MBE Flashcards
Hearsay
Compelled Testimonial Communications
The privilege against self-incrimination extends only to compelled “testimonial” communications.
Courts have typically held that the Fifth Amendment offers no protection against compulsion to submit to “fingerprinting, photographing, or measurements, to write or speak for identification(lineups), to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.
Testimonial Statements
Testimonial = Statements made to:
a) Grand juries;
b) Affidavit or Certified Report with forensic lab
results; OR
c) The police whose primary purpose (when
viewed objectively) was to collect testimony to
be used at a later trial.
Landowner Property Protection
Landowner is privileged to protect her property from intrusion by a means not intended or likely to cause death or serious bodily harm.
Contract Modification
If any additional conditions are made after the contract is formed then it is a request to modify the contract, which would only become a valid term in the contract if both parties assent to it.
Fee Simple Defeasible
Fee Simple Determinable (possibility if reverter) - So long as, as long as
Fee Simple Subject to Condition Subsequent (right of re-entry) - but if
Fee Simple Subject to Executory Interest (future interest in third party not the grantor and his heirs) - to A, so long as (but if), … to B
Supplemental Jurisdiction
The dismissal of a federal claim does not divest the court of supplemental jurisdiction over a state-law claim. The court may, in its discretion, rely on the dismissal as a reason to discontinue hearing the state-law claim but it is not required to do so.
Formation of Contract Through Online Prices
When P goes onto plumbers’ websites and checks prices and then calls to ask for them to render services and they agree, then the P has agreed to the prices described online. Becomes a bargained-for contract that includes the prices set forth by plumber.
Freedom of Press vs Laws of General Application
The Supreme Court has consistently rejected claims that the freedom of the press protected by the First Amendment exempts press activities from laws of general application such as contract law.
Freedom of Press vs Laws of General Application #2349
The Supreme Court has consistently rejected claims that the freedom of the press protected by the First Amendment exempts press activities from laws of general application such as contract law.
Attorney-Client Privilege vs Inadvertent Disclosures #2352
An inadvertent (mistaken) disclosure will not operate as a waiver of the attorney-client privilege if the holder of the privilege promptly takes reasonable steps to rectify the error. If reasonable steps were not prompt (late) then disclosure operates as a waiver of privilege.
Forum-Defendant Rule
A suit that is removable solely on the basis of diversity may not be removed if any of the parties in interest, properly joined and served, is a citizen of the state in which such action is brought. This rule bars removal only when diversity is the sole basis for federal jurisdiction.
Period of Removal (Multiple Ds)
When defendants are served at different times, each defendant gets 30 days to remove from the time of service. The removal statutes permit an earlier-served defendant to consent to removal by a later-served defendant even when the earlier-served defendant had failed to timely remove.
Criminal Attempt
An attempt consists of two elements: (1) a specific intent to commit the crime, and (2) an overt act in furtherance of that intent.
Entrapment (Affirmative Defense) - Criminal Law #2355
When police induce a D to commit an offense that she otherwise would have been unlikely or unwilling to commit.
Undue Influence (defense to k) #2356
D is correct. Undue influence, or “over-persuasion,” often includes factors such as the existence of a confidential relationship, unusual time and place for the persuasion, multiple persuaders, and time pressure. Duress requires force or an improper threat.
Expert Opinion Standards #2358
An expert’s opinion must be based on sufficient facts and data, and the expert must employ a reliable methodology. The party that offers expert testimony has the burden to prove the reliability of that testimony by a preponderance of the evidence. The sufficiency of the expert’s basis for her opinion and the reliability of the expert’s methodology are for the court to determine by a preponderance of the evidence.
Independent Contractor Liability #2359
A person who hires an independent contractor ordinarily is not liable for injury to a third party caused by the contractor’s negligence. However, there is an exception to this rule when the person directly influences the manner in which the contractor performs the work so as to contribute to the creation of the danger that causes the third party’s injury.
Plain Error Rule #2536
Under the “plain error” rule, an appellate court may remedy an error that was plain or obvious if that error affected substantial rights, even if there was no objection raised.
Plain Error Rule #2536
Under the “plain error” rule, an appellate court may remedy an error that was plain or obvious if that error affected substantial rights, even if there was no objection raised. Although a defendant’s failure to object can change the standard of appellate review, it does not foreclose review when the error constitutes a plain error. Plain error is an exception to the rule that, in order to preserve an error for review on appeal a party must make a specific and contemporaneous objection to the perceived error.
Employment Contract Enforceability #2362
Salary is a material term and without it a contract is too indefinite to be enforceable. A “lifetime” employment agreement is not subject to the statute of frauds, the employee could die within a year which makes the k fully performable within a year.
Political Question vs Judicial Review #2365
Interbranch disputes involving foreign affiars are not subject to the political question doctrine when they concern the validity of a federal statute. The political question doctrine insulates from judicial review certain constitutional questions the Constitution has committed either to the legislative or executive branch. The identities of the parties are irrelevant in determining if an action involves a nonjusticiable political question.
Restitution Damages
A party that materially breaches a contract is nevertheless entitled to recover, under a theory of restitution, the value of the benefit that the breaching party’s part performance conferred on the victim of the breach.
Request of Waiver of Service vs Default Judgement
FRCP 4(d) encourages but does not require defendants to waive formal service by returning a signed waiver request. Thus, a failure to return the waiver obliges the plaintiff to proceed with formal service. Not returning the waiver does not subject the defendant to the possibility of default.