Bar Question 1 Flashcards
What may the commerce cause regulate?
Congress may regulate WATERWAYS! That is a version of commerce. Therefore if Waterways, roads, or economic value is mentioned it is likely commerce.
Congress’s power to regulate commerce has been construed broadly, so that it may regulate any activity, local or interstate, that either in itself or in combination with other activities has a substantial economic effect on interstate commerce. If Congress has determined that the use of chemical pesticides and their runoff into waterways (which are channels of interstate commerce) will have an overall detrimental impact on the environment, this determination will be sufficient in this case to satisfy the standards established by the Supreme Court. Therefore, the law probably is a valid exercise of the commerce power. Any state or local action that conflicts with a valid act of Congress is invalid under the Supremacy Clause.
Does an owner of land owe a duty to the undiscovered tresspasser?
An owner or occupier of land owes no duty to an undiscovered trespasser. However, with regard to a discovered trespasser, the owner or occupier must warn of or make safe artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover. The hitchhiker, having come onto the land owned by the mining company without permission or privilege, is a trespasser. Because the mining company had no notice of the hitchhiker’s presence on the property, the hitchhiker is deemed to be an undiscovered trespasser.
If a co-felon was killed in the process of a crime, can the principal be charged?
No. It is a justifiable murder! Most courts today would not allow the defendant to be convicted on a felony murder theory when a co-felon is killed by a third party during the crime. Some courts base this result on the fact that the person who did the killing was justified in doing so.
TOUCH AND CONCERN!
While recycling may benefit the community at large, “touch and concern” involves the relationship between landowners at law. Recycling by the veteran does not directly benefit the other landowners in the use and enjoyment of their land.
The power to regulate foreign commerce
For all practical purposes, the power to regulate foreign commerce lies exclusively with Congress. Therefore, a state that adopts legislation requiring private vendors to favor United States products over foreign products, as the state did here, may be acting outside the scope of its powers.
One person/one vote theory
The Equal Protection Clause prohibits state dilution of the right to vote, so that when a governmental body establishes voting districts for the election of representatives, the number of persons in each district may not vary significantly. This is known as the principle of “one person, one vote.” This principle applies to almost every election where a person is being elected to perform normal governmental functions (e.g., an election for trustees for a junior college district). However, the principle of one person, one vote generally is inapplicable where there is an at-large system of election (except where the system is adopted for discriminatory purposes).
Anticipatory Breach and Damages!
The wholesaler’s notice that it would be unable to fill the retailer’s order constituted an anticipatory repudiation, which the retailer was entitled to treat as a total breach.
Under the UCC, the buyer’s basic remedy where the seller breaches by refusing to deliver is the difference between the contract price and either the market price or the cost of buying replacement goods (“cover”).
If the buyer intends to fix damages based on the latter measure, the buyer must make a reasonable contract for substitute goods in good faith and without unreasonable delay.
Here, the retailer chose to make a contract for a higher quality of sunglasses at a higher price, even though the model that he had originally ordered was available from a supplier outside the area. While the retailer need not find the lowest available price in the country or make a contract for substitute goods with an unreliable supplier, he was aware that he could have obtained the sunglasses in plenty of time from the nonlocal supplier. Absent additional facts that would justify the retailer’s decision, he can recover only the difference between the contract cost and a reasonable contract for substitute goods.
Can you admit Fraud convictions even if that is not the reason they are on trial?
Yes, when the defendant has taken the stand in his own defense, and therefore the prosecutor can attack his credibility as a witness. Under Federal Rule 609, evidence of conviction of a crime requiring proof of an act of dishonesty or false statement can always be used to attack a witness’s character for truthfulness.
What is provided in a general warranty and for what rights may a deed holder sue when they are in a quiet title claim?
A general warranty deed gives the grantee six covenants of title: the right to seisin, the right to convey, a covenant against encumbrances, the covenant of quiet enjoyment, the covenant of further assurances, and a general warranty. Under the covenants of quiet enjoyment, warranty, and further assurances, the man promised that (i) the woman would not be disturbed in her possession of the tract; (ii) he would defend the woman’s title against lawful claims; and (iii) he would perform whatever acts are necessary to perfect the woman’s title. Because the man neither owned the tract of land nor was acting as the actual owner’s agent, he breached the covenants of seisin and right to convey at the time of the conveyance to the woman. When the actual owner prevented the woman from re-entering the property, this interfered with the woman’s quiet enjoyment, and the man’s refusal to “straighten this out” was a breach of the covenant of further assurances.
Assault tort?
An assault is an affirmative act by the defendant done with the intent to place the plaintiff in apprehension of an imminent harmful or offensive contact to his person and that actually causes the plaintiff apprehension. Children are deemed to be capable of forming the intent for assault and other intentional torts. The plaintiff need not be placed in fear of the contact; an apprehension of contact that is offensive (that is, not consented to) is sufficient. Furthermore, the apparent ability to inflict the contact is all that is needed; the fact that it could not be carried out is irrelevant. Here, the older teenager was placed in apprehension of imminent offensive contact, namely the squirts of water. The younger teenager’s actions show that she intended to cause the older teenager to believe that he was going to get squirted, thus satisfying the intent requirement.
Are names of witnesses privileged or are they work product?
The plaintiff must provide the defendant with the names of the people on the plaintiff’s attorney’s list. In general, discovery may be had of any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, including the identity of individuals with knowledge of any discoverable matter. Because the Federal Rules of Civil Procedure state that the identities of people with knowledge of discoverable matters are discoverable, the plaintiff’s attorney’s list is not considered work product.
When is defamation privileged?
The businessperson will not recover against the incumbent because, as a state legislator, she was absolutely privileged to read the story into the record on the floor of the legislature. Under certain circumstances, a speaker will not be liable for defamatory statements because she is afforded an absolute privilege. Such a privilege is not affected by a showing of malice, abuse, or excessive provocation. Remarks made by either federal or state legislators in their official capacity during legislative proceedings are absolutely privileged. There is no requirement of a reasonable relationship to any matter at hand. The incumbent is a state legislator. When she read the newspaper article into the legislative record, she was speaking in her official capacity as a legislator, on the floor of the legislature. Thus, her reading of the article is cloaked with absolute privilege, and she will be shielded from liability for defamation
What is immediate harm under ripeness?
There is no immediate threat of harm to the union here because the law does not take effect for another two years. Before that happens, Congress might change the law or repeal it altogether, or the school board may decide to keep the old contract system after all.
Why may original documents be turned into charts be admitted?
The original document or best evidence rule generally requires the original writing to be produced when the terms of the writing are sought to be proved and are material to the case. [Fed. R. Evid. 1002] However, under Federal Rule 1006, the contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying. Here, the underlying documents belonged to the adverse party, and thus the corporation had unlimited access to them.
Burglary
Common law burglary was the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a larceny or other felony inside. In the instant case, opening the door by use of a key would be sufficient to constitute a breaking, and the facts indicate that the defendant actually entered the house. Furthermore, the defendant intended to steal valuables when he entered the victim’s home; thus, the intent to commit a theft inside the home may be established. As a result, the defendant has committed burglary
