California Bar

Question 1

Murder

Answer 1

1. Killing of another,
2. With malice aforethought

Question 2

Malice aforethought

Answer 2

Intent to kill, intent to do great bodily harm, wanton and willful disregard

Question 3

Felony-murder

Answer 3

1. Death,
2. During the commission of a felony, and
3. D participated in the felony

Question 4

Voluntary manslaughter

Answer 4

1. Murder,
2. In a heat of passion,
3. Because of reasonable provocation

Question 5

Negligent involuntary manslaughter

Answer 5

1. Causing the death of another,
2. With negligence

Question 6

Misdemeanor manslaughter

Answer 6

1. Someone dies,
2. During th commission of a misdemeanor, and
3. D participated in the misdemeanor

Question 7

Burglary

Answer 7

1. Breaking
2. Entering
3. The dwelling of another
4. At night time
5. With the intent to commit a felony therein

Question 8

Larceny

Answer 8

1. Taking
2. Carrying away
3. The property of another
4. With the intent to deprive the other of the property permanently

Question 9

False pretenses

Answer 9

1. Knowingly,
2. Obtaining,
3. The property of another,
4. With the purpose to defraud that other
5. Through factual misrepresentations

Question 10

Embezzlement

Answer 10

1. Wrongful
2. Conversion
3. To one’s own use
4. The property of another
5. That is already in one’s possession

Question 11

Robbery

Answer 11

1. Larceny
2. By force or threat of force

Question 12

Rape

Answer 12

1. Sexual penetration
2. By a man
3. Of a woman
4. Not his wife
5. Without her consent

Question 13

Self-defense

Answer 13

1. Actual fear of imminent harm
2. Reasonable fear of imminent harm
3. Proportionality

Question 14

Defense of others

Answer 14

Permitted where the other could have made out a self-defense defense

Question 15

Defense of property

Answer 15

1. Reasonable
2. Non-deadly
3. D reasonably believed necessary to avoid
4. Imminent theft or trespass to property

Question 16

Insanity test

Answer 16

1. Unable to understand what he was doing when he committed the criminal act, OR
2. Unable to understand that it was wrong

Question 17

Duress; criminal defense

Answer 17

Threat of immediate death or serious bodily injury to defendant or another

Question 18

Necessity

Answer 18

1. Force threatening imminent harm to D or another person,
2. Committing the criminal act was the only way to avoid this harm
3. D did not place themselves in the position of danger
4. The criminal conduct inflicted less harm than the threatened harm

Question 19

Entrapment

Answer 19

1. Police provided the idea
2. Defendant was not predisposed

Question 20

Accessory before the fact

Answer 20

1. Helps the principal actor beforehand
2. With the intent to facilitate the crime

Question 21

Accomplice

Answer 21

1. Gives assistance or encouragement
2. With the intent to facilitate
3. Present

Question 22

Accessory after the fact

Answer 22

1. Aiding the principal
2. In getting away with the crime
3. With that intent

Question 23

Solicitation

Answer 23

Requesting or encouraging another to commit a crime

Question 24

Attempt

Answer 24

1. Specific intent to commit a crime
2. Substantial step towards its commission

Question 25

Conspiracy

Answer 25

1. Multiple people
2. Agree to commit a crime
3. Overt act

Question 26

Corporate criminal liability?

Answer 26

Not at common law

Question 27

Battery

Answer 27

1. Intentional
2. Harmful or offensive
3. Contact
4. With the plaintiff

Question 28

Assault

Answer 28

1. Intentionally
2. Acting in a manner
3. Sufficient to cause reasonable apprehension of an imminent battery

Question 29

False imprisonment

Answer 29

1. Unlawful
2. Intentional
3. Confinement
4. Of a person
5. Against their will

Question 30

Trespass to land

Answer 30

1. Intentional
2. Entry onto land
3. Of another

Question 31

Conversion

Answer 31

1. Wrongfully
2. Taking or retaining
3. Chattel property
4. Of another

Question 32

Trespass to chattel

Answer 32

1. Intentional
2. Interference with
3. Personal property
4. Or another
5. Of any substantial kind

Question 33

Consent

Answer 33

Express or implied agreement to the harm inflicted

Question 34

Public necessity

Answer 34

1. Reasonable necessary
2. That an individual’s property will have to be damaged
3. To prevent greater damage to the community

Question 35

Private necessity

Answer 35

1. Reasonably necessary
2. To prevent greater harm to another individual or property

Question 36

Negligence

Answer 36

1. Duty
2. Breach
3. Causation
4. Damage

Question 37

Pure comparative negligence

Answer 37

Apportions liability between P and D and exactly in accord with their relevant percentages of fault

Question 38

Modified comparative negligence

Answer 38

Plaintiff can recover for the percentage the defendant was at fault only if the plaintiff was less than 50% at fault

Question 39

Contributory negligence

Answer 39

Plaintiff who contributes to their own injury gets nothing

Question 40

Assumption of risk

Answer 40

1. Voluntary
2. Consent
3. To the risk that harm will occur

Question 41

Joint and several liability meaning

Answer 41

Means anyone of the tortfeasors can be held liable for the whole amount and must sue another for contribution.

Question 42

Concurrent action joint tortfeasors

Answer 42

1. Concurrent acts
2. Harm not divisible between

Question 43

Action in concert joint tortfeasors

Answer 43

1. Multiple actors
2. Cooperate or coordinate

Question 44

Respondeat superior

Answer 44

1. Employee committed act
2. While acting within the scope of their duties

Question 45

Simple strict liability categories

Answer 45

Abnormally dangerous activities and wild animals

Question 46

Product liability strict liability

Answer 46

1. Merchant supplier (regularly deals in the product sold)
2. Product not altered after it left the supplier’s control
3. Defectively manufactured, defectively designed (foreseeable risks could have been reduced or avoided by the adoption of a reasonable alternative design, and the omission of that design renders the product not reasonably safe), or failure to warn

Question 47

Fraud

Answer 47

1. Intentional
2. Misrepresentation of fact
3. Reasonable reliance by victim
4. Actual damages

Question 48

Intentional interference with contract rights

Answer 48

1. Intentional
2. Interference with contract rights
3. For an improper purpose

Question 49

Interference with prospective economic advantage

Answer 49

1. Interference
2. With another’s prospects for commercial success
3. Wrongfully
4. For the purpose of causing harm

Question 50

Malicious prosecution

Answer 50

1. Plaintiff was subject to criminal proceedings
2. That terminated in their favor
3. The defendant instituted those proceedings without probably cause
4. For an improper purpose (a purpose other than bringing a criminal to justice)

Question 51

Wrongful institution of civil proceedings

Answer 51

Malicious prosecution but with civil lawsuits

Question 52

Abuse of process

Answer 52

1. Use of litigation
2. For an improper purpose

Question 53

Absolute defense to defamation

Answer 53

Truth

Question 54

Intentional infliction of emotional distress

Answer 54

1. Acting Intentionally or recklessly
2. In an extreme or outrageous manner
3. Resulting in emotional distress to another
4. That was severe

Question 55

Negligent infliction of emotional distress

Answer 55

1. Negligence
2. Resulting in physical injury or danger of physical injury
3. And emotional distress

Question 56

Appropriation

Answer 56

1. Use of a person’s name or picture
2. For financial gain
3. Without his or her consent

Question 57

Intrusion

Answer 57

1. Invasion of a person’s solitude
2. Which would be highly offensive to a reasonable person

Question 58

Publicity of private life

Answer 58

Making public details of a person’s private life

Question 59

Displaying in a false light

Answer 59

1. Placing the plaintiff before the public
2. In a way that would be highly offensive to a reasonable person

Question 60

Defamatory statement

Answer 60

A statement that damages a person’s reputation by lowering the person in the estimation of the community or deterring other people from associating with that person

Question 61

Defamation public figure public concern

Answer 61

1. False
2. Defamatory statement
3. Published
4. With actual malice
5. Damages the plaintiff’s reputation

Question 62

Defamation private figure public concern compensatory damages

Answer 62

1. False
2. Defamatory statement
3. Published
4. Damaged the plaintiff’s reputation

Question 63

Defamation private figure public concern punitive damages

Answer 63

Same as defamation private figure public concern compensatory damages + actual malice

Question 64

Actual malice

Answer 64

Knowledge or reckless disregard

Question 65

Defamation private figure private concern

Answer 65

1. Defamatory statement
2. Published
3. Damage to the plaintiff’s reputation

Question 66

Defamation public figure private concern

Answer 66

Unclear, just try to argue it’s a matter of public concern

Question 67

Pure economic loss

Answer 67

Not recoverable

Question 68

Punitive damages

Answer 68

Awarded when the balance of the following factors tips in favor
1. Reprehensibility
2. Defendant’s wealth
3. Profit or gain to defendant through the tortious conduct
4. Costs of litigation to the plaintiff
5. Amount of harm caused
6. Remedial measures taken or not taken
7. Other punitive sanctions that have been imposed

Question 69

Wrongful death and survival actions

Answer 69

By statute only

Question 70

Garden variety bilateral contract

Answer 70

1. Offer seeking acceptance through promise of performance
2. Acceptance through promise of performance
3. Consideration

Question 71

Offer

Answer 71

Manifestation of willingness to enter into a bargain so made as to justify another person in understanding his assent to that bargain is invited and will conclude it

Question 72

Acceptance

Answer 72

Agreement to the bargain proposed in the offer

Question 73

Garden variety unilateral contract

Answer 73

1. Offer seeking acceptance through actual performance
2. Acceptance through actual performance
3. Consideration

Question 74

Consideration

Answer 74

Bargained for exchange between the promisor and the promisee

Question 75

Promissory estoppel

Answer 75

1. Reliance
2. To one’s detriment
3. On a promise
4. Foreseeable to the promisor that the promisee would rely

Question 76

Statute of frauds contracts

Answer 76

1. Suretyship contract
2. Contract to transfer or buy interest in land
3. A contract that cannot be performed within one year of its making
4. Sale of goods worth $500 or more

Question 77

Statute of fraud contract elements

Answer 77

1. Writing
2. Indicating a contract was made
3. Setting out material terms (ie for goods the quantity of goods, for all contracts price).

Question 78

Parol evidence rule

Answer 78

Prohibits a party from arguing terms were left out of a written contract

Question 79

Mutual Mistake

Answer 79

1. Mutual mistake
2. Concerning a basic assumption on which the contract is made
3. The party seeking release did not bear the risk of the mistake

Question 80

Unilateral mistake

Answer 80

1. One party made a mistake
2. The other party knew it had reason to know if the mistake

Question 81

Impossibility

Answer 81

1. Performance has become objectively impossible, that is, no one could perform, not just the party in question
2. Through no fault of the parties

Question 82

Impracticability

Answer 82

1. Unforeseeable circumstances
2. Have made performance extremely costly or burdensome

Question 83

Frustration of purpose

Answer 83

1. Change in circumstances
2. Makes one party’s performance virtually worthless to the other

Question 84

Lack of capacity contract defense; minors

Answer 84

1. Minor entered into a contract
2. Disaffirms
3. When they are still a minor or within reasonable time after they reach the age of majority

Question 85

Absolute lack of capacity defenses to contract performance

Answer 85

Mental infirmity and involuntary intoxication

Question 86

Lack of capacity defense to contract formation: voluntary intoxication

Answer 86

1. Party was under the influence when the contract was made
2. The other party had reason to know the intoxicated party was unable to understand the transaction or act in a reasonable manner

Question 87

Duress; contract defense

Answer 87

1. Contracting party was is compelled to submit to the contract
2. By threat of irreparable injury
3. Not made in good faith and fair dealing
4. The aggrieved party would not have otherwise agreed

Question 88

Undue influence

Answer 88

1. Contracting party former contract
2. By being taken advantage
3. At a time of particular vulnerability to pressure

Question 89

Misrepresentation; contract defense

Answer 89

1. Intentional
2. Affirmative
3. Misrepresentation
4. Of fact
5. That procured the contract

Question 90

Substantive unconscionability

Answer 90

Contract is so unfair and one-sided as to shock the conscience

Question 91

Procedural unconscionability

Answer 91

The negotiation process was so unfair and one-sided as to shock the conscience

Question 92

Illegal contract defenses

Answer 92

Contract involves illegal subject matter, performance, or is against public policy

Question 93

Breach of contract

Answer 93

Failure to perform

Question 94

Repudiation of contract lawsuit elements

Answer 94

1. Communicated unwillingness or inability to perform
2. Threatened breach is material

Question 95

Expectation damages

Answer 95

Put the aggrieved party in the same position they would have been in if the breach hadn’t happened

Question 96

Mitigation of damages partial defense

Answer 96

1. Injured party did not take reasonable steps to mitigate or minimize damages
2. That could have been undertaken without undue risk, burden or humiliation

Question 97

Unforeseeable damages partial defense to contract breach or promissory estoppel

Answer 97

1. Part or all of plaintiff’s damages were unusual
2. Defendant did not have actual notice of their possibility

Question 98

Third party contract enforcement

Answer 98

Breach of garden variety contract + P was a direct and intended beneficiary of the contract

Question 99

Specific performance

Answer 99

1. Monetary damages cannot adequately compensate the injured party,
2. Ordering specific performance would not violate the 13th amendment

Question 100

Restitution definition

Answer 100

Placing the parties back in the position they were in prior to the genesis of the contract or act giving rise to the breach

Question 101

Restitution elements

Answer 101

1. Complete (going to the essence)
2. Breach of contract

Question 102

Quasi-contract

Answer 102

1. Unjust enrichment
2. At the expense of another

Question 103

General contract by merchant of goods; predominant purpose of contract to deal in those goods, elements

Answer 103

1. Offer
2. Acceptance according to terms of offer, or, in their absence, other definite and seasonal expression of acceptance in some reasonable manner (note need not mirror exactly as long as basic terms agreed to).
3. Consideration

Question 104

Option contract by merchant of goods; predominant purpose of contract to deal in those goods

Answer 104

1. Offer
2. Acceptance according to terms of offer, or, in their absence, definite and seasonal expression of acceptance in any reasonable manner (does not mirror)

Question 105

Merchant

Answer 105

Someone who deals in the goods involved or who holds themselves out as having knowledge or skill peculiar to the practices or goods involved

Question 106

UCC battle of the forms not both merchants

Answer 106

1. Merchant of goods formed a contract predominant purpose of which was to deal in those goods
2. a. Term in offer but not acceptance = effective unless offered objected within reasonable time
   b. Term in acceptance but not in offer = effective unless offeror objects within reasonable time
   c. Contradicting terms = cancelled out and replaced by UCC gap filler
   d. Missing terms = replaced by ucc gap filler

Question 107

Special UCC situation; expressly conditional acceptances

Answer 107

1. Contract formed by merchant predominant purpose of which was to deal in those goods
2. Other necessary conditions
3. Explicit acceptance by original offeror OR subsequent conduct of both parties indicating existence or an agreement

Question 108

Breach of express warranty of merchantability or fitness for purpose

Answer 108

1. Affirmation of fact or promise
2. Forming part of the basis for
3. a contract whose predominant purpose was the sale of goods
4. Relating to those goods
5. Made by seller
6. Who is a merchant of goods dealing in those goods
7. Seasonable notification of defects

Question 109

Breach of implied warranty of merchantability

Answer 109

1. Merchant formed a contract the predominant purpose of which was to sell those goods
2. Sells goods not fit for ordinary purposes
3. Seasonable notification of defects

Question 110

Goods fit for ordinary purposes

Answer 110

Of average quality that can pass without objection in the trade

Question 111

Breach of implied warranty of fitness for purpose

Answer 111

1. Merchant
2. Forms a contract predominant purpose of which was to sell those goods
3. Having a reason to know any particular purpose for which the goods are required
4. Having reason to know that the buyer is relying on the merchant’s skill or judgment to select or furnish suitable goods
5. The goods were not in fact fit for that purpose
6. Seasonable notification of defects

Question 112

Partial relaxation or statute of frauds requirements

Answer 112

1. Contract was between merchants of the same goods
2. Predominant purpose of the contract was to deal in the goods they both deal in
3. Within a reasonable time after formation, a written confirmation of the contract was received
4. No written notice of objection to the contract was given within 10 days

Question 113

Rejection of nonconforming goods

Answer 113

1. Breach of express warrant of merchantability, implied warranty of merchantability, or implied warrant of fitness for purpose
2. Rejection
3. Seller did not exercise right to cure defects within original time provided for performance, or greater time if prior dealings lead to reasonable belief that that would be acceptable or that the Noncomforming goods would have been acceptable, by giving notice and tendering new conforming goods
   = buyer gets price paid, cost of purchasing substitute goods, and consequential damages

Question 114

Revocation of acceptance

Answer 114

1. UCC contract
2. Goods nonconformity substantially impairs their value
   = buyer gets price paid, cost of purchasing substitute goods, and consequential damages

Question 115

Warranty of merchantability or fitness for purpose disclaimer

Answer 115

1. Disclaimer
2. Mentioned merchantability
3. Was conspicuous

Question 116

Seasonable

Answer 116

Within reasonable time

Question 117

Conspicuous

Answer 117

In larger typeface than the contract or in contrasting color

Question 118

Warranty of merchantability or fitness for purpose remedy limitations

Answer 118

Permissible

Question 119

Unconscionability counter defense to warranty of merchantability or fitness for purpose remedy limitation

Answer 119

Remedy limitation limited
1. Consequential damages
2. For injury to the person

Question 120

Unconscionabality counter defense to disclaimer of warranty of merchantability or fitness for purpose

Answer 120

Unsettled whether this exists

Question 121

Third party warranty of merchantability or fitness for purpose enforcement

Answer 121

Can be done but not for economic loss

Question 122

Motion to dismiss grounds

Answer 122

Lack of personal jurisdiction, lack of subject matter jurisdiction, improper venue, improper service, failure of plaintiff to join an indispensable party, failure of plaintiff to state a claim

Question 123

Motion for judgment on the pleadings

Answer 123

A motion brought by either party arguing that assuming all well-pleaded facts true and drawing all reasonable inference in the light most favorable to the non-moving party, the non-moving party cannot prevail on a claim or defense OR the moving party must prevail on a claim or defense

Question 124

When is summary judgment appropriate?

Answer 124

In a civil case, there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law

Question 125

Joinder of claims against one defendant

Answer 125

-claims from unrelated transactions or occurrences = permissive
-same transaction or occurrence = use it or lose it, this is called res judicata or claim preclusion

Question 126

Joinder of defendants

Answer 126

-unrelated transactions or occurrences OR no common issue of law or fact = not allowed
-same transaction or occurrence AND common issue of law or fact = permissive
-same as above + defendant needed for just adjudication = mandatory

Question 127

Impleading

Answer 127

A defendant joining a third party because D believes the third party has a legal duty to indemnify D

Question 128

Pre-trial amendment

Answer 128

First as a matter of course, later as Justice so requires

Question 129

Rule 11 sanctions

Answer 129

Party files something they did not investigate the grounds for or was not well-grounded in law or fact

Question 130

Time limit for defendant to answer or move to dismiss

Answer 130

21 days unless plaintiff or court grants extension

Question 131

Answer limitations

Answer 131

Affirmative defenses must be pled in it or an amendment is needed and non responses are deemed admissions

Question 132

Intervention of parties

Answer 132

-claim or defense has common issue of law or fact with main action + disposition of action may impair or impede their ability to protect their interests = by right
-claim or defense has common issue of law or fact with main action = by permission
-neither = not allowed

Question 133

Motion to enforce or protect from discovery

Answer 133

1. Certification that movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action
2. Party is entitled to or immune from the discovery request

Note: if losing party’s position was not substantially justified, they must pay the winner’s attorney’s fees

Question 134

Spoliation

Answer 134

Negligent or intentional destruction of evidence when litigation is reasonably anticipated

Question 135

Mandatory disclosures

Answer 135

1. Names and contact information of each individual likely to have discoverable information,
2. Copy or location of all documents, ESI, and tangible things that a party may use to support its claims or defenses
3. Computation if each category of damages claimed by the disclosing party with supporting documentation
4. Applicable insurance policies

All within 14 days of mandatory initial discovery conference the parties must hold

Question 136

Scope of discovery

Answer 136

1. Non-privileged
2. Relevant
3. Proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties relative access to relevant information, the parties resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs it’s likely benefit

Question 137

Discovery tools

Answer 137

Depositions, interrogatories, requests for production, orders for physical or mental examinations, and requests for admission

Question 138

Confidential commercial Information discovery exception

Answer 138

1. Trade secret or other confidential research, development or commercial information
2. Not directly relevant

Question 139

Attorney work product

Answer 139

1. Material
2. Generated by a lawyer
3. In preparation for trial
4. That cannot be acquired by the other party without undue hardship

Question 140

Expert discovery exception

Answer 140

Non-testifying experts

Question 141

Right to a civil jury trial in federal court

Answer 141

Where money damages are sought

Question 142

Laches

Answer 142

1. No money damages sought
2. Unreasonable delay in bringing case

Question 143

Equitable estoppel

Answer 143

1. Plaintiff encouraged defendant’s conduct
2. Then sues for it
3. Does not seek money damages

Question 144

Attorney’s fees

Answer 144

1. Party A offers to settle with Party B,
2. Party B does not accept,
3. Result at trial is equal or worse for party B

= party B pats party A’s attorney’s fees

Question 145

Collateral estoppel

Answer 145

Issue preclusion
1. Actually litigated
2. By a final and valid judgment
3. The determination was essential to the judgment
= binds those parties

Question 146

Personal jurisdiction

Answer 146

1. Compliance with state statute
2. Compliance with con law

Question 147

Specific jurisdiction

Answer 147

1. Claim arises out of defendant’s directed contacts with the state
2. Exercise of PJ comports with traditional notions of fair play and substantial justice considering: actual burden on D, forum state’s interests, plaintiff’s interests, systematic efficiency interests

Question 148

General jurisdiction human

Answer 148

Domiciled in state or served while physically present in state

Question 149

General jurisdiction entity

Answer 149

Incorporated in state or nerve center in state

Question 150

Venue proper where

Answer 150

1. All D live in same state + district is in that state OR
2. Substantial part of the events or omissions giving rise to the claim occurred in that district OR the property the claim is about is in that district
3. Neither of those are true but the district is in a state that has PJ

Question 151

Diversity jurisdiction

Answer 151

1. Complete diversity
2. Amount in controversy exceeds $75,000

Question 152

Two main types of federal subject matter jurisdiction

Answer 152

Diversity and federal question

Question 153

Forum non conveniens

Answer 153

1. Forum is a seriously inconvenient forum
2. A more appropriate forum is available

Question 154

Fee simple absolute

Answer 154

Owner holds all possible rights and interests in a single bundle. Freely transferable during owner’s life and by inheritance.

Question 155

Lease

Answer 155

Contractual right to possess property for a limited period of time

Question 156

Easement

Answer 156

Right to use part of land owned by another

Question 157

Trust

Answer 157

A device whereby the trustee controls and manages the property but the benificiary receives the benefits

Question 158

Do physical structures on land come with the land?

Answer 158

If they are affixed to it.

Question 159

Life estate

Answer 159

Fee simple that terminated upon death

Question 160

Future interest

Answer 160

A present interest to enjoy possession of property at some time in the future

Question 161

Joint tenancy

Answer 161

Multiple owners own undivided equal portions of the property with right of survivorship and unilateral right of division

Question 162

Tenancy by the entirety

Answer 162

Married couple with joint tenancy but no unilateral right or division (need to agree or divorce).

Question 163

Tenancy in common

Answer 163

Joint tenancy with no right to survivorship

Question 164

What type of joint ownership is presumed?

Answer 164

Tenancy in common

Question 165

Natural resource rights inherent to land ownership

Answer 165

Right to resources on below or above land

Question 166

License

Answer 166

Owner’s permission to another to use their property in a specific way

Question 167

Covenant

Answer 167

A contractually binding promise to use or not use one’s own property in a certain way, with monetary damages. Binds ownership successors.

Question 168

Equitable servitude

Answer 168

Contractually binding promise to use or not use one’s own property in a certain way, with specific performance remedy. only binds those in probity to it

Question 169

Adverse possession

Answer 169

The logical outcome of there being a statute of limitations on an action for ejectment. SOL only runs when the possession is
1. Actual
2. Hostile
3. Open and notorious
4. Exclusive and continuous

Question 170

Easement by prescription

Answer 170

Adverse possession but for an easement

Question 171

Easement by necessity

Answer 171

1. Landowner sells off a portion of their land
2. That has no access to a public road or utility line

Question 172

Nuisance

Answer 172

An activity that adversely affects adjacent property owners or the general public. The defendant is the property owner.

Question 173

Invitee

Answer 173

A person whom the owner has invited onto the premises for the owner’s benefit

Question 174

Licensees

Answer 174

People who use the property with the owner’s permission, but not for their benefit

Question 175

Duty to licensee

Answer 175

Only to warn of dangerous conditions

Question 176

Duty to trespassers

Answer 176

To keep the property free of unreasonable dangers a trespasser might not expect

Question 177

Warranties as to real estate sales

Answer 177

Express warranties are enforceable otherwise caveat emptor

Question 178

Conditions for will validity

Answer 178

1. Testator knows what they’re doing
2. The will is in writing
3. Signed by the testator
4. Signing witnessed by at least two witnesses

Question 179

Requisites for gift of real property

Answer 179

1. Donative intent
2. Writing

Question 180

Requisites for transfer of chattel property as a gift

Answer 180

1. Donative intent
2. Delivery
3. Acceptance

Question 181

Found chattel property

Answer 181

Lost—>1. True owner. 2. Finder.
Abandoned—>1. Finder
Mislaid—>1. True owner. 2. Owner of the real property on which the chattel was found. 3. Finder.

Question 182

Mislaid

Answer 182

1. Purposefully put in a specific location.
2. Inadvertently left there.

Question 183

Bailment

Answer 183

Leaving property in the possession of another for safekeeping or some other temporary purpose.

Question 184

Accession rules

Answer 184

Property is improved without teamwork—>property owner gains title to any natural or artificial increases in or additions to the property

Property is improved through teamwork—>consider (1) difference in value as a result of labor, (2) degree of change in the form of the original property, (3) ease with which the personal property can be removed from the owner’s property

Question 185

Standing

Answer 185

1. Injury
2. Causation
3. Redressability
4. Not based on a third part unless valid exception
5. Not a generalized grievance unless taxpayer suing gov for expenditures violating the establishment clause

Question 186

Ripeness test

Answer 186

An issue is not ripe when
1. The plaintiff is asking for pre-enforcement review of a law
2. Balancing the hardship plaintiff will suffer without pre-enforcement review and the fitness of the issues for review tips in favor of pre-enforcement review m

Question 187

Mootness issue

Answer 187

The danger of redressable harm has passed such that the case no longer presents a live controversy.

Question 188

Mootness exceptions

Answer 188

Capable of repetition yet evading review, voluntary cessation, monetary damages, class action lawsuits

Question 189

Political questions

Answer 189

-suits that say something violates the Republican form of Government Clause
-challenges to the president’s conduct of foreign policy
-challenges to the impeachment and removal process
-challenges to partisan gerrymandering

Question 190

Legislative branch vertical federalism limits

Answer 190

-Can’t force state officials to pass laws or perform tasks
-must make “clear statement of intent” for statute to affect state gov function
-can bribe states

Question 191

Commerce clause allows federal laws that…

Answer 191

1. Regulate the use of the channels of interstate commerce,
2. Protect the instrumentalities of interstate commerce, and
3. Regulate activities that substantially affect interstate commerce

Question 192

14th amendment congressional legislative powers

Answer 192

1. Make procedural laws like 1983.
2. Create statutes to secure substantive rights explicit or implicit in the fourteenth.

Question 193

Dormant commerce clause

Answer 193

State laws that discriminate against interstate commerce are not allowed without an exception

Question 194

Privileges and immunities clause

Answer 194

Prevents state governments from denying other state’s citizens the right to travel into it

Question 195

Law passed by Congress legislative basis question?

Answer 195

Find one
-13th for race discrimination
-commerce
-14th
-tax and spend
-necessary and proper

Question 196

Threshold individual constitutional rights question?

Answer 196

State actor

Question 197

Equal protection levels of scrutiny

Answer 197

Law discriminates on…
-race, national origin, citizenship not relating to self-government and the democratic process and NOT done by congress. Strict scrutiny.

-sex, undocumented children, nonmarital children?
Intermediate scrutiny.

-anything else? rational basis.

Question 198

Strict scrutiny

Answer 198

1. Ends must be a compelling government interest (extremely important),
2. Means must involve the least possible burden on the suspect class (eg the race).

Gov bears burden of proof.

Question 199

Rational basis test

Answer 199

1. Ends are a legitimate interest,
2. Rationally possible that the means chosen will further the ends.

Complaining party bears burden of proof.

Question 200

Intermediate scrutiny

Answer 200

1. The end sought must be a substantial government interest,
2. The means must substantially further the end

Gov bears burden of proof

Question 201

Substantive due process fundamental rights

Answer 201

-birth control
-marriage (including same sex)
-private adult consensual sexual conduct
-procreation
-custody of one’s own children
-keeping the family together including the extended family
-refusing medical treatment, even food and water

All under the umbrella of privacy

-intra-US travel
-voting, though laws that go to the security of elections don’t affect this right
-to not have election districts be drawn based upon race

Question 202

Unprotected speech categories

Answer 202

-seditious (aka incitement of illegal activity)
-inherent to classic crimes or torts
-fighting words
-obscenity as long as it’s more than mere private possession
-child pornography
-profane indecent language over public free broadcast media
-profane indecent language IN schools
-false and deceptive advertisements
-advertisements for illegal activities
-ads with a substantial likelihood of deception
-attorney in-person solicitations

Question 203

Seditious speech

Answer 203

1. Directed to inviting or producing imminent lawless action
2. Likely to incite or produce such action

Question 204

Fighting words

Answer 204

1. Likely to provoke the average person to retaliate
2. And thereby breach the peace

Question 205

Obscenity

Answer 205

1. Average person applying contemporary community standards would find the work as a whole appeals to prurient interest in sex
2. The work depicts, in a patently offensive way, sexual conduct specifically defined by the applicable state law
3. The work taken as a whole lack serious literary, artistic, political, or scientific value

Question 206

1A violation

Answer 206

1. Protected speech (not unprotected)
2. Impermissible restriction

OR compelled speech

Question 207

Types of 1A impermissible speech restrictions

Answer 207

Not content neutral, prior restraint, impermissible content neutral restriction, impermissible symbolic speech restriction, impermissible vague in violation of the 1A, impermissible overbroad in violation of the 1A

Question 208

Permissible symbolic speech restriction

Answer 208

1. Furthers an important government interest
2. That interest is unrelated to the suppression of free expression
3. The incidental restriction on the activity is no greater than is essential to the furtherance of the interest

Question 209

Prior restraint exception

Answer 209

-Permits where there is an important reason for so requiring
-zoning as applied to sexual activity

Question 210

Permissible Commercial speech restrictions

Answer 210

1. Regulating only unlawful or misleading speech
2. substantial government interest in limiting it
3. Regulation directly advances that goal
4. Regulation is not more extensive than necessary to achieve that goal

Question 211

parts of religious freedom 1A

Answer 211

Establishment clause and free exercise clause

Question 212

To pass establishment clause

Answer 212

1. Law or action must have a secular purpose
2. Primary effect must be to neither inhibit nor advance religion
3. Must not foster excessive government entanglement with religion

Question 213

Free exercise clause analysis

Answer 213

May not intentionally discriminate against religion AND if it has a discriminatory impact, must pass strict scrutiny

Question 214

Admissibility issues to spot

Answer 214

1. Competency
2. Impermissible opinion
3. Irrelevant
4. Hearsay
5. Privileged
6. Public policy
7. Non-responsive (move to strike rather than object)
8. Best evidence
9. Rule of completeness
10. Impermissible question

Question 215

Competency requirement

Answer 215

1. Witnesses may only testify to matters about which they have personal knowledge
2. Sound mind
3. Must take an oath or affirmation to testify truthfully
4. Not a juror testifying about what occurred during jury deliberations EXCEPT as to (a) extraneous prejudicial information brought to their attention, (b) improper outside influence brought to bear on a juror, (c) mistake on the verdict form, or (d) statements made during deliberations indicating that jurors harbored racial stereotypes or animus that was the primary significant motivating factor behind a criminal conviction

Question 216

Opinion testimony

Answer 216

Presumptively inadmissible

Question 217

Permissible lay opinion testimony

Answer 217

1. Rationally based on perception of the witness
2. Helpful to a clear understanding of the witness’s testimony
3. Opinion does not require specialized knowledge

Question 218

Permissible expert opinion testimony

Answer 218

A witness who is qualified as an expert by knowledge skill experience training or education may testify in the form of opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, (b) the testimony is based upon sufficient facts or data, (c) the testimony is the product of reliable principles and method, (d) the witness has applied the principles and methods reliably to the facts of the case, and (e) witness is reasonable certain in the accuracy of their opinion

Question 219

Reliable principles and methods

Answer 219

1. Has been tested
2. Published or peer reviewed
3. Known rate of error
4. Standards controlling its operation
5. Generally accepted within the relevant scientific community

Question 220

Overall relevance test

Answer 220

1. 401
2. 403, except for prior felonies involving character for truthfulness that are offered to impeach, unless really old
3. Offered for the propensity argument unless exception BUT habit is not propensity
4. Rape shield law
5. Convictions over 10 years from date of release or conviction, which ever is later, are inadmissible unless the party offering shows Probative value substantially outweighs prejudice

Question 221

General 401 test

Answer 221

Any tendency to make the existence of any fact that is of consequence to the determination of an action more probable or less probable than it would be without the evidence

Question 222

403 test

Answer 222

Probative value substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence

Question 223

Hearsay

Answer 223

An out of court statement offered to prove the truth of the matter stated

Question 224

Way to think of hearsay

Answer 224

1. Someone else said it
2. Not one of the categories of statements not offered for their truth
3. Not an exception

Question 225

Statements that sound like hearsay but are not either by definition or exclusion from the definition

Answer 225

-effect in listener
-prior inconsistent
-prior consistent offered to rehab credibility
-prior statement of identification
-legally operative language
-presenting a document to refresh recollection
-party opponent statement, party opponent authorized representative, party opponent adoptive statement

Question 226

807 test

Answer 226

1. Supported by sufficient guarantees of trustworthiness
2. More probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts

Question 227

Facts can be established by

Answer 227

Competent witness admissible testimony OR judicial notice

Question 228

Judicial notice rule

Answer 228

1. Generally known OR
2. Can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned

Question 229

State court subject matter jurisdiction

Answer 229

Yes

Question 230

Impleaded party assertion counterclaims

Answer 230

-same transaction or occurrence=use it or lose it
-all else= permissive

Question 231

Erie applicability?

Answer 231

Diversity cases

Question 232

Erie black letter

Answer 232

Procedure= fed
Substantive = state

Question 233

Substantive law

Answer 233

Statute of limitations, horizontal choice of law, elements

Question 234

Permissible Service of process methods

Answer 234

-physically hand to defendant
-leave at defendant’s office or home with an adult working or living there with instructions to give to D
-otherwise according to the laws of the state where service is affected

Question 235

Eleventh amendment limitation

Answer 235

States can’t be sued by citizens in federal court without consent

Question 236

Acceptance is effective upon…

Answer 236

Dispatch

Question 237

Noncomforming dispatch, no contract yet, typically

Answer 237

Counteroffer.

Question 238

Noncomforming, contract already, general

Answer 238

Breach and counter

Question 239

Transfer of contract performance

Answer 239

Permissible but does not alleviate you if your original contractual obligations to the party with whom you’re in privity, unless a proper contract modification is made

Question 240

Basic criminal elements

Answer 240

1. Voluntary act
2. Mens rea
3. Causation
4. Concurrence of VA and MR

Question 241

Effect of merger on property estates

Answer 241

Terminates and starts new

Question 242

Explicit easement requirement

Answer 242

contract

Question 243

Will splitting real property to one heir personal to another, house sale, dies before execution, where do profits go?

Answer 243

To the personal property heir

Question 244

Multiple mortgages and one creditor forecloses

Answer 244

1. Order based first on recording second on time
2. Pay foreclosing party in full
3. Split rest amongst less entitled creditors and then they’re done
4. Senior mortgages remain intact

Question 245

Felony

Answer 245

Punishable by more than a year in prison

Question 246

Misdemeanor

Answer 246

Punishable by up to a year in jail

Question 247

Probable cause

Answer 247

The facts and circumstances within the officer’s knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution on the belief that an offense has been committed and that a particular person committed it.

Question 248

Deadline for Gerstein review criminal complaint probable cause review

Answer 248

48 hours

Question 249

Brady disclosures

Answer 249

Any exculpatory evidence

Question 250

Criminal standard of proof

Answer 250

Beyond a reasonable doubt

Question 251

4A violation

Answer 251

1. Search or seizure
2. Unreasonable

Question 252

Search

Answer 252

Law enforcement invasion of a person’s reasonable expectation of privacy

Question 253

Unreasonable searches

Answer 253

1. No warrant
2. No exception

Question 254

Search warrant exceptions

Answer 254

-exigent circumstances
-breath test of a driver + probable cause to believe they are drunk
-probable cause to believe a vehicle contains contraband or other evidence of a crime
-plain view
-inventory
-incident to lawful arrest
-consent
-border
-DUI checkpoints

Question 255

Exigent circumstances

Answer 255

Emergency situation making it impracticable for the police to get a warrant

Question 256

Plain view exception elements

Answer 256

1. Officer’s presence in the area where the item is seen must be lawful
2. Office must have lawful access to the item
3. It must be immediately apparent to the officer that the item is contraband in nature or evidence of a crime

Question 257

Search incident to lawful arrest scope limitation

Answer 257

The arrested person and the area within the arrestee’s immediate reach or control

Question 258

Seizure test

Answer 258

Free to leave

Question 259

Types of seizures

Answer 259

Arrests and stops

Question 260

Arrest in suspect’s home reasonable justifications

Answer 260

-warrant
-hot pursuit
-probable cause to believe evidence will be destroyed if police do not enter the home immediately
-suspect will escape if police do not enter home immediately
-harm will occur to the police or others if the police do not enter the home immediately

Question 261

Arrest in home not suspect’s reasonable justification

Answer 261

Need warrant

Question 262

Arrest outside home reasonable justification

Answer 262

Warrant or probable cause for felony

Question 263

Arrest how-executed reasonableness test

Answer 263

1. Reasonable circumstances
2. Reasonable means
3. Knock and announce IF home arrest

Question 264

Standard for warrants

Answer 264

Probable cause

Question 265

Stop and frisk reasonableness test

Answer 265

Reasonable suspicion

Question 266

Reasonable suspicion

Answer 266

Specific and articulable facts that disclose unusual conduct which leads an officer reasonably to conclude in light of his experience that criminal activity may be afoot

Question 267

In custody interrogation confession admissible

Answer 267

1. Voluntary
2. Miranda warning

Question 268

Non-custodial or non-interrogation confession admissibility test

Answer 268

Voluntariness

Question 269

Miranda exceptions

Answer 269

-public safety
-covert interrogation
-routine booking questions
-non-criminal trial proceedings

Question 270

Public safety Miranda exception test

Answer 270

Public safety interest outweighs defendant’s right to Miranda warning

Question 271

Covert interrogation elements

Answer 271

1. Suspect is unaware he is speaking to law enforcement
2. Gives a voluntary statement

Question 272

Specific reasonable expectation of privacy situations to know

Answer 272

-aerial surveillance
-tracking devices
-cell phones
-drug dogs
-thermal imaging
-trash
-open fields

Question 273

Aerial surveillance reasonable expectation of privacy rule

Answer 273

None as long as it doesn’t cause excess noise wind or dust and does not allow observation of the intimate details connected with the home and its curtilage

Question 274

Open fields

Answer 274

All areas outside the home and it’s curtilage

Question 275

Tracking devices reasonable expectation of privacy rule

Answer 275

Violates

Question 276

Cell phone reasonable expectation of privacy rule

Answer 276

Violates

Question 277

Drug dog reasonable expectation of privacy rule

Answer 277

Permissible in a transport center

Question 278

Thermal imaging reasonable expectation of privacy rule

Answer 278

Exists

Question 279

Trash reasonable expectation of privacy rule

Answer 279

Does not exist as long as not in curtilage

Question 280

When does the right to counsel attach

Answer 280

Initial appearance

Question 281

Exclusionary rule exceptions

Answer 281

-good faith
-impeachment evidence
-sufficiently attenuated taint
-inevitable discovery
-not a criminal proceeding
-only a knock and announce violation

Question 282

Good faith exclusionary rule exception

Answer 282

The police officers did not know or could not have reasonably have been expected to know their actions were unconstitutional

Question 283

4A Exclusionary rule

Answer 283

Evidence obtained from a 4A violation and fruit of the poisonous tree is not admissible

Question 284

Inevitable discovery exclusionary rule exception

Answer 284

Preponderance of the evidence supports that the challenged evidence ultimately or inevitably would have been discovered by lawful means

Question 285

Illegally obtained confession evidence exclusionary rule exception

Answer 285

Illegals obtained confession led to discovery of other evidence, that other evidence is still admissible

Question 286

Knock and announce exclusionary rule exception

Answer 286

Where the social cost outweighs the deterrence benefit

Question 287

Speedy trial issue test

Answer 287

Balance four factors
1. Length of delay
2. Balance of blame
3. Assertion of right
4. Prejudice

Question 288

Criminal bail to jail issues to spot

Answer 288

-speedy trial
-Gerstein hearing
-right to counsel
-public trial
-jury trial
-impartial jury
-compelled testimony
-confrontation clause
-burden of proof
-IAC

Question 289

Who has a right to a jury trial in a criminal case?

Answer 289

Those charged with non-petty offenses

Question 290

Petty offense

Answer 290

Punishable by 6 months or less in jail

Question 291

Must criminal jury verdicts be unanimous

Answer 291

Yes if a jury is constitutionally required

Question 292

Impartial jury requirement

Answer 292

It must be drawn from a fair cross section of the community

Question 293

Confrontation clause violation

Answer 293

1. Testimonial
2. Hearsay
3. No opportunity to cross examine at the time the statement was made

Question 294

Testimonial statement

Answer 294

Primary purpose was to establish or prove past events relevant to later criminal prosecution

Question 295

Who gets an appointed lawyer

Answer 295

Could result in jail at all

Question 296

IAC test

Answer 296

1. Performance was incompetent under prevailing professional norms
2. Reasonable probability that this malpractice was but for cause of outcome not being better

Question 297

Death penalty only allowed for

Answer 297

Murder

Question 298

Reversible errors

Answer 298

Non-harmless, plain, or structural in criminal trial

Question 299

UCC battle of the forms both merchants dealing in those goods

Answer 299

-term in offer but not acceptance = exists
-term in acceptance but not offer= exists unless materially alters, offer expressly limited acceptance to its terms, or offeror seasonably objects
-contradicting = cancel out and use ucc gap filler
-missing from both = use ucc gap filler

Question 300

Default evidence rules to apply on the bar

Answer 300

Federal

Question 301

Federal court proceedings where FRE don’t apply

Answer 301

Could not be done by trial jury

Question 302

Evidence baselines

Answer 302

Relevant? Presume admissible
Irrelevant? 100% inadmissible

Question 303

Essay question where relevance is an issue thing not to forget

Answer 303

Actually explain why the evidence is relevant or irrelevant no matter how obvious it seems

Question 304

Unfair prejudice

Answer 304

Tendency to move a jury to decide a case based on some improper basis

Question 305

Improper bases for deciding a case

Answer 305

-emotion
-evidence admissible for limited purpose and it’s used not for that purpose

Question 306

What evidence issue to spot does authenticity go to?

Answer 306

Relevance

Question 307

What is a habit?

Answer 307

A regular response to a specific set of circumstances. It is MORE than just a propensity to act that way.

Question 308

Public policy evidence exclusions

Answer 308

-evidence of liability insurance rule
-subsequent remedial measures
-evidence of a civil settlement or conduct during settlement negotiations
-plea negotiations
-payments of or offers to pay medical expenses

Question 309

Evidence of liability insurance exclusion exceptions

Answer 309

Relevant to probe something other than wrongful conduct or ability to pay a judgment

Question 310

Subsequent remedial measures exclusion rule exceptions

Answer 310

Admissible to prove something other than showing strict liability (or worse).

Question 311

Civil settlement evidence exclusionary rule

Answer 311

Settlement was of a disputed claim (claim must have been brought or at least threatened)

Question 312

Payment of or offers to pay medical expenses exclusionary rule exceptions

Answer 312

Admissions of fact accompanying actual payment don’t fall within this rule’s ambit

Question 313

Propensity argument rule exceptions

Answer 313

-criminal defendant about theirself
-criminal defendant opened the door
-character is directly at issue in case
-impeachment
-proving truthfulness on cross
-against rape case defendant
-homicide defendant has argued victim was initial aggressor

Question 314

When the propensity argument is allowable, HOW can it be done

Answer 314

-reputation or opinion: always
-specific instances of conduct, (a) crossing the character witness, (b) the character trait is an element of a charge claim or defense in the case
-prior bad acts Probative of truthfulness on cross: discretion of court
-evidence of a separate rape: when it’s a criminal rape case and the alleged rapist is the defendant

Question 315

Homicide case initial aggressor argument propensity argument rule

Answer 315

Prosecution may make propensity argument about victim’s peacefulness trait

Question 316

Rape shield rule

Answer 316

Evidence to probe sexual behavior or sexual disposition of the alleged victim is inadmissible

Question 317

Rape shield law exceptions in criminal cases

Answer 317

1. Instances of victim’s sexual behavior admissible to prove that someone other than the defendant was the source of semen, injury, or other physical injury
2. Evidence of sexual behavior Between the victim and defendant, offered by the prosecution
3. Evidence of sexual behavior between victim and defendant, offered by the defendant to prove consent

Question 318

Rape shield law exceptions civil cases

Answer 318

1. Evidence of prior sexual behavior of the alleged victim admissible if Probative value substantially outweighs the danger of harm to the victim or unfair prejudice to any party
2. Evidence of alleged victims reputation is admissible if they have placed it in controversy

Question 319

Common alternatives to the propensity argument

Answer 319

Offered to prove
MIMIC
Motive
Identity
Mistake (or absence thereof)
Intent
Common plan or scheme

Question 320

Personal knowledge test

Answer 320

Reasonable juror could believe that the witness perceived, with one of the five senses, the facts testified to

Question 321

Improper questions to witnesses issues to spot

Answer 321

-leading
-calls for narrative
-assumes facts not in evidence
-misleading
-argumentative
-calls for speculation

Question 322

Leading questions prohibition exceptions

Answer 322

-cross exam
-direct preliminary matters
-witness needs a lot of help (very young or mentally Ill)
-hostile witness

Question 323

Past recollection recorded exception requirements

Answer 323

1. Witness has insufficient recollection to testify fully and accurately
2. Witness once had personal knowledge of the facts
3. Witness either made the record, directed it be made, or adopted it
4. …when the matter was fresh in the witness’s mind
5. Witness testifies the record accurately reflects their knowledge

Question 324

Rehabilitating witness credibility exceptions

Answer 324

1. Witness’s testimony has been attacked by suggestion they had motive to lie, prior consistent statement made before the alleged motive to lie arose is an exception
2. Other type of credibility attack, prior consistent generally is an exception

Question 325

Four things a passing essay answer must do

Answer 325

1. Have headings that suggest the outcome determinative fact and state the issue
2. State a rule of law
3. Apply the rule to the facts
4. Reach a conclusion

Question 326

Three words to use in essays

Answer 326

1. Under…
2. Here…
3. Therefore…

Question 327

Breaking up time for essays

Answer 327

1/3 reading
1/3 thinking and outlining
1/3 writing

Question 328

Magic words in a hypo that indicate a partnership was properly formed

Answer 328

“Written partnership agreement.”

Question 329

Steps of initial read of non-PT essay question

Answer 329

1. Read the call
2. Identify the subject
3. Read the facts note
   a. All characters
   b. All entities
   c. All occupations
   d. All relationships between as and bs
4. Re read the first paragraph then pause and predict what you think would happen
5. Anything that indicates notice or lack thereof
6. Anything that indicates mental state
7. Any other legal issue potentially relevant to the call (if magic words indicate something is a given, then it’s NOT an issue), AND quickly type the rule that goes with this issue
8. Circle the transactions/occurrences/pieces of property (if more than one)

Question 330

Who is your audience on the bar exam non-PT essays

Answer 330

An educated person who knows ZERO law

Question 331

Organizing principles for essay answers

Answer 331

1. Way the examiners tell you to
2. Order transactions or events occurred
3. Rule to exception
4. Claims to defenses

Question 332

What to do if you can’t remember the rule on the essay portion?

Answer 332

Make one up

Question 333

How to make up a rule for bar essays

Answer 333

1. Read the facts and determine the issue
2. Decide who wins
3. Make up a rule that makes that happen and then boldly assert it

Question 334

Issue statement

Answer 334

A short outcome-determinative statement that shows the examiner that you know what you need to talk about and don’t need to talk about to arrive at the right conclusion

Question 335

Rule of law

Answer 335

A full statement of the applicable governing principles

Question 336

Conclusion

Answer 336

A brief statement that answers the question asked

Question 337

How to write a conclusion

Answer 337

Take the call of the question and turn it into a statement

Question 338

Recapture of chattels

Answer 338

1. Reasonable force
2. Hot pursuit
3. Of thief of chattels

Question 339

Shopkeepers privilege

Answer 339

1. Shopkeeper
2. Reasonable force
3. Belief they merchandise was stolen
4. Reasonable belief

Question 340

Application of facts to law

Answer 340

Showing the examiner the facts determine the outcome

Question 341

Thinking portion of essays

Answer 341

Go through each fact, choose whether to use it or not use, and jot down why

Question 342

Adoptive party opponent admissions

Answer 342

1. Non-party makes a statement
2. Party hears or reads it
3. Party understands it
4. Party expressly adopts it or is silent when they could have denied the statement, and did not

Question 343

Declarant unavailable hearsay exceptions

Answer 343

-former testimony
-dying declaration
-statement against interest
-statement of personal or family history
-party opponent wrongfully caused the unavailability

Question 344

Hearsay exceptions unavailability not necessary

Answer 344

-present sense impression
-excited utterance
-then existing state of mind
-made for medical diagnosis or treatment
-past recollection recorded
-record of regularly conducted activity or absence thereof
-public records or absence thereof
-religious organization records concerning personal or family history
-marriage, baptism, or similar ceremonies
-family records
-documents affecting an interest in property
-statement in document prepared before 1/1/1998
-market reports
-learned treatises
-reputation concerning personal or family history
-reputation concerning boundaries
-reputation concerning character
-judgment of previous felony (not by nolo contendre plea)
-past court judgment

Question 345

Former testimony exception further necessities

Answer 345

Being offered against a party who, or who’s predecessor in interest, had an opportunity and similar motive to develop it by direct, cross, or redirect exam

Question 346

Dying declaration further requirements

Answer 346

Offered in civil or homicide case

Question 347

Statement against interest elements

Answer 347

1. So inconsistent
2. Corroborating circumstances clearly indicate trustworthiness

Question 348

Past recollection recorded elements

Answer 348

1. Witness once knew the matter well but now cannot recall enough to testify truthful and accurately
2. Made or adopted when the matter was fresh in the witness’s mind
3. Accurately reflects the witness’s knowledge

Question 349

Authentication test

Answer 349

Proof such that a reasonable juror could agree that the evidence is what the proponent claims it to be

Question 350

Best evidence rule

Answer 350

To prove the content of a writing, recording, or photograph, you need the original

Question 351

Best evidence rule exceptions

Answer 351

1. All the originals lost or destroyed and not in bad faith
2. Original copy be obtained by any available judicial process
3. Voluminous records
4. Certified public records

Question 352

What privileges do we consider under federal rules of evidence

Answer 352

Those created by federal common law EXCEPT in a diversity case, then those under the relevant state law

Question 353

Federal common law privileges

Answer 353

-attorney client
-spousal
-psychotherapist-client
-social worker-client
-clergy-penitent
-various governmental

Question 354

Attorney-client privilege

Answer 354

1. Communication
2. Made by an attorney or client
3. During a confidential consultation between the same

Question 355

Do privileged communications have to be kept confidential to not waive the privilege?

Answer 355

Yes

Question 356

Who can waive a privilege?

Answer 356

Only the holder.

Question 357

Burden of production

Answer 357

The burden of producing evidence sufficient to make out a prima facie case

Question 358

Burden of persuasion

Answer 358

The standard a party seeking to establish something in court must satisfy

Question 359

Burden of proof

Answer 359

Burden of production + burden of persuasion

Question 360

Common presumptions

Answer 360

-a letter properly address + stamped + mailed = delivered
-inexplicably absent over seven years = dead
-civil case + death = NOT suicide
-case involving legitimacy of child = legitimate
-insanity issue = not insane

Question 361

Rule of completeness

Answer 361

Where a part or all of a writing or recording is introduced into evidence, the adverse party can require the proponent of that evidence to introduce any other part or any other related writing or recording statement, if fairness would dictate all should be considered at the same time

Question 362

When can a document used to refresh recollection be entered into evidence?

Answer 362

-by the adverse party (as an exhibit)
-when it doesn’t succeed in refreshing the witness’s recollection (by reading aloud)

Question 363

Authentication exception

Answer 363

Documents used to refresh recollection

Question 364

Time breakdown for performance test

Answer 364

Half reading and analyzing
Half writing

Question 365

Should you cite authority when given authority?

Answer 365

Yes

Question 366

Logical structure for PT

Answer 366

CREACC
Conclusion
Rule
Explanation of rule
Application of rule to facts
Conflicting authority and counter arguments
Conclusion

Question 367

Does an expert’s opinion need to be based on facts in evidence?

Answer 367

No

Question 368

Before an expert opinion is offered, does the judge have to officially qualify the witness?

Answer 368

Yes

Question 369

Cross examining on prior bad acts, where allowed, how can it be done?

Answer 369

1. Ask about it
2. Can continue asking if denial and you have good faith
3. Cannot introduce extrinsic evidence

Question 370

Vicarious responsibility for statements

Answer 370

Authorized spokesperson, partner, co-conspirator, principal-agent

Question 371

Where do you start on the performance test?

Answer 371

The task memo.

Question 372

What should I be looking for in the PT task memo?

Answer 372

Call DRT
Client
Audience
Legal problem
Limiting instructions
Document asked to draft
Research questions
Tone I’m supposed to write with (persuasive or objective)

Question 373

Performance test reading and analysis order

Answer 373

1. Read Task memo and Call DRT
2. Read the cases in reverse chronological order
   a. Read the last paragraph first,
   b. Skim the facts
   c. Read the reasoning
3. RHIP FRE
4. Read the statutes
5. Synthesize the law
6. Read the facts library

Question 374

Where is the performance test set?

Answer 374

The fictional state Columbia.

Question 375

Do you know Columbia law prior to the bar?

Answer 375

No.

Question 376

What to pull from the case

Answer 376

RHIP FRE
Rule of law stated
Holding
Issues
Parties
Facts
Research terms and questions
Explanation of rule to a smart and educated non-lawyer

Question 377

Where are legally significant facts found in a case?

Answer 377

In the court’s reasoning.

Question 378

What is the holding?

Answer 378

Whatever the court says it “holds,” “concludes,” or “finds.”

Question 379

What to address in all types of bar essays

Answer 379

Bad facts and conflicting authority

Question 380

How do you counter bad facts?

Answer 380

With law.

Question 381

How do you counter conflicting authority?

Answer 381

With good facts.

Question 382

Where does state evidence law apply in federal court on a diversity case?

Answer 382

-privileges
-witness competency
-evidentiary presumptions

Question 383

Baseline assumption about California evidence rules

Answer 383

They’re the same as the federal evidence rules

Question 384

When is a witness unavailable?

Answer 384

-privilege
-refusal
-absent and beyond subpoena power
-can’t remember
-death or infirmity, physical or mental illness

Question 385

Extra requirement for introducing confessions, under evidence rules

Answer 385

Corroborating evidence

Question 386

California evidence criminal case distinctions

Answer 386

-prosecution can offer extrinsic acts of domestic or elder abuse in a prosecution for the same
-if a defendant makes a propensity argument about an alleged victim’s violence, and violence only, the pros can make a propensity argument about ONLY the defendant’s violence
-no propensity argument exception for a criminal defendant’s self defense argument that the victim attacked first
-past convictions of moral turpitude crimes are always admissible, other past convictions are always inadmissible
-past bad acts that are not criminal convictions are admissible to impeach subject to 352 (403) balancing
-dying declarations not limited to homicide cases
-propensity argument as to credibility is ALWAYS allowable

Question 387

California evidence civil case differences

Answer 387

-subsequent remedial measures exclusion doesn’t apply in strict liability cases
-statements made in and preparation for mediation proceedings inadmissible
-expressions of sympathy inadmissible
-propensity arguments are totally out with NO EXCEPTIONS
-NO RAPE SHIELD
-former deposition testimony is a hearsay exception if deponent is unavailable or lives more than 150 miles from the trial
-evidence of immigration status inadmissible in personal injury or wrongful death cases

Question 388

California evidence differences applicable to both civil and criminal cases

Answer 388

-403 = 352
-payments of medical expenses or offers thereto exclusion also covers accompanying statements
-no public policy exclusion of pleas and discussions thereof
-where the propensity argument is allowable, no limitations on how it can be made
-rape shield law has a blanket ban on evidence of alleged victim’s dress
-Frye-Kelley standard for reliable principles and methods: generally accepted in the community
-learned treatise exception applies only to facts of general notoriety or interest
-where past convictions are admissible, no greater than ten year ban
-prior inconsistent statements don’t have to have been under oath
-prior consistent statements can be used to bolster credibility after attack by a prior inconsistent statement if the pcs preceded the pis
-am employer’s implicit adoption of an employee’s statement is subject to respondeat superior analysis as to the statement as well as the circumstances
-pis admissible for truth
-a witness is also unavailable if they won’t testify out of fear
-no corroboration requirement for confessions
-a statements against social interest exception exists
-predecessor in interest requirement is just an interest requirement
-hearsay exception for statements of an alleged murder/kidnapping victim against the murderer/kidnapper
-present sense impression exception only applies to explanations of one’s own conduct
-Declarant unavailable exception for descriptions, narrations, or explanations of inflictions or threats of physical injury
-excited utterances = spontaneous statements, which judges may in their discretion exclude for untrustworthiness
-descriptions of medical history for treatment exception applies only to statements by minors describing an act or attempted act of abuse or neglect
-description of last physical condition doesn’t need to be made for medical purposes
-ancient documents authentication exception is 30 years not 20
-trade inscriptions and certified business records are not self authenticating
-communications between parties in a privileged relationship presumed confidential
-ac privilege doesn’t survive client, it ends with that estate being wrapped up
-ac privilege for entities doesn’t require that employee speaking have been explicitly authorized, must just be the type of person you would expect
-no privilege of any kind applies to statements one reasonable believes their disclosure is necessary to prevent death or serious bodily injury to someone
-physician-patient privilege exists
-judge has a duty to sua sponte take judicial notice of facts generally known
-accountant-client privilege exists
-professional journalist privilege exists

Question 389

Spousal privilege asserted by the party spouse elements

Answer 389

1. Criminal case
2. Confidential communication between spouses
3. Regarding matters that took place before or during the marriage

Question 390

Spousal privilege asserted by the witness spouse

Answer 390

A spouse can choose not to testify agains their spouse

Question 391

Injury requirement for standing

Answer 391

Monetary relief=personally suffered injury
Injunctive/declaratory relief=likelihood of future harm

Question 392

Strongest case for standing injury

Answer 392

Dollars and cents, economic harm

Question 393

Exceptions to the third party standing ban

Answer 393

-close relationship
-injured party is unlikely to assert their own rights
-organizational standing

Question 394

Organizational standing elements

Answer 394

1. Members have standing
2. Interests germane to purpose
3. No need for individual participation

Question 395

How to recognize generalized grievance issue

Answer 395

Question says “citizen” or taxpayer is suing gov

Question 396

What should I think of when a plaintiff asks for declaratory relief?

Answer 396

Ripeness

Question 397

When is an issue moot?

Answer 397

An event after the plaintiff filed ends their injury.

Question 398

Limits on federal judicial power

Answer 398

1. Standing
2. Mootness
3. Ripeness
4. Political questions
5. Cannot enjoin state proceedings

Question 399

What happens if a case was heard by a three judge panel of federal district judges

Answer 399

Appellate review goes directly to scotus automatically

Question 400

Where are suits between states heard

Answer 400

Scotus has original jurisdiction

Question 401

Can scotus exercise interlocutory review?

Answer 401

No

Question 402

Limit on scotus review or state court decisions

Answer 402

No independent and adequate state law ground supports the decision

Question 403

Non-consensual exceptions to 11th amendment immunity

Answer 403

-States may be sued in federal court by citizens under laws made by congress that allow for suits to enforce the fourteenth amendment
-states can be sued in bankruptcy court
-states may be sued under laws congress promulgated pursuant to the army/navy clause

Question 404

When can state officials be sued

Answer 404

-in their personal capacity
-in their official capacity for injunctive relief
-in their official capacity for money damages where the state treasury would not pay the damages

Question 405

Who holds the general police power?

Answer 405

The states

Question 406

Where does congress hold police power?

Answer 406

-military
-Indian land
-federal lands and territories
-dc
MILD

Question 407

Are line item vetoes constitutional?

Answer 407

No

Question 408

Can congress delegate executive functions to itself?

Answer 408

No

Question 409

President’s foreign policy powers

Answer 409

-make treaties with senate ratification
-make executive agreements with other countries
-decide whether and how to recognize foreign governments
-decide who to allow into the country
-use American troops in foreign countries

Question 410

Conflict rules between treaties and domestic laws

Answer 410

1. Constitution
2. Treaty/federal law whichever is later in time
3. State law

Question 411

Conflict rules between executive agreements and laws

Answer 411

1. Contrition
2. Federal law
3. Executive agreement
4. State law

Question 412

Has scotus ever struck down an executive agreement as exceeding potus’s authority

Answer 412

No

Question 413

What to choose on a question where someone sued because potus used troops in a foreign country with no formal congressional declaration of war?

Answer 413

1. Choose potus wins because political question
2. Choose potus wins because broad powers as commander in chief

Question 414

President’s domestic powers

Answer 414

-nominate ambassadors, federal judges, and officers of the US
-appoint anyone else Congress gives potus power to appoint
-pardon federal criminal convicts

Question 415

Can Congress give itself appointment power?

Answer 415

No

Question 416

When do federal laws preempt state laws

Answer 416

-when they explicitly say they do
-a federal law and a state law cannot be logically rectified, they must be mutually exclusive
-the state law impedes the achievement of the federal objective
-congress evinced a clear intent for preemption even though they didn’t make it explicit (basically, immigration law)
-any state or local tax that would end up being paid out of the federal treasury is preempted

Question 417

Which states can set stricter air and water quality standards than the federal?

Answer 417

-California can set stricter air quality standards
-michigan can set stricter water quality standards

Question 418

What is the exam referring to when it says “the negative implications of the commerce clause?”

Answer 418

The dormant commerce clause

Question 419

DCC exceptions

Answer 419

-congressional approval
-state or local gov is merely acting as a market participant and favoring its citizens, which basically boils down to state universities charging more in tuition to out of state residents and a state owned factory charging more for out of state products than in state

Question 420

Rules to know for analysis of state taxation of interstate commerce

Answer 420

1. States cannot use tax systems to favor in state businesses
2. States may only tax activities that have a substantial nexus to the state

Question 421

Analysis of state taxation of interstate companies

Answer 421

Is it fairly apportioned?

Question 422

What is the one area of constitutional application to non-gov conduct the bar may test?

Answer 422

The 13th amendment prohibits slavery

Question 423

Entanglement exception doctrine

Answer 423

Gov doesn’t act directly but affirmatively authorizes or enables action that, if they did it, would violate con rights. For the bar, just go with: this is triggered if congress’s action resulted in race discrimination

Question 424

Do states have to use grand juries?

Answer 424

No

Question 425

Multiple choice evidence approach

Answer 425

1. Read the call
2. Determine civil or criminal proceeding
3. Determine where we are (eg cross, direct, etc.)
4. Determine the purpose for which the evidence is being offered
5. Analyze and answer the question in your head
6. Choose the answer most similar to the answer in your head

Question 426

If you can’t remember the rule for evidence, what should I fall back on as a tiebreaker?

Answer 426

Simple relevance

Question 427

Can prior identification statements be admitted if the Declarant is not the en subject to cross?

Answer 427

No

Question 428

How specific must habit evidence be?

Answer 428

Very, so as to be a modus operandi.

Question 429

Procedural due process definition

Answer 429

The procedures the government must follow when it takes away someone’s life, liberty, or property

Question 430

What question does substantive due process ask?

Answer 430

Whether the government has an adequate reason for taking away somebody’s life, liberty, or property.

Question 431

What question does equal protection ask?

Answer 431

Whether the government has an adequate reason for differences in treatment of people.

Question 432

Due process ways someone can be institutionalized

Answer 432

1. Notice and a hearing
2. Emergency
3. Parental consent and screening by a neutral fact finder

Question 433

Is harm to reputation liberty?

Answer 433

No

Question 434

Do prisoners have liberty interests

Answer 434

No

Question 435

Deprivation of property elements

Answer 435

1. Person has an entitlement
2. That entitlement is not fulfilled

Question 436

When does an entitlement exist?

Answer 436

When there is a reasonable expectation to continued receipt of a benefit.

Question 437

Requisite mens rea for a due process claim against the gov

Answer 437

Normal circumstances = recklessness or above
Emergency circumstances = shocks the conscience

Question 438

Procedural due process requirement to terminate a person’s welfare benefits

Answer 438

Notice and a hearing

Question 439

Procedural due process requirements for termination to social security disability benefits?

Answer 439

Post termination hearing

Question 440

Procedural due process requirement for disciplining a public school student

Answer 440

1. Notice of charges
2. Opportunity to explain

Question 441

Procedural due process requirement to parents’ right to custody

Answer 441

1. Notice
2. Hearing

Question 442

Procedural due process requirement for punitive damage awards

Answer 442

1. Jury instructions
   2, judicial review to ensure reasonableness

Question 443

Procedural due process an American citizen held as an enemy combatant is entitled to

Answer 443

1. Notice of charges
2. Meaningful factual representation

Question 444

Procedural due process; prejudgment attachment or government seizure of assets

Answer 444

Notice + hearing
OR
Exigent circumstances

Question 445

For what con law doctrines do we not use levels of scrutiny

Answer 445

-takings
-second amendment

Question 446

What are the two types of takings?

Answer 446

1. Possessory.
2. Regulatory.

Question 447

What is a possessory taking?

Answer 447

Government confiscation or physical occupation of property.

Question 448

What is a regulatory taking?

Answer 448

When government action leaves no reasonable economically viable use of property.

Question 449

Elements of a takings clause violation.

Answer 449

1. Government taking.
2. Not for public use.

OR

1. Government taking.
2. For public use.
3. Without just compensation.

Question 450

What makes a taking for public use?

Answer 450

Where the government acts out of a reasonable belief that the taking will benefit the public.

Question 451

On the bar should I ever decide a taking is NOT for public use?

Answer 451

Not unless it’s egregious.

Question 452

Elements of a contracts clause violation for private contracts.

Answer 452

1. State or local gov action.
2. Interfering with.
3. A then existing contract.
4. Resulting in a substantial impairment of rights under that contract.
5. Not narrowly tailored to serve an important government interest.

Question 453

Elements of a contracts clause violation for government contracts.

Answer 453

1. State or local gov action.
2. Interfering with.
3. A government contract.
4. Does not meet strict scrutiny.

Question 454

Where does the ex post facto clause apply?

Answer 454

Criminal cases only.

Question 455

What is an ex post facto law?

Answer 455

A law that criminally punished conduct that was lawful when it was done or that increases the punishment for a crime after it was committed.

Question 456

How can retroactive civil liability be unconstitutional?

Answer 456

If it fails rational basis review.

Question 457

What is a bill of attainder?

Answer 457

A law that directs the punishment of a person or people without trial.

Question 458

Second amendment doctrine

Answer 458

1. There is a right to have guns in the home for security
2. Laws that condition haven’t guns outside the home and getting a permit are unconstitutional if government officials have discretion in issuing the permit
3. Regulations of firearms are all governed by historical analysis, the regulations must be of the type historically allowed.
4. All that said, guns can be prohibited in sensitive places (courthouses and schools), by dangerous people (such as felons), and certain particularly dangerous guns can be banned, BUT whether the minor premise fits any of these major premises is determined by historical analysis.

Question 459

What is the maximum allowable durational residency requirement for voting?

Answer 459

50 days.

Question 460

Are poll taxes constitutional?

Answer 460

No

Question 461

Are property tax requirements to vote constitutional?

Answer 461

No

Question 462

Are voter ID laws constitutional?

Answer 462

Yes.

Question 463

General con law individual rights process

Answer 463

1. What’s the right level of scrutiny?
2. Apply it.

Question 464

Equal protection steps

Answer 464

1. How is the line being drawn?
2. What level of scrutiny?
3. Apply it.

Question 465

How does equal protection apply to all levels of gov

Answer 465

-state and local: 14th’s explicit clause
-federal: implied in 5th’s due process clause

Question 466

Affirmative action doctrine

Answer 466

Race can be used in college admissions to achieve diversity if there’s no other way to achieve diversity.

Question 467

Test for content-based speech regulations?

Answer 467

Strict scrutiny.

Question 468

What makes a speech regulation content based?

Answer 468

It either
1. Restricts a certain speech topic (this is subject matter restriction), OR
2. Restricts a certain message ideology (this is viewpoint restriction.)

Question 469

General test for content neutral speech restrictions?

Answer 469

Intermediate scrutiny

Question 470

What test must prior restraints meet?

Answer 470

Strict scrutiny

Question 471

What makes a law impermissible vague in violation of the 1A?

Answer 471

A reasonable person cannot tell what speech is prohibited and what is permitted.

Question 472

What makes a law impermissible broad in violation of the 1A?

Answer 472

It regulates substantially more speech than the constitution allows to be regulated.

Question 473

Is flag burning constitutionally protected speech?

Answer 473

Yes.

Question 474

Is draft card burning constitutionally protected speech?

Answer 474

No.

Question 475

Is nude dancing protected speech?

Answer 475

No.

Question 476

Is burning a cross protected speech?

Answer 476

Yes so long as not done with the intent to threaten.

Question 477

Is anonymous speech protected speech?

Answer 477

Yes.

Question 478

What test applies to laws that inhibit freedom of association?

Answer 478

Strict scrutiny

Question 479

When does performance constitute acceptance?

Answer 479

ONLY where The offeror unambiguously indicates that this works

Question 480

Missing contract terms courts will not supply

Answer 480

-identity and price of land
-quantity of goods
-duration of employment and nature of the work to be performed

Question 481

Price of goods contract gap filler

Answer 481

Reasonable price upon delivery

Question 482

Time in contract gap filler

Answer 482

Reasonable time

Question 483

What overarching duty do contracting parties owe one another?

Answer 483

Good faith

Question 484

What revokes an offer?

Answer 484

1. However the offeror said they can.
2. The offeror tells the offeree directly.
3. Publication through comparable means.
4. Indirect communication via reliable source that would indicate to a reasonable person that the offer has been cancelled.
5. No acceptance within time specified or reasonable time upon receipt.
6. The subject matter is destroyed or becomes illegal.
7. Either party dies or becomes insane.

Question 485

When is an offer revocation effective?

Answer 485

When received, unless it is a revocation by publication, then upon publication.

Question 486

When is a communication received?

Answer 486

When it comes into the recipient’s possession.

Question 487

Firm offer rule

Answer 487

Limits a merchant from revoking offers where they made that offer, to buy or sell goods, in singed writing and gave assurances it would be vendors open for X days (if they gave no time then a reasonable time).

Question 488

Place of delivery of goods gap filler

Answer 488

Seller’s place of business

Question 489

“Assortment” of goods, with no chooser specified, gap filler.

Answer 489

Buyer

Question 490

Breach of warranty of title to goods

Answer 490

1. Contract to buy goods from a merchant dealing in the goods that make them a merchant
2. Title was not good, transfer was not rightful, or some sort of lien or encumbrance upon the goods existed.

Question 491

Warranty against infringement breach

Answer 491

1. Contract to buy goods from a merchant dealing in those goods
2. Buyer did not furnish specs for those goods
3. The foods were subject to some sort of IP infringement claim or infringed someone else’s IP

Question 492

When can contract terms be modified?

Answer 492

With consideration

OR

1. Modification due to circumstances unanticipated by the parties at the time of contract formation
2. Modification is fair and equitable

Question 493

Does the parol evidence rule apply to subsequent oral modifications of a written contract?

Answer 493

No

Question 494

Rule for special situation where offeree first dispatches a rejection, then an acceptance.

Answer 494

Whichever the offeror receives first controls.

Question 495

Establishment clause test for non-legislative gov action.

Answer 495

Action must be:
1. Neutral with regard to religion.
2. In accord with history and faithfully reflects the founding father’s understanding

Question 496

What is another way the bar may word the rational basis rest?

Answer 496

As a test of arbitrariness.

Question 497

How much mathematical equality of voter/congressional vote ratio within a state is required?

Answer 497

Virtually equivalent.

Question 498

Steps for ANY multiple choice question

Answer 498

1. Read the call
2. Determine the subject (skim answer choices ONLY if necessary)
3. Read the facts and answer the question and why in your head
4. Read the answers and choose the answer that best matches my answer

Question 499

What additional steps should one take, for a con law multiple choice question, before answering

Answer 499

1. Determine the parties
2. Determine who is taking action (if not state actor, NO CON PROBLEM except if slavery)
3. Determine who is affected by the action
4. Determine the sub-area of con law being tested
5. Recall the applicable test

Question 500

Treaty in conflict with federal law which prevails?

Answer 500

Last in time.

Question 501

Where should I lean if a question shows a state denying important economic interests to out of state citizens?

Answer 501

Unconstitutional. Must pass strict scrutiny.

Question 502

Two types of privileges/immunities clauses

Answer 502

1. Article IV privileges AND immunities clause prohibits states from discriminating against out of state people for economic interests
2. 14th amendment privileges OR immunities clause prohibitive states from denying their OWN citizens rights guaranteed by the constitution

Question 503

What triggers due process protection in employment cases

Answer 503

A contract or policy that provides for continued work or a time period of work that hasn’t ended yet

Question 504

Free exercise issue test to use in my head

Answer 504

Valid if generally applicable. Invalid if it specifically targets religious practices.

Question 505

Parol evidence application in my head.

Answer 505

1. Written contract? If not, parol evidence rule doesn’t apply.
2. Is a party trying to introduce evidence of a prior or contemporaneous agreement? If not, parol evidence rule doesn’t bar it.
3. Is the party trying to use that evidence as a defense against formation? If so, parol evidence doesn’t bar it.
4. Is the party trying to use that evidence to correct a typo or clerical error? If so, parol evidence doesn’t bar it.

Question 506

What is something that looks like an express warranty but isn’t?

Answer 506

Mere puffery.

Question 507

What level of contractual performance is generally required?

Answer 507

Substantial.

Question 508

What kind of performance is required with respect to a contract’s express conditions?

Answer 508

Strict compliance.

Question 509

What is the standard for “personal satisfaction” in a contract?

Answer 509

Objective reasonableness except for art and other matters of personal taste, then subjective preference.

Question 510

What is the general standard of performance for contracts to sell goods with respect to the goods?

Answer 510

Perfect tender.

Question 511

Statute of limitations for breach of sales of goods contracts.

Answer 511

4 years

Question 512

Exception to the mailbox rule

Answer 512

Options contracts. Instead, acceptance is effective upon offeror’s receipt of acceptance.

Question 513

Difference between firm offer rule and option contracts

Answer 513

A firm offer has to come from a merchant and be in writing, but no consideration for it is necessary.

An option contract does not need to come from a merchant or be in writing, but the offeree must give consideration for the offeror to hold the option open.

Question 514

What should always be addressed for every evidence essay issue?

Answer 514

Simple relevance (401)
Legal relevance (403 or 352 in california)

Question 515

Only general exception to statute of frauds where it applies.

Answer 515

The party against whom enforcement is sought admits the contract’s existence in court.

Question 516

Statute of frauds exception for goods that would be covered.

Answer 516

1. “Specially manufactured” goods not suitable for resale in the seller’s ordinary course of business
2. Seller has made substantial beginning of their manufacture or commitments for their procurement

Question 517

Statute of frauds exception to land contracts.

Answer 517

Conveyance and payment that cannot be a lease.

Question 518

If a question shows a condition of payment…

Answer 518

Try to see if there’s a way to construe it as a promise to pay at a particular time.