ADAPTIBAR - Missed Qs Flashcards
Constitutional Law
The Supreme Court of the US will only hear a case from a state court judgement on FEDERAL GROUNDS. It will not review a decision by a state supreme court when that decision rests upon an independent and adequate state ground.
The Court will refuse jurisdiction if it finds adequate and independent nonfederal grounds to support the state decision.
The nonfederal grounds must be adequate so that they are fully dispositive of the case. This way, even if the federal grounds are wrongfully decided, it would not affect the outcome of the state.
Real Property
Rule Against Perpetuitites
No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest.
If RAP applies, only specific clauses that violate will be removed or subjected to the “wait and see doctrine”, depending on jurisdiction. The harsh rule of completely striking an entire bequest is not generally followed in American jurisdictions.
Vested interests are NOT subject to RAP. Interests are vested if there is no condition attached which must be satisfied; the holder of the vested remainder has a present or certain right to take prosssession of the property when the prior estates termianted.
Real Property
Restraints on Alienation (3)
Disabling Restraints
Under which any attenmpted transfer is ineffective.
Forfeiture Restraints
Under which an attempted transfer results in a forfeiture of the interest
Promissory Restraints
under which an attempted transfer breaches a covenant
FOrefieture and Promisorry restraints on legal life estate are valid as a practical matter because few would be willing to pay full value for an estate of uncertain duration.
Disabling restrations on legal life estates are VOID.
Real Property
Equitable Servitudes v. Real Covenant
An injunction is sought – > equitable servitude
Money damages are sought –> possible real covenant
Real Property
Equitable Servitudes
3 Elements Must Be Met for An Equitable Servitude to Run w Land
(1) Intent for it to run w the land
(2) Notice - Actual, Inquiry or Record
(3) Covenant “Touches and Concerns” the land
*** A covenant not to compete is considered a covenant that c”touches and concerns” the land
Real Property
Parol Evidence Rule
Parol Evidence rule bars extrinsic evidence of a prior agreement either whether the prior agreement contradicts the terms of the final written agreement or where the prior agreement purports to add to a completely integrated agreement (i.e., one that is intended by the parties to be both the final and exclusive manifestation of the parties’ understanding).
EXCEPTION: where the extrinsic evidence is offered to prove the existence of a condition precedent to the written agreement
Constitutional Law
COmmerce Clause
4 Categories of activities which congress can constitutionally regulate under the commerce clause:
(1) channels of interstate commerce
(2) instrumentalities of interstate commerce
(3) articles moving in interstate commerce
and
(4) activities having a substantial effect on interstate commerce
Constitutional Law
13th Amendment
Abolishes Slavery
Congress has the power under the 13th amendment to eradicate the badges and incidents of slavery and discrimination against black persons in business transactions - a badge and incident of slavery
Congress may regulate private action in general here.
Constitutional Law
General Welfare / Spending Power
Congress has the power to enact laws to PROMOTE general welfare in connection with its SPENDING POWER (only)
Spending power does NOT give congress the power to exercise executive branch powers.
GWC is not an independent source of legislative power, but rather a qualification on the spending power
Constitutional Law
Reasonable Expectation of Privacy in Bank Account Records?
NONE
SC has held that a person had no reasonable exception of privacy in the bank records of their account
Constitutional Law
15th Amendment
Voting Rights
The right to vote shall not be abridged on the basis of race or color
Constitutional Law
14th Amendment
Gives Congress the power to remedy violations of individual rights by the government, but only as those rights have been defined by the courts.
14th Amendment only applies to private action in LIMITED situations –Private bias – wheh the function being perforemd is a traditional and exclusive public function or when there is significant state involvement
How to prove intent by the government to discriminate:
(i) fascial discrimination
(ii) dscriminatory application
(iii) discriminatory motive
A discriminatory motive can be shown by demonstration 2 elections (1) a statute will have a disproportionate impact on a protected class and (ii) the statute is a product of a discriminatory purpose
Constitutional Law
Non Mutual (Offensive) Collateral Estoppel PROHIBITED
NMCE PROHIBITED. Cannot assert NMCE against party who did not participate (themselves or their privy) in the prior litigation.
Example:
(Defensive) C. Same D, different Ps P1 v D (alleging securities fraud) D wins (no fraud) P2 v D (alleging same securities fraud) D asserts CE defensively against P2 Not possible b/c P2 didn’t litigate issue in suit 1, can’t be estopped (unless in privy with P1).
(offensive) Example: D. Same P, different Ds P v D1 (alleging securities fraud) P wins (it was securities fraud) P v D2 (alleging same securities fraud) P asserts CE offensively against D2 Not possible b/c D2 didn’t litigate issue in suit 1, can’t be estopped (unless in privy with D1).
Constitutional Law
Non Mutual (Offensive) Collateral Estoppel - MAYBE OK
NMCE MIGHT BE OK. Court may be able to permit NMCE b/c asserted against party who lost on issue in prior litigation.
(defensive) A. Same P, different Ds P v D1 (alleging securities fraud) D1 wins (no fraud) P v D2 (alleging same securities fraud) D2 asserts CE defensively against P Like Blonder-Tongue. P litigated & lost issue in suit 1. Court might be able to permit.
Example
(offensive) B. Same D, different Ps P1 v D (alleging securities fraud) P1 wins (it was securities fraud) P2 v D (alleging same securities fraud) P2 asserts CE offensively against D Like Parklane. D litigated and lost issue in suit 1. Court might be able to permit.
Contracts
Offer / Acceptance Mailbox Rule
Unless the offer is an option, the offeror may revoke an offer at any time before the offer has been accepted.
Under the mailbox rule, unless the offer specifies otherwise, notice of acceptance is effective upon dispatch in the mail if a mailed acceptance is invited by the terms of the offer.
Revocation after the acceptance is not enough to terminate a contract
An offer for “prompt shipment” can only be accepted by prompt shipment of goods
Civil Procedure
Appealability and Review
Standards of Review
Abuse of Discretion
Evidence is irrelevant or highly prejudicition and should be excluded is within the trial courts discretion because it requires an understanding of the entire case and the facttual context in which the evidence is being offered.
Eorrneous
Applied when reviewing findings of fact made by he trial court in a bench trial. Does not apply to judicial rulings on the admissibility of evidence in a jury truly
De Novo
Applied on issues of law
Harmless Error
Applied when it is determined that a trial courts erroneous admission of evidence did not affect any party’s substantial right . it is a conclusion an appellate court reaches are reviewing and determine the impact of than erroneously evidentiary ruling – the the standard of review that the court applies to determine whether it was erroneous to admit the evidence in the first instance
Civ Pro
Jury Trials
When a party objects to an instruction, the party must distinctly state the matter objected to and grounds for the objection. A party’s objection must aid the court in determine whether the instruction is improper and how a defect can be cured.
Constitutional Law
Forum selection Clauses
No Federal Law gives automatic effect to forum selection clauses
Federal courts can weigh all factors including the presence of a forum selection clause, when deciding a motion to transfer under the federal transfer statute. This is true even when the lawsuit is based on diversity jurisdiction
Constitutional Law
Appointments Clause Article II
Members of federal boards must be appointed in a manner consistent with the appointmnets clause of article iii. they must be appointed in this manner because they are members of the executive branch.
Congress may NOT appoint members of an executive branch agency (one with admin or eforcement powers since enforcement is an executive power). It can create the agency, but appointment of its leaders must comport with article IiI, concerning the executive branch
Constitutional Law
Necessary and Property Clause
Does not allow Congress to exercise executive branch powers
Constitutional Law
Obligations of Contracts Clause
Prohibits the government from legislatively impairing existing contracts
Criminal Law
Larceny
The unlawful taking and carrying away of another’s property, without owner’s consent, with the intent to permanently deprive them of ownership
the smallest asportation is enough to justify the carrying away requirement
Attempted larceny will merge into larceny when completed.
Contracts
Substantial Performance
Substantial performance is not applicable where performance is subject to an express condition
Contracts
Irrevocable Waiver of Condition
The nonoccurance of an express condition will discharge the contractual obligation of a party who is subject to the condition, UNLESS the nonoccurance of the condition has been waived by that party. Once the waiver has been given, it CANNOT BE REVOKED where it is made after the time for the fulfillment of the condition has passed or whether the other party has relied on the waiver.
Evidence
Evidence of other crimes, wrongs or acts is o admissible to prove the character of a person in order to show action therewith. HOWEVER, evidence of oter crimes can be admitted to show opportunity, plan, intent, preparation.
Real Property
Titles
Dead Buyer
Deeds must be in writing, signed by the grantor, and adequately ID the parties and the land. In order for a deed to be valid, it must correctly identify of the parties, and it is void if it fails to do so.
If the grantee listed on the deed is dead at the time teh deed is delivered, the deed is deemed not to identify the parties correctly, and therefore to be void.
Constitutional Law
Power to Conduct Foreign Affairs
Extends to appoitning and receiving ambassadors, but not controlling state actions to protect them
Real property
Vested Remainder
Vested interests are NOT subject to RAP. Interests are vested if there is no condition attached which must be satisfied; the holder of the vested remainder has a present or certain right to take prosssession of the property when the prior estates termianted.
a Remainder is vested if it is created in a born or ascertained person and is not subject to a condition precedent.
Constitutional Law
Article I
Congress has the power to create special Courts under Article 1, and the judges for those courts do NOT have the protections of Article III, such as life tenure and the guarantee of no reduction of salary
Contracts
Lost Profit Damamges
To recover lost profit damages, the plaintiff must prove that the losses suffered were SUBSTANTIALLY CERTAIN and not simply speculative.
Cerrtainty, NOT FORESEEABILITY is the proper limited test in this situation
Contracts
Impracticability – delay or non-delivery by seller
Delay or not delivery by seller is NOT a breach of contract of sale where performance has been made impracticable by the occurance of an event the non-occurance of which was a basic assumption of the congract.
Excuse on grounds of impracticability will NOT be available, however, if the event in question was sufficiently foreshadowed so as to fairly be viweed as part of the rissk that the seller assumed when enterting the contract.
This test for excuse on grounds for impracticaiblity focuses on not whether performance is impossible but whether on the party seeking excuse should be found to bear the risk of the event that renders perforamnce impractiable
Civil Pro
Motions
Failure to State a Claim
Must plead a sufficient statement of the facts shwoing that you are entittled to reelief by pleading the elements or sufficient facts from which those elements may be inferred
Complaint Must contain:
(i) a short statement of the grounds for the courts jurisdiction
(ii) a short statement of the rounds that show the pleader is enttitled to relief and
(iii) a demand for the judgment for relief
Evidence
Privilege
Spousal Immunity
A married person may NOT be COMPELLED to tesify against their spouse in any CRIMINAL proceeding.
Only the witness spouse holds this privilege.
ONE spouse MAY choose to testify against the other in criminal cases, with or without the consent of the party-spouse, but the witness may NOT be compelled to testify.
This immunity may only be asserted during the marriage and terminates upon divorce.
Spouse immunity applies to events that took place before the marriage, as long as the marraige still exists at the time the testimoney is sought
Evidence
Privilege
Privilege for Confidential Marital Communications
Civil or Criminal
Either spouse has a privilege to refuse to disclose AND to prevent the other spouse from disclosing confidential communications made between the spouses WHILE THEY WERE MARRIED.
BOTH spouses hold the privilege.
A spouse in a court proceeding can either refuse totestifoy about confidential maritable communication or prevent their spouse from disclosing such communications.
The communication MUST HAVE BEEN MADE DURING A VALID MARRIAGE, but divorce does NOT terminate privilege retroactively.
Further, the communication must have been based on the intimacy of the marital relatiosnhip. Routine business exchagnes, for example, would not be covered by this privilege.
