General Bar Review

Question 1

Con: Advisory opinion

Answer 1

Not allowed when lacking:
actual dispute between parties or
legally binding effect on parties

Question 2

Con: ripeness

Answer 2

Pre-enforcement review of law not ripe unless substantial hardship in absence of review and issues and record are fit for review

Question 3

Con: mootness

Answer 3

live if:
in suit for injunctive or declaratory relief, challenged law or conduct continues to injure
in suit for damages, plaintiff not made whole
Exceptions:
injury capable of repetition but lim duration
D voluntarily ceases activity but may restart at will
class action - ongoing injury

Question 4

Con: Standing

Answer 4

Injury, causation, redressability

Question 5

Con: injury

Answer 5

concrete and particularized
injury occurred or will imminently occur
must be personally suffered (Exceptions: close relationship [parent child], organizations for members, Free Speech overbreadth)

Question 6

Con: causation

Answer 6

injury fairly traceable to D

Question 7

Con: redressability

Answer 7

favorable court decision can remedy the harm (money or injunction)

Question 8

Con: sovereign immunity

Answer 8

Cannot sue state in federal and state courts
Exceptions: waiver, P is states or feds, bankruptcy, clear abrogation by Congress

Can sue: state officers for injunctive relief or money damages from officers; local governments for anything

Question 9

Con: Final Judgment Rule

Answer 9

SCOTUS only hears when: final judgment by highest state court capable of rendering decision, fed court of appeals, or special circumstances a three judge district court

Question 10

Con: independent and adequate state grounds

Answer 10

No review by SCOTUS if state court decision rests on independent and adequate state law ground (outcome same regardless of how federal question decided)

Question 11

Con: Legislative Powers

Answer 11

Necessary and proper: rational means to carry out enumerated powers as long as no Const violation

Tax and spend: to provide for general welfare (any pub purpose not prohib by Const, even if not within enum power)

Spending conditions: strings relate to purpose of spending and not violate Const; not unduly coercive

Commerce: foreign nations, Indian tribes, among states

Interstate Commerce: channels, instrumentalities, an substantial effect. Exception: non-econ activity reg by states, compelling participation in commerce

14th Amend: allows Congress to indirectly ban private discrim. Directly ban discrim under 14th Amend power to enforce guarantee of equal prot)

Question 12

Con: Delegation of power

Answer 12

To Agencies: intelligible principle req

To President: no line item veto

To Congress: no legislative veto to void duly enacted laws without bicameralism and presentment

Question 13

Con: Federalism

Answer 13

10th Amend: not granted to US, not prohib to states, go to states

General police power to states
Anti-Commandeering principle: cannot compel states to enact or administer federal programs

Question 14

Con: supremacy and preemption

Answer 14

Supremacy: federal law preempt inconsistent state and local laws

Preempt:
Express - Congress says so
Implied - 1. Conflict (impossible to follow both or state law impedes fed) 2. Field (fed regs occupy field)

Question 15

Con: Dormant Commerce Clause

Answer 15

prohibits state laws that discriminate or unduly burden interstate commerce

protect all out of staters, protects interstate commerce

Discriminatory laws (favor in state): invalid unless nec to achieve important gov purpose and no less discrim alts

Non-discrim laws: valid unless burden on IC outweighs benefits

Exception: congressional approval, market participant

Question 16

Con: Privileges and Immunities

Answer 16

Prohibits discrimination against out of state citizens regarding important commercial activities (earning livelihood) or fundamental rights

protect US cits, protects commercial or fund

Discriminatory laws (favor in state cits over out state cits): invalid unless necessary to achieve important gov purpose and no less discrim alts

Question 17

Con: Privileges or Immunities

Answer 17

Fundamental right to interstate travel (right to enter and leave state, equal treatment once resident); no fund right to international travel, right to petition fed gov

Question 18

Con: State Action

Answer 18

State law, state officials acting officially
Public function: private party performs function by government traditionally and exclusively

State involvement: significant state involvement in private conduct (assistance, encouragement, supervision, entwinement, or approval)

Question 19

Con: levels of scrutiny

Answer 19

Rational basis: rational or legitimate interest ends, rationally or reasonably related means; challenger bears burden, law presumed valid

Intermediate scrutiny: important or significant state interest ends, narrowly tailored (substantially related or close fit, not least restrictive); state bears burden, no presumption

Strict scrutiny: compelling state interest ends, narrowly tailored (least restrictive) means; state bears burden, law is presumed invalid

Question 20

Con: procedural due process

Answer 20

right to a fair process when government acts to deprive life, liberty, or property. Required to have notice that is reasonably calculated to inform person of deprivation, pre-deprivation hearing unless impracticable (emergency institutionalization), balancing test for nature and extent of procedures, and a neutral decision-maker with no actual or serious risk of bias

Deprivation: intentional (or reckless) rather than negligent

Liberty: physical freedom, constitutional rights

Property: real and personal, tangible and intangible; governmental entitlement to which individual has reasonable expectation of continued receipt

Question 21

Con: substantive due process

Answer 21

Denying everyone a fundamental right: substantive due process only

Denying some a fundamental right: substantive due process and equal protection

Fundamental rights: strict scrutiny; Non-fundamental rights: rational basis

Question 22

Con: fundamental rights (strict scrutiny)

Answer 22

marriage, procreation, contraception, custody, care, and upbringing of children, living with extended family, interstate travel, voting
abortion (undue burden)

Question 23

Con: non-fundamental rights (rational basis)

Answer 23

economic rights, education, physician assisted suicide

Question 24

Con: voting rights

Answer 24

state and local: substantially equal

federal: as close to mathematical equality as practicable

Question 25

Con: Equal Protection

Answer 25

Requirements: classification and level of review

Classification: facial or disparate impact an discriminatory intent

Question 26

Con: Equal Protection classifications and levels of scrutiny

Answer 26

Strict scrutiny (suspect class): race, national origin, alienage classifications by states generally, denial of fundamental rights to some

Intermediate scrutiny (quasi-suspect): gender, non-marital children, undocumented alien children

Rational basis: age, disability, wealth, alienage classifications by Congress, alienage classifications by state related to democratic governance (voting, holding elective office, public school teachers), all other classifications

Question 27

Con: takings

Answer 27

May not take private property unless: public use and just compensation

Question 28

Con: physical taking

Answer 28

confiscation, regular or permanent occupation (temporary can be a taking with invasion, duration, etc)

Development exception: conditions on property development not takings if benefits proportional to burdens

Emergency exception: takings less likely to be found if pursuant to public emergency like war

Question 29

Con: regulatory taking

Answer 29

regulation on use does not merely diminish property value but leaves no economically viable use

Ad hoc analysis: economic impact of regulation, interference with investment backed opportunities, and character of government action

Question 30

Con: Public use

Answer 30

any legitimate public purpose, any purpose that the government reasonably believes will benefit the public

Question 31

Con: just compensation

Answer 31

fair market value at the time of the taking

Question 32

Con: Contract Clause

Answer 32

Applicable to state and local laws only

Private contracts: substantial impairment of existing rights invalid unless legit or sig purpose and reasonable or appropriate means

Public contracts: heightened scrutiny

Question 33

Con: Ex post facto laws

Answer 33

neither state nor federal government may pass legislation that retroactively alters criminal liability

Criminalizing act that was innocent when done, crime greater than when committed, greater punishment, reduce evidence required to convict

Question 34

Con: Bill of attainder

Answer 34

neither state nor federal government may pass legislation that designates particular individuals for punishment without judicial trial

Question 35

Con: Freedom of Speech Structure

Answer 35

1. Is it speech
2. Is it protected or unprotected
3. general restriction, public property, public school, public employment
4. Is the restriction vague, overbroad, or a prior restraint

Question 36

Con: speech

Answer 36

words, symbols, and expressive conduct

Expressive: inherently expressive (flag burning) or conduct that is intended to convey message and reasonably likely to be perceived as conveying message

Question 37

Con: Unprotected speech

Answer 37

incitement - intended to produce imminent lawless action and likely to produce imminent lawless action
fighting words - words likely to provoke an immediate violent response
true threats - words intended to convey to someone a serious threat of bodily harm
obscenity - depiction of sexual conduct defined by state law that taken as a whole, by contemporary community standards, appeals to prurient interest in sex, is patently offensive, and lacks serious social value by national standards (nudity, soft-core porn, and dirty words are not obscene)
child porn - actual kids in sexual conduct
defamation with actual malice
commercial speech (false, misleading, or illegal)

Question 38

Con: defamation

Answer 38

recovery barred for speech made without actual malice about public officials, public figures, or matters of public concern

Actual malice (clear and convincing): knowledge of falsity or reckless disregard of the truth

Public officials: hold or run for elective office, public employment in positions of public importance

Public figures: assumed roles of prominence in society achieved pervasive fame and notoriety, thrust selves into public controversies to influence resolution

Public concern: matters important to society and democracy

Question 39

Con: defamation structure

Answer 39

Public official or figure, any subject; actual malice: any damages

Private figure, public concern: actual malice - presumed and punitive; negligence - actual damages

Private figure, private concern: no actual malice, any damages

Question 40

Con: commercial speech

Answer 40

Unprotected: false, misleading, illegal product or service

Protected: all other commercial speech

Test (intermediate scrutiny):
substantial government interest (consumer protection) and narrowly tailored (reasonable fit to least restrictive)

Question 41

Con: general speech restriction tests

Answer 41

Content-based: strict scrutiny (compelling interest, narrowly tailored, burden on state)

content neutral: intermediate scrutiny; looking for time, place, or manner of channeling the speech (important interest, narrowly tailored, burden on state)

Question 42

Con: speech on government property

Answer 42

Traditional public forum: open to public for time immemorial (parks, streets, sidewalks)

Designated public forum: opened by policy or purposeful practice (college kiosks, college email)

Limited public forum: reserved for particular topics or speakers (courtroom, university classroom university student activity fund)

Non-public forum: not opened by tradition or designation as free speech zone (post office, DMV, airport)

Question 43

Con: levels of scrutiny for speech restriction on governmental property

Answer 43

Public forum: content based is SS, content neutral is IS

Limited / non-public: reasonable given nature of forum (SS if viewpoint based)

Question 44

Con: public school speech

Answer 44

Personal student speech: cannot be censored absent evidence of substantial disruption (no promotion of illegal drug use)

School speech: can be censored if reasonable related to legitimate pedagogical concern

Question 45

Con: public employment

Answer 45

Unprotected:
private concern at workplace (gossip)
public concern but pursuant to official duties (TPS report)

Protected:
private concern outside workplace (dinner convo)
public concern as citizen rather than pursuant to official duties at or outside workplace (political chat at lunch)

Question 46

Con: vagueness

Answer 46

if persons of common intelligence cannot tell what speech is prohibited and what is permitted

Question 47

Con: overbreadth

Answer 47

prohibits substantial amount of speech that the government may not suppress (ban on First Amendment activities at LAX)

Question 48

Con: prior restraints

Answer 48

preventing speech before it occurs - heavily disfavored (content-based get very strict scrutiny)

Licensing systems: sufficiently definite standards to cabin discretion, as well as prompt judicial review of denials

Question 49

Con: Freedom of Religion

Answer 49

government may inquire into sincerity of religious beliefs, but not their truth

Test:

Discriminatory laws: strict scrutiny
Neutral laws of general applicability: not subject to Free Exercise clause (Exception - exempts religious orgs from neutral employment laws)

Question 50

Con: Discriminatory laws against Freedom of Religion

Answer 50

Not neutral facially with respect to religious belief, conduct, or status

Not generally applicable but targeted at religion generally or a religion in particular

Question 51

Con: Establishment Clause

Answer 51

Various tests: neutrality with respect to religion, no directly or indirectly coercing individuals to exercise religion, Lemon Test: primary purpose is sectarian, primary effect is sectarian, excessive entanglement with religion; endorsement

Question 52

Contracts: Which law applies

Answer 52

Article II: Sale of goods

Common law: any other contract

Question 53

Contract: types

Answer 53

express contract: oral or written
Implied in fact: conduct

Restitution: protect against unjust enrichment

Question 54

Contract: bilateral and unilateral contracts

Answer 54

offer can be accepted in any reasonable way; offer can only be accepted by performing

Question 55

Contract: offer

Answer 55

manifestation of an intention to be bound (reasonable person standard)

Question 56

Contract: ad

Answer 56

ad is not an offer unless there is a quantity

Question 57

Contract: indefiniteness questions

Answer 57

open price term in sales contract: UCC - court reads in reasonable price; common law - will not read in price

Question 58

Contract: requirements contracts in Article II

Answer 58

can say that they will buy all requirements from company. Cannot have the amount jump really high from one year to another, and must use operative language

Question 59

Contract: termination

Answer 59

lapse of time: after stated time or reasonable time passed (look for over one month)

revocation (effective on receipt): offeror revokes (can be done before acceptance) direct - indicates to offeree, indirect - engages in conduct indicates change in mind and offeree is aware of the conduct

Exceptions:
Option - promise supported by consideration
Firm Offer (Art II) - 1. merchant 2. signed writing 3. keep offer open
Foreseeable reliance - before acceptance offer can still be revoked, after cannot be revoked
Starting to perform on unilateral contract - start, no revocation; mere preparation, can revoke

rejection: offeree rejects
1. Counter-offer: operates as rejection; mere bargaining does not
2. conditional acceptance: rejection and counteroffer
3. adding terms: common law mirror image, sale of goods term included if both parties merchants, not a material change, no objection within a reasonable time (customary is not material)
death: before acceptance terminates

Question 60

Contract: acceptance

Answer 60

language of the offer controls

Bilateral contract: starting performance is acceptance; implied promise to finish

Unilateral contract: starting performance is not acceptance, completing performance is acceptance

Question 61

Contract: improper performance

Answer 61

is an acceptance and a breach

Question 62

Contract: offeree’s silence

Answer 62

general rule is silence is not acceptance; however, can have custom creates duty to speak

Question 63

Contract: timing of acceptance

Answer 63

Mailbox rule: when mailed

Exceptions:
offer states otherwise: say one time and mailed on that date but received afterwards, knocked out
irrevocable offer: no mailbox protection (get within the option)
Rejection sent first then acceptance: what arrives first

Question 64

Contract: consideration

Answer 64

Bargained for legal detriment / benefit (can be promise, performance, or forbearance)

Past consideration is not consideration

Adequacy of consideration irrelevant: can pay more or less

Contract modification:
Common law: new consideration is required to modify. performing preexisting duty not enough (but be careful for something being added in or saying they won’t sue)
Article II: modification needs no consideration, but needs good faith

Partial payment of debt that is due and undisputed: no consideration (they can come after you for the rest)

Time barred debt as an exception to consideration: written promise to pay debt (even if collection barred by SOL) must be paid even without consideration

Promissory estoppel: substitute to consideration; foreseeable reliance may make promise enforceable even without consideration

Question 65

Contract: lack of capacity

Answer 65

minors, intoxicated, mentally incompetent

Right to disaffirm the contract, but can retain it (and enforce against you)

Implied affirmation after gaining capacity: still using it, can be enforced

Exception: incapacitated party liable for necessaries for reasonable value

Question 66

Contract: mutual mistake

Answer 66

does not have to perform if both parties mistaken

Question 67

Contract: unilateral mistake

Answer 67

still have to perform if one party mistaken

Question 68

Contract: unconscionability

Answer 68

empowers a court to refuse to enforce all or part of agreement

unfair surprise and oppressive terms are the two tests

Tested at the time the agreement was made

Question 69

Contract: duress

Answer 69

look for a bad guy that makes an improper threat and a vulnerable guy with no reasonable alternative

will not have to perform under those circumstances

Question 70

Contract: Statute of Frauds

Answer 70

within the statute of frauds:

Marriage: in consideration of marriage
Year: cannot possibly be completed in one year or less
Land Sale
Executor: estate paying debts from other source of funds
Goods $500+
Surety: promise to answer for (guarantee) the debt of another person (not a mere promise to pay money)

Modification of contract only requires writing if contract as modified falls within SOF

Question 71

Contract: SOF writing

Answer 71

Sale of goods (Article II): quantity and signed by party to be charged with breach

Common law: writing must have all material terms and be signed by defendant

Question 72

Contract: Exceptions to SOF

Answer 72

Do not need a writing where:

1. Land sale rules: leases of one year or less; part performance of a land sale contract (one of three - some payment, possession, and / or improvements)
2. Full performance of service contract satisfies the SOF, part performance does not (if you were to work for two years, and then work for two years, writing not required)
3. Sale of Goods for $500 or more
   a. Goods accepted or paid for by buyer: get a check and cash it but don’t deliver, no writing required
   b. Custom made goods: substantial beginning
   c. Judicial admission - satisfies SOF: admit under oath a deal existed, waive defense
   d. Merchant’s confirmatory memo: both parties merchants, writing claims agreement and has quantity, and no written objection within 10 days
4. Suretyship: main purpose exception

Question 73

Contract: Parol Evidence Rule

Answer 73

keep out evidence of a prior or contemporaneous agreement (either oral or written) that contradicts a later writing. does not apply to later events - that is modification

Exception - evidence gets in regardless:

1. Correct clerical error
2. establish a defense against formation
3. interpret a vague or ambiguous term - parol evidence ok
4. add to partially integrated writing: final statement of the terms but not a complete statement of all terms agreed to

Question 74

Contract: conduct as source of terms

Answer 74

1. Course of performance: how parties performed under previous installments of this contract
2. course of dealing: how parties performed under prior contracts with each other
3. usage of trade: what other in the trade do with similar contracts

Question 75

Contract: seller’s warranties in a sale of goods

Answer 75

Express warranty: describe goods, promise facts about goods, showing sample or model

Implied warranty:
merchantability: goods fit for ordinary purpose (merchant deals in goods of the kind)
fitness for particular purpose (seller knows of special purpose and relying on seller to select suitable goods (not required to be a merchant))

Question 76

Contract: disclaimer

Answer 76

seller can disclaim implied warranties but not express warranties. Look for language like “as-is” or “with all faults,” or conspicuous disclosure

Question 77

Contract: limitation of buyer’s remedies

Answer 77

seller can limit buyer’s remedies for breach of any warranty as long as not unconscionable

Exception: limiting remedies for personal injury with consumer goods presumed to be unconscionable

Question 78

Contract: risk of loss in sale of goods

Answer 78

If seller bears risk: provide new goods for buyer with no additional cost or be liable for breach

If buyer bears risk: buyer must still pay contract price even though goods are destroyed

Hierarchy:

1. agreement allocates risk
2. breaching party bears risk
3. delivery by common carrier: risk of loss from seller to buyer when seller completes delivery obligations
   - shipment contract: seller must get goods to a common carrier, make delivery arrangements, and notify buyer
   - destination contract: seller must get goods all the way to a specific destination
4. non-carrier cases (buyer picks up or seller delivers)
   - merchant seller: seller bears risk until buyer takes possession
   - non-merchant seller: buyer bears risk of loss once seller tenders the goods (makes them available to buyer)

Question 79

Contract: performance of common law contracts

Answer 79

performance does not have to be perfect: substantial performance (cannot commit a material breach)

Question 80

Contract: performance of Article II sale of goods contracts

Answer 80

Perfect Tender rule: seller must deliver perfect goods in the right place at the right time. if tender not 100% perfect buyer has right to reject

Option to cure: if time has not expired, has time to cure. if time expired, no right to cure unless reasonable grounds to believe improper tender would have been acceptable

Question 81

Contract: installment contract

Answer 81

requires or authorizes seller to deliver in separate installments

perfect tender does not apply - must be substantial impairment

Question 82

Contract: buyer’s acceptance of goods

Answer 82

implied acceptance: keep gods after having opportunity to inspect

Question 83

Contract: consequences of buyer’s acceptance

Answer 83

cannot reject but can get damages for breach

Question 84

Contract: revocation of acceptance of goods

Answer 84

buyer cannot revoke acceptance

Exception: non-conformity substantially impairs value and was difficult to discover (a latent defect)

Question 85

Contract: consequences of rejection / revocation of acceptance

Answer 85

Return: at seller’s expense
Refund: get back any money paid
Damages: for breach of contract

Question 86

Contract: buyer’s obligation to pay

Answer 86

cash unless otherwise agreed. Check can be refused, but then reasonable time must be given to come up with cash

Question 87

Contract: excuse for non performance - other party’s breach

Answer 87

Sale of goods (Article II): if not perfect, free reign - reject all, accept all, reject some and accept the rest

Common law: can recover damage for any breach of contract, no matter if material. Only a material breach provides excuse to suspend innocent party’s performance

Question 88

Contract: anticipatory repudiation

Answer 88

Excuse unless repudiation is retracted

Question 89

Contract: failure to give adequate assurances

Answer 89

reasonable grounds for being insecure about other party’s performance may, in writing, request adequate assurances that the other party will perform

Question 90

Contract: a later agreement excusing original obligations

Answer 90

Rescission: mutual agreement to cancel contract

Modification: agreement to replace existing contract with a new one - takes effect immediately

Accord / satisfaction:
accord - agreement to accept different performance in future satisfaction of an existing duty
suspended by the accord but is not excused until accord satisfied

Novation: agreement to substitute a new party for an existing one

Question 91

Contract: impossibility as an excuse

Answer 91

later unforeseen event that makes performance impossible may provide with excuse

Article II: doctrine is impracticability

A. destruction of something necessary for performance
Common law: provides excuse for non-performance
Sale of goods: same with two exceptions
Risk of loss: seller who bore risk of loss when goods damaged or destroyed is excused by impracticability
Unidentified goods: seller excused only if goods that were damaged had been identified to the contract (think set aside versus in a warehouse)

Question 92

Contract: death / incapacity of essential person as an excuse due to impossibility

Answer 92

Must be someone essential for performance. look for the special skills of someone like a painter

Question 93

Contract: frustration of buyer’s primary purpose

Answer 93

frustrated if both parties knew of the purpose

Question 94

Contract: failure of an express condition is an excuse

Answer 94

language of the contract

Express conditions: strict compliance
Condition precedent: event that must occur before performance

Condition subsequent: event that cuts off existing duty

Excusing a condition: later action or inaction of the person protected by the condition

Satisfaction clause: reasonable person standard unless art or matters of personal taste (look for the person that just doesn’t like the work even though it is fine)

Question 95

Contract: non-monetary remedies

Answer 95

1. Specific performance (usually for land, maybe for goods, never for services)
   Land - usually given even if land boring
   Sale of goods - unique goods or other proper circumstances
   Personal service contracts - specific performance not available but injunctive relief may be
2. Unpaid seller’s right to reclaim goods
   Not available under Article II
   Exception: buyer insolvent when it received the goods and seller makes a demand within 10 days after buyer received them

Question 96

Contract: monetary remedies

Answer 96

Expectation damages: general rule - put injured party in as good a position as full performance
(reliance damages: return to status quo - put back to start; restitution damages: benefit conferred)

Sale of goods: expectation damages

Question 97

Contract: Seller’s damages if buyer breaches

Answer 97

Resale damages: contract price minus resale price (if resells in good faith)
Market damages: contract price minus market price (does not resell in good faith or does not resell at all)
Contract price: if seller cannot resell
Lost Profit: if seller is a lost volume dealer [look for an instance where profit would have been made but sold for the same price)

Question 98

Contract: Buyer’s damages if seller breaches

Answer 98

Buyer’s damages if seller breaches:
Cover damages: cover price minus original contract price (covers in good faith)
Market damages: market price minus contract price (does not cover in good faith or at all)
Loss in value: value as promised minus value as delivered (IF KEEPING NON-CONFORMING GOODS)

Question 99

Contract: punitive damages

Answer 99

not available for breach of contract

Question 100

Contract: liquidated damages

Answer 100

upheld if
damages difficult to estimate at the time of contract
reasonable forecast of probable damages but
cannot operate as a “penalty”

Question 101

Contract: incidental damages

Answer 101

ALWAYS RECOVERABLE

costs to injured buyer or seller of transporting / caring for goods after a breach and of arranging a substitute transaction

Question 102

Contract: consequential damages

Answer 102

indirect results from breach

reasonably foreseeable to breaching party at the time the contract is formed

Note: not available to sellers under Article II

Question 103

Contract: avoidable damages

Answer 103

cannot recover damages that could have been avoided with reasonable effort

Question 104

Contract: entrustment

Answer 104

owner who entrusts goods to a merchant who deals in goods of the kind has no rights against a BFP

Question 105

Contract: third party beneficiary

Answer 105

Entering contract to benefit a third party. TPB is present at the start

Intended beneficiary: not party to contract but has rights under contract because it was intended to benefit them. Promisor - promises to perform for third party. Promisee - one who secures promise.

Promisor liability to third party beneficiary: liable if they do not perform as promised

Promisor liability to promisee: can recover if they do not perform as promised

Question 106

Contract: rescission and modification of third party deals

Answer 106

promisor and promisee can rescind or modify until rights of third party have vested

Exception: contrary language in contract controls

Question 107

Contract: Assignment of rights to third party

Answer 107

two people make a contract; later, one transfers rights to a third party. Assignee appears later on.

Must assign through present transfer: not a promise to assign

No consideration required

Question 108

Contract: restrictions on assignments

Answer 108

contract language controls: prohibits versus invalidates

Prohibit (“not assignable”): can collect as long as person did not know

Invalidate (“void”): cannot collect

Cannot substantially change duties of obligor

Question 109

Contract: Obligor liability to assignee after assignment

Answer 109

Assignee can sue if they don’t receive money, but if failure to perform service, cannot receive money

If obligor is unaware of the assignment and pays the assignor, obligor not liable to assignee

Question 110

Contract: multiple assignments

Answer 110

Gift assignments easily revoked: last gratuitous assignee takes

Assignment for consideration: first one wins over later ones and over gratuitous (gift) assignees

Exception: does not know and is the first to get payment from or judgment against an obligor

Question 111

Contract: delegation

Answer 111

transfer of contract duties (not rights)

may be delegated without consent of the person to whom performance is owed

Exceptions:
contract language controls - if you cannot assign, you also cannot delegate
person with special skill or reputation cannot delegate

Question 112

Contract: delegation and rights of the obligee

Answer 112

delegating party always remains liable and a delegate who gets consideration is liable

Question 113

Evidence: relevance

Answer 113

any tendency to make a fact of consequence more probable or less probable than would be the case without evidence (low bar)

materiality: of consequence
probativeness: any tendency to make the proposition more or less likely

Question 114

Evidence: admissibility

Answer 114

irrelevant evidence is admissible no exception

relevant is admissible unless specific exclusionary rule or court uses Rule 403 discretion to keep it out

Question 115

Evidence: Rule 403

Answer 115

exclude otherwise relevant evidence if it determines that probative value of evidence is substantially outweighed by: danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, unduly cumulative

Question 116

Evidence: similar occurrences

Answer 116

involves some other time, event or person, irrelevant or inadmissible

Exceptions:
Accident history - cause of damages is at issue (not for showing accident-prone) - Similar accidents caused by same event or condition - same condition and substantially similar circumstances admitted for existence of dangerous condition, causation, prior notice to defendant

Intent in issue: prior conduct inference of intent on later occasion

Comparable sales on issue of value

Habit: circumstantial evidence of how the person acted on occasion (frequency and particularity - always, invariably)

Industrial custom as standard of care

Question 117

Evidence: public policy exclusions

Answer 117

liability insurance: inadmissible to prove fault, but may be admissible to show ownership / control of instrumentality or location, impeachment of witness (bias)

subsequent remedial measures: inadmissible for negligence, culpable conduct, product defect, need of warning - admissible if controverted like proof of ownership or control and feasibility of safer condition

Settlement in civil case: inadmissible to prove liability, impeach through prior inconsistent statements or contradiction; statements of fact during course of settlement also inadmissible - can be used to impeach witness for bias
Disputed claim required: claim disputed as to validity or amount of damages

Plea discussions in criminal cases: inadmissible to show
offer to plead guilty (here or in later litigation)
withdrawn guilty plea (here or subsequent)
plea of nolo contendere (no contest) (here or subsequent)
statements of fact - if you admit fault, it does not get in
BUT a plea of guilty itself admissible in subsequent litigation

Offer to pay medical or hospital expenses: inadmissible to prove liability. Note special rule: for the paying of medical expenses - if you admit fault, it gets in

Question 118

Evidence: character evidence, criminal cases

Answer 118

evidence of D character to prove conduct not admissible during prosecution’s case in chief

D may introduce evidence of relevant character trait (REPUTATION OR OPINION) and open door to rebuttal by prosecution

Prosecution’s rebuttal: may
cross examine D’s character with “have you heard” or “did you know” questions about specific acts and / or
calling its own reputation or opinion witnesses to contradict

Question 119

Evidence: character evidence, victim’s character in self-defense case

Answer 119

D may introduce evidence of victim’s violent character to prove conformity - circumstantial evidence that victim was the first aggressor

Character witness may testify to victim’s reputation for violence and may give opinion.

Prosecution may then rebut with RO testimony of victim’s good character and / or defendant’s bad character

If defendant was aware of victim’s violent rep or prior specific acts of violence, may be proven to show D’s state of mind

Question 120

Evidence: Character evidence, civil cases

Answer 120

Inadmissible to prove conduct in conformity

Admissible when character directly at issue (negligent hiring or entrustment, defamation, child custody)

Question 121

Evidence: character evidence, D’s other crimes or acts for non-character purpose

Answer 121

crimes or specific bad acts are not admissible during prosecution’s case in chief if only purpose is to show more likely to have committed the crime

Exception: if other crimes or bad actions show something specific about the crimes charged, may be admissible

Motive
Intent
Mistake or accident (absence of)
Identity
Common scheme or plan

Proof: by conviction or by other evidence (witnesses) that proves crime or act occurred

Conditional relevancy standard: just need to produce sufficient evidence from which a reasonable juror could conclude that D committed the other crime

Pretrial notice of intent to use MIMIC evidence upon D request

MIMIC can be used in tort actions for fraud and assault

Question 122

Evidence: other sexual misconduct to show propensity in criminal or civil sex crime case

Answer 122

prior specific sexual misconduct is admissible for any relevant purpose, including defendant’s propensity for sex crimes

Question 123

Evidence: writings

Answer 123

must be a showing of authenticity: sufficient evidence from which reasonable juror could conclude document genuine

If X is author:
Witness’s personal knowledge - saw signing of doc
proof of handwriting - lay witness testifies as to familiarity with X’s handwriting in normal course of affairs (can become familiar for the sole purpose of testifying)
Expert comparison: handwriting compared between source and sample
Jury comparison: compare source with sample

Ancient document rule: if document is 20+ years old, facially free from suspicion, and found in a place of natural custody

Solicited reply doctrine: authenticated by evidence received in response to a prior communication to the alleged author

Question 124

Evidence: photographs

Answer 124

witness: personal knowledge that the photograph is a fair and accurate representation of the people or objects portrayed

Question 125

Evidence: self-authenticating documents

Answer 125

official docs, cert copies of public or private records on file in public office, newspapers or periodicals, trade inscriptions and labels, acknowledged docs, commercial paper, certified business records

Question 126

Evidence: best evidence rule

Answer 126

in order to prove the contents of a writing, recording, or photograph, the original must be produced

produce original or excuse for absence; if acceptable, use oral testimony or copy

Use BER when:
writing is a legally operative document
witness is testifying to facts learned solely from reading about them in a writing

Does not apply when someone with personal knowledge testifies to a fact existing independently of a writing that records the fact

Originals are:
writing itself, any counterpart, any negative of film or print from negative
Duplicate: any counterpart produced by any mechanical means that accurately reproduced the original
Rule on duplicates: admissible to same extent as original unless it would be unfair or genuine question of authenticity

Question 127

Evidence: excuses for non-production of original writings

Answer 127

lost or cannot be found with due diligence
destroyed without bad faith
cannot be obtained with legal process

Escapes:
voluminous records can be presented through summary or chart
certified copies of public records
collateral documents

Question 128

Evidence: witness competency

Answer 128

personal knowledge and oath or affirmation

Dead Man Statute (must be told there is one): civil action, interested party incompetent to testify in support of own interest against estate of decedent regarding communications or transactions between interested party and decedent

Question 129

Evidence: writings in aid of oral testimony

Answer 129

refreshing recollection: witness may not read from prepared memorandum, must testify based on current recollection. If memory fails them, they may be shown a tangible item to jog memory

Adversary has right to inspect memory-refresher, use it on cross, introduce into evidence (not allowed if before witness testifies without court approval)

Recorded recollection: doc fails to jog memory, witness had personal knowledge, document made or adopted by witness, making when event was fresh in mind, witness can vouch for accuracy