove they acted negligently or wrongfully but for other purposes is ok.
Other purposes include motive. Past conduct cannot be admitted to prove a propensity to engage in such conduct u can be admitted on the issue of motive.
54
Invasion of privacy tort:
Someone intentionally intrudes into the solitude or seclusion of another's life in a highly offensive manner.
Does not require publication (as defamation does) nor is truth a defense.
55
Declarations against interest does not permit the testimony about statements implicating____ only _____
others only those remarks that are self0incriminatory.
56
Contradictory evidence (CRIB PIC_ is not admissible where its sole function is to contradict testimony on ________
collateral issues instead of a material issue in the case.
57
UCC generally an assignment under a sales contract also operates as a delegation of duties except for ___
When the purpose of the assignment is a financing arrangement, only the assignor's rights are transferred and there is no intent for a delegation of duties.
58
Options for purchase of real property are enforceable if there is _____
CIA Notice
59
There is no constructive notice if the recording was _____
in the wrong chain of title
60
A _____ defendant may introduce character evidence to raise an inference that his character was inconsistent with the crime charged
Criminal (not civil)
Generally, evidence of a person's character or a trait of his character generally is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion but this is one of those exceptions.
61
If trespasser can demonstrate unintended trespass was _____ then she will not be liable for any resulting damages
reasonable under the circumstances
62
Lost profits of an unestablished business are:
too speculative and uncertain to be measured.
63
Any party who shares control of the premises or item to be searched may provide valid consent to search, however when the two parties who share such control are both presents at the time the state actor requests consent,
both must consent for the search to be valid.
In other words, one party's consent cannot trump the other's when both are present.
64
In an IIED claim physical injury is not required if the conduct causing it is____ and the conduct must be substantially certain to result in ______
Conduct is extreme or outrageous
Severe emotional distress (not mere embarrassment)
SAD CEO
65
Common law kidnapping requires:
Asporation (transporting)
66
In UCC if the price is left blank then
a reasonable price will be implied by the courts.
Unenforceable if it is common law because it is an essential term.
67
In an Impleader must have
derivative claim, not an independent claim.
Improper impleader is when you try to shift liability over to a third party.
68
State tax will survive a Commerce Clause if:
it is applied to an activity with a substantial nexus within the taxing state, is fairly apportioned among states that might levy a tax on the same business activity, does not discriminate against interstate commerce, and is fairly related to the services provided by the state.
69
Guest statute-
protects the guest’s hosts from claims of ordinary negligence, but does not protect the negligence of other drivers or defective manufacturers.
70
Clergy privilege protects:
the person seeking spiritual advice
71
Larceny by trick
he fraudulently induced the person to surrender possession but not title.
72
Independent contractor
generally not liable for the torts of an independent contractor unless he actively oversees the operation
Exception: whether the IC undertakes a non-delegable duty, such as the duty of a municipality to keep its streets in repair, duty to afford lateral support to adjoining land, and duty to refrain from obstructing or endangering the public highway.
Exception: Can be negligent in hiring
73
Modern Restatement of Unilateral K acceptance and revocation
when offeree begins performance, the offer becomes an option which the offeror cannot revoke for a reasonable period of time
Common Law: Unilateral contract offer invites an acceptance of that offer only by a completed act
74
Assignment vs. Delegation –
assignment is a transfer of a right or benefit; a delegation is the transfer of a duty.
75
Declaration against interest is admissible only:
PUMP
P – that the OOC declarant knowingly made statement against declarant’s own
3P interest:
P – PENAL interest
P – PEcUNIARY interest ($) P – PROPRIETARY interest
U – that the OOC declaration was made by person who is MR. POD UNAVAILABLE at trial
M – that when the declaration was made, the declarant had no MOTIVE to misrepresent the facts;
AND P – that the declarant had PERSONAL knowledge of facts asserted
76
Where a bilateral contract for work in exchange for payment is silent on conditions :
contract law infers that the party promising to do the work must fully perform before he is entitled to payment.
It's a constructive condition not an express one.
77
Learned Treatise Exception
If the court finds a publication to be a reliable authority, then "statements" may be read into evidence, but that the publication may not be received as an exhibit.
78
Attempt –
when a person (1) had specific intent to commit a crime, AND (2) took an overt act sufficiently beyond mere preparation (most states & MPC = a “substantial step”; minority of states = proximate or dangerously proximate).
− Attempt merges with the underlying crime.
79
Severance of a joint tenancy:
4 ways G SAM
G- Giving it away during life
S- By SIGNING a contract for sale,
A- by an ACTUAL judicial sale by a judgment lien creditor OR
M- granting a MORTAGE in a TITLE THEORY state.
*Cannot be severed by a will
80
In a 6 person jury:
It is valid however, the verdict has to be unanimous where only a 6-person jury is used.
81
Dying Declarations
Reasonably think they are going to die
Only available in Homicide prosecutions and civil cases.
Also, the declarant has to be MR POD unavailable.
82
Excited Utterance
"relates to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition"
Declarant does not have to be unavailable.
83
Search Incident to Arrest –
police may search a suspect’s person + “wingspan”.
− If arrested in an automobile → wingspan includes the passenger’s compartment and any containers found in the car (if reason to believe it contains contraband).
84
Transfer Subject to a Mortgage→
If a buyer takes real property subject to a seller’s mortgage, he is NOT personally liable on the mortgage.
− BUT, a duly recorded mortgage remains on the land, and mortgagee (lender) may foreclose on the mortgage.
85
Regulatory Taking –
Property becomes economically unviable due to a regulation. Courts determine whether a regulatory taking occurs by analyzing:
− Penn Central factors→(1) economic impact of regulation on claimant; (2) extent of interference with the investment-backed expectations; and (3) character of regulation.
*Sup. Ct. has upheld zoning laws when the govt. reasonably concluded that the health, safety, morals, or general welfare would be promoted.
86
Can a judge instruct a jury to find a fact in a criminal case, even if it is a fact that is subject to judicial notice?
No. a judicially-noticed fact in a criminal case allows the court to instruct on a permissible inference, but nothing more. Not required to accept as conclusive any fact judicially noticed.
87
Offers of compromise
FRE Excludes "evidence of conduct or statements made in compromise negotiations" Including "conduct or statements made in the course o compromise negotiations
88
Deed by estoppel is not available
when a grantor conveys only a quitclaim deed.
89
Easement rights are unique so
damages would not be an adequate remedy
90
An out of court statement by a declarant demonstrating intent to act in a particular way is
admissible as evidence that the declarant subsequently acted in accord with such a plan.
91
Proof of specific instances of conduct may be offered in direct testimony when character or a trait of character of a person is
an essential element of a charge , claim, or defense.
92
Defamation Elements – P must prove:
1) a false defamatory statement (a statement that
tends to harm the reputation of another);
2) of and concerning the P made by D;
3) publication by D to a third-party; AND
4) damages.
93
Implied-in-Fact Contracts – A contract is created by conduct if:
1) The conduct is intentional; AND
2) Each party knows (has reason to know) the
other party will interpret the conduct as an agreement.
94
Slander
Slander (an oral defamatory statement) → need to prove special damages.
− UNLESS it’s Slander Per Se- CLAMS
95
Slander Per Se
CLAMS (slander “per se”):
C – Falsely accusing the P of committing a serious CRIME
L – Falsely stating that P has an existing (not former) communicable, LOATHSOME disease
(e.g., a sexually transmitted disease)
A – Making a false statement that ADVERSELY reflects on P’s trade or business M – Falsely accusing P of MORAL turpitude
S – Falsely accusing P of serious SEXUAL misconduct (male or female)
96
Negligent infliction of emotional harm
Does require some physical manifestation (injury) of the emotional harm inflicted.
Not requried for intentional infliction of emotional harm (SAD CEO)
97
Public Nuisance→
is (1) an unreasonable interference, (2) with the health, safety, or property rights, (3) of the community (a considerable amount of people or an entire community/neighborhood).
− Must show actual damages.
98
Private Nuisance→
is (1) a substantial and unreasonable interference, (2) with a person’s use or enjoyment of her property.
− MUST be offensive, inconvenient, or annoying to a reasonable person.
99
Whenever a cause of action is assigned
in any subsequent action by the assignee, the assignee is subject to any counterclaims (like an offset of debt previously owed) against the assignor existing before the obligor received notice of the assignment.
100
Under UCC warranties and consequential damages
generally may be limited or excluded.
Disclaimers are proper if they are conspicuous.
101
An attempt to bribe and flight after the crime are ____ to the Hearsay Rule
exceptions to the Hearsay Rule as evidence of consciousness of guilt. They are not hearsay.
102
Surety SOF requirement
Does not have to be written at the time of the making of the promise, nor need it be a writing addressed to the promisee.
103
If it is clear that the purpose of the condition was to benefit or protect one of the parties:
the language of the condition will be interpreted as if that intention had been embodied in the contract terms
(If the condition was for the benefit of that party, failing that conditions will not be held against the party benefitting over it if that party wants to be waived)
104
UCC Article 2 adopts the perfect tender rule, but
but that rule is inapplicable to assess the conformance
of a seller’s performance under an installment contract. Because this is an installment contract, the substantial impairment standard governs the buyer’s right to reject,
105
Past Recollection Recorded –
Is a record made on a matter the witness once knew about, but now cannot recall well enough to testify fully and accurately.
Is admissible if:
1) witness had personal knowledge at one time;
2) writing was made or adopted by the witness;
3) it was made while the event was still fresh in the
witness’s mind;
4) is accurate; AND
5) witness can no longer remember the event.
*The record may be read into evidence, BUT it can only be received as an exhibit if offered by an adverse party
106
The privilege against self-incrimination applies in ____ case
both civil and criminal.
107
Miranda Rights –
attach when a suspect is in a custodial interrogation.
H. Confessions & Privilege Against Self- Incrimination
Police must give Miranda warnings→(1) right to remain silent, (2) anything said can be used against suspect in court, (3) right to talk to an attorney and have one present when they are questioned, and (4) if cannot afford an attorney, one will be provided.
108
Custodial Interrogation: (Miranda Warnings)
− Custody = the person reasonably believes they
are not free to leave.
− Interrogation = police knew (or should have
known) they were likely to elicit an incriminating response.
109
Waiver of Rights (Miranda)–
a valid waiver must be made knowingly, intelligently, AND voluntarily.
− D must understand the nature of the right being waived and the consequence for waiving it.
− Police failure to provide outside info DOES NOT
invalidate a waiver (unless the info was essential to D’s ability to waive rights)
110
a grand jury is entitled to consider ____
hearsay and is not limited by the exclusionary rule.
111
an owner’s policy of title insurance continues to protect the owner if the owner _____
is ever successfully sued on a
| title covenant in a future conveyance
112
Defamation & Actual Malice Standard –
The press is afforded heightened protection under the 1st Amendment for Defamation lawsuits depending on the type of person.
113
Defamation Elements – P must prove:
1) a false defamatory statement (a statement that
tends to harm the reputation of another);
2) of and concerning the P made by D;
3) publication by D to a third-party; AND
4) damages.
114
Public Official or Public Figure Defamation → P must also prove actual malice to be successful; that Defendant spoke with either:
a) Recklessness; OR
b) Knowledge of its falsity.
* Proof of negligence is insufficient
115
statement by a party-opponent’s agent.
FRE 801(d)(2)(D) provides that a statement is “not hearsay” if it is offered against a party and is “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.”
116
“if a witness uses a writing to refresh memory for the purpose of testifying, either—
(1) while testifying, or (2)
before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse
party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness
thereon, and to introduce in evidence those portions which relate to the testimony of the witness
117
Expectation Damages –
Arise directly from the breach, and are meant to put the non-breaching party in the same position it would have been in but for the breach.
To recover, damages must be→(1) caused by D (actual cause); (2) foreseeable (proximate cause); (3) certain (not speculative); AND (4) unavoidable (reasonable steps were taken to mitigate damages).
118
Non-Hearsay –
If a statement is offered to prove something other than the truth of the statement, it’s not hearsay and is ADMISSIBLE.
Common Non-Hearsay Statements:
1) Verbal acts of independent legal significance.
2) To show the effect on the listener.
3) Prior inconsistent statement used to impeach.
4) Circumstantial evidence of the speaker’s state of
119
Privilege s and Immunities Clause of Article IV applies to discrimination against
interstate travel by those entering another state who do not intend to stay in that state, but who intend to return to their domicile at the end of the journey.
120
Right to indemnification
The right exists when the employer has been held vicariously liable, either because, in the case of the servant, the doctrine of respondeat superior applies, or, in the case of the independent contractor, because the harm resulted from a hazardous activity
121
Contract Clause in the Constitution
The K clause limits states from unreasonably enacting laws that retroactively impair the rights and obligations of existing executory contracts. (like ex post facto but for contracts).
122
Religious Freedom Restoration Act
Prohibits the "Government (from) substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability" unless the Government "demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering that compelling governmental interest.
123
Best Evidence Rule –
the original writing, recording, or photograph is required to prove its content UNLESS:
a) it’s a reliable duplicate (a photocopy);
b) all the originals are lost or destroyed, and not
by the offering party acting in bad faith;
c) an original cannot be obtained by judicial
process;
d) it was not produced after proper notice was
given to the party in control and against whom it
would be offered against; OR
e) it’s not closely related to a controlling issue
124
Chain of Title –
shows all transfers for a piece of land. − 2 Indexes → one organized by names of grantors, and one organized by names of grantees.
Wild Deed = A deed NOT recorded properly, and thus not discoverable in the chain of title.
− A wild deed DOES NOT put subsequent purchasers on constructive notice of a land transfer.
125
Authentication of Evidence –
All evidence MUST be authenticated before being admitted.
− Physical Evidence → through witness testimony or by evidence that shows it has been held in a substantially unbroken chain of custody.
− Voice Recordings → by anyone who has heard the person speak and identified the recorded person as the speaker.
126
The grounds for objecting to an interrogatory must ______
be stated with specificity. Any ground not stated in a timely objection is waived unless the court excuses the failure for good cause.
127
Parol Evidence Rule – (Definition and 4 exceptions)
A party CANNOT introduce a prior or contemporaneous agreement (oral/written) that contradicts a later written contract.
Exceptions:
1) To correct a clerical error or typo.
2) To establish a defense against formation.
3) To interpret vague or ambiguous terms (but
courts will interpret using the Plain Meaning
Rule).
4) To supplement a partially integrated writing.
128
Partially Integrated Writing =
the writing does not contain a complete statement of all the terms.
− Proof is allowed if it does not contradict the writing.
129
Fully Integrated Writing =
a complete and exclusive statement of terms; discharges prior agreements.
− Merger clause is evidence that the writing is complete on its face (fully integrated).
130
The Parol Evidence Rule DOES NOT apply to
subsequent agreements.
131
The oder following a final pretrial cnference shall be modified only when?
Only to prevent MANIFEST INJUSTICE
Leave of court to amend the pre-trial order is granted only to prevent manifest justice.
132
Two Theories under which an oral agreement to convey land will be enforced: (not applicable in all states)
1. Unequiviocal Referability: used when the acts of the parties to the oral contract refer to the existence of the contract.
2. Equitable Fraud: Focuses upon the change of position of the party seeking to enforce the contract who was induced by the owner of the property and also focuses on the hardship that the purchaser would incur if he were not able to obtain title to the land. Hardship + Reliance.
133
Liability for Negligence –
a negligence claim based on a defective product requires:
1) Duty owed to P;
2) Breach of that duty;
3) Causation (actual & proximate cause); AND
4) Damages.
Duty Owed → Product suppliers owe a duty to all foreseeable users, and MUST act as a reasonably prudent supplier would for the type of product.
− Breach→will be found if a supplier’s negligence results in a defective product.
− Suppliers are also liable for all foreseeable misuses of the product.
*Negligence MUST be shown.
134
Strict Products Liability – A commercial supplier is strictly liable for any harm caused by its product.
Elements:
1) Product was defective when it left the hands of
D (manufacturing defect, design defect, or
failure to warn);
2) Product was not altered when it reached P;
3) Caused an injury to P when it was being used
in an intended or unintended foreseeable
use; AND
4) D is a commercial supplier who routinely deals
in goods of this type.
135
Insanity – D must have a mental disease or defect, PLUS:
M’Naghten Test-
MPC Test-
Irresistible Impulse Test-
− M’Naghten Test → D is (a) unable to know the wrongfulness of his conduct, or (b) unable to understand the nature and quality of his acts.
− MPC Test → D was (a) unable to appreciate the criminality of his conduct, or (b) unable to conform his actions to the law.
− Irresistible Impulse Test→D’s mental illness made him (a) unable to control his actions, or (b) unable to conform his actions to the law.
136
The Judge will allow a witness to remain silent based on the privilege against self-incrimination if:
The judge believes that there is SOME REASONABLE POSSIBILITY that she will incriminate herself.
137
All offers are terminable by (2)
1. Effective revocation OR
| 2. Lapse of reasonable time
138
Textbook/Treatise exception
A treatise may be introduced as evidence to prove the truth of the matter contained in it after an expert has testified and has also admitted the authoritative nature of the textbook. It also has to be relevant.
139
Condition Precedent In a Contract – Makes performance conditional upon the completion of the condition.
BUT, the condition is excused when:
a) the protected party fails to make a good faith
effort to satisfy the condition; OR
b) waiver (voluntarily giving up protection) – but
can retract the waiver if the other party has not relied on it.
140
Content-Neutral Restrictions – Govt. MAY regulate the time, place, and manner of content-neutral speech if it satisfies ________
intermediate scrutiny.
− Intermediate Scrutiny→Govt. must show that (1) the regulation is narrowly tailored, (2) to achieve a significant government interest, AND (3) it leaves open alternative channels of communication.
141
Public Forum = Place traditionally available to the public for speech (i.e. parks, streets, public sidewalks).
− Content-Based Restriction → .
− Content Neutral Restriction →
− Content-Based Restriction → Must satisfy Strict Scrutiny.
| − Content Neutral Restriction → Govt. MAY regulate time, place, and manner if it satisfies Intermediate Scrutiny.
142
Redirect examination is limited by the scope of cross-examination
It cannot be used to reply to any matter addressed in cross, only to reply to any significant matters raised in a cross-examination
143
If the buyer may be exposed to litigation then the title is
unmarketable
144
the arrest warrant would have authorized forcible entry only if
the officers had reason to believe that the woman was at home at the time of the entry.
145
Receiving Stolen Property –
when a person (1) receives possession of stolen property, (2) who knows the property is stolen when receiving it, (3) with the intent to permanently deprive the owner of the property.
If the cops recover stolen goods and use it to entrap then the goods are not stolen and it is not receiving stolen property.
146
Abnormally Dangerous Activity –
Is an activity that:
1) is not of common usage in the community; AND
2) creates a foreseeable and highly significant risk
of physical harm (even when reasonable care is
exercised).
*D is subject to strict liability.
147
Amendment to a pleading to change a party relates back to the date the original pleading was filed for purposes of the statute of limitations if:
1. The claim arises out of the conduct, transaction or occurrence set out in the original pleading. OR
2. If the new party received notice of the plaintiff's original lawsuit and knew or should have known, that the action would have been brought against it, but for a mistake concerning the proper party's identity.
148
Evidence of a prior consistent statement by a witness is not hearsay if:
it is offered to rebut an implication of recent fabrication or improper influence or motive.
The testimony is admissible to rehabilitate the witness and for its substantive value
149
A law that makes abenefit available to some people but denies it to others because of their religious affiliations may violate this provision because it imposes a burden on the exercise of a religious belief
The First Amendment prohibits laws that interfere with the free exercise of religion
150
A private citizen or police officer is privileged to use
whatever non-deadly force he or she reasonably
| believes is necessary to prevent the escape of a criminal from a crime
151
Freedom of association is a corollary of the First Amendment freedoms of expression and assembly. For
this reason, it has been held that neither the federal nor the state government can impose a disability on
a person as a result of membership in an organization unless t
(1)The organization advocates illegal conduct
and
(2) the person is an active member who knows the organization's unlawful purposes and specifically
intends to further them
152
Under the collateral source rule, sums that a plaintiff receives from anyone other than a tortfeasor or a
tortfeasor's representative are not relevant in determining:
the amount of damages to which the plaintiff's entitled
153
A defamatory statement is about the plaintiff if the
reasonable person who knows the plaintiff would recognize the plaintiff from the statement.
154
If questioning during voir dire reveals a juror is biased,
the juror may be excused for cause. A juror has
an actual bias if the juror indicates he or she would use predetermined beliefs or principles instead of the
facts presented to determine a case.
155
Prior Convictions – evidence of prior convictions may be admitted in certain instances.
Prior Felony / Misdemeanor involving Dishonesty →
Other Misdemeanors →
Civil & Criminal Cases →
Criminal Cases (only) →
10-Year Exception →
Pardon / Annulled Exception→
Prior Felony / Misdemeanor involving Dishonesty → ALWAYS admissible to impeach.
Other Misdemeanors → NOT admissible to impeach.
Felonies that DO NOT involve Dishonesty:
− Civil & Criminal Cases → Admissible if witness
is not the Defendant (subject to Rule 403
exclusions).
− Criminal Cases (only) → Admissible if D is the
witness but only if the probative value outweighs any prejudicial effect.
10-Year Exception → If 10-years have passed (from conviction or release from jail – whichever is later), the conviction is NOT admissible unless:
1) its probative value outweighs its prejudicial effect; AND
2) the proponent provides reasonable written notice to the adverse party.
Pardon / Annulled Exception→Evidence of a conviction is NOT admissible if it’s been pardoned or annulled based on a finding of innocence.
156
IF you want a deed back
returning or destroying the deed has no effect on the conveyance
wanted to get the land back, he should have required his son to execute and deliver a new deed to him.
157
Extortion
Consists of obtaining property from another by threatening future harm to persons, property,
or economic interests
158
. It has been held that a threatening act is not an assault if accompanied by
words that make clear that the threat will not be carried out, since any apprehension experienced by the
plaintiff would not be reasonable. It is understood, however, that a defendant is not free to avoid assault
liability by demanding compliance with a condition that he or she has no legal right to impose
159
If Federal Q can bring state claims or other claims only if:
if it arose from the same case or controversy.
160
in determining whether a defendant's conduct is privileged by First Amendment rights to freedom of
religion, it was proper
to consider whether the defendant's religious beliefs were sincere.
161
Strict liability is imposed on the professional supplier of a product that is defective and unreasonably
dangerous, if that defect proximately causes harm to a plaintiff whose contact with the product was
foreseeable.
If the reasonable person could not have anticipated the plaintiff's contact with the chemical (i.e., the plaintiff's contact with it was unforeseeable), strict liability cannot be imposed to benefit the plaintiff.
162
TROs are generally not appealable unless
TRO gets extended to 30 days then it is treated like a preliminary injunction and can get appealed.
163
Section 5 of 14th Amendment
Gives Congress the power to enforce provisions of the 14th Amendment by appropriate legislation. It is appropriate if (1) it seeks to prevent or remedy actions by state or local governments that violate provisions of the 14th and (2) its requirements are congruent with and proportionate to 14th Amendment violations it addresses.
164
Adequacy of representation in a class action...
can be collaterally challenged in a subsequent lawsuit, and a class member will not be bound if there was inadequate representation in the first lawsuit
165
A party can only require another party to undergo a mental or physical examination...
by obtaining a court order.
166
Withdrawal is NOT a defense for the conspiracy
, but it is a defense for crimes committed by co-conspirators after the withdrawal.
167
In regards to whether a party can rescind due to the other party being late for the closing in a real estate contract. The standard is:
Because circumstances contemplated by the parties at the time the contract was formed made it essential that the conveyance occurs on that date.
"Time is of the essence" phrase is a factor but not conclusive
168
The party using an expert witness must automatically supply a written report containing
a completes statement of all opinions the expert will express and the basis and reasons for them.
169
Article III establishes limits on the jurisdiction that may be exercised by the federal
courts.
Although it gives federal courts the power (i.e., jurisdiction) to hear controversies between
citizens of different states, or between citizens of the same state claiming lands under grants of different
states, it does not give the federal courts any power to hear contract disputes between residents of the
same state
170
A misrepresentation is
a false assertion of material fact intended to induce the plaintiff's reliance.
If the person did not know that any person would rely on her statement or a reasonable person would not have relied on her statement.
171
Because of the constitutional requirement of due
process, however, persons who may be deprived of property as the result of a judicial proceeding must
be given notice of an opportunity to be heard in that proceeding. (Foreclosure)
For this reason, all persons with
existing present or future interests in the realty are necessary parties who must be served with process in
a foreclosure proceeding
172
The Fifteenth Amendment provides that
the right to vote shall not be denied on account of race or
| previous condition of servitude.
173
Thirteenth Amendment provides that, except as a punishment for crime, “Neither slavery nor
involuntary servitude . . . shall exist within the United States,” and grants Congress the power to enforce
that provision
This, the Court stated, gives Congress the power
| to define badges of servitude and to eliminate them by enacting legislation regulating private conduct
174
Defamation liability can be imposed only for a
false statement, and because there is no such thing as a false opinion, defamation liability cannot be
imposed for an assertion of opinion
175
(defamation) a statement is an assertion of opinion if
reasonable readers would recognize that it was an expression of the writer's feelings and
would not believe that it was intended to assert a fact.
176
To enforce the Benefit of a Covenant, must have:
1) a writing satisfying the statute of frauds,
2) intent that the covenant runs with the land,
3) vertical privity – when a successor holds the
entire interest held by a predecessor, AND
4) the covenant touches & concerns the land
(makes the land more useful or valuable).
177
To enforce the Burden of a Covenant, must have elements (1)-(4) above, PLUS:
1) a writing satisfying the statute of frauds,
2) intent that the covenant runs with the land,
3) vertical privity – when a successor holds the
entire interest held by a predecessor, AND
4) the covenant touches & concerns the land
(makes the land more useful or valuable).
5) horizontal privity between the original parties (the two parties shared some interest in the land independent of the covenant), AND
6) the new owner must of had notice of the covenant.
178
If an action is in federal court based on federal question jurisdiction, a federal court has the discretion to
remand the case to state court once
all the federal questions have been resolved based on principles of fairness and judicial economy
179
Under the doctrine of impossibility of performance, a party may be excused from obligations under a
contract
if an unforeseeable change in circumstances has made performance vitally different than that
which was contemplated by the parties at the time the contract was formed
It does not matter if it was not foreseeable to the parties
180
When an easement is created by grant, the language of the grant determines the scope of the easement.
When that language is unclear...
the courts most often determine the scope of the easement on the basis of what could REASONABLY have been ANTICIPATED at the time the easement was created.
181
Where the legal significance of a writing depends upon its authorship, the writing cannot be admitted unless
the court (i.e., judge) finds that there is sufficient evidence to warrant a finding regarding its authorship.
182
Under the view of the Restatement (2d) of Contracts, a promise made in recognition of a benefit previously received by the promisor from the promisee is
binding to the extent necessary to prevent injustice.
183
Can a landlord sue a sublettor?
The landlord was an intended third-party
| creditor beneficiary of the agreement between the attorneys, the landlord can also collect.
184
A disabling restraint
purports to withhold the grantee's power to alienate
185
Under the doctrine of accession,
the owner of realty becomes the owner of anything that becomes part
of it as well
186
One of the characteristics of Fee Simple Determinable is that it terminates
automatically upon the happening of the
| specified event or condition.
187
subpoena duces tecum
an order requiring the recipient to appear before the court and produce documents
