ALL

Question 1

When does the revocation of an open offer by the offeror become effective?

Answer 1

An offeror may revoke an offer at any time prior to acceptance (except for option contracts), BUT revocation by the offeror only becomes effective once received by the offeree.

If the attempted revocation is lost it never becomes effective.

Question 2

What effect is there if a defendant is arrested in violation of the 4th amendment?

Answer 2

A defendant can still be tried and convicted regardless of the fact that his arrest was made in violation of the 4th Amendment. However, if evidence were seized as part of that arrest, the evidence would be excluded.

Question 3

What two requirements must the person supplying the information contained in a business record satisfy in order for the document to be admitted under the business record hearsay exception?

Answer 3

The person supplying the information in the business record must:

1. have firsthand knowledge of the fact he reports.
2. reporting is pursuant to a business duty.

Question 4

What is considered a critical stage in a criminal trial such that the right to counsel is necessary?

Answer 4

A stage in the trial is a critical stage if a defendant is compelled to make a decision that may later be formally used against him. Critical stages include:

• the initial appearance,
• preliminary hearings, AND
• arraignment.

Question 5

For what five hearsay exceptions must the declarant be unavailable to allow the statement to be admissible?

Answer 5

The declarant must be unavailable to allow:

(1) Former testimony;
(2) Dying declaration;
(3) Statement against interest;
(4) Statement of personal or family history;
(5) Statement of a deceased person

Question 6

What is Negligence per se?

Answer 6

Negligence per se is

• Violation of a statute designed to protect against the type of accident they have caused; and
• The victim must be within the class of persons the statute is meant to protect.

Question 7

Can a witness be impeached on a conviction for which they have been (a) pardoned based on a finding of innocence or (b) on the basis of a juvenile adjudication?

Answer 7

No. Neither a pardon based on innocence nor a juvenile conviction may ever be used to impeach.

Question 8

What is the doctrine of constructive eviction?

Answer 8

Constructive eviction is used where L has some sort of obligation and L materially and continually breaches that obligation, in a way that makes the premises virtually uninhabitable for the intended use. L will be treated as having in effect evicted T and T will not have to continue to pay rent.

Question 9

If a person who is promising to give a gift, bargains for love and affection in return for the gift, will this provide sufficient consideration?

Answer 9

No. The receipt of love and affection, or any altruistic pleasure received from giving a gift does not provide sufficient consideration to constitute an enforceable “bargain.”

Question 10

What three circumstances can either modify or terminate a covenant or servitude?

Answer 10

A covenant or servitude can be modified or terminated in the following circumstances:

1. Agreement in writing by all the parties;
2. Abandonment. Cessation of use is not sufficient. It must be clear it was abandoned;
3. Changed conditions: can be modified/ terminated by a court when conditions have so changed that is impossible to accomplish the purposes for which the servitude was created.

Question 11

What are the requirements for admitting former testimony as an exception to hearsay?

Answer 11

To be admitted, former testimony must be”

(1) sworn testimony given at the same or different proceeding (or at deposition)
(2) (a) the adversely affected party had an opportunity/motive to examine the witness at the previous testimony, OR (b) In a civil action the predecessor in interest had the opportunity and similar motive to examine the witness; and
(3) The declarant is currently unavailable to testify.

Question 12

What does the 8th Amendment provide?

Answer 12

The 8th Amendment provides that excessive bail should not be required. This rule applies to both federal and state courts.

Question 13

What six factors does the court typically consider to determine if there is a material breach of a contract?

Answer 13

(1) amount of benefit received by nonbreaching party;
(2) adequacy of compensation of damages available to injured party;
(3) extent of part performance by breaching party;
(4) hardship to breaching party;
(5) willfulness of behavior of breaching party;
(6) likelihood breaching party will perform remainder of contract.

Question 14

What is the effect if an attorney does not make a timely objection to evidence, or makes a generalized objection to evidence (i.e. without a specific reason it shouldn’t be admissible)?

Answer 14

The objection is waived and the evidence admitted.

Question 15

What are the three exceptions to the rule that landowners do not owe a duty to trespassers?

Answer 15

A landowner may owe a duty of care to a trespasser in the following situations: (1) Constant trespass on a limited area; (2) Discovered trespassers; (3) Children under the attractive nuisance doctrine.

Question 16

What is substantive due process?

Answer 16

Substantive due process limits the power of the states to regulate certain areas of human life and is derived from a citizen’s interest in their “life, liberty or property.”

Question 17

To which four types of interests does the Rule Against Perpetuities apply?

Answer 17

The four types of interests the Rule Against Perpetuities applies to are:

• (1) Contingent remainders;
• (2) Executory interests;
• (3) Options to purchase, in gross (not those in a lease);
• (4) Right of first refusal

Question 18

What four things are clearly forbidden by the Establishment Clause?

Answer 18

In accordance with the Establishment clause, the government cannot:

• (1) establish an official religion;
• (2) force or encourage religious worship;
• (3) intentionally prefer one religion over another;
• (4) actively participate in religious affairs.

Question 19

Under substantive due process, what standard is imposed regarding a state’s regulation of the right to obtain an abortion?

Answer 19

A state may regulate abortion so long as they do not place an undue burden on the woman’s right to choose a pre-viability abortion. A burden is deemed an undue burden if it places a substantial obstacle in the path of a woman seeking a pre-viability abortion.

Question 20

What three exigent circumstances allow police to make an in-house arrest without a warrant?

Answer 20

Three exigent circumstances are:

• (1) Destruction of evidence: If the police reasonably believe that the suspect will destroy evidence if they delay their entry into the dwelling until they can get a warrant;
• (2) Hot pursuit: If the police are pursuing a felony suspect, and he runs into another’s dwelling, a warrantless entry and arrest may be permitted.
• (3) Preventing harm to persons.

Question 21

Does a landowner have a duty to ensure safe conditions for trespassers?

Answer 21

Landowners owe no duty to unknown trespassers. Landowners owe known trespassers only a duty not to use wanton or excessive force in ejecting the trespasser after a demand to leave has been made.

Question 22

Does the Privileges and Immunities Clause of Article IV apply to corporations and aliens?

Answer 22

No, the “interstate” Privileges and Immunities Clause only applies to people, not corporations. It also does not apply to aliens.

Question 23

Under what conditions will an offer be enforceable, even in the absence of all material terms (clear identity of the offeree, the subject matter and the price to be paid)?

Answer 23

It will generally be enforceable even without every material term, as long as it contains an objective standard for the court to use to supply missing terms.

Question 24

What three circumstances can either modify or terminate a covenant or servitude?

Answer 24

A covenant or servitude can be modified or terminated in the following circumstances:

• (1) Agreement in writing by all the parties;
• (2) Abandonment. Cessation of use is not sufficient. It must be clear it was abandoned;
• (3) Changed conditions: can be modified/ terminated by a court when conditions have so changed that is impossible to accomplish the purposes for which the servitude was created.

Question 25

When are prior statements by witnesses admissible?

Answer 25

A prior statement is admissible when the (1) declarant testifies at the trial or hearing and (2) is subject to cross-examination concerning the statement, and (3) the statement is: (A) inconsistent with sworn testimony from a prior hearing, trial or deposition; or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person

Question 26

What effect is there if a defendant is arrested in violation of the 4th amendment?

Answer 26

A defendant can still be tried and convicted regardless of the fact that his arrest was made in violation of the 4th Amendment. However, if evidence were seized as part of that arrest, the evidence would be excluded.

Question 27

What evidentiary rights does the Confrontation Clause give a criminal defendant?

Answer 27

The Confrontation Clause gives defendants the right to confront witnesses against them. It ensures that testimonial statements made outside of the current trial will not be admitted against a criminal defendant unless the witness is made available for cross examination, or was subject to cross-examination by the defendant at the time of the statement.

Question 28

What is the exclusionary rule?

Answer 28

The exclusionary rule provides that if evidence is obtained by violating a defendant’s constitutional rights; this evidence may not be introduced at trial by the prosecution as direct evidence of guilt.

Question 29

When does in personam personal jurisidiction exist?

Answer 29

In personam jurisdiction exists when the forum has power over the person of a particular defendant. (Jurisdiction over a plaintiff is generally not an issue because the plaintiff accedes to the court’s jurisdiction by bringing suit in that court.)

Question 30

When will a land use regulation be considered a taking under the “Taking” Clause?

Answer 30

A land use regulation will only rise to the level of a taking when the regulation denies the owner all economically viable use of their land. Otherwise, a land use regulation is permitted and the landowner need not be compensated even if the value of the property is substantially diminished.

Question 31

What is ademption?

Answer 31

Ademption occurs when a testator makes a devise of specific property and the specific property is no longer part of the testator’s estate at the time of death. The bequest fails and the legatee gets nothing.

Question 32

What facts are eligible to be recognized as “true” under the doctrine of judicial notice?

Answer 32

Judicial notice is taken of indisputable facts, meaning (1) common knowledge in the community or (2) capable of verification from easily accessible, unquestionably accurate sources.

facts the judge know to be true aren’t acceptable on their own; the fact must be common knowledge in the community as a whole (or capable of easy verification).

Question 33

If a defendant talks to an undercover agent or government informant without knowing of their status, will the court deem the conversation a custodial interrogation for Miranda?

Answer 33

No, because the suspect does not know he is speaking to law enforcement so the interrogation is not custodial. This is true even if the defendant is in jail.

Question 34

At common law, in what condition must the property be in for a tenant take possession of the property?

Answer 34

At common law the property is only required to be “as is.” There is no implied warranty that the premises are fit or habitable and the landlord has no duty to repair defects arising during the course of the lease.

Question 35

In determining if a religious belief is protected under the First Amendment, will the court look to the belief’s reasonableness?

Answer 35

No, the court will consider whether the belief is genuine or sincerely held, but not whether it’s reasonable.

Question 36

What three duties are deemed non-delegable, thus making an employer vicariously liable for the torts committed by an independent contractor?

Answer 36

The three non-delegable duties are: (1) If the work involve a peculiar risk of harm; (2) If the work is done in a public place; (3) If the person hiring the contractor is a landowner.

Question 37

What is inquiry notice?

Answer 37

Inquiry notice exists where a purchaser is in possession of facts which would lead a reasonable person in his position to make an investigation, which would in turn advise him of the existence of the prior unrecorded right.

Question 38

What are the two Constitutional Limitations on personal jurisdiction?

Answer 38

The Due Process Clause of the Constitution places two restrictions on the exercise of personal jurisdiction: (1) the defendant must have such contacts with the forum state that the exercise of jurisdiction would be fair and reasonable; and (2) the defendant must be given appropriate notice of the action and an opportunity to be heard.