FINAL REVIEW 141-160 Flashcards
Procedural Due Process
The procedural safeguards of Notice and a Hearing are available whenever there is a serious deprivation of any life, liberty or property interest.
TIP - Welfare benefits require pre-termination hearing
Content Specific Regulations on speech
Protected Speech:
Apply Strict Scrutiny
Unprotected Speech:
- Clear and Present Danger
- Defamation
- Obscenity
- Child Porn
- Fighting words
- Fraudulent commercial speech
Commercial Speech Test
Intermediate Scrutiny:
Regulation must directly advance a substantial government interest and be narrowly tailored to serve that interest.
Can you commit larceny on stolen property?
Yes, the theft doesn’t have to be from title holder.
Receipt of stolen property requires the theft to provide you the stolen goods.
Aleatory Condition
Where the promisee’s right to cancel is dependent on a condition outside his control, the promise is not illusory and the agreement will be enforceable
TIP - Watch for conditions and contingencies
Accord and Satisfaction
A method of discharging a claim “concerning a genuine dispute” whereby the parties agree to give and accept something in settlement of the claim and perform the agreement, the accord being the agreement and the satisfaction its execution or performance, and it is a new contract substituted for an old contract which is thereby discharged.
TIP - Modification - Same contract, different terms
TIP - Novation - Same contract, new party/obligation
TIP - Accord and Satisfaction - New contract
Open Mines Doctrine
A life tenant has the right to continue operation of existing mines on the leased premises, but a remainderman can enjoin the opening of any new mines (ie voluntary waste)
TIP - No injunction, no accounting for existing mine
Grounds for Relief from Judgement
Includes misconduct by the opposing party and discovery of new evidence that could not have been discovered before by reasonable diligence.
Res Judicata
A matter has been “already judged”
There has been a final judgement and the action is no longer subject to appeal
That judgment bars (or precludes) continued litigation of such cases between the same parties
Collateral Estoppel (Issue Preclusion)
Collateral estoppel may be avoided as a defense if the claimaint did not have a full and fair opportunity to litigate the issue decided by a state court, which means he may file suti in federal court to challenge the adequacy of state procedures.
Used by a new plaintiff in a subsequent suit who wants to assert a final judgement on an issue against the defendant from the first suit.
Fairness Factors:
- Could the party asserting CR have intervened in earlier suit?
- Did D have incentive to litigate initial action? (Value discrepancy in the initial case vs. current case)
- Are there any procedural opportunities available to defendant in the second suit that were not available in the first suit.
FRE 32- Using deposition in court proceedings
Deposition lawfully taken in an earlier action may be used in later action involving same subject matter and the same parties or successors to the same extent as if taken in the later action
Impossibility
Subjective Impossibility - Will not excuse duties of performance under a K.
Objective Impossibility - Will excuse duties of performance under a K.
Offer to Pay Medical Bills - 409
An offer to pay medical bills is inadmissible to prove liability for an injury
Admissions made in connection with such offers may be severed and admitted
TIP - No need for dispute, unlike offers to settle (cannot sever admissions).
Ex Post Facto - Retroactive Criminal Law
Makes criminal conduct that was not a crime when actually committed by D
Increases the punishment OR decreases the amount of evidence needed
