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Final Bar Exam Review > Final Bar Exam Review > Flashcards

Final Bar Exam Review Flashcards

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1
Q

Compulsory Joinder

A

A plaintiff must join an absent party or face dismissal of the lawsuit if:

1) Complete relief cannot be accorded among the other parties to the action without the absentee party; or
2) the absentee has such an interest in the action that a decision in his absence will impede his ability to protect his interest or leave any of the other parties subject to a substantial risk of incurring multiple/inconsistent obligations; and
3) the court has PJ over the absentee; and
4) the absentee’s presence wouldn’t destroy SMJ

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2
Q

Res Judicata

A

Res judicata provides that a final judgement on the merits action precludes the same claim from being presented in a subsequent action. To bar a claim under res judicata:

1) The original claim must have resulted in a final judgement on the merits
2) the original and later-filed claim must be sufficiently identical; and
3) the claimant and defendant must be the same (and in the same roles) in both the original and later-filed action / or privity

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3
Q

Collateral Estoppel

A

Collateral estoppel prevents the relitigation of a material issue or fact that has already been necessarily determined by a judge or jury. To bar an issue under collateral estoppel:

1) the issue sought to be precluded must be the same as one involved in a prior action
2) the issue must have been actually litigated in the prior action
3) the issue must have been determined by a valid final judgement on the merits; and
4) the determination of the issue must have been essential to the prior judgement

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4
Q

Conflict of Law

A

1) Vested Rights: The choice of law would be where the event/ matter took place
2) Governmental Interest: The choice of law would be whichever jurisdiction has a greater interest in having its law applied. look at: 1) the policies behind the law, and 2) the reasonableness of the law in the jursidiction
3) Most significant relationship: the choice of law applied would be whichever has the most significant relationship to the problem at issue. 1) policy, 2) policy under the law, 3) uniformity, 4) ease

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5
Q

11th Amendment - Sovereign Immunity

A

The 11th is a jurisdictional bar that prevents:

1) a citizen of another state or a foreign country from suing a state in federal court for money damages or injunctive relief; or
2) suing a state official in federal court for violating state law.

There are exceptions to the 11th amendment, which include:

  1. Consent
  2. Injunctive Relief
  3. Individual Damages
  4. Congressional Authorization
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6
Q

Necessary and Proper Clause

A

The Constitution grants Congress the power to do what is “necessary and proper” to enforce the powers granted to the federal government in the Constitution. The Necessary and Proper Clause standing alone cannot support federal law – it must work in conjunction with a federal power

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7
Q

Taxing Power

A

Congress has the authority under Article I, S8 to tax as long as the tax imposed by congress is: 1) reasonably related to revenue production, or 2) congress has the authority to regulate the activity taxed.

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8
Q

Spending Power

A

Congress has the authority to “spend for the common defense and the general welfare of the public.” Spending may be for any public purpose (broad).

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9
Q

Commerce Power

A

Congress has the power to regulate interstate and foreign commerce. Congress may enact legislation regulating commerce as long as the legislation regulates:

  1. instrumentalities regarding interstate commerce
  2. activities substantially related to interstate commerce; or
  3. channels related to interstate commerce
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10
Q

10th Amendment

A

All powers not assigned by the Constitution to the federal government are reserved for the states.

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11
Q

Dormant Commerce Clause

A

Generally, if Congress has not enacted legislation regulating a particular area of commerce, states may enact legislation regarding commerce as long as the legislation does not:

1) Discriminate against out-of-state commerce
2) Unduly burden interstate commerce; or
3) Regulate wholly out-of-state activity

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12
Q

Exceptions to the Dormant Commerce Clause

A

1) state is acting as a market participant rather than a market regulator,
2) legislation favors government entities performing a traditional governmental function
3) explicitly authorized by Congress

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13
Q

Due Process, Standards of Review

A

Strict Scrutiny: The government has the burden of proof to show that the legislation is the least restrictive way to achieve a compelling government interest.

Intermediate Scrutiny: The government has the burden of proof to show that the legislation is substantially related to a legitimate governmental purpose.

Rational Basis: The challenger has the burden of proof to show that the legislation is NOT rationally related to a legitimate governmental purpose.

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14
Q

Content Based Regulations

A

Prohibit communications of specific ideas; presumptively unconsitutional

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15
Q

Content-Neutral Regulations

A

Generally must 1) advance important interests unrelated to the suppression of speech; and 2) not burden substantially more speech than necessary to further interests

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16
Q

Time, Place, Manner Restrictions

A

Government can regulate, but is it a public or nonpublic forum? Public: sidewalks/streets/parks –> content neutral, narrowly tailored and open alternative channels

Nonpublic forums: school/gym / viewpoint neutral; reasonably related to gov’t interest

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17
Q

Content of Speech

A

COMPELLING gov’t interest

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18
Q

Establishment clause

A

have to show 1) secular purpose; 2) neither enhances or inhibits religion, 3) does not produce excessive government entanglement with religion

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19
Q

UCC 2-207 Battle of the Forms

A

Under the UCC, the acceptance does not have to mirror the offer. UCC 2207(1) determines whether the purported acceptance will operate as an acceptance or as a counteroffer.

Additional terms will govern if both are merchants, unless 1) express limitation on the terms, 2) materially alters the deal, 3) the offeror rejects w/in a reasonable time to the additional terms.

Knockout rule: different terms knock each other out. UCC gap fillers are applied.

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20
Q

Consideration for K Modification

A

Under CL, cant use prior consideration –> preexisting duty rule.

UCC –> no need for additional consideration, good faith.

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21
Q

Voluntary manslaughter

A

killing + provocation

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22
Q

Involuntary manslaughter

A

killing + unintentional (negligence, or under a misdemeanor)

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23
Q

First Degree

A

Premeditation, Felony Murder, Inherently Dangerous Crimes (BARRK), depraved heart murder

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24
Q

Battery is: (criminal)

A

an unlawful application of force to the person of another resulting in bodily harm or offensive contact.

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25
Q

False imprisonment

A

unlawful confinement of another without valid consent

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26
Q

Assault is:

A

the reasonable apprehension of imminent bodily harm; or attempt to commit a battery

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27
Q

Larceny

A

a taking and carrying away of another’s personal property by trespass with the intent to permanently deprive.

28
Q

Embezzlement

A

A fraudulent conversion of the personal property of another by a person in lawful possession of the property.

29
Q

False Pretenses

A

obtaining title to the personal property of another by an intentional false representation of a material past or present fact with the intent to defraud.

30
Q

Larceny By Trick

A

Obtaining possession or custody of the personal property of another by an intentional false representation, of a material past or present fact with the intent to defraud

31
Q

Robbery

A

A taking and carrying away of personal property of another from the other person or presence, by force or threat with the intent to permanently deprive.

32
Q

Burgularly

A

a breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony

33
Q

Arson

A

malicious burning of the dwelling of another.

34
Q

Attempt

A

Specific intent to perpetrate a crime and overt act

35
Q

Solicitation

A

requesting another to commit a crime with the intent that other would commit the crime.

36
Q

Conspiracy

A

agreement between 2+ persons, to accomplish a criminal objective, with the intent to enter into the agreement and with the intent to commit the objective

37
Q

Insanity

A

MNaghten Rule: defendant wasnt aware of his act + wrongfulness
Irresistible Impulse Test: Lacked capacity for self control and conform his conduct.
MPC Test: Didn’t have the capacity to conform to conduct or appreciate wrongfulness
Durham Test: but for mental illness, wouldn’t have committed.

38
Q

4th Amendment Searches

A

Under the 4th amendment, a person is granted protection from unreasonable governmental searches and seizures. A search occurs when government conduct violates a person’s reasonable expectation of privacy. Reasonable expectation of privacy exists in: homes, hotel rooms, curtilages. A reasonable expectation of privacy does not exist in: open fields, public streets, garbage, abandoned property, anything visible within public view. Absent any exceptions, warrantless searches by the government are generally unlawful. Evidence obtained from an unlawful search is excluded.

39
Q

Search Warrant Exceptions

A 
ESCAPIST
Exigent circumstances: hot pursuit / immediate danger of losing evidence
Search incident to arrest
Consent
Auto
Plain view
Inventory search
Special circumstances
Terry Stop
40
Q

5th Amendment

A

The 5th amendment provides that no person shall be compelled in any criminal case to be a witness against himself. A defendant who wishes to invoke his 5th amendment right simply does not take the stand.

41
Q

6th Amendment right to counsel

A

The 6th amendment guarantees a criminal defendant “the assistance of counsel for his defense.” The 6th amendment right to counsel automatically attaches once formal judicial proceedings have commenced. By contrast, a 5th amendment right to counsel does not automatically attach and must be affirmatively invoked by the D.

42
Q

Character Evidence in Civil Cases

A

Generally not admissible for propensity purposes unless: 1) Character is an important trait to the claim / defense; or 2) the case is based on the D’s sexual misconduct

43
Q

Character Evidence in Criminal Cases

A

Generally not admissible for character purposes. The defendant can “open the door” by presenting positive character evidence as long as it is:
1) pertinent to the crime charged; and 2) is through reputation or opinion testimony.

If the defendant “opens the door” the prosecution can rebut the positive character evidence by 1) presenting its own witness to rebut the positive trait w/ reputation or opinion testimony; or 2) cross-examining the D’s witness.

44
Q

Negligence

A

The elements of a prima facie case for negligence are as follows:

1) the defendant owed a duty to the plaintiff to conform to a certain standard of care;
2) The defendant breached the duty of care owed to the plaintiff;
3) The defendant’s contact was the proximate and actual cause of the plaintiff’s injuries; and
4) The plaintiff suffered actual damages or loss.

45
Q

Negligence - Duty

A

A duty is owed under negligence to all foreseeable plaintiffs that may be harmed by the defendant’s conduct. There are two separate views:

1) Under the majority view (Cardozo) –> zone of danger
2) Minority view (Andrews) –> everyone harmed.

46
Q

Landowners

A

Traditional view: standard of care that landowners owe to entrants upon their land varies depending on the status of the entrant. 3 Types

  1. Trespasser: A person who enters the LO property without valid consent or necessity.
    Discovered/Anticipated: LO owes a duty to discovered/anticipated to warn of hidden dangers on land
    Undiscovered: enter L without consent. No duty.
  2. Licensees: A licensee is a person who lawfully enters the LO’s property for her own purpose or benefit. LO owes a duty to warn hidden dangers on the land that pose an unreasonable risk of harm.
  3. Invitees: A person who is invited onto the land. LO owes a duty to reasonably inspect the land for hidden dangers that pose an unreasonable risk of harm, and if discovered, make them safe.

States that have rejected the rule say LO owes the same duty of care to all entrants that are licensee or invitees.

47
Q

Negligence Per Se

A

When a statute imposes upon any person a specific duty for the benefit or protection of others, a violation of the statute will constitute negligence per se if the plaintiff:

  1. is in the class of people that the statute is meant to protect; and
  2. suffers the harm that the statute was designed to protect against.
48
Q

Res Ipsa Loquitor

A

(“the thing speaks for itself”) is applied when an element of negligence is difficult to prove, but the circumstances make it obvious that the D’s negligence was most likely the cause of the harm. In order for res ipsa loquitur to apply, the P must show that the accident resulting in the harm was:

  1. of a kind that ordinarily does not occur in the absence of negligence; and
  2. caused by an agent or instrumentality within the D’s control.
49
Q

NIIED

A

Three ways to recover:

1) Zone of danger: negligent physical impact, zone of danger, AND ED
2) Bystander Recovery: negligent infliction of bodily harm, P is related to the victim, present at the scene, and personally observed the injury. Some jdxs require physical symptoms
3) Special relationship: P can recover if mishandling of corpse or negligent false med info

50
Q

Subject Matter of Article 9

A

a) Article 9 of the UCC applies to any transaction intended to create a security interest in personal property or fixtures. A security interest gives a creditor the right to sell a debtor’s property in order to satisfy a debt.
b) generally, in an article 9 transaction, personal property or fixtures secure the payment of a debt or insure performance of a K obligation with the property serving as collateral.

Three main parties in an article 9 transaction:

1) Secured party
2) debtor
3) obligor

51
Q

collateral

A

property in which a security interest is created.

goods, consumer goods, inventory, accounts

52
Q

attachment

A

how a security interest is created. once a security interest attaches, it becomes enforceable.

1) valid security agreement
2) rights in collateral; and
3) value to the debtor

53
Q

MIMIC

A 
specific instances of conduct
motive
intent 
mistake
ID 
common scheme
54
Q

Evidence Sucks But Present me please robert

A 
excited utterance
state of mind
biz records
public records
medical diagnoses
present sense impression
record recollection refreshed
55
Q

hes unavailable due to an STD (declarant unavail reqd)

A

statement against interest
former testimony
dying declaration

56
Q

wont present evidence if danger of cumwun

A 
confusing the issues
unfair prejudice
misleading jury
wasting time
undue delay
needlessly presenting cumulative evidence
57
Q

no can do

A

subsequent remedial measures cant be used for
negligence
culpable conduct
design or product defect

58
Q

specific intent crimes (BRAMSACT)

A 
BURGLARY
ROBBERY
ARSON
MURDER
SOLICIATION
ATTEMPT
CONSPIRACY
THEFT CRIMES
59
Q

GENERAL INTENT CRIMES (BAR-KFM)

A 
BATTERY
ASSAULT
RAPE 
KIDNAPPING
MANSLAUGHTER
FALSE IMPRISONMENT
60
Q

MARS STATUTORY LIABILITY

A

MORALITY CRIMES
ADMIN CRIMES
STATUTORY RAPE
REGULATORY CRIMES

61
Q

PERFECT REASON NOT 2 KILL

A 
PURPOSEFULLY
RECKLESSLY
NEGLIGENTLY
KNOWINGLY
MPC INTENTS
62
Q

INHERENTLY DANGEROUS CRIMES BARRK

A 
BURGLARLY
ARSON
RAPE
ROBBERY
KIDNAPPING
63
Q

JT UNITIES PITT

A

POSESSION
INTEREST
TIME
TITLE

64
Q

WARRANTIES IN A DEED (SEC FEW)

A

SEISEN
ENCUMBRANCES
RIGHT TO CONVEY

FURTHER ASSURANCES
QUIET ENJOYMENT
WARRANTY

65
Q

TERMINATION OF AN EASEMENT END CRAM

A 
ESTOPPEL
NECESSITY
DESTRUCTION
CONDEMNATION
RELEASE
ABANDONMENT
MERGER

Final Bar Exam Review (1 decks)

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