kaplan_foundation_questions_copy_20190724170349 Flashcards
Liability for Battery
A person is subject to liability for battery if she acts intending to cause a harmful or offensive contact with the person of the other and an offensive or harmful contact directly or indirectly results. An act which is not done with such an intention does not make the actor liable for mere offensive contact
Injuries while engaged in sporting activities
According to Restatement of Torts 2d, Section 50, taking part in a game manifests a willingness to submit to such bodily contacts that are permitted by its rules or usages. Participating in such a game does not manifest consent to contacts which are prohibited by the rules of the game
Define contacts for a tort of assault and battery
Remember that protection against unpermitted contacts extends to any part of the body, or to anything which is attached to it and practically identified with it. Thus, Prosser states, “Contact with the plaintiff’s clothing, or with a cane, a paper, or any object held in his hand will be sufficient; and the same is true of the chair in which he sits, the horse or the car which he is riding or driving,” Law of Torts, pg. 34.
What is a valid defense for the intentional tort of battery
Thus, consent would be a valid defense for the intentional tort of battery
A consensual sexual relationship would have what type of claim under invasion of right to privacy.
None. A consensual sexual relationship would not result in an invasion of right to privacy.
what kind of relationship can be liable for intentional infliction of emotional distress
extreme and outrageous nature of conduct may arise from the abuse by the defendant of a relation or position which gives the defendant actual or apparent authority over the victim. In particular, police officers, school authorities, landlords, and collecting creditors have been held liable for extreme abuse of their position.
in order to recover for negligent infliction of emotional distress
the plaintiff must suffer bodily harm or injury.
Distinguish between “intentional” infliction of emotional distress and “negligent” infliction of emotional distress
in order to recover for negligent infliction of emotional distress, the plaintiff must suffer bodily harm or injury, and intentional infliction of emotion distress is the extreme and outrageous nature of conduct may arise from the abuse by the defendant of a relation or position which gives the defendant actual or apparent authority over the victim.
What is one of the most popular Multistate testing areas deals with civil suits brought by third parties
for intentional (or reckless) infliction of emotional distress.
As a general rule, in order for a third party to recover for intentional (or reckless) infliction of emotional distress there are two requirements must be satisfied:
(1) the third party must be a close family member of the person to whom the defendant is directing his (extreme and outrageous) conduct and (2) the defendant should be aware of the presence of the third person. If the third person is not a close family member, then he must suffer bodily harm in order to prevail.
As a general rule, private necessity will excuse
tortious conduct aimed at property. However, according to Restatement of Torts, 2d, Section 263, which specifically addresses the privilege of private necessity as applied to trespass to chattels or conversion, “Where the act is for the benefit of the actor or a third person, he is subject to liability for any harm caused by the exercise of the privilege.
When is a defendant liable for conversion of a chattel
According to Restatement of Torts 2d, Section 244, “An actor is not relieved of liability to another for conversion (or for trespass to chattels) by his belief, because of a mistake of law or fact not induced by the other, that he has possession of the chattel.”
Multistate example in which students are required to distinguish between crimes and torts for chattels is defined by
The type of recovery, and if the plaintiff is seeking the value of the chattel, which are civil damages
One is subject to liability for trespass irrespective of whether
he causes harm to any legally protected interest of the other, if he intentionally enters the land in possession of the other.
A defendant can still be liable for damages to another persons land when
did not intentionally drive his vehicle onto the homeowner’s property may be liable for trespass because he was operating his car in a reckless manner.
If a defendant does not “intentionally” enter another person’s land, what elements are required for the defendant to be liable for trespass
However, where a person enters the land of another through negligence, recklessness, or as a result of an abnormally dangerous activity, in order to be liable for trespass he must cause damage to the land.
According to the “shopkeeper’s privilege,”
a businessman who reasonably suspects a customer of theft or of failure to pay may detain the suspected individual for a short time in order to investigate. The privilege is, however, a very restricted one, confined to what is reasonably necessary for its limited purpose of enabling the defendant to do what is possible on the spot to discover the facts. There will be liability if the detention is for a length of time beyond that which is reasonably necessary for such a short investigation.
Landowners duty regarding trees, and scope of that duty
Prosser states, “When the tree is in an urban area, the landowner now has a duty of reasonable care, including inspection to make sure that the tree is safe.” Law of Torts, pg. 390. Moreover, recent decisions have extended the right to reasonable protection from travelers on the street to adjoining landowners as well.Homeowner owes a reasonable duty to persons outside the premises.
What is a reasonable person required to know in regard to a duty owed.
According to Prosser, one of the most difficult questions in connection with negligence is with regard to “what a person is required to know” in order to warn another of unreasonable risks of harm. Obviously, an individual will not be responsible for risks that he is unaware of.
What is the duty owed to an invitee
People who enter public buildings (such as churches, airports, museums) are classified as invitees. A hotel would fall under the category of a building open to members of the general public. Therefore, the friend is viewed as an invitee. The duty owed to an invitee is twofold: (1) duty to make reasonable inspections and (2) duty to make safe for the protection of invitees who enter. Here, since the hotel breached its duty to inspect and make safe, the friend will be entitled to recover.
In order to recover under negligence per se or violation of a statute
n order to recover for negligence per se, most courts require that: (1) the plaintiff be a member of the class of persons intended to be protected by the statute, and (2) the harm suffered must be of a type that the statute was designed to protect against.
Question dealing with res ipsa loquitur and directed verdicts on the MBE
A trap that is frequently tested on the Multistate is to present a negligence question and then indicate in the facts that the plaintiff has failed to present any evidence supporting the cause of action. When a plaintiff fails to satisfy her burden of production (by presenting a preponderance of evidence to prove the elements of her claim), the court may grant defendant’s motion to dismiss. However, inres ipsa loquitur situations there is an inference of negligence on the part of the defendant. As a result, the plaintiff has made a prima facie case and no directed verdict may be given to the defendant.Res ipsa loquitur simply establishes an inference of negligence. Basically, it allows the plaintiff to escape a nonsuit, or a dismissal of his action. However, the inference of negligence to be drawn from the circumstances is left to the jury, which may very well find against him. Certainly, the defendant in rebuttal may present a preponderance of evidence to avoid liability.
What are the instructions on the MBE for Torts
It is important to note that the MBE instructions for Torts state as follows, “Examinees should assume that joint and several liability, with pure comparative negligence, is the relevant rule unless otherwise indicated.” Therefore, you must assume that pure comparative negligence applies to this fact pattern because you are not told otherwise.
What is the general rule about comparative negligence statutes
As a general rule, comparative negligence statutes have the effect of apportioning damages based on the parties’ respective degrees of fault. For example, if the defendant’s fault is found to be twice as great as that of the plaintiff, the latter will recover two-thirds of his damages, and himself bear the remainder of his loss. As a consequence, plaintiff’s recovery will be diminished in proportion to his negligence.
last clear chance” doctrine is applied
in contributory, not comparative, negligence jurisdictions.
Where two or more causes combine to produce such a single result, incapable of any logical division
According to Prosser, certain results, by their very nature, are obviously incapable of any logical, reasonable, or practical division. Death may be such a result, and so may be a broken leg or any single wound, the destruction of a house by fire, or the sinking of a barge. Where two or more causes combine to produce such a single result, incapable of any logical division, each may be a substantial factor in bringing about the loss, and if so, each must be charged with all of it. In this situation, most courts place the burden of proof on the issue of causation upon the two defendants. Unless the innocent defendant can prove that he is not culpable, liability will be imposed. This is the rule enunciated in the case of Summers v. Tice [1999 P.2d 1 (1948)]
On all standardized examinations (whether it be the MBE, SAT, LSAT, GRE) the Examiner’s main goal is “to hide the correct answer,” HOW
The Examiners try to accomplish this by employing “distracters” and “red herrings”.
A comparative negligence statute only applies
A comparative negligence statute only applies when the two negligent parties (e.g., liable plaintiff and the liable defendant) are suing one another.
When a non-liable plaintiff was injured by joint tortfeasors, comparative negligence plays what role?
NONE. A comparative negligence statute only applies when the two negligent parties (e.g., liable plaintiff and the liable defendant) are suing one another.When a plaintiff who was injured by the combined negligent acts of both the fan and the truck driver. The defendants are joint tortfeasors who would be jointly and severally liable for the full amount of the friend’s damages. Plaintiff may recover full damages from one of the defendants, who could then seek contribution from the other defendant
Explain a valid release and the effects
Restatement of Torts 2d, Section 885(1) provides: “A valid release by one tortfeasor from liability for harm, given by the injured person, does not discharge others liable for the same harm, unless it is agreed that it will discharge them.” However, subsection (3) states, “A payment by any person made in compensation of a claim for a harm for which others are liable as tortfeasors diminishes the claim against the tortfeasors, at least to the extent of the payment made, whether or not the person making the payment is liable to the injured person and whether or not it is so agreed at the time of payment or the payment is made before or after judgment.”
A public landowner is, generally, not liable for the intentional torts committed by third persons
In order to answer this question, it is necessary to determine what duty is owed to the plaintiff. Since the facts indicate those entering the premises will be viewed as invitees (or “business” visitors). A person may be classified as an invitee even though she does not actually confer an economic benefit to the possessor. The important consideration is whether there is a potential pecuniary profit to be gained. This same issue is often tested where a person enters a business with no intention of buying anything but to change a $1 bill for the parking meter. He nonetheless was an invite
Defendant’s failure to guard against the possibility of a known danger can be liable when
Prosser states, “If the intervening cause is one in which ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, he may be negligent, among other reasons, because he has failed to guard against it; or he may be negligent only for that reason.” Furthermore, Prosser notes, “Even though the intervening cause may be regarded as foreseeable, the defendant is not liable unless his conduct has created or increased an unreasonable risk of harm through its intervention.” Thus, “there may be an appreciable danger that the plaintiff will be struck by lightning, or by an automobile in the street, or a mail sack thrown from a train, or that a kerosene lamp will explode in his face, but there is no liability unless what the defendant has done has increased the risk.”
A defendant’s negligent acts that cause an injury can extend to what other injuries
It is well established that a defendant is held liable for foreseeable intervening causes. Examples of foreseeable intervening causes include: 1) subsequent medical malpractice; 2) negligence of rescuers; 3) subsequent disease; and 4) subsequent accident. Where the defendant suffers a subsequent injury following her original injury, and the original injury was a substantial factor in causing the second accident, the original tortfeasor is usually held liable for damages arising from the second accident.
Nonfeasance
Is the failure to act where action is required - willfully or in neglect.
Malfeasance
Is the willful and intentional action that injures a party.
Misfeasance
Is the willful inappropriate action or intentional incorrect action or advice.
Transporting a large quantity of highly flammable chemicals is an abnormally dangerous activity.
Consequently, some transporting products that are considered abnormally dangerous is subject to strict liability based upon Restatement section 519, which states: “One who carries on an abnormally dangerous activity is subject to (strict) liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.”
Strict liability for wild animals foreseeability extends to
According to Restatement of Torts, 2d, Section 507, “A possessor of a wild animal is subject to (strict) liability to another for harm done by the animal to the other, his person, land or chattels, although the possessor has exercised the utmost care to confine the animal, otherwise to prevent it from doing harm.”
Question involves strict products liability for a product that is “defective” and “unreasonably dangerous”–the required elements for strict products liability when
If such an accident was foreseeable and the manufacturer and it failed to warn purchasers of the danger then the manufacturer is strictly liable
As a general rule, the only defense in strict liability is assumption of risk, not contributory negligence, explain the difference
Always remember the main difference between assumption of risk and contributory negligence is that assumption of risk is a subjective standard. The plaintiff must subjectively be aware of the danger and knowingly expose himself to the danger. On the other hand, contributory negligence is an objective standard where the plaintiff’s conduct falls below the applicable standard of care necessary for his own protection.
Most Multistate questions will test a fine line distinction or nuance. In the area of Torts, it is imperative to distinguish between strict liability and negligence actions.
Strict liability claims must include necessary that the auction company be engaged in the business of selling automobiles to be held strictly liable. Negligence claims include the failure to inspect
There are five elements required to establish a claim for misrepresentation
1) there must be a material misrepresentation, 2) the defendant must act with scienter, 3) the defendant must intend to induce reliance, 4) the plaintiff must justifiably rely on the misrepresentation, and 5) the plaintiff must suffer pecuniary damages. The key to this question is understanding the element of scienter. This element is satisfied in two situations: 1) when the defendant lies, or 2) when the defendant makes a statement of fact not knowing whether it is true or false.
An action brought for nuisance will not be recoverable when
Prosser states, “The plaintiff cannot, by devoting his own land to an unusually sensitive use,” recover for nuisance. Law of Torts,
to prove an action for defamation, the teacher will have to show that:
1) A false, defamatory statement of fact was made; 2) Reasonably understood as relating to the teacher; 3) Intentionally or negligently published to a third party; 4) Causing her damage; 5) Made with the requisite degree of fault as to the truth or falsity of the statement. Under Gertz v. Welch [418 U.S. 323 (1974)], A private person suing a media defendant for defamation must show that the defendant was at least negligent with regard to the truth or falsity of the printed statement, where the statement involves a matter of public concern
Recovery under Slander Per Se
Sections 571-574 of the Restatement 2d, Torts provides that “an action for slander will lie without proof of special harm only where (1) the words impute a criminal offense which, if committed in the place of publication (a) would be punishable by death or imprisonment, or (b) regarded by public opinion as involving moral turpitude; (2) the words impute to the plaintiff a presently existing venereal or other loathsome and communicable disease; (3) the words impute to the plaintiff conduct, characteristics, or a condition incompatible with the proper conduct of his lawful business, trade, profession, or with his public or private office, whether honorary or for profit; and (4) the words impute to a woman unchastity.Slander per se, wherein the plaintiff can recover damages without proving that he has suffered any special harm at all. The cause of action is complete when the plaintiff proves that such a type of slander has been published about him and that he has suffered “actual injury” as a result of the defamatory statement. It is important for students to note the four per se categories for either slander or libel.
Defamation claim requires
It is important to remember that the defamatory meaning of a statement must be communicated. Thus, the utterance must be understood by the third person. Accordingly, Prosser notes that “words spoken in a foreign tongue are not actionable unless they are heard by one who understands the language.
Remember that invasion of right of privacy is not a single tort but comprises the following four distinct causes of action: 1) appropriation, 2) false light, 3) public disclosure of private facts, and 4) intrusions on one’s seclusion and solitude. In order to recover for public disclosure, the facts disclosed must be private facts, not public ones.
Remember that invasion of right of privacy is not a single tort but comprises the following four distinct causes of action: 1) appropriation, 2) false light, 3) public disclosure of private facts, and 4) intrusions on one’s seclusion and solitude. In order to recover for public disclosure, the facts disclosed must be private facts, not public ones.
Define “Appropriation”
Appropriation is defined as the unauthorized use by defendant of plaintiff’s picture or name for defendant’s commercial advantage.
Whether a party has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentations of the issues” is “the gist of the question of federal standing” [Baker v. Carr, 369 U.S. 186 (1962)]
Under the constitutional standard imposed by the “case and controversy” requirement of Article III, personal standing requires a minimum concrete “personal stake” in the outcome by a two-fold showing of, first, “distinct and palpable injury” and, second, a “fairly traceable” causal connection between the claimed injury and the challenged conduct.
Under Article III, Section 2 of the Constitution, the “case or controversy” requirement establishes the concept that
federal court jurisdiction will not be exercised absent an actual and definite dispute between parties having adverse legal interests.
Protected classes include, male and females, which is protected, so the suit will
Is tested under “intermediate scrutiny” to satisfy this the requirement of Standing because the unequal treatment by an ordinance deals with males versus females might adversely affect the legal interests of all males who wish to engage in certain conduct afforded to females, thereby constituting an actual and definite dispute.
The President can only grant pardons or reprieves for
federal offenses. The President is not empowered to grant pardons for state offenses.
A treaty or act of Congress will supersede and take precedence over
An inconsistent executive agreement or order. President’s actions, Restatement of Foreign Relations Law, 3d, takes the position that an executive agreement is effective and binding as long as it “does not supersede inconsistent provisions of earlier acts of Congress.”
As a general rule, matters involving foreign affairs involving Executive treaties are subject to what kind of judicial review are non-justiciable and immune from judicial review.
As a general rule, matters involving foreign affairs are non-justiciable and immune from judicial review. The decided cases relate to foreign policy or international affairs (e.g., Cambodian bombing and legality of Vietnam War non-justiciable).
The executive agreement is constitutional as within the powers of the executive branch for matters involving foreign affairs, generally not subject to the judicial review, EXCEPT when
However, executive agreements relating to economic matters are generally subject to judicial review. For example, in United States v. Guy W. Capps, Inc. [348 U.S. 296 (1955)], a corporation had standing to challenge an executive agreement between Canada and the United States regulating potato exports by Canada. By the same token, private litigants were given standing to challenge President Carter’s executive order freezing Iranian assets.
Is the President (Executive Branch) permitted to have a limited administrative power to implement a statute.
Congress may delegate its power to do so to the President. First, the President has no authority to set regulatory standards. This is a legislative action. Congress has the power to legislate under its power to regulate interstate commerce. Second, Congress may delegate certain of its enumerated powers to the President, the courts, or other administrative agencies.
When Congress attempts to delegate power under the constitution to the President, two general requirements must be met:
(1) the power must be one which Congress may delegate. Certain powers are constitutionally stated such that a delegation would be invalid (i.e., the power to declare war, to ratify treaties, to try cases of impeachment, etc.); and (2) the delegation must contain at least some general guidelines such that a court could determine whether the delegatee had exceeded the authority granted by Congress. This would be a limited delegation of a small portion of Congress’s power to regulate interstate commerce. Moreover, the President’s determination of the proper percentage is subject to “specific standards” and “detailed procedures,” which would ensure that a court could determine if the President overstepped the authority granted by Congress.
Can an administrative order of a federal agency supersedes a conflicting state law.
As a general rule, the actions of federal agencies may preempt state law. “Federal regulations have no less preemptive effect than federal statutes. Where Congress has directed an administrator to exercise his discretion, his judgments are subject to judicial review only to determine whether he has exceeded his statutory authority or acted arbitrarily. When the administrator promulgates regulations intended to preempt state law, the court’s inquiry is similarly limited” [Fidelity Federal Savings & Loan Association v. De la Cuesta, 458 U.S. 141 (1982)].
The Supremacy Clause
The Supremacy Clause provides that when Congress intends to occupy a given field (preemption) or where an actual, direct conflict between a federal law and a state law exists, the state law will generally be invalidated.
Exception to the Supremacy Clause
However, if the subject matter has traditionally been left to the states, it is less likely to be found to be the subject of federal preemption. This is especially true in cases involving health and safety regulations.
The exercise of the state’s police power to provide for the health, safety, and welfare of its citizenry
The U.S. Supreme Court held that there was no preemption to Federal Law because the regulation of health and safety matters is primarily and historically a matter of local concern.
Intergovernmental immunity does not prevent
federal property used for proprietary purposes is not immune from nondiscriminatory state taxation.
While the Supremacy Clause prohibits state or local governments from directly regulating or taxing the federal government without its consent, a Tax that is not upon the federal government, but upon a private concessionaire using federal property, then
Such “property interest taxes” tax the user’s right to the use and enjoyment of federal property, although the property itself is exempt from the state taxation. As long as the property interest tax is nondiscriminatory, it is not constitutionally prohibited. Note that if the state attempted to tax the federal government directly (e.g., a state tax on rental receipts, including the federal government’s receipts from its concession lease to the plaintiff), would not be permittedDetermine if the tax is on the user leasing federal land in a state, or the federal government itself
Article IV, Section 3 of the Constitution provides that Congress shall have the power to dispose of and make “all needful Rules and Regulations respecting the Territory or other Property of the United States….
Use of this broad federal property power is subject to congressional discretion and not subject to state regulation. The federal property power is plenary and has been applied to the following areas: the establishment of legislative courts with powers not derived from Article III; and regulation of (1) wild animals on federal lands, (2) federal buildings and enclaves, (3) military ships and airplanes, and (4) Indian reservations. In light of the federal property power, Congress may validly convey the 1,000 acres of federal land to one group and not another.
If Congress conveys land to one group, and not another, the court should treat the action of Congress as (Constitutional or Unconstitutional)?
The court should treat the action of Congress as presumptively valid because the Constitution expressly gives Congress power to dispose of the territory or other property belonging to the United States.
Under Article I, Section 8 of the Constitution, Congress is granted the exclusive power to coin money, which has what affect on State actions
Any attempt by the state or local governments to create a substitute or competitive currency will be struck down as violative of the exclusive federal power. Such as vouchers being used as a substitute for U.S. currency in the state. Thus, the state is substituting its own currency for legal U.S. tender in violation of the exclusive federal power to coin money.
Any state or local law that either directly or indirectly conflicts with federal law will be
Struck down as violative of the Supremacy Clause of Article VI.
The federal government has virtually unlimited power to regulate immigration policy and the conduct of U.S. foreign affairs with other nations. Therefore, a state government regulation seeking to
Penalizing, restricting or excluding the citizens of nations hostile to the US have been held could seriously undermine the efforts of the federal government to negotiate with these nations. Even when the federal government has not directly prohibited the states from acting in a particular area of regulation, state laws that act as an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” have been struck down [Hines v. Davidowitz 312 U.S. 52 (1941)].
The right to attend a state university should not be considered a
Fundamental right worthy of substantive due process protection. The Supreme Court has held in an analogous situation that public education is not a fundamental right [San Antonio v. Rodriguez, 411 U.S. 1 (1973)]. In addition, denial of admission to the state university would be unlikely to warrant procedural due process protection either because there is nothing for a hearing to resolve.(1) attending a state university is not a “privilege or immunity” of the Fourteenth Amendment; and (2) only U.S. citizens are protected under this clause of the Fourteenth Amendment. Students should recognize that the Privileges and Immunities Clause of the Fourteenth Amendment is extremely limited.
Under Article I, Section 9, Clause 7, Congress has plenary power to tax and spend for the general welfare, which means that
Congress has the power to appropriate funds for the general welfare, even though disparate treatment is given to different groups.In United States v. Butler [297 U.S. 1 (1936)], the court held that Congress is not limited to spending only to achieve the specific powers granted in Article I of the Constitution. Congress may spend in any way it believes would serve the general welfare, as long as it does not violate another constitutional provision. An aid bill to subsidize one group over another for economic loss is clearly constitutional under Congress’s spending power.
If Congress requires the states to enact legislation using state agents or agencies, is in all likelihood to be deemed
Unconstitutional because Congress cannot “commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program” [New York v. United States, 505 U.S. 144 (1992)]. In New York, the court held that there are limits to Congress’s right to interfere with the states’ lawmaking processes, and Congress will violate the Tenth Amendment if it exceeds those limits.Congress cannot commandeer the states to enact and enforce legislation.
Under Article I, Section 8, Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This plenary federal commerce power is held concurrently with the states, which
may freely govern matters that do not require uniform national regulation.
For a state regulation affecting interstate commerce to pass judicial scrutiny,
The State statute must be found reasonable and nondiscriminatory upon balancing the benefit to the state against the burden imposed on interstate commerce, such that no less restrictive alternative means of regulation is available. Where a state statute may pose a discriminatory or undue burden on out-of-state interests, the USSC applies a “balancing test” [Pike v. Bruce Church, 397 U.S. 137 (1970)].
The Fourteenth Amendment’s Equal Protection Clause applies
only to actions by state and local governments, not to private companies, even where licensed by the state.
Insurance rate-setting policies of the private insurance company
do not involve state action. The state laws regulate only the licensing and solvency of insurance companies, not the premiums charged. State licensing of a private entity is not sufficient to render the discriminatory practices of the private entity state action within the meaning of the Fourteenth Amendment [Moose Lodge v. Irvis, 407 U.S. 163 (1972)]
Congress has, by federal statute, authorized the states to regulate the policies and practices of insurance companies operating within the state’s boundaries, which means
This has been interpreted by the U.S. Supreme Court to allow the state to regulate in a discriminatory manner, which would, absent the authorization of Congress, violate the negative implications of the Commerce Clause. However, this conferral of discriminatory power does not allow the states to discriminate in a manner that would be so arbitrary, capricious, or irrational as to violate the Equal Protection Clause
Is the power of the states to regulate the insurance companies plenary
NO. There is has to be state action present requiring the insurance company to justify its discriminatory premium in order to have an equal protection claimBecause a company is only a private company that has not engaged in “state action,” it does not need a good reason to discriminate.
A claimant challenging under the Equal Protection Clause must demonstrate
that state action exists, which discriminates and treats one group different than another
Classifications based on gender are subject
to intermediate scrutiny whereby the government bears the burden to show that the action being challenged is substantially related to an important interest. In fact, based on the holding in United States v. Virginia [518 U.S. 515 (1996)
Classification based on gender after 1996
gender discrimination cases now require the government to show an “exceedingly persuasive justification,” a more vigorous test that is closer to strict scrutiny than to the “substantial relation to important governmental objectives (intermediate scrutiny)” analysis. This test applies where the statute is intended to classify on the basis of gender.
Before jumping to the conclusion that this question involves gender discrimination just because a woman or man was denied something because of gender
focus on the government conduct itself. Such as was the state law neutral on its face, not intended to discriminate based on gender. Second, the state action for rejecting the male/female was based on failure to conform to the local building code or something, not based on intentional gender discrimination
In gender-discrimination cases
the plaintiff is required to show a discriminatory purpose, not merely a discriminatory effect
If a city’s action does not trigger intermediate scrutiny because there was no gender-motivated purpose behind the permit rejection then
the Rational basis analysis applies instead, and the woman will have the burden of persuasion.
One of the most striking expansions of the substantive Due Process Doctrine in recent years has been in the area of family relations. As a general rule, the Supreme Court has found that a person’s decision about how to conduct her family relationships (e.g., marriage, childbirth, child rearing, and cohabitation with one’s relatives) often rises to the level of a “fundamental right.” Consequently,
the state may interfere with such a decision only when it shows the regulation is necessary for the fulfillment of a compelling public interest. Here, we are dealing with a state law regulating childbirth, which will be subject to a “strict scrutiny” standard of review. Because the facts indicate that the regulation was enacted because of public health concerns, it does further a compelling state interest.
A city or state ordinance that defines “family” is
Unconstitutional. The ordinance would deny her substantive due process. Under the Supreme Court decision in Moore v. City of East Cleveland [431 U.S. 494 (1977)], a city may not define a “family” to include only certain categories of related individuals. In Moore, the court struck down an ordinance that would have precluded a grandmother and grandson from living together, holding that the Fourteenth Amendment Due Process Clause protects freedom of choice in matters of marriage and family life
Even though a municipality cannot define “family,” it can prohibit what classes of people from living together
However, that municipalities may validly prohibit unmarried, unrelated individuals from sharing the same residence [Village of Belle Terre v. Boraas, 416 U.S. 1 (1974)].
When will an abortion statute be struck down?
When the statute imposes an undue burden on the right to obtain an abortion.
With respect to abortion, the trimester test of Roe has been partially overruled by Planned Parenthood of Southeastern Pennsylvania v. Casey [505 U.S. 833 (1992)]
As a result of Casey, the states may restrict abortion as long as they do not place any “undue burden” on the woman’s right to choose. When the state statute does place an “undue burden” on the right to abortion because after the first three months, a woman can only have an abortion to protect her health and life
The right to be a candidate is related to the fundamental right to vote. In general, the state’s interest in limiting ballot access is twofold, as follows:
The state must demonstrate that the law is necessary to further a compelling state interest. (1) to reduce voter confusion, and (2) to maximize the probability that the winning candidate will have received a majority of the popular vote. In Storer v. Brown [415 U.S. 724 (1974)]The court determined that the “disaffiliation” statute furthered the state’s compelling interest in the stability of the political system, and its interest in having “intraparty feuds” resolved in primaries, rather than in the general election.
What is the State test for independent candidates and minor political parties to get on a ballet for the upcoming elections
The court noted further in Storer that the state must adopt reasonable alternative means for independent candidates and minor political parties to get a ballot position, and the alternative means must not place too heavy a burden on the right to vote and the right to associate.
Age classification statutes are
Are not a fundamental right. The petitioner must show that the age restriction is not rationally related to a legitimate government interest.the Supreme Court has consistently applied the rational basis test for government classifications based on age. Under this “soft” test, the Supreme Court has never struck down an age classification as unconstitutional. See, e.g., Vance v. Bradley [440 U.S. 93 (1979)] (federal law requiring retirement at age 60 for employees in the Foreign Service Retirement System, held constitutional); Gregory v. Ashcroft [501 U.S. 452 (1991)] (Missouri mandatory retirement age of 70, for most state judges, held constitutional).
The city is discriminating against non-residents with respect to one of the privileges and immunities of state citizenship is
a violation, and out of state citizens are protected by Article IV, Section 2–the right to pursue a livelihood
Article IV, Section 2–the right to pursue a livelihood clause
This clause protects non-residents from being discriminated against by state or local governments with respect to certain “basic rights” and “essential activities” of state citizenship. Among these are the right to own property, equal access to medical care and the courts, and the right to earn a living.
What are examples of a non-citizens rights being violated under Article IV, Section 2–the right to pursue a livelihood clause
City’s commuter tax discriminates against non-resident workers. Where discrimination against the employment rights of non-residents is found to exist, the law will be struck down unless the responsible state or local government can show such discrimination is closely related to a substantial government interest.
In cases of discrimination against non-residents in employment contexts,
The Supreme Court has required the government to show that the non-residents are a “peculiar source of the evil the law was designed to redress.” Here, if the city businesses are not making enough money, the court is not likely to allow the city to tax non-residents who (quite conveniently, are not able to vote in the city elections) are not shown under the facts to be the sole cause of poor business revenues of local merchants.
The city must prove, under what test, that its exercise of eminent domain is
rationally related to a conceivable public purpose.
The government satisfies the Public Use Clause if it can demonstrate
If the government satisfies the Public Use Clause if it can demonstrate that the “exercise of the eminent domain power is rationally related to a conceivable public purpose.” The Supreme Court reaffirmed that the courts must give broad deference to a legislature’s judgment as to what constitutes a public use. In Kelo, a divided Supreme Court ruled that a broad economic redevelopment plan by a city to eradicate economic blight and high unemployment is a legitimate public use under the Fifth Amendment.
A law that applies to named individuals or an easily ascertainable group in a manner that inflicts a punishment without a judicial trial is an
Unconstitutional bill of attainder. When a state legislature passed a licensing law that expressly revoked the practitioner’s license without the benefit of a trial. Because he was singled out by name in the law and punished without a trial, the state law is an unconstitutional bill of attainder. There is no discrimination against non-residents of the state, which would be required for an effective Article IV, Section 2, privileges and immunity challenge.
The Ex Post Facto Clause forbids
both the states and the federal government from enacting retroactive criminal laws. The most common sort of an Ex Post Facto law is one which creates a new crime and applies it retroactively to conduct not criminal at the time committed. the Ex Post Facto Clause prohibits the retroactive application of an increase in the punishment for a crime that carried a lesser penalty when committed.Another aspect of the ex post facto prohibition is concerned with retroactive changes in evidence and procedure that operate to the disadvantage of the criminal defendant by making conviction easier. Thus, a statute that changes the burden of proof on the prosecution from the usual rule of “beyond a reasonable doubt” to one of “preponderance of the evidence” is ex post facto, if retroactive.
An ordinance will be found unconstitutional that deprives a person of their liberty of speech or singing when
The ordinance deprives persons of their liberty without due process of law because the ordinance is not related to any legitimate community interest.
A city ordinance that prohibits certain conduct during hours are are generally viewed as public forums may be
attacked as a violation of protected First Amendment freedom of expression because it prohibits all singing and chanting for 12 hours every day in areas which are traditionally viewed as public forums.
Time, place, and manner limitations on speech-related conduct are permitted
When achieved by reasonable content-neutral regulations that further a significant governmental purpose. Such an ordinance must be narrowly drawn so as not to establish a total ban on protected rights of free speech. Because a city ordinance does not appear to satisfy this standard, a First Amendment free-speech attack by the students will be a strong challenge.
What are two strong challenges to the language in a city ordinance that prohibits speech in a public forum
A strong challenge in the form of the vagueness and overbreadth doctrines. By proscribing protected as well as prohibited speech for half of each day everywhere in the city, the ordinance is clearly overbroad on its face. Similarly, due to the uncertainty as to what conduct is restricted by the words “singing and chanting of songs” and “audible (to whom?) off the premises,” a vagueness challenge should be successful
Non-religious songs–
Are certainly areas of protected speech–are when being treated differently than religious songs, thereby raising an equal protection challenge to be reviewed using the strict scrutiny standard.
What are consider public forums for speech-related activities
Government-owned property is a public forum that the government is constitutionally required to make available for speech-related activities. Parks, sidewalks, and city streets are traditional classic public forums.
When can a valid time, place, and manner regulation related to a significant government interest be constitutional
The government may regulate speech thereon if the following standards are met: (1) the regulation must be content neutral (unless strict scrutiny is met); (2) the regulation must be a reasonable time, place, manner restriction that serves a significant governmental interest; (3) the regulation must leave open adequate alternative places for speech; and (4) the regulation must give clear guidelines to the licensing official that leaves no room for arbitrary discretion
The billboard advertising regulation may not single out
Constitutionally protected non-commercial speech. A regulation of speech may not prefer commercial speech over protected non-commercial speech.The Supreme Court invalidated a similar San Diego ordinance because of impermissible content regulation, but expressly left open the question of whether all billboards could be prohibited in a content-neutral fashion.
The power to zone does not include
the power to violate the First Amendment’s freedom of expression. A government regulation of the time, place, or manner of outdoor signs cannot make content-based distinctions that disfavor constitutionally protected speech.
When the ordinance prohibits political speech while allowing commercial speech
This distinction is based upon the content of the expression and is an unconstitutional distinction according to the Supreme Court
Laws that prohibit the posting of signs on public property
are constitutional
What is the exception to the laws that prohibit posting of signs on public property
Once the government voluntarily decides to open public property to some forms of speech, it creates a “limited or designated public forum”; and any “restriction must not discriminate against speech on the basis of viewpoint and must be reasonable in light of the purpose served by the forum.” In addition, any licensing or permit system that leaves significant discretion to the licensing official or “unfettered discretion” to award or deny permits is facially unconstitutional
A ordinance that required a permit for demonstrations and allowed the permit official unlimited discretion to charge a fee up to $1,000, was held
unconstitutional because of a lack of articulated standards or objective factors.
Quite often, Multistate constitutional law questions are based upon case precedent, which held that a law which is narrowly tailored
as valid because regulations of commercial speech must be “narrowly tailored” and should be no more extensive than is necessary. When the state is attempting to regulate unprotected commercial speech (i.e., vice advertising). A state will not be permitted to completely ban commercial advertising, but must use a means narrowly tailored to achieve the desired objective.
With regard to questions involving the free exercise clause, it is necessary to determine whether the law is
(1) religiously neutral, and (2) of general applicability.
A law failing to satisfy these requirements (i.e., the neutrality and general applicability requirements) must be justified
By a compelling governmental interest and must be narrowly tailored to advance that interest. When a law meets the neutrality and general applicability standard, the rational basis test applies.
Authorized the use of (public) school property, when it was not otherwise being used for school purposes, for social, civic, or recreational uses and for uses by political organizations is
Permitted
Authorized the use of (public) school property that denied a religious congregation the ability to use the school property at a time when classes were not in session and the school was not being used for previously scheduled activities was held to be
The Supreme Court unanimously ruled that the school board’s regulation violated the Free Speech Clause of the First Amendment because it constituted viewpoint discrimination.
What is the general common law rule when a defendant in a criminal drug case transports a package for someone else, but does not intentionally look in the package
it can be said that despite having intentionally avoided looking to see what was in the package, the acquaintance did indeed know. In cases of “willful blindness” where the defendant is deliberately ignorant of certain facts, he can be held criminally liable. The Ninth Circuit Court of Appeals concluded that the defendant’s “willful blindness” was sufficiently culpable to “where it can almost be said that he actually knew” that drugs were present.
The mens rea requirement of knowledge can sometimes be satisfied when
In cases of “willful blindness” where the defendant is deliberately ignorant of certain facts, he can be held criminally liable
What defense does “willful intoxication” for a general intent crime is
that voluntary intoxication is no defense: As a general rule, voluntary intoxication is not a defense for a “general intent” crime.
Define Arson
Arson is a “general intent” crime because it does not require a specific mental state of intent. As a general rule, voluntary intoxication is not a defense for a “general intent” crime.
What are the requirements for a criminal charge of Larceny
Larceny at common law may be defined as the (1) trespassory (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with the intent to permanently deprive the owner thereof. The crime of larceny requires an intent to steal, that is, an intent to deprive the owner of the possession of his property permanently or for an unreasonable length of time.
What is a valid defense to a criminal charge of Larceny
The defendant lacked the requisite state of mind.
When dealing with a criminal law question dealing with self-defense, determine
As a general rule, if the defendant is not the aggressor, then he is justified in using a reasonable amount of force against his adversary when he reasonably believes (1) that he is in immediate danger of unlawful bodily harm from his adversary, and (2) that the use of such force is necessary to avoid this danger.
When is deadly force justified
Deadly force is justified when an individual is threatened with serious bodily injury or death
Under the M’Naghten Rule
A person is considered “insane“ if “at the time of committing of the act, the party accused was laboring under such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.“ A man who is mentally retarded and did not understand what he was doing would satisfy the test.
Generally, if a defendant has the legal duty to act and his or her failure to do so results in a death,
the defendant will be guilty of involuntary manslaughter
A person with a legal duty to act may be found guilty of murder for failing to act if
that failure to act is accompanied by the requisite mens rea for murder.
Generally, there is no affirmative duty to act, unless there is a special relationship that gives rise to a duty to aid or protect. For Example:
Common carriers, innkeepers, possessors of land, custody keepers, parents, and spouses have a special or higher duty of care to act for the protection of those persons with whom they have a special relationship. The typical example is the duty of a parent to rescue her imperiled infant who is drowning face down in the bathtub. Failure to rescue the infant would be murder if the parent intends to kill the child, either by desiring the death or by failing to act, despite knowing that death is substantially sure to result from failure to rescue. Similarly, the common law imposes an affirmative duty upon spouses to aid one another.
Not intending to kill, a defendant hits a person over the head with a baseball bat. As a result, the person dies from head injuries, the defendant will be charged with
Is an example of intent-to-inflict serious bodily injury murder
Not intending to kill, a defendant throws a baseball off the top of a four-story apartment building onto a busy public street below. The baseball strikes a pedestrian, killing her.
Is an example of “depraved-heart” murder.
Not intending to kill, a defendant rapes a victim in a remote area of the desert. The defendant then drives off leaving victim alone in the sweltering heat. The next day, the victim dies from exposure, because she’s unable to reach the nearest town eight miles away.
Is an example of felony murder.
Not intending to kill, a defendant, at a party, pushes a nine-year-old child into a swimming pool and the youngster drowns.
Is characteristic of involuntary manslaughter or misdemeanor manslaughter. Note that the defendant committed a battery (which at common law was a misdemeanor) by pushing the victim into the pool.
Malice aforethought does not require an intent to kill. “Malice” at common law may consist of any of four states of mind:
(1) felony-murder; (2) intent to kill; (3) extreme reckless conduct likely to cause death or serious injury; or (4) intent to cause serious bodily injury that results in death.
A defendant intended to cause serious injury to the victim, which resulted in his death. T
he defendant may properly be convicted of second degree murder.
The heat of passion killing, to qualify as manslaughter
Requires that the provocation be adequate, i.e., cause a reasonable person to lose self-control under the circumstances.
The provocation by a victim required for voluntary manslaughter must be that which will arouse a heat of passion in a reasonable sober (defendant) man. A defendant’s voluntary intoxication, which unreasonably provokes him to lose his self-control
Will not reduce homicide to manslaughter
What standard the court should use for a defendant in a criminal case to determine adequacy of provocation as a basis for mitigating murder to manslaughter.
Modernly, however, the strictly objective reasonable man test for determining adequacy of provocation has been considerably broadened. Under the Model Penal Code, “at least some individual peculiarities should be taken into account because they bear upon the inference as to the actor’s character that is fair to draw upon as the basis of his act” [Model Penal Code, Section 20.3 Comment].Therefore, such a physical condition should be considered by the court
What standard the court should use for a defendant in a criminal case to determine adequacy of provocation as a basis for mitigating murder to manslaughter.
Traditionally, an objective standard is applied to the question of whether there is adequate provocation. The provocation must be adequate enough to excite uncontrollable passion in a reasonable person. The fact that the defendant possessed some peculiar physical or mental characteristic was uniformly held not to be considered in determining provocation (i.e., head injury, sunstroke, and sexual impotence). The test was how the victim’s conduct affected a reasonable man, not how it affected a man with the defendant’s physical characteristics (LaFave and Scott, Criminal Law, p. 578).
The felony murder rule requires
Intent to commit a felony crime is a sufficient substantial step that creates liability under the felony murder doctrine. The felony murder rule encompasses both completed and attempted dangerous felonies.
If a defendant is found not guilty under the felony murder rule, the reason is
The jury did not believe that the defendant was engaged in the commission of a felony crime, and the felony-murder rule would not apply.
Depraved-heart murder,
which is usually codified as second degree murder. In accordance with the statutory definition, second degree murder “covers all other unlawful killings with express or implied malice aforethought.
Modern courts and legislatures still frequently define murder in terms of “malice aforethought, express or implied,
which now covers all four types of murder: (1) intent to kill murder; (2) felony-murder; (3) depraved-heart murder; and (4) intent-to-do-serious-bodily-injury murder.
Under the depraved heart doctrine for a murder charge, the defendant
may not have acted with express malice, butt his conduct involved implied malice
Mens Rea- “Knowingly”
A person has “knowledge” of a material fact if he is aware of the fact or he correctly believes that it exists. Most jurisdictions also permit a finding of knowledge of an attendant circumstance when the defendant is said to be guilty of “willful blindness” or “deliberate ignorance,” i.e., if the defendant is aware of a high probability of the existence of the fact in question, and he deliberately fails to investigate in order to avoid confirmation.
For the crime of solicitation to be completed,
The crime solicited need not be committed. It is only necessary that the actor, with the intent that another person commit a crime, has enticed, advised, incited, ordered, or otherwise encouraged that person to commit a crime.
What is not a defense to a criminal charge for solicitation of a crime
That it is not a defense to a solicitation charge that, unknown to the solicitor, the person solicited could not commit the crime. Similarly, it is also no defense that the person solicited is an undercover agent and under no circumstances would have committed the crime solicited.
A defendant is not guilty of conspiracy when
An essential element of the crime is an agreement (for an unlawful purpose) between two or more persons. There is no conspiracy when one of the defendants does not have the required intent-to-commit the crime’s mental state. Therefore, if one defendant has the intent but the other defendant lacks the intent, then neither one can be charged
The crime of attempt murder consists of
(1) an intent to do an act or to bring about certain consequences, which would in law amount to a crime; and (2) an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation. As such, attempt is a specific intent crime.
If a defendant did not have the (specific) intent to kill the girl, in an attempted murder charge, the outcome is
he would be found not guilty of the incohate crime of attempted murder.
The traditional definition of conspiracy requires the following two elements:
(1) an agreement between two or more persons (which constitutes the act); and (2) an intent to achieve a criminal or unlawful objective.
To constitute conspiracy at common law,
there must be a combination of two or more guilty persons.
when does the crime of conspiracy fail in regard to larceny and/or burglary
The “plurality” requirement is not satisfied because a defendant is an innocent party who believed that he was the true owner of the chattel being taken. In addition, if each defendant never entered into an agreement with the others, but rather intended individually to commit a theft inside a home, there is no conspiracy
MPC states, “Guilt as a conspirator is measured by the situation as the actor views it; he must have the purpose of promoting or facilitating a criminal offense, and with that purpose must agree (or believe that he is agreeing) with another that they will engage in the criminal offense or in solicitation to commit it.” Therefore, under the MPC you do NOT need
Under the MPC, agreement between “two or more” persons is not required. Only agreement by a single actor agreeing with another is needed. Furthermore, a mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words that expressly communicates agreement.
An agreement for conspiracy under the MPC does not have to be
“The agreement need not be shown to have been explicit. It (agreement) can instead be inferred from the facts and circumstances of the case.” “It is possible for various persons to be parties to a single agreement (and thus one conspiracy), even though they have no direct dealings with one another, or even though they do not know the identity of one another, and even though they are not all aware of the details of the plan of operation or were not all in on the scheme from the beginning
Pinkerton Rule
All co-conspirators are liable for all crimes committed by any conspirator in furtherance of the original agreement
The defendant is guilty of all the crimes in a conspiracy, even if he is arrested after the conspiracy was created, but did not participate in the later crimes because
The defendant is guilty of the crimes or “attempting the same crimes” because he took a substantial step toward the commission of the robbery, even if he was prevented from participating on crime day
In order to be guilty as an accomplice,
generally two requirements must be met: (1) the individual must have the intent to promote or facilitate commission of the crime; and (2) he must “aid” and “abet” or give encouragement in the commission or attempted commission of the crime.
The majority view of accomplice theory is
That an accomplice must intend that his acts have the effect of assisting or encouraging another.
If a statute requires for assault an unlawful “attempt”– means that
in order for the defendant to be liable, an intent plus an act to commit an unlawful application of force (i.e., a battery). If the defendant did not intend to commit any application of force on the partner, which is what the facts state, then, if the jury believes him, he will be not guilty due to lack of intent to cause physical injury
What is the distinction between solicitation and conspiracy.
For the crime of solicitation to be completed, it is only necessary that the defendant entice, advise, incite, order, or otherwise encourage another person to commit a crime with the intent that the crime be committed.On the other hand, conspiracy requires an agreement between two or more individuals to commit a criminal offense.
What distinctions should the test-taker look for to distinguish between a solicitation and conspiracy
So make sure under the given facts, no true agreement to commit a battery actually occurred. Rather, that one defendant solicited the other defendant to recklessly engage in conduct, knowing that it would create a high risk of causing injury to the others
Larceny consists of
the physical movement (asportation) of the property of another without consent (caption) with intent to permanently deprive the owner thereof. The crime is complete once the defendant moves the property (any distance) with the intent to permanently deprive.
Change of heart or returning the property after the initial taking of larceny i
Is no defense.
At what point has a defendant committed “Larceny”
The defendant is guilty of theft one she possesses and conceals the item, even if she did not leave the store because he intended to steal the item and concealed it.
Embezzlement is
the fraudulent conversion of the personal property of another by one already in lawful possession.
What is an example of a bailment that subsequently becomes an embezzlement.
When the defendant held another’s property conditioned that the true owner might return and a bailment situation was created. The defendant was given lawful possession of the item, not mere custody. The owner’s subsequent sale amounted to a conversion–serious interference with the owner’s rights to his property–sufficient for embezzlement
Larceny can occur when
A defendant takes another’s property and then intentionally destroyed it, thereby permanently depriving the true owner of its use.
Common law Arson consisted of Here, the friend set fire to the man’s television outside his home.
the (1) malicious (or intentional) (2) burning (3) of a dwelling (4) of another.
For the crime of solicitation to be committed
It is only necessary that the defendant (with the requisite intent) have enticed, advised, incited, ordered, or otherwise encouraged another person to commit a crime
Situations such as these where the “soliciting” party would not be held guilty of the completed crime
If it were committed as a result of the solicitation, the act of soliciting is itself not criminal. The court held that legal impossibility precluded a defendant from being guilty of the attempted sale of heroin when it turned out to be non-narcotic. Therefore, a defendant intended to defraud by selling a substitute for a drug, cannot be guilty of an attempted sale.
Any jury instruction in a criminal case that creates a presumption of an element of a crime
is unconstitutional as a denial of due process, because it shifts the burden of proof to the defendant.
The burden of proof in a criminal trial requires
The prosecution must prove every element of a charged crime beyond a reasonable doubt, which cannot be shifted to the defendant
If a statute requires a “knowingly” requirement whether the defendant “knowingly” had engaged in the wrongful conduct
is ultimately a jury question.
There is no constitutional right to a jury trial for what type of criminal charges
petty offenses–only for serious offenses, e.g., felonies
For purposes of the right to a jury trial, an offense is serious if imprisonment
is for more than six months is authorized under the penal code statute. so if the defendant only gets 3 months, but the statute says the conviction can be more than 6 months, the defendant is entitled to a jury trial
The right to counsel applies to
all defendants charged with an offense for which imprisonment is imposed, whether classified as petty, misdemeanor, or felony.
The right to counsel, exception in a criminal trial (non-waiver) is
However, if the offense is a misdemeanor, the constitutional right to counsel applies only if imprisonment is actually imposedAn accused charged with a misdemeanor who has not waived the right to counsel and is not represented by an attorney is not subject to imprisonment.
A commonly tested area on the Multistate exam is
that of standing, both in constitutional law as well as in criminal procedure.
A passenger in a vehicle that has no property interest cannot
Does not to have standing to challenge a search of the vehicle. This decision is founded on the principle of no reasonable expectation of privacy
To have Fourth Amendment standing,
A person must show that his own rights were violated. Standing is proper if a person owns or has a right to possession of the place or thing searched, or if the place searched is the person’s home
Rakas held that being “legitimately on the premises”
is insufficient grounds to assert standing by itself, without proof of some possessory interest.
When a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds,
his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection [Simmons v. United States, 390 U.S. 377 (1968)].
When an arrested person has been detained at a police station,
he may be subjected to a search of his person, either incident to lawful arrest or as an inventory incident to his booking into jail
An inventory of an arrested person’s property is considered
a search for Fourth Amendment purposes and is generally upheld because it protects the arrestee’s property and also protects the police from claims of not properly safeguarding the arrestee’s property.
The majority view holds that an inventory of an arrested person’s property is subject to search by the police for further crimes, and
applies only if the arrestee has no privacy interest in the effects being held for him. The police have “custody” of a prisoner’s property during the incarceration. and they may reasonably do whatever “they were entitled to do incident to the usual custodial arrest and incarceration.
A search occurs whenever the government
infringes on a person’s reasonable expectation of privacy–a privacy expectation that society is prepared to recognize as reasonable
The Supreme Court ruled that a dog sniff of the exterior of a car during a lawful traffic stop is
Is not a “search” because of the limited intrusion by the dog.”A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth AmendmentThe alert by the dog provided the probable cause for the warrantless search of the trunk
What are the requirements of the State during a traffic stop to search a vehicle
Neither consent by the owner of the vehicle nor reasonable suspicion of drugs is required provided (1) the stop of the vehicle is lawful; and (2) the stop is not “prolonged beyond the time reasonably required to complete the mission.” In short, government “conduct that does not compromise any legitimate interest in privacy is not a search subject to the Fourth Amendment; any interest in possessing contraband cannot be deemed ‘legitimate.
Thermal imaging is
The Supreme Court ruled that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search
The distinguishing feature between a home search and a vehicle stop is
vehicle involved a search of a lawfully stopped on a public street is not a search under the 4th amendment
Phone numbers are
(police examination of defendant’s telephone records to determine numbers dialed, held not a search compromising a person’s reasonable expectation of privacy);
if a substance has been lawfully found. then
subjecting suspected substance to a chemical field test for the presence of contraband held not to be a search if the substance has lawfully been seized
The marijuana plants in plain view of the neighbors,
lawyer has no standing to complain of any police trespass on the neighbors’ property.
Evidence seized pursuant to a search warrant would have to be suppressed if
the warrant was obtained based on information discovered pursuant to an illegal search, if the search was in fact illegal
The consent search exception to the Fourth Amendment warrant requirement is permitted by
Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the occupants
For third-party consent
joint access and control of the premises is required.
Although the child may have had the apparent authority to permit the police to search common areas of the home (e.g., living room or kitchen), they authority is limited to
not have authority to allow the police to search her mother’s bedroom. Moreover, because the defendant locked the bedroom door, she did not assume the risk that her daughter would gain entry.
in three Supreme Court opinions, the court has ruled that a sniff for narcotics by a well-trained dog in a public place
is neither a search nor seizure under the Fourth Amendment; i.e., no reasonable expectation of privacy is violated
Under the Supreme Court’s “Automobile Exception
if a police officer has probable cause that contraband may be located in a movable automobile, the officer may search those areas of the car where probable cause exist
Reasonable suspicion of the presence of contraband in a vehicle is
not required prior to the use of a trained dog in a public place. The use of the dog does not have to be related to the initial reason for the traffic stop.
A warrant that is valid, but its validity was triggered by and limited to the delivered package means that
Accordingly, once the only object of that search–the package–was discovered, the warrant did not authorize a further exploratory search of the house
When executing a warrant, police officers are permitted to search for the items listed in the warrant, AND
Officers may conduct a “protective sweep” of a home only if they have reason to believe others inside the home may pose a danger to them
A “protective sweep” limits such a sweep to
“a cursory visual inspection of those places in which a person might be hiding.” Thus, even an authorized sweep would not extend to unreasonable places where a danger would not be inside
Once a person is in custody, even in his own home,
Accordingly, the police could not properly interrogate the man without first providing him with Miranda warnings.
The Massiah Rule prohibits
the police from using deliberate efforts to acquire incriminating information from a suspect who has been formally charged, unless the suspect’s attorney is present or the right to counsel has been waived. Once the defendant requested an attorney, the police may not renew any attempt to further interrogate him, by putting an undercover agent in his jail cell.
The Supreme Court ruled that once a suspect invokes his right to counsel under Miranda, the suspect
the suspect “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police.”the government “deliberately elicited” statements from him in violation of his Sixth Amendment right to counsel
When the police put a paid informant or undercover officer in a prison cell with a defendant,
In short, the defendant’s Fifth Amendment right to counsel under Miranda was violated and his Sixth Amendment right to counsel was also violated.
Under Federal Rules of Evidence (F.R.E.) 401, relevant evidence
is that which tends to make the existence of a fact of consequence more (or less) probable than it would otherwise be.
Relevant evidence is generally admissible (F.R.E. 402), but it is inadmissible
where its probative value is substantially outweighed by the danger of unfair prejudice; confusion of the issues; misleading the jury; or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence (F.R.E. 403).
A videotape is not a
“statement” under F.R.E. 801(a).
The best evidence rule applies only when the proponent
is attempting to prove the contents or terms of a writing. Note that sometimes a writing recites or records a perceivable event or condition such as a marriage (marriage certificate), payment of money (receipt), or the utterance of certain words (transcript).
The Best Evidence Rule is NOT applicable when
When the proponent is not attempting to prove the terms of a writing, but merely is presenting evidence of an event perceived by a witness with firsthand knowledge, which is someone who is not relying on the writing or video to learn of the event or factsThe proponent wishing to prove the underlying event may offer testimony as an observer with first hand knowledge.
firsthand knowledge of the suspect’s confession is admissible when
The person testifying was present and overheard it.
In a criminal case, the prosecution bears the burden of
proving each and every element of a crime beyond a reasonable doubt
Exam Tip: Any time a question gives you a statute, pay particular attention as the examiners will rarely
define something that you are responsible for memorizing. Oftentimes they will insert subtle changes that differ from the common law rules.
According to F.R.E. 406, “evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses
is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
MBE Exam Tip: On the MBE, the key words denoting habit are
always,” “invariably,” “customarily” and “habitually.”
MBE Exam Tip: On the MBE, the key words that are NOT sufficient to constitute habit are
Conversely, if a person “generally” behaves or “often” acts in a particular situation, that is not sufficient to constitute habit.
F.R.E. 407 allows evidence of subsequent remedial measures
when offered to show ownership or control.
F.R.E. 408, which deals with settlement or compromise negotiations, but in order to EXCLUDE the statements there must be
Always remember that in order to exclude statements or admissions made during settlement negotiations, there must be an actual dispute between the parties.
Under F.R.E. 408, any statements made during the course of settlement negotiations
will be excluded, but there must be a dispute
It is important for students to distinguish between F.R.E. 408 and F.R.E. 409. Under F.R.E. 409, admissions made in connection with an offer to pay medical expenses
admissions are severed for the statement of offer to pay medical expenses, and the admissions are admitted in the trial
In order to exclude statements made in compromise negotiations, there must be an actual
dispute or, at least, an apparent difference of view between the parties as to the validity or amount of a claim.
On the MBE determine if the testmaker is concluding that no dispute existed at the moment, but a settlement was made
determine if the party is making a spontaneous statement immediately following the incident to settle knows that there is a dispute, and if at the there is no dispute at the time of accrual, then the statement is admissible
FRE 404 Character evidence in a criminal case, an accused may offer evidence of his good character by
In accordance with F.R.E. 404(a) (1), an accused may offer evidence of his good character by reputation and opinion,
FRE 404 Character evidence in a criminal case, an accused may NOT offer what type of evidence to prove his good character
may not use specific acts, to prove his innocence
A prosecution’s direct witness being called to testify about a person’s character is
NOT permitted until the defendant must first “open the door” by presenting such evidence of his good character before the prosecution is entitled to rebut the good character of the accused.
F.R.E. 404(a)(2) states that if the accused defendant offers evidence of a relevant character trait of the alleged victim (reputation and opinion), in a self defense murder case
the prosecution in rebuttal may offer evidence of the same character trait of the accused (reputation and opinion). Because the defendant attacked the victim’s character for violence on the issue of self-defense, the prosecution may offer rebuttal evidence that the defendant has a bad reputation for violence.
Generally, character evidence in a civil trial
not admissible in civil trials unless it is impeachment evidence in the form of reputation or opinion evidence about a witness’s truthfulness, or a question asked of the witness herself about prior bad acts relating to truthfulness.
In a defamation action such as this one the issue of a person’s character is
An essential element of a charge, claim, or defense. Therefore, under F.R.E. 405(b) proof of character by using specific instances of conduct is permitted. Reputation or opinion evidence, though not offered here, would also be allowed to show that the plaintiff cheated on his taxes, because all three types of character evidence may be used to prove the essential character issue in this defamation case. This is one of the instances where, in a civil case, evidence of specific bad acts may be used to prove a character trait.
Under F.R.E. 405, “in cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made
by specific instances of that person’s conduct.” Federal Rules of Evidence allow specific instances of misconduct as proof of character in cases in which character is in issue.
F.R.E. 608 states, “Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime, may not be proven by
may not be proved by extrinsic evidence
The exception to FRE 608, on the other hand, extrinsic evidence is permitted to impeach a witness by to prove
Bias. Courts generally permit the impeaching party to prove bias either on cross examination or by adducing extrinsic evidence, either from witnesses or documents.
One method of impeaching a witness is by
sensory defects
The purpose of such impeachment using sensor defects
is to show that the witness does not have knowledge of the fact or facts about which they are testifying. This can be done on cross-examination or by using extrinsic evidence.
Extrinsic evidence cannot be used to impeach on a
collateral matter.
MBE Tip: you must first determine if the question deals with the impeachment of a witness or whether a person’s character is in issue, so
If it is an impeachment question, you must apply Rules 608 and 609. Conversely, if you are confronted with a character evidence question, you should apply Rules 404 and 405. According to F.R.E. 608, “specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s credibility, may not be proved by extrinsic evidence
F.R.E. 609(a) provides:
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment
F.R.E. 609(b) provides
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction, unless the court determines in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
F.R.E. 404(a)(1) and (a)(2) require, in a criminal case, that the defendant open the door with either his good character or victim’s bad character before
Usually in a criminal case, on rebuttal, the prosecution may use otherwise inadmissible character evidence for some purpose other than to show the defendant acted in conformity therewith. This evidence will be admissible under F.R.E. 404(b)
Admissions are
Admissions are the words or acts of a party-opponent (or his predecessor or representative) that are offered against him.
Are “admissions” hearsay?
an admission is non- hearsay. A person’s statement related to civil or criminal wrong will be admissible as an admission, and not subject to hearsay
Hearsay is defined under F.R.E. 801(c)
As “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. The hearsay rule applies when the proponent offers the declarant’s assertion for a purpose that requires the trier to accept as true the facts it embodies.
If the particular statement is not being offered for its truth,
then the hearsay rule is inapplicable.
The following types of statements are offered for a purpose other than their truth and are classified as non-hearsay:
(1) verbal acts (e.g., proof of oral utterances by parties in a contract action constituting the offer and/or acceptance); (2) utterances and writings offered to show the effect on hearer or reader (e.g., patron sues a grocery store for injuries sustained from slipping on the contents of a broken ketchup bottle; the store calls a checkout clerk who will testify that he heard the manager call out to the patron: “Lady, please don’t step on the bottle of ketchup.”); and (3) statements disclosing declarant’s state of mind (e.g., witness testifies that several months before testator died, he said, “My nephew is an incorrigible spendthrift who is too lazy to hold a job.”) This declaration is admissible to show that testator intended to omit nephew from his will, not as proof that nephew possessed those traits
under F.R.E. 803(4), a statement made for purposes of medical diagnosis or treatment must
describe “medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
Medical statements made by person pointing to persons responsible for the condition
are considered irrelevant to medical diagnosis or treatment and do not fall within the exception
F.R.E. 803(1), a present sense impression must
describe or explain an event or condition while the declarant was perceiving the event or condition or immediately thereafter. NOT when time has elapsed.
This difficult Evidence question deals with the evidentiary use of a statement incorporated in an item seized during a warrantless search, (a diary)
Even though the diary was lawfully seized under the “plain view” exception to the warrant requirement and would not be subject to the exclusionary rule, the diary, (i.e., the writing itself) is not what is being offered into evidence.
F.R.E. 803(6), commonly known as the “business records exception,”
excludes from the hearsay rule, even though the declarant is available, the following: “A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term ‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.” For a business record to be admissible, a foundation must be laid to authenticate the writing.
Who needs to testify about a business record under the hearsay exception
However, note that the declarant of the entry need not testify. The business record may be introduced by either the custodian or a reliable qualified witness with personal knowledge.
F.R.E. 803(8) provides a hearsay exception for records of public office or agencies, setting forth
(a) the activities of the office or (b) a matter observed pursuant to duty imposed by law as to which there is a duty to report. This is equivalent to the business records exception of F.R.E. 803(6)
F.R.E. 803(7) provides
that evidence that a matter is not included in records which qualify under F.R.E. 803(6) is admissible to prove the non-occurrence or nonexistence of the matter (unless the source of information or other circumstances indicate lack of trustworthiness)
F.R.E. 803(10) provides
a similar “non-occurrence” rule for public records. F.R.E. 803(10) permits use of absence of an entry or record to prove the non-occurrence of the matter which would otherwise have caused an entry to be present
The absence of any entry is the equivalent of an out-of-court declaration that the relevant event (registration as a sex offender) never occurred, and thus is being offered “for the truth of the matter asserted, so which FRE 803 exception applies
F.R.E. 803(10) provides an exception that obviates the hearsay rule.The foundational elements of the public record (or business record) exception may be established by the custodian of the records or any “qualified witness”; a similarly qualified witness may testify that a diligent search failed to disclose any such record.
An excited utterance, under F.R.E. 803(2), is defined as
a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. The neighbor’s testimony as to the victim’s statement moments after he was stabbed will be admissible as an excited utterance.
In Crawford v. Washington [541 U.S. 36 (2004)], the U.S. Supreme Court ruled that the Confrontation Clause
applies to hearsay statements that are testimonial in nature where the hearsay declarant does not testify at trial and the accused did not have any prior opportunity to cross-examine the declarant. In two cases following Crawford, the Court made a distinction between statements made to police to explain what is happening versus statements made to police telling what had happened.
Davis v. Washington and Hammon v. Indiana [547 U.S. 813 (2006)].
Because the primary purpose of the officer’s interrogation was to establish or prove past events potentially relevant to later criminal prosecution, the woman’s statement is testimonial in nature under Crawford, and not admissible
Hearsay exceptions under F.R.E. 804, the declarant
must be unavailable. it is important to point out that a witness is rendered unavailable if he or she simply refuses to testify, despite all appropriate judicial pressure to do so.
Former testimony is defined under F.R.E. 804(b)
as “testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or in civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination”…if the declarant is unavailable as a witness, and is admissible, therefore, not treated as hearsay
F.R.E. 804(b)(4) is commonly known as the pedigree hearsay exception,
and it applies to the following statements of personal or family history made by an unavailable declarant: “ A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had not means of acquiring personal knowledge of the matter stated; or
F.R.E. 803(13), applies to the statements (or written records) made in family
Bibles, inscriptions on family portraits, and engravings on tombstones. A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.”
F.R.E. 611 (c) states: Leading questions
should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. Note that the entire matter of whether or not to allow leading questions is discretionary and the judge’s action will not be reviewed, unless it is charged that it contributed to the denial of a fair trial.
Necessary to differentiate between the spousal communication privilege, and the spousal testimony privilege,
The spousal communication privilege protects confidential communications between the spouses made during the marriage. The spousal testimony privilege, on the other hand, prevents one spouse from testifying against the other in a criminal case. The spousal testimony privilege or incapacity blocks adverse testimony based on knowledge gained in any way, at any time, as long as the accused and the proposed witness are married at the time of trial. As such, the spousal testimony privilege applies to “pre-marital” acts.
F.R.E. 701, if the witness is not testifying as an expert, the witness’ testimony in the form of opinions or references
is limited to those opinions or inferences that are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.
It is the essence of the attorney-client privilege that it is limited to
those communications which the client either expressly made confidential or which she could reasonably assume under the circumstances would be understood by the attorney as so intended. The witness’ presence in the hallway breaks the privilege. Although the statement was made out-of-court, it is the statement of the defendant and therefore not hearsay, but rather an admission.
Under Restatement of Contracts 2d, Section 24, “an offer
is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”
An offer must evidence
a commitment by the offeror that he reasonably intends to be bound upon acceptance by the offeree, rather than a mere statement of present intention or preliminary negotiations. This determination is often difficult to make. Generally, such equivocal language as “I am asking…” or “I quote you…” is construed as inviting an offer.
As a general rule, advertisements for the sale of goods, circular letters, price lists, and articles displayed on a shelf with a price tag are construed
as preliminary proposals inviting offers.
However, in certain situations, an advertisement for the sale of goods may constitute an offer when
that an advertisement in a newspaper proposing the sale of a coat “first come, first served“ did, in fact, constitute an offer because the language in the ad indicated a promise to sell. Therefore, make sure that the advertisement includes under th facts specific promise to sell a specified item or enumerated list of items.
The duration of an offer that states no time limit for acceptance is
a reasonable time.
The factors determining a reasonable time are:
(1) the subject matter of the offer; (2) its rate of price fluctuation; (3) the period within which the offeror’s known purpose in inducing the contract can be effectuated; and, of lesser importance, (4) the mode of communication of the offer.
Undoubtedly, certain offers have a short life expectancy due to
ever-changing market fluctuations (such as those involving stock purchases)
Under the “face-to-face” conversation rule,
an offer expires at the conclusion of a face-to-face conversation (unless there is an acceptance).
There are no magic words required to extend an offer, but all offers contain three elements:
(1) an expression of intent to enter a present contract; (2) a sufficient articulation of the essential terms of the proposed bargain; and (3) communication of that intent and those terms to another person (the offeree) who has the capacity to form a contract by a timely and conforming acceptance.
Contract questions that deal with the revival of an offer may include such language as
“Why don’t you think it over until tomorrow?”
According to UCC 2-206, “an offer to make a contract shall be construed as
inviting acceptance in any manner and by any medium that is reasonable under the circumstances.”
According to Restatement Section 39, “A counter-offer
is an offer relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer.” Be advised that an offeree’s power of acceptance is terminated by his making of a counter-offer.
An order or other offer to buy goods for “prompt or current shipment” normally
invites acceptance either by a prompt promise to ship or by prompt or current shipment
According to UCC Section 2-206(1)(b), if non-conforming goods are shipped,
the shipment is an acceptance and at the same time a breach.
On the contrary, if non-conforming goods are shipped, there is NO acceptance
if the offeror has reason to know that none is intended, where the offeree promptly notifies him that non-conforming goods are being shipped and are offered only as an “accommodation” to himSince the manufacturer did not indicate that the shipment was being offered for accommodation purposes, it will be regarded as an acceptance (and a simultaneous breach).
By the Majority rule, an offer that invites performance (unilateral offer) of an act as acceptance, rather than a return promise, becomes irrevocable
as soon as the offeree has started to perform the actThis rule is deemed essential to prevent hardship to the offeree where his part performance does not benefit the offeror and so would give him no recovery in quasi-contract
Unilateral offers are considered irrevocable when
ONLY Mere preparation for performance, no matter how detrimental to the offeree, will not affect the offeror’s power and privilege to revoke a unilateral offer.
Revocation of a bilateral and unilateral contract offer my be revoked
As a general rule, the offeror may at any time before acceptance, terminate her offer by revoking it
When does revocation take place in a contract?
Revocation takes effect only when communicated to the offeree. This is true even when the offeree learns through a third party that the offeror is no longer willing to enter into the proposed contract. By the same token, Restatement of Contracts 2d, Section 43, states, “An offeree’s power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect.”
The court stated that consideration may consist in either some
right, interest, profit, or benefit to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other.
Consideration is not measured
as a benefit to the promisor. It is immaterial whether the consideration does in fact benefit the promisee or a third party or is of substantial value to anyone
The mere abstention from a permissible legal conduct is
sufficient consideration to make a promise based on that forbearance a valid contract. Refraining from something that one is entitled to do is a sufficient detriment to create an enforceable contract.
A doctor who gives medical treatment (outside of his office or hospital), while off-duty will recover for services under a
The doctor will recover under quasi-contract, if the person treated was unconscious because there is no actual mutual assent to create a contract. Therefore, the doctor must proceed in quasi-contract if he is to recover.
Merchant Modifications made under the UCC must meet
the test of good faith. If the manufacturer acted in bad faith, then the modification would be ineffective and unenforceable.
When you have Contracts fact pattern dealing with a personal services contract you apply
Common law principles, not UCC rules, will therefore apply
In order to have a valid oral modification to a contract, the contract must not include
An express provision against oral modification, or circumstances where the statute of frauds applies, any contract can be modified or rescinded by the oral agreement of the parties, even if the original contract is in writing.
Modifying agreements that change the duties only on one side, leaving the duty on the other the same as under the former contract
Are unenforceable being themselves contracts must be supported by consideration.
A promise for a new or different performance (such as by altering the time, character, or nature of the duties) of an existing contract
will overcome the “pre-existing duty” rule and serve as valid consideration.
This issue dealing with the pre-existing duty rule is often tested on the MBE, and a contract modification that does not
constitute a legal detriment when a party performs an act that she is legally obligated to do and had a pre-existing duty to perform this service, any additional promise is not supported by consideration and therefore unenforceable
It is generally accepted that mutual mistake as to the existence of the subject matter is
always ground for avoidance of a contract
If the only mistake was as to the value of the object, not as to its existence, than
However mutual mistake to the true value may not rescind the contract or and recover the chattel
On the other hand, not the object, but its rare quality, may be the subject matter, and therefore
as where A sells to B a stone for $2,000, both of them thinking it to be a diamond, and it turns out to be a zircon, worth about $5. In that case B may rescind and recover the price paid, on the grounds of mutual mistake.
As a general rule, assignability
all contracts are assignable and delegable except personal service contracts and long-term requirement contracts
Even though there may be an anti-assignment provision in a contract,
It does not prevent the assignor from assigning his rights. When an assignor makes an assignment in violation of an anti-assignment clause, the assignment is valid. However, the obligor does have a cause of action against the assignor for breach of contract (but ordinarily, damages will be nominal
Although contracts are generally assignable and delegable, those involving
personal services are not. A an example of a non-delegable contract because the socialite hired the artist because of the artist’s specific talents; An express contractual agreement is not needed in this situation. It is not so much the words, but the parties that are important
True contracts
are those in which the parties’ obligation(s) arise from actual agreement and intent. It is clear from their conduct that an “implied in fact” contract was created.
If the agreement or mutual assent is manifested in words (oral or written)
the contract is said to be “express.”
On the other hand, where the mutual undertaking of the parties is inferred from their conduct alone, without spoken or written words,
the contract is said to be “implied in fact.”
It is universally agreed that the employer may not force an employee to work by means of specific performance. The rationale behind this rule is twofold:
(1) money damages are generally available and (2) it is impossible for courts to properly supervise employment contracts.
specific performance is available to enforce a contract
for the sale of a unique item of personal property. Here, the subject matter of the contract is a chattel
Dealing with liability of a minor for necessaries
It is well established that a minor is liable for necessaries furnished her, and it is generally recognized that this liability is quasi-contractual rather than contractual, and responsibility of her parentsAs a consequence of the quasi-contractual nature of the action, the girl may disaffirm an executory contract for necessaries. Moreover, the girl is not liable for the contract price, but for the reasonable value of the necessaries furnished
On the MBE, an oral agreement between a buyer and seller for real property will be enforceable
if certain elements have been satisfied by the Buyer under the doctrine part performance will be sufficient to enforce their oral agreement.
The statute of frauds requires a contract for the sale of land be in
a signed writing
The doctrine of part performance may be used to enforce what is an otherwise invalid oral contract for the sale of land when
In an overwhelming majority of states, equity will decree specific performance of an oral land agreement, despite the statute of frauds, only where the buyer has taken possession of the property and paid part of the purchase price. Moreover, the taking of possession together with other acts normally to be performed by a buyer (i.e., taking possession of the property and paying part of the purchase price) have been held to justify specific performance. However, payment of the price alone is not sufficient part performance, unless possession has been delivered and taken.
The statute of frauds oral promise to answer for the debt of another
prohibits an an oral promise to satisfy the SOF’s requirement, “secondary,” or collateral, promises are within the rule and are voidable unless in writing.
According to Restatement of Contracts 2d, Section 116, “a contract that all or part of a duty of a third person to the promisee shall be satisfied is not within the statute of frauds as a promise to answer for the duty of another if
If the consideration for the promise is in fact or apparently desired by the promisor mainly for his own economic advantage, rather than in order to benefit the third person.” And can be done orally, and does not have to be in writing according to the statute of frauds
What is the so-called “main-purpose” rule,
A 3rd party promisor sought to act as surety for a promisee’s primary loan for the 3rd party promisor’s own economic advantage then the 3rd party promisor’s oral promise to guarantee the loan is enforceable
The parol evidence rule,
a rule of substantive contract law, states that “when the parties to a contract have put in writing the full and final expression of their agreement, evidence of any other prior or contemporaneous oral or written agreements are inadmissible to vary or contradict the terms of the writing.
The issue of integration
is a question of fact to be decided by the judge.
To determine integration under the prevailing Williston test,
if reasonable parties would have included the extrinsic matter (i.e., the substance of the oral agreement) in the writing, and these parties did not, then evidence of the extrinsic matter may not be admitted, unless used to explain an ambiguity. In this instance, the extrinsic evidence contradicted, rather than explained, the integrated writing.
Frequently, on the MBE parol evidence questions will involve the admissibility of an oral condition, and the oral conditions are valid if
Where the parties agree that a condition precedent must occur before the contract is effective, it is generally agreed that the failure of the condition to occur may be shown despite what otherwise would be deemed a total integration. Thus, even if there is a merger clause, it may be shown that the instrument was handed over to another with an oral condition attached to delivery. The theory is that the agreement is not to take effect until the condition occurs and thus there is no contract to be added to or contradicted until that time.
An order or other offer to buy goods for prompt or current shipment normally
invites acceptance either by a prompt promise to ship or by prompt or current shipment.
In accordance with UCC Section 2-205, the “firm offer” rule provides:
“An offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may such period of irrevocability exceed three months.” No consideration was necessary to make the plant owner’s offer irrevocable
Contracts example dealing with the enforceability of a “requirements” contract. Such contracts are valid
because the quantity to be delivered can be objectively determined. So a contract by a buyer to buy all the goods of a stated kind required by the buyer in his business for the period is held not invalid for uncertainty as to quantity
UCC Section 2-306, which deals with Output and Requirement Contracts, specifically states,
A term which measures the quantity by the output of the seller or the requirements of the buyer means such actual output or requirements as may occur in good faith, except that no quantity unreasonably disproportionate to any stated estimate may be tendered or demanded
According to the UCC Article 2-712
the buyer may recover from the seller as damages the difference between the cover price and the contract price plus any incidental and consequential damages.
Impossibility of performance
excuses the promisor’s duty where that which was promised has become objectively impossible of fulfillment without fault of the promisor after the time of contracting, provided the promisor has not assumed the risk of its now happening
When impossibility or impracticability is not a valid defense
“The mere personal inability of a promisor to perform is no excuse. It is only where because of the supervening event the performance cannot be rendered by anyone that the duty is discharged.”
If the promisee intends the promised performance as a gift to the third party, the third party is a
donee beneficiary. Such intention is clear where performance of the promise will result solely in benefit to the third party and not to the promisee
The vesting of a donee beneficiary’s rights are
Under the majority common law view, the rights of a donee beneficiary, as well as those of a creditor beneficiary, vest when the third party with knowledge assents to the promise. Before the time such rights are vested, a beneficiary cannot prevent modification or rescission of the contract by the promisee and the promisor.
Once a donee’s rights have vested,
The donee can bring a valid action against the promisor. Even though the promisor can assert against the beneficiary any defense he could assert against the promisee, however, the builder will not be excused from performance if there is no valid defense against the promisee
Generally, for a beneficiary to be “intended,” the third party must
1) receive performance directly from the promisor; (2) be expressly designated in the contract; (3) have decisional rights regarding the performance (such as time and location of performance); or (4) stand in such a relationship with the promisee that it can be inferred that the promisee wished to benefit the third party.
Divisible contracts are
a divisible contract is one in which the parties have divided their respective performances into separate units. So that performance of a given installment on one side is a constructive condition to the duty of performance on the other.
When a merchant ships goods to a retailer, or a seller to a buyer, when the goods are tendered, but not 100%, what is the legal term
tendering “non-conforming” goods
To recover lost profits, the defendant could only be held liable for losses
That were generally foreseeable. The court held that: “the loss of profits cannot reasonably be considered such a consequence of the breach of contract as could have been fairly and reasonably contemplated by both the parties when they made this contract.”
The mere fact that a party is sending something to be repaired does not indicate
That the shipper knew any delay would cause a loss in profits if it was not delivered on time, UNLESS it is written into the contract.
UCC 2-609(1) which states, “When reasonable grounds for insecurity arise with respect to the performance of either party, the other party may
In writing, demand adequate assurance of due performance.” The UCC further provides that after a reasonable time not exceeding 30 days has passed, the party seeking the assurances can treat the contract as repudiated
Under the UCC 2-609, if the proper assurances are not given,
the buyer or seller may suspend his own performance.
A fee simple subject to condition subsequent
is an estate in fee simple that may be terminated by the conveyor, or those claiming under him, upon the happening of a named event.
An estate in fee simple subject to condition subsequent does not end, ipso facto, meaning
upon the happening of the named event, but the estate continues despite the breach of the specified condition until it is divested by the grantor’s power of termination or right of re-entry
A fee simple subject to condition subsequent grantor’s right to re-enter
Is optional. It may be accomplished by either making an entry on the land or bringing an action to recover the estate (ejectment)
What is the first step that needs to be determined when there is a conveyance
it is necessary to determine what interest was conveyed
In distinguishing between a contingent remainder and an executory interest
Always remember that a contingent remainder must follow the natural termination of the preceding estate while an executory interest terminates the prior estate before its natural termination
A condition precedent is a grant that
If this condition occurs, title to the property would pass from grantor to the grantee
An executory interest is
contingent upon the occurrence of a specified even
A shifting executory interest would
“cut short” the preceding fee estate owned by grantor
A life estate is alienable, and a life tenant
A life tenant can convey his or her estate to a third person. A life tenant cannot convey a greater estate than his own. As such, the life estate will extend for the lifetime of life tenant ONLY.
A restraint against alienation of an inheritable future interest from a life tenant is
void where the restraint may continue in effect after the future interest becomes possessory (i.e., mortgage by the life tenant)
According to the common law rule, (in a title theory jurisdiction) a mortgage by one or more owners of a joint owner property
transfers ownership to the mortgagee (in a title theory jurisdiction). Applying this rule, a mortgage of joint tenancy property, given by one of the joint tenants, results in a termination of the joint tenancy because it terminates the unity of title as well as the unity of interest
tenancy in common has no
unity of interest
Property owned in Joint Tenancy with Rights of Survival terminates when any of the following occur
1- Death of one of the joint tenants2- joint tenant takes a mortgage in a Title Theory Jurisdiction 3- Joint tenant conveys his/her interest4- Joint tenant reclassifies their interest as tenants in common
It is important to point out that the filing of a complaint for partition does not result
in the severance of a joint tenancy. The rationale for this rule is that the complaint may be withdrawn at any time before the equity court compels partition. Moreover, the right of survivorship will attach if a joint tenant dies prior to that time.
The doctrine of estoppel by deed (commonly referred to as the after-acquired property doctrine) provides that
when a person executes an instrument conveying a larger estate than he has in land and subsequently acquires such larger estate, it inures by estoppel to the benefit of the grantee.
When a deed is made it purports to convey only the interest which the grantor presently owns in the property, the doctrine of estoppel by deed has
no application and any after-acquired estate which comes to the grantor may be kept by him free from the operation of the doctrine”
A license simply
permits one person to come onto land in the possession of another without being a trespasser. Because a license is revocable
Ticket holders to baseball games, horse races, polo, hockey contests, and other entertainment spectacles have only
a mere license that is always revocable.
When an easement appurtenant exists and both the dominant and servient tenements subsequently comes under the ownership of the same person
The easement is terminated by operation of law and extinguished because of the merger doctrine. The apparent rationale is that one cannot have an easement in his own property.
Termination of an easement by abandonment requires
non-use PLUS some act that demonstrates the easement holder’s intent to abandon.
A covenant is a
contractual obligation in the title that is created in connection with the transfer of real property. As a general rule, a covenant not only binds and benefits the original obligor and obligee, but it will also “run with the land” to be enforceable against successors in interest.
A covenant is the best way to
assure that each lot owner, even those who did not purchase from the original owner will be obligated to the covenanted terms in the deed
An assignee of a leasehold has what kind of relationship with the landlord
is in privity of estate with the landlord, but not privity of contract if the sublease was only between the tenant and the subtenant
Liability for rent and for observing the other covenants that run with the leasehold can be based on
privity of estate as well as privity of contract
A landlord can recover from the assignee rent obligations that occur
while privity of estate continues or until the assignee (sub-leasee) in turn assigns the leasehold, but not for any rent that might have been owed by the original tenant
A subtenancy is where
the tenant transfers his right of possession for a time shorter than the balance of the leasehold, so that tenant retains a reversion within the leasehold.
A subtenant is neither
in privity of estate nor privity of contract with the landlord.
Lacking privity, a subtenant is
not liable to the landlord to pay rent because the subtenant will pay the tenant
By definition, an assignment occurs
if the tenant transfers the entire estate, or the balance thereof, to the third party.
If a lesser estate is conveyed so that the tenant retains an interest in the leasehold,
the transfer is properly classified a sublease.
Conversely, the tenant’s friends that has a license (or mere permission) to use the property for recreational purposes
is not prohibited by the provisions in the lease
At common law, because a tenant was deemed to receive an estate in land, his rights and duties were treated as independent of the landlord’s rights and duties. Thus, if the landlord promised to keep the property in repair, a breach of this promise
did not relieve the tenant from the duty of paying rent.
According to the common law rationale, the rent was owed as payment for the estate, and the promise to do repairs was merely a collateral promise that could be enforced only by a separate contractual suit brought by the tenant.
This doctrine is generally referred to as the independence of covenants.
There is “NO APPLICABLE STATUTES IN THE JURISDICTION” means
that the common law doctrine applies
The basis for constructive eviction is
the premises were not uninhabitable, but if the premises is habitable, then constructive eviction is does not apply
self-help is, generally, not an appropriate remedy when a landlord fails to make certain improvements or repairs
inasmuch as the tenant had no duty to make such repairs when it is not written into the lease
Under the Anglo-Saxon view, a landlord impliedly warrants that the tenant will have a legal right to
possession of the premises at the beginning of the term
Under the American view, a landlord responsibilities to the tenant related to possession of the premises
The landlord does not have an obligation to actually deliver possession to the tenant
If the landlord wishes to terminate a tenancy of month-to-month
In a month-to-month tenancy, a full month’s notice must be given. This means that if the landlord tells the tenant a day after the rent is due, the tenant has the remainder of the month and the following month
The right of a landowner to have her land supported laterally by the neighboring land
is an absolute right inherent in the land itself.
If there is damage to artificial structures, the majority view
is that recovery is limited to damage to the land in its natural condition and may not include any damage to the artificial structures on the land. This is called the American rule.
The right of lateral support means
The land be in its natural condition. The right of lateral support does not include the right to have the additional weight of artificial structures supported.
If there is negligence on the part of the wrongdoer who removes lateral or subjacent support
then the defendant is liable for all damages that proximately result, including damages to both the land and artificial structures
In order to acquire title to property by adverse possession, the possession must be
(1) exclusive; (2) open and notorious (meaning not secret or clandestine); (3) continuous and peaceable (meaning without interruption); and (4) hostile and adverse (meaning without the dispossessed owner’s permission). The period of adverse possession of one possessor can be “tacked” to the period of adverse possession of another possessor when there is privity between the two.
(4) hostile and adverse; (MBE)
The key element in this question is hostile and adverse. Under the majority view, it is generally stated that the adverse possessor must intend to hold adversely against the whole world, including the rightful owner, but the really significant fact is that he hold against the rights of the legal owner (i.e., in derogation of, not in subordination to, the rights of the legal owner) The motives of the adverse possessor are irrelevant. Whether he intends a wrongful disseisin or whether he occupies what he believes to be his own, he acquires title, because it is the visible and adverse possession with intent to possess that constitutes its adverse character, not the remote views or mistaken belief of the possesson
In a tenancy in common,
the only unity is that of possession. Each tenant owns an undivided fractional part of the property. Upon the death intestate of a tenant in common, his interest descends to his heirs. There is no right of survivorship.
Delivery of a deed to real property is a question of
the state of mind of the grantor. Courts look to the intention of the grantor that the deed shall operate as a conveyance. To effectuate such a conveyance, title will pass to the grantee if there be a physical deed and the grantor intends it to operate as a conveyance, even if the grantor retains possession of the physical paper on which the deed is written. It is not material whether the physical deed is in the possession of the grantee, the grantor, or a third person
The doctrine of equitable conversion
acts as a risk allocator in land-sale contract situations. In its original application, the doctrine treats the purchaser in a land-sale contract as the owner of the property from the moment the contract is signed, even if legal title will not pass until closing.
Under the equitable conversion doctrine if the subject property is damaged while the escrow is pending
The purchaser bears the loss.
The Uniform Vendor and Purchaser’s Risk Act
placing the risk of loss during such a period on the seller until either (1) the purchaser takes possession of the property (when she would presumably realize she needed to insure it); or (2) legal title passes
Under equitable conversion, the purchaser is regarded
the “equitable” owner of the land, although legal title remains with the seller. In the absence of a contract provision to the contrary, the weight of authority applies the equitable conversion doctrine and shifts the risk of loss to the vendee for casualty losses that occur during the existence of the vendor-vendee relationship. By the same token, the doctrine also “shifts the benefits to the purchaser as well”
In a contract for the sale of land, where either an express or an implied contract provision calls for conveyance of marketable title, the time at which such marketable title must be conveyed is at the closing of escrow. In this respect, the seller
seller is entitled to rely upon the proceeds of sale to retire an outstanding encumbrance which could otherwise render title unmarketable.
a pure “notice” type of recording statute which generally provides,
“an unrecorded conveyance or other instrument is invalid as against a subsequent bona fide purchaser for value and without notice.” Under this type of recording statute, the subsequent bona fide purchaser prevails over the prior interest whether the subsequent purchaser records or not.
A deed effectively transfers title to property
after there has been a valid delivery. The facts indicate that a valid delivery occurred. Not only did the owner intend for the deed to be effective, but it was also duly recorded.
The difference between a transfer of the mortgage property “subject to” and “assuming” the mortgage is the
difference between personal liability and the lack thereof on behalf of the grantee. In a conveyance of land “subject to” a mortgage, the grantee is not personally liable for the debt that the mortgage secures. Conversely, in a sale of land in which the purchaser “assumes the mortgage,” the purchaser or grantee is personally liable for the mortgage debt.
In order for the grantee (neighbor) to be personally liable to the mortgagee (bank),
the grantee must “assume the mortgage.
A race notice jurisdiction
protects a bona fide purchaser for value without notice who records first.
a purchase money mortgage requires that
The mortgagee does NOT already own the property when he borrowed money from
A mortgage lien does not have automatic priority
over a judgment lien.
Exoneration is
once the original mortgagee conveyed the property to another party (who “assumed the mortgage” by promising to repay it), the subsequent owner became secondarily liable as surety. Therefore, the lender must first proceed against either the property or the party who assumed the mortgage (who is primarily liable) before asserting its rights against the original borrower
One who personally stands as surety, or whose interest in mortgaged property occupies that position of a surety
is entitled to exoneration against the person or property primarily bound to pay the debt.
