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MBE Flashcards

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1
Q

diversity for cross-claims

A

same transaction/occurrence

no diversity of citizenship / amount in controversy requirements

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2
Q

diversity for counter-claims

A

same transaction/occurrence.

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3
Q

supplemental jurisdiction to add new P against same D

A

need diversity. don’t need amount in controversy

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4
Q

requirements for removal

A
  • All D’s must consent to removal w/in 30 days
  • if any D citizen of a state where suit brought, can’t remove on diversity grounds
  • 1 year time-limit to remove unless bad faith by P
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5
Q

when is there general PJ over an individual D?

A
  • domicile
  • served process in state (unless there for summons or b/c of force/fraud)
  • served process w/in 100 miles if third-party D or necessary D
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6
Q

when PJ over a foreign D?

A

domicile if there is one

any state, if fed question + no state has PJ + min contacts w/ US as whole

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7
Q

PJ over a business

A

if corp: state of incorporation + nerve center

if unincorporated entity: where partners/owners are

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8
Q

venue for business

A
  • anywhere w/ PJ (whether corporation or not)
  • use the district that would have PJ if was a state (or the district w/ the most contact)
  • also where substantial part of the claim arose
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9
Q

venue for individuals

A
  • if all D in one state, any district where 1 lives
  • where substantial part of claim arose
  • fallback: anywhere w/ PJ over 1 of the Ds
  • after removal, venue proper in any district where the state court sits
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10
Q

venue in suits against govt

A
  • where P lives
  • where substantial part of claim arose
  • where a D resides (if suing an official)
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11
Q

requirements to transfer to a district

A

it must have proper venue, unless initial district had proper venue and all parties consent

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12
Q

which district’s law governs after a transfer

A

if initial district had venue, old one’s

if initial district lacked venue, new one’s

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13
Q

how long to serve notice of a hearing?

A

14 days (unless ex parte)

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14
Q

how long to serve summons and complaint on D?

A 
120 days (unless good cause)
if fails, dismissed w/o prejudice
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15
Q

service of process to a corp

A

give to agent/officer

can’t just give to an employee

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16
Q

how long does D have to respond if waived service of process?

A

60 days (90 if foreign)

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17
Q

how long does D have to respond to complaint after receiving process?

A

21 days

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18
Q

how long does D have to respond to amended complaint?

A

14 days

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19
Q

in breach of contract suit, do you need to plead the condition precedents were satisfied for other side’s obligation to be triggered?

A

no

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20
Q

standard for joinder of multiple claims between 1 P and 1 D

A

automatic, but no automatic supplemental jurisdiction

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21
Q

when can new P intervene to join a lawsuit?

A

(intervention)
common question of fact or law
must show jurisdiction

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22
Q

requirements for interpleader statute (smj, pj, venue)

A
  • $500 at stake
  • minimal diversity
  • PJ: whole country
  • venue: any district where any claimant resides
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23
Q

requirements for impleader

A

(T=third party D)

  • T liable to D b/c of D’s liability to P
  • don’t need diversity wrt T
  • P must have diversity against T for claims against T
  • need PJ over T
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24
Q

diversity for class action

A
  • assess diversity and amnt in controversy based on named representatives
  • CAFA: if >$5m + 100 class members -> minimal diversity, no amt in controvsery
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25
Q

when is jury right available in civil trials?

A

trials at law (damages). if overlap do legal issues first.

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26
Q

deadline for filing a motion for new trial?

A

28 days from judgment

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27
Q

When are interlocutory appeals available?

A

automatic: injunction (new or modification); class action cert; possession of property.
discretionary: controlling Q of law + answering now will immediately advance termination of litigation. (certify)
- collateral order doctrine (separable issue)

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28
Q

standard of review for jury finding of fact?

A

substantial evidence

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29
Q

standard of review for bench trial finding of fact?

A

clearly erroneous

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30
Q

exceptions to full faith and credit to other court judgments

A

1) judgment court lacked jurisdiction

2) changed circumstances

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31
Q

requirements for res judicata

A

(claim preclusion)

  • final judgment on the merits
  • same parties (or successors)
  • same claim (same trnsct/occurrence) or cause of action
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32
Q

requirements for collateral estoppel

A

(issue preclusion)

  • same factual issue
  • issue was actually and necessarily decided in prior suit
  • the party to be precluded was a party to the prior suit
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33
Q

how many preemptory challenges in jury selection? what can’t they be based on?

A
  1. race and gender
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34
Q

limits on suing states

A

can’t sue for money damages in its own court or in fed court, unless consents or 14th am.

  • can sue in other state courts
  • local govts not covered
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35
Q

elements of standing

A
  • injury (concrete, particularized, future ok but not hypothetical)
  • causation
  • redressability (likely that court can fix)
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36
Q

when do taxpayer’s have standing to challenge govt expenditure?

A

to challenge expenditure that violates establishment clause

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37
Q

inherent presidential powers

A

veto, pardon/commute, hire/fire executive officers (action on behalf of fed govt vs just investigative)

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38
Q

power of treaties

A

once ratified, same status as statute. if not self-executing (implementing legislation) then doesn’t trump states. if executive agreement, then status of executive order.

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39
Q

impoundment rules

A

pres can’t refuse to spend money congress has required to be spent.

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40
Q

speech or debate clause immunity for members of congress

A

can’t use their official acts (votes, introductions of bills) as evidence against them

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41
Q

when does congress need to approve interstate compact?

A

when implicates a federal interest

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42
Q

can a state directly tax fed govt?

A

no

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43
Q

priv and immunity clause of art 4

A

no “serious discrimination” against out-of-state residents w/o sufficient justification.

  • serious: job requirements. park admissions, hunting licenses okay to discrim against.
  • ONLY INDIVIDUALS protected
  • so can’t require residency for private employment (can for public)
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44
Q

when does a state reg violate dormant commerce clause?

A
  • discrimination against out of state interests (e.g. requiring using in-state firms), OR
  • unduly burdens interstate commerce, OR
  • applies to wholly extra-territorial activity
  • undue burden = very high standard (very costly, tiny benefits; maybe met if less costly alternative)
  • exceptions: subsidies to citizens; when state is a market participant; congress says otherwise
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45
Q

When can a state tax commerce?

A

“substantial nexus” between taxing state and thing being taxed

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46
Q

when can a state tax personal property in the state?

A

any good physically in its borders, as long as good is stopped for a business purpose
-can tax fraction of value of instrumentalities of commerce

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47
Q

what liberty interests protected under procedural due process?

A

right to work, travel, procreate, marry, physical injury, legal rights (e.g. free speech), stigma that affect ability to be employed

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48
Q

timing of hearing for disability benefit revocation

A

post-deprivation is fine

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49
Q

timing of hearing for dismissing student on academic grounds

A

must be pre-deprivation

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50
Q

intermediate scrutiny standard

A

substantially related to important interest

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51
Q

scrutiny standard for illegitimate child discrimination?

A

intermediate

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52
Q

requirements for parental notification for abortion law?

A

fine

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53
Q

requirement for parental consent for abortion?

A

alternative way to get if go before a judge

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54
Q

when can fed govt discriminate based on citizenship?

A

anytime

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55
Q

when can a state govt discriminate based on citizenship?

A

essential state function, like teacher, police, jury, voting

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56
Q

when is affirmative action valid

A

correcting past discrimination by same actor, OR

college or grad school admissions (and holistic)

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57
Q

standard of review on race based affirmative action

A

strict scrutiny

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58
Q

can statutory rape laws discrim based on gender?

A

yes

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59
Q

when does 1 person 1 vote apply?

A

elections of representatives by district (not senate)

-exception: if limited government body, can apportion votes based on interest

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60
Q

can you gerrymander based on race?

A

yes, but not predominant factor

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61
Q

ex post facto law problem for civil liability?

A

no

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62
Q

what is the contract clause

A

states can’t legislate impairments to existing contracts, unless overriding need (e.g. great depression)
-doesn’t apply to fed govt

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63
Q

do zoning regulations count as a taking?

A

no, as long as advance legitimate interest AND doesn’t extinguish fundamental attribute of ownership

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64
Q

elements to the lemon test

A

1) secular purpose
2) no excessive entanglement in religion
3) primary effect neither advances nor inhibits religion

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65
Q

when most worried about public endorsements of religion

A

settings where likely to be coercive (schools), or if clear endorsement. sometimes need to dilute religious message

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66
Q

when are laws against expressive conduct ok?

A

1) prohibiting the expressive part is secondary effect, not the purpose
2) substantial interest
3) burden no greater than necessary

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67
Q

when can govt regulate verbal speech in a public forum?

A

(TPM)
1) content neutral (or exception applies)
2) leaves open alternate channels of communication
3) narrowly tailored to significant government interest
Otherwise, strict scrutiny

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68
Q

when can govt regulate speech on private property

A

strict scrutiny

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69
Q

when can govt regulate speech on public property that’s not a public forum?

A

must be reasonable (i.e. viewpoint neutral)

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70
Q

requirements to meet obscenity exception

A

1) prurient
2) lacking any serious value (nat’l standard)
3) offensive to avg person
4) not overbroad

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71
Q

which content based speech regulations are okay?

A

(only ok if viewpoint neutral)

  • obscenity
  • incitement to violence
  • fighting words
  • defamation
  • commercial speech that’s misleading
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72
Q

can govt limit contributions to a ballot initiative?

A

no

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73
Q

when can govt limit contributions to a candidate?

A

yes if satisfies intermediate scrutiny. “closely drawn” to correspond to important interest

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74
Q

when can govt limit independent expenditures

A

never

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75
Q

can law give publicly-funded candidates extra money if their opponents outspend?

A

no

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76
Q

who gets to file a habeas suit?

A

anyone detained by US in territory over which US has sovereign control (e.g. outside US)

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77
Q

how decide if jury right if legal and equitable remedies asked for?

A

try the legal issues first

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78
Q

common law requirements for what must be included in an offer?

A

price, quantity, parties

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79
Q

UCC requirements for what must be included in an offer

A

quantity and parties

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80
Q

when is a revocation effective?

A

when offeree learns of it

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81
Q

does death of offeror terminate the offer?

A

yes unless consideration was paid to keep open

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82
Q

when is an offer irrevocable?

A
  • partial performance of unilateral offer
  • consideration paid
  • firm offer by merchant
  • detrimental reliance
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83
Q

requirements for a firm offer by a merchant

A

written promise to keep open

  • signature/initials/letterhead
  • reasonable amount of time (
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84
Q

can seller accept a contract by shipping the wrong goods?

A

UCC says this is acceptance + breach

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85
Q

what are exceptions to mailbox rule?

A
  • if first sent rejection before sending acceptance. then whichever one the offeror reads first will count
  • offeree tells offeror they’re rejecting after mailing acceptance + detrimental reliance
  • time limit in options contract
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86
Q

when does silence constitute acceptance of a contract?

A
  • the offer says that can count and offeree intended to accept
  • if past dealings suggest it
  • unilateral contract
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87
Q

under common law, when does acceptance w/ new terms count as acceptance?

A

it doesn’t - mirror image rule

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88
Q

under UCC, when does acceptance w/ new terms count as acceptance?

A

unless material changes or says accepting only if these new terms are accepted

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89
Q

under UCC, when acceptance included new terms from offer, which terms govern?

A

new terms only count if: (need all of these)

  • both parties are merchants
  • offer didn’t say on these terms only
  • new terms aren’t material changes
  • offeror doesn’t object w/in reasonable period
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90
Q

when does a confirming memo alter terms of an already existing oral agreement?

A

4 requirements:

  • both parties are merchants
  • offer didn’t say on these terms only
  • party doesn’t object w/in reasonable time
  • new terms aren’t material changes
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91
Q

does a gift to a charity need consideration?

A

no, but the promise must be in writing

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92
Q

elements for detrimental reliance on a contract

A

(promissory estoppel)

  • reasonable and detrimental reliance by promisee
  • foreseeable that would induce reliance
  • justice requires the promise be kept
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93
Q

when can a contract be modified under common law?

A

generally only with consideration (e.g. both sides must give something up)

  • exceptions:
  • rescind first contract w/ outward sign (tear it up)
  • unforeseen difficulties that would otherwise excuse performance
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94
Q

when can a contract be modified under UCC?

A

good faith

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95
Q

when can one side waive an obligation of the other side under the UCC?

A

you can waive it, but you can revoke your waiver unless they relied on it

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96
Q

when must a modification be in writing

A

if the modified contract would be covered by SOF

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97
Q

if modified contract, when can party sue for satisfaction of original obligation?

A

if it was an accord (versus substitute agreement). and then only if the substitute performance didn’t occur

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98
Q

when is a contract voidable for mutual mistake?

A

1) both sides mistaken about a basic material fact

2) adversely affected party didn’t assume (contemplate) risk of mistake

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99
Q

when is a contract void for unilateral mistake?

A

1) adversely affected party didn’t assume risk of mistake
2) either
- other party should have known about mistake
- other party caused the mistake
- absent the mistake the deal is unconscionable

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100
Q

when is a contract void for misunderstanding?

A

1) both interpretations were reasonable
2) actual difference of opinion existed
3) neither side was aware of the confusion
4) the term was material

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101
Q

when is a contract voidable by an under-age party?

A

always (unless ratified subsequently).

if involved a necessity, the minor might still have to pay FMV

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102
Q

when is a contract voidable against intoxicated person

A

other side must know AND you’re so intoxicated you don’t understand the nature of your actions

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103
Q

when is a contract voidable against someone based on mental incapacity

A
  • if court ordered guardian over their property, then always
  • if other side knew, enough that put at a disadvantage in transaction
  • if other side didn’t know, only when don’t understand the nature of your actions
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104
Q

when is a contract void b/c of untrue statement at time of contracting?

A

1) material OR fraudulent
2) made under circumstances where justifiable to rely on the representation
- exception: if false fact cured

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105
Q

when is a contract void b/c of duress

A

impermissible threat

  • tort, criminal prosecution, bad faith civil prosecution, threatening to breach a contract that would violate fair dealing
  • also if third party caused the duress
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106
Q

is a contract void if made in furtherance of an illegal act?

A

no, only if the contract itself was illegal

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107
Q

is a signature required under SOF?

A

only party being enforced against

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108
Q

can an SOF writing be subsequently recorded?

A

yes

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109
Q

when is SOF satisfied via performance?

A

FULL performance of a service contract (unless real estate deal)

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110
Q

when is SOF satisfied by performance on real estate deals

A

need 2/3:

  • possession
  • improvements
  • payment
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111
Q

are leases covered by SOF?

A

not if

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112
Q

SOF requirements for sales of goods

A

(only if goods >$500)
essential terms (quantity, parties)
only enforceable for quantity written down
enforceable if part-performance (delivered or paid for)
exceptions:
-custom-made goods
-judicial admission the contract existed

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113
Q

when are “future modification in writing” terms valid?

A

if only 1 party is a merchant, then must be in writing

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114
Q

when one side’s performance takes place over time, when is payment due?

A

default rule: at end of performance

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115
Q

venue requirements for foreign defendants?

A

any judicial district in the US

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116
Q

requirements for serving someone at their house?

A

leave with a person of suitable age and discretion at D’s primary adobe

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117
Q

does implied warranty of merchantability cover non-merchants?

A

no

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118
Q

standard for meeting implied warranty of merchantability?

A

fit for ordinary purposes

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119
Q

how waive implied warranty of merchantability

A

can be oral “as is” or very conspicuous if in writing

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120
Q

what is exception to implied warranty of merchantability?

A

buyer had opportunity to inspect, and reasonable inspection would have revealed the defect

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121
Q

standards for disclaiming implied warranty of fitness for a particular purpose

A

“as is”, conspicuous. MUST be written

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122
Q

what are damages if substantial (but not perfect) performance?

A

extra cost to fully-perform, but sometimes limited to diminution in market value (unless willfull)

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123
Q

when can buyer refuse delivery under UCC?

A

whenever there’s not perfect tender (perfect goods + perfect performance).

  • must give seller a chance to cure if seller reasonably thought buyer would accept or still time left before deadline
  • Exception if installment contract: then can only reject if that delivery is substantially impaired (unless seller says can cure)
  • default: seller can demand payment w/ each delivery
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124
Q

when does risk of loss pass to buyer?

A
  • if any breach, risk is on that party
  • if third party delivery contract, depends on if destination or shipment contract (default).
  • otherwise on buyer unless seller is a merchant
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125
Q

risk of loss if buyer repudiates before delivery?

A

if identified goods, then risk on buyer still for a commercially reasonable amount of time. buyer responsible for damages net of seller’s insurance.

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126
Q

does death by promisor excuse performance

A

no, unless wouldn’t make sense to continue obligation

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127
Q

what if the goods identified in the contract are destroyed?

A

if risk has passed to buyer, on the buyer.
otherwise contract is void
(assuming not the fault of one of the parties)

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128
Q

what can party do if other side says they will breach, before the deadline.

A

can sue now or wait for the deadline.

-can’t sue if you’re only waiting to get paid

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129
Q

when can you stop performing if you think other side might breach?

A

can demand assurance of performance, and if they fail to respond that counts as repudiation

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130
Q

limits on expectation damages

A
  • only foreseeable damages
  • try to mitigate
  • must prove w/ specificity (not unproven business ventures)
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131
Q

if other sides breaches after you have partially performed, what are your damages?

A

what your profit would have been + reimbursements for your net costs.
-exception if you were giving a below-market price, and then you can get restitution

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132
Q

when are liquidated damages enforceable?

A

if amount is reasonable (judged from time of contracting) and actual damages too hard to prove
-can’t be punitive

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133
Q

when can seller get unpaid-for goods back from buyer?

A

(right of reclamation)

1) buyer insolvent
2) seller demands w/in 10 days of delivery (or reasonable term if written assurance of solvency from buyer w/in 3 months)
3) buyer must still have the goods

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134
Q

when can buyer get goods from seller? (equitable remedy)

A
  • if unique goods or can’t cover
  • if partial payment and either
  • -seller goes insolvent w/in 10 days of receiving payment OR
  • -household/personal goods
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135
Q

can seller disclaim damages above a certain amount for breach of warranty?

A

yes for commercial damages; unconscionable for personal injury damages

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136
Q

when can a third-party contract beneficiary prevent the parties from modifying the contract to exclude them?

A

reliance, they’ve assented, or they’ve tried to enforce

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137
Q

who gets an assignment if the assigned rights have been assigned twice?

A

if no consideration, the most recent one gets it

if consideration, the first assignment gets priority

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138
Q

are assignments revocable?

A

yes if no consideration

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139
Q

are reserve or non-reserve auctions the default?

A

reserve

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140
Q

what happens if seller makes a bid at an auction

A

winner can take the goods at the price of the last good-faith bid
-exception: forced sale or seller reserved the right to bid

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141
Q

when can a buyer insure goods?

A

if they’re specifically identified (e.g. crops must have been planted)

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142
Q

what is federal criminal jurisdiction

A

US citizens anywhere they are, anyone in the US, on ships and planes

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143
Q

what is a state’s criminal jurisdiction?

A
  • crime occurred in the state
  • out of state conduct that attempts to commit a crime in the state
  • conspiracy to commit crime in other state if overt act occurred in state
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144
Q

when can omissions count as an actus reus?

A
  • special relationship
  • started to help and then stopped
  • you caused the danger
  • legal duty (e.g. paying taxes)
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145
Q

when is mistake of law an excuse to a crime?

A
  • reliance on high-level govt authority
  • element of the crime
  • lack of notice about the law (rare)
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146
Q

M’Naghtan insanity defense

A

don’t know the nature of your act or that it is wrong

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147
Q

Durham Rule for insanity defense

A

mental defect was ‘but for’ cause of the act

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148
Q

MPC approach for insanity defense

A

lack of substantial capacity to conform conduct to the law OR don’t know the nature of your act (combines irresistible impulse with M’Naghtan)

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149
Q

when is voluntary intoxication a defense?

A

-if specific intent crime (UNLESS got intoxicated for purposes of doing the crime)

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150
Q

when is involuntary intoxication a defense?

A

anything but a strict liability crime.

involuntary intoxication: if D was forced, or unexpected reaction

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151
Q

under common law can accomplice be liable if principal not convicted?

A

no

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152
Q

requirements to be an accessory after the fact?

A
  • know the felony occurred

- act with the purpose of helping the felon evade capture

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153
Q

requirements for conspiracy under common law?

A
  • agreement btwn people to commit a crime

- can’t be one D and the rest people who don’t intend to go along

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154
Q

what crimes is accomplice liable for?

A

the planned crime + all crimes that are reasonably foreseeable

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155
Q

what are co-conspirators liable for?

A

the crime of conspiracy + any crime committed in furtherance of the conspiracy

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156
Q

withdrawal from conspiracy under common law

A

can’t withdraw once agreement is formed, but can cut off liability for future crimes

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157
Q

wharton rule

A

can’t have a conspiracy unless more people than needed to commit the crime (no 2 person adultery conspiracies)

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158
Q

what are the elements of attempt?

A

1) specific intent to commit a crime

2) substantial (major) step towards perpetrating the crime

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159
Q

requirements for accomplice liability

A
  • helped principal before or during the crime
  • had intent to help principal with the crime
  • principal had to have been convicted (if common law)
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160
Q

when does soliciation turn into conspiracy?

A

if other person agrees to help

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161
Q

does suicide count as homicide?

A

no, but assisting suicide can

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162
Q

felonies that qualify for felony murder

A

BARRK

burglary; arson; robbery; rape; kidnapping

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163
Q

requirements for involuntary manslaughter

A
  • unintentional homicide
  • EITHER criminal negligence (very negligent, puts someone at risk of death) or during a non-BARRK unlawful act (malum in se)
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164
Q

elements of larceny

A

1) taking someone else’s property
2) without consent
3) with intent to deprive them of the property permanently

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165
Q

elements of embezzlement

A

1) D is initially in lawful possession of victim’s property, and then
2) converts that property to his own use
(must not have intended to convert from beginning)

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166
Q

elements of robbery

A

larceny by force or threat of force

-the taking of the property must be from victim’s person or in the presence of the victim (not pickpocket)

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167
Q

elements of extortion

A

larceny + threat of future harm (physical or non-physical)

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168
Q

does burglary need the underlying felony to succeed?

A

no - still guilty of burglary + attempt to commit the other felony

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169
Q

elements of assault

A

either

1) intentionally placing someone in fear of imminent bodily injury (general intent crime), OR
2) attempted (but failed) battery (specific intent, must not think the touching was consented to)

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170
Q

elements of kidnapping

A

1) holding someone against their will
2) by either moving or hiding them
- there needs to be some movement of the person, can’t just tie them in place

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171
Q

elements of arson at common law

A

maliciously burning someone’s property

  • only someone else’s
  • only a dwelling
  • must be fire (not just smoke) + damage to structure of building
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172
Q

does a lie have to be material to count as perjury?

A

yes

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173
Q

elements for receipt of stolen goods

A

D must know they’re stolen (unreasonable mistakes of fact are a defense)

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174
Q

elements for larceny-by-trick

A

taking someone’s property after you’ve obtained their consent by fraud/deceit

  • not if take title to the property
  • intend to convert from the beginning
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175
Q

elements for larcenty by false pretenses crime

A

taking the title to someone else’s property after you’ve obtained their consent by misrepresentation

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176
Q

elements for forgery

A

fraudulently making a false writing that has apparent legal significance with the INTENT to defraud

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177
Q

standard for something to count as a 4th am seizure?

A

reasonable person wouldn’t feel free to leave

  • must be intentional
  • if suspect gets shot
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178
Q

requirement to do a terry stop

A

reasonable suspicion of criminal activity

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179
Q

allowable scope for a terry stop search

A

can only do a frisk and seize anything that’s obviously a weapon/contraband/evidence
-rationale: officer’s safety

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180
Q

when is a traffic checkpoint allowable?

A

predetermined basis for stopping cars

-only certain car-related goals permissible (sobriety, not to find drugs)

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181
Q

can officers enter a person’s home to arrest them with a warrant?

A

yes

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182
Q

what must a valid arrest warrant include?

A

name of person to be arrested + crime they’re charged with

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183
Q

when can officers make an arrest without a warrant?

A

if not felony: only if they personally witness the crime, or learned from a terry stop

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184
Q

when can officers enter a home to arrest without a warrant?

A

exigent circumstances or consent

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185
Q

do drug sniffing dogs constitute a search?

A

not on public street

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186
Q

expectation of privacy on your property?

A

yes in your backyard (curtliage to your house)
not in an open field
not garbage cans once removed to the street

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187
Q

standard to get a search warrant

A

probable cause that search will turn up

-fruits of crime, instrumentalities of crime, or evidence

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188
Q

requirement for search warrant contents

A

describe w/ particularity the place to be searched and what will be searched

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189
Q

when can you search without a warrant?

A

Exigent circumstances; search incident to arrest; consent; automobile; plain view; administrative search; stop and frisk

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190
Q

what is needed for exigent circumstances exception for search w/o warrant

A

likely immediate danger. not created by officers themselves.

suspect fleeing counts, drunk driving doesn’t

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191
Q

when can third parties consent to a search?

A

if they have apparent authority.

if co-occupant consents and you don’t, police can’t search you (if both present)

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192
Q

standard for warrantless automobile searches

A

probable cause. (worry is that car could move). can search parts of car where think the contraband might be.
also inventory search if car impounded

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193
Q

where can police do warrantless administrative searches?

A

airplane boarding areas; highly regulated industries; roadblocks for seeking information
-fire/health inspectors looking for code violations need warrants

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194
Q

what is scope for a search incident to arrest?

A

where the suspect can reach at the time of arrest (rationale: officer safety, evidence in suspect’s possession). Also DNA sample.

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195
Q

does 5th am protect you from giving handwriting or voice samples?

A

no - only testimony

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196
Q

when is a miranda warning required?

A 
custodial interrogations (not free to leave and return to normal place b/c of police). 
exception: public safety
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197
Q

what can officer do if suspect says doesn’t want to answer questions?

A

must stop; can try again after substantial time

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198
Q

what can officer do if suspect asks for a lawyer?

A

questioning must stop until

1) lawyer shows up; 2)suspect initiates; 3) 2 wks + miranda re-read

199
Q

are confessions produced by deceit invalid?

A

no. e.g. fake lie detectors okay

200
Q

remedy for miranda violations?

A

can’t be part of case-in-chief. okay for impeachment/rebuttal

201
Q

remedy for forced confessions?

A

never admissible against person who made the statement (can admit against others)

202
Q

what does 5th am right to counsel guarantee?

A

lawyer during custodial interrogations (if you ask)

203
Q

what triggers 6th am right to counsel?

A

once charged w/ a qualifying crime.
qualifying: prison sentence is any felony or misdemeanor w/ possibility of jail time (no problem if don’t get but no jail time)

204
Q

standard for waiving 6th am right to counsel?

A

knowing and intelligent

205
Q

does lawyer have right to be present when police use photo array?

A

no

206
Q

does lawyer have right to be present during line-up?

A

yes, if post-indictment. no if pre-indictment

207
Q

does exclusionary rule apply to pre-trial proceedings?

A

no

208
Q

who can assert exclusionary rule to block piece of evidence from being admitted?

A

only if violation of D’s rights (no co-defendants)

-car passengers count

209
Q

remedy for knock and announce violations?

A

fine as long as they have a warrant

210
Q

what are exceptions to exclusionary rule?

A
  • inevitable discovery
  • good faith rule (officers rely on law that’s later declared unconstitutional; warrant that’s facially valid but then declared invalid, unless obtained by fraud)
  • isolated negligence by police (accident that exclusion wouldn’t deter)
211
Q

must prosecutor present exculpatory evidence to a grand jury?

A

no

212
Q

what is standard for a D being competent to stand trial?

A

capable of understanding proceedings against them AND able to assist their attorney

213
Q

standard for a valid guilty plea

A

knowing and intelligent + allocution w/ judge

214
Q

what crimes trigger right to jury trial?

A

if authorized punishment >6 months prison

215
Q

when does a statute of limitations start to run for crimes/conspiracy

A

crimes: when complete
conspiracy: when goal achieved or abandoned

216
Q

which witnesses does D have right to cross-examine under confrontation clause?

A

anyone who made “testimonial statement” = declarant knew info likely used for prosecution or identification of perpetrator of crime
-includes accusers who are co-defendants
-only in criminal trials
exceptions:
-D had prior chance to cross-examine AND unavailable.
-deathbed declarations
-still violation if D made accuser unavailable unless did so for purpose of preventing testimony

217
Q

can prosecutor comment at trial on D not testifying?

A

no

218
Q

what are prosecutor’s duties to turn over exculpatory evidence?

A

covers: ev D didn’t commit the crime + ev against credibility of prosecution witness
scope: anything in govt’s possession (even if unaware)

219
Q

standards for IAC if conflict of interest

A

presumption not harmless if it affected atty’s behavior

220
Q

what sentences does 8th am restrict?

A

doesn’t cover sentence length generally.

juveniles can’t get mandatory life w/o parole, or life w/o parole for non-homicides

221
Q

what does 8th am cover

A

only punishments (stuff done in prison count)

222
Q

restrictions on when court can impose capital punishment

A

if 1 victim, only if the victim dies

D must not be under 18 at time of crime; mentally retarded; insane at time of execution

223
Q

what does double jeopardy protect against?

A

1) prosecution for same offense after conviction
2) prosecution for same offense after acquittal
3) multiple punishments/prosecutions for same offense
- blockburger test
- exception: separate sovereigns can try same crime

224
Q

when does first jeopardy begin for double jeopardy purposes?

A

jury trial: jury sworn in
bench trial: first witness sworn in
(this is latest prosecutor can modify indictment charges)

225
Q

when can judge order a mis-trial?

A

“manifest necessity” = jury deadlocked OR D at fault

226
Q

requirements for a witness to testify

A

promise to tell the truth + personal knowledge

227
Q

what can a juror testify about

A

inappropriate external influences

228
Q

rules for impeaching a witness through their character

A

opinion and reputation ev fine.

  • prior acts generally not ok unless relevant to assessing witness’s truthfulness (balancing test)
  • -can’t use extrinsic ev (new witness) to prove
229
Q

when can you use criminal convictions to impeach witness?

A

if the crime demonstrated dishonesty.
admissible if w/in 10 yrs since released from prison
if >10 yrs then probative value must greatly outweigh prejudice
–no juvenile convictions
–not if pardoned (for innocence or no subsequent convictions)

230
Q

when can you bolster a witness’s credibility?

A

only after it has been attacked

231
Q

when can you use external evidence to establish a witness’s prior inconsistent statement

A

generally, but other witnesses can only testify to refute or else hearsay

232
Q

Frye test

A

for expert witnesses. theory/principle must be generally accepted w/in scientific community

233
Q

Daubert test

A

fed rule standard for expert witnesses.

234
Q

what sources of information can expert witness rely on

A

personal observation; evidence from trial; evidence not admitted at trial if reasonably relied upon by such experts

235
Q

authentication rule for old evidence

A

> 20 years old, likely to be in condition and place where it was if authentic

236
Q

best evidence rule

A

when contents of a document (or recording) are at issue or relied upon, must introduce original or a copy
Exceptions: original unavailable; other party has the document and knew you were going to use; summaries are fine

237
Q

spousal immunity from testifying against other spouse

A

one spouse can choose not to testify against other in CRIMINAL trials, if married at time of trial

238
Q

communications between spouses

A

can refuse to testify about communications made while married. can be invoked by EITHER spouse. criminal and civil trials. doesn’t apply to suits btwn spouses/child

239
Q

attorney client privilege elements

A

confidential communication between client and lawyer for purpose of seeking legal advice

240
Q

exceptions to attorney-client privilege

A

planning future crime/fraud

disputes between attorney and client

241
Q

work product doctrine elements

A

document prepared by lawyer in anticipation of litigation

mental impression notes require extremely high showing

242
Q

when can one testify about conversations for settling / plea?

A

can’t unless knowingly waived with lawyer

243
Q

hearsay definition

A

out of court statement introduced to prove the truth of the matter asserted in the statement
(not if proving some utterance triggered objective interpretation like contract formation or effect on the listener)

244
Q

when is there a hearsay exception for prior statements by a testifying witness?

A

if prior statement was at a formal proceeding under oath, either side can admit to show either consistent or inconsistent with current testimony
-also prior identification statement (picking D out of lineup)

245
Q

when is there a hearsay exception for statements made by opposing party?

A

also covers agents speaking on your behalf

also covers co-conspirator statements that were on behalf of the conspiracy

246
Q

when is there a hearsay exception from declarant being unavailable to testify?

A

unavailable (e.g. refuses) AND either:

  • former testimony under oath (not grand jury, party against whom it was offered had similar motives and chance to cross);
  • dying declaration (pertains to cause of death, only homicide or civil cases);
  • statements against interest (but can’t say another D took blame for crime);
  • statements about declarant’s personal history;
  • any statement if you made them unavailable to keep them from testifying
247
Q

standard for present sense impressions hearsay exception

A

made contemporaneously w/ thing being described

248
Q

statements to medical personnel hearsay exception

A

for diagnosis / treatment

249
Q

business records hearsay exception

A

prepared in regular course of business. info from someone w/ personal knowledge.
-medical records count

250
Q

treatises hearsay exception

A

relied on by expert and reliable authority

251
Q

hearsay exception for prior court judgments?

A

only convictions, not acquittals

252
Q

public records hearsay exception

A

prepared by public official / agency.

if police report, can only report police activities (not observations / conclusions)

253
Q

requirements for catch-all hearsay exception?

A

1) circumstantial guarantees of trustworthiness
2) more probative than any other reasonably attainable evidence.
3) material fact
4) promotes goals of FRE
5) other side given pre-trial notice

254
Q

what is “to x, while x is used as a farm”

A

fee simple determinable

255
Q

what is “to x, but if x is used as a farm, then to y”

A

fee simple subject to executory interest

256
Q

what is “O gives to x, but if x is used as a farm then O can reenter x”

A

fee simple subject to condition of subsequent

257
Q

“to x for life, and then to y if y outlives x” what is y’s interest?

A

continent remainder

258
Q

“to x for life, and then to x’s first child” (x has no children yet)

A

contingent remainder

259
Q

“to A for life, then to A’s kids when they reach 21” (A’s kids are 25, 18, 17). What is the 25 year old’s interest?

A

vested subject to open

260
Q

“A leaves to B for life, and then to A’s heirs” what interest do A’s heirs have?

A

no interest, doctrine of worthier title means this goes to A

261
Q

what is doctrine of worthier title?

A

presumption that reversion of life estate goes to grantor rather than grantor’s heirs

262
Q

The Rule of Shelly’s Case

A

Presumption against giving remainders to the heirs of the recipient of a life interest
E.g. A leaves to B for life, and then to B’s heirs

263
Q

statement of RAP

A

An interest is valid only if it is certain to vest within the span of a life in being at the time the interest is created, plus 21 years.

264
Q

what interests does RAP apply to?

A

contingent remainders and executory interests. not when property reverts to grantor.

265
Q

if class gift violates RAP as to one class member, what happens to other class member’s interests?

A

generally they disappear also. but class is saved once one class member is entitled to immediate possession, or when gift of definite size.

266
Q

when are right of first refusals subject to RAP?

A

always unless it’s a current tenant w/ option to purchased the rented land

267
Q

requirements to create joint tenancy

A

clear expression of intent + survivorship language

268
Q

what is effect of taking out a mortgage on a joint tenancy interest?

A

majority (lien states): fine. minority (title states): counts as transferring the title, so severs the mortgage

269
Q

requirements to create tenancy by the entirety

A

clear expression of intent + survivorship language

270
Q

requirements to maintain joint tenancy

A

(PITT) need unity of: interest; possession; timing; and title (must receive interest in same instrument or title)

271
Q

requirements to maintain tenancy by the entirety

A

same as joint tenancy + marriage

272
Q

special rules for tenancies by the entirety

A

can’t alienate/encumber interests without consent of other spouse

273
Q

types of waste

A

affirmative; permissive; ameliorative (change in nature/use of property)

274
Q

when does a periodic tenancy terminate?

A

notice before beginning of what will be the last period

275
Q

does death of a party terminate tenancy at will?

A

yes, either party

276
Q

what terms govern a tenancy at sufferance?

A

last prior lease

277
Q

what happens if landlord accepts rent in a tenancy at sufferance?

A

converted to a periodic tenancy

278
Q

what violates landlord’s implied covenant of quiet enjoyment?

A

L or someone under L’s control (tenant, someone w/ superior title to L) causes: actual eviction, partial eviction, or constructive eviction (no water). standard=unusable for intended purposes

279
Q

remedy for breach of implied covenant of quiet enjoyment

A

no rent if actual eviction. if partial eviction: no rent if caused by L, partial rent if caused by someone under L’s control. constructive eviction: no rent if T vacates and gives notice w/in reasonable time

280
Q

what violates landlord’s implied warranty of habitability

A

L fails to maintain the property so that it’s suitable for residential use (safety/health code violations).

281
Q

remedies for violation of landlord’s implied warrnty of habitability

A

T can withhold rent or fix the problem and charge the L. if withhold rent, must have notified L and given reasonable opportunity to fix. T doesn’t need to vacate premises

282
Q

what does L have tort liability for?

A

common areas; areas under L’s control; faulty repairs; hidden dangers T didn’t have notice of

283
Q

when can landlord deny a sublease/assignment?

A

majority rule: commercially valid reason only. minority: anytime

284
Q

who is protected from familial status discrimination under fair housing act?

A

families w/ kids under 18. doesn’t protect marital status. exception if senior living or restriction is for child’s safety

285
Q

elements for adverse possession

A

1) open and notorious
2) continuous for statutory period
3) hostile
4) exclusive

286
Q

when can you tack on time of previous adverse possessor?

A

some formal relationship, e.g. privity between them

287
Q

what is your scope of possession after successful adverse possession?

A

can get whole property even if you only possessed a part as long as 1) entered under facially valid deed, and the amount possessed is a reasonable portion of the whole

288
Q

when does a contract for sale of land not need to be written?

A
  • part performance (2/3 of possession, improvement, payment)

- detrimental reliance

289
Q

what is implied covenant of marketable title?

A

implied into contract for sale of land. title must be free of unreasonable risk of litigation

290
Q

what is implied warranty of fitness and suitability (for new construction). who can enforce?

A

no defects in new construction. first and second buyers can enforce.

291
Q

duty to disclose defects (in real estate sales contracts)

A

seller must disclose all known material physical defects (esp latent ones). material = substantially affects value of home, health/safety. can’t disclaim w/ general “as is”

292
Q

who bears risk of loss of property between contract signed and closing?

A

majority rule: buyer holds equitable title (risk of loss)
seller holds legal title: right to possession
exception for seller’s negligence or intentional acts
minority put risk on seller unless buyer had possession (Uniform Vendor and Purchaser Risk Act)

293
Q

what happens if a lender transfers a mortgage w/o the note? or a note w/o the mortgage

A

usually they follow each other

294
Q

what is order of priority for debt repayment after a foreclosure?

A

junior interests extinguished. debts satisfied chronologically. exceptions:

  • purchase money mortgage paid back first
  • properly recorded junior mortgage gets priority over unrecorded sr mortgage as long as lacked knowledge
  • subordination agreement
  • sr mortgage modification that prejudices jr
  • future advances mortgage where amnt of loan not set at beginning
295
Q

when does a deed transfer become valid?

A

once delivered and accepted (doesn’t need to be physically delivered, irrevocable is key, like a phone call). must be signed by the grantor (SOF)

296
Q

who is not protected by recording statutes?

A

people who get the interest by gift / inheritance

297
Q

what is common law rule when recording statute doesn’t apply?

A

first in time wins (first to receive valid deed)

298
Q

priority in a race-notice recording statute state?

A

winner is first to record among those who purchased without notice

299
Q

what is a special warrant deed

A

guarantees against any defects in the deed the owner is responsible for

300
Q

what is implied covenant of seizin?

A

deed describes the land in question

301
Q

who gets to keep a fixture after a sale?

A

default: buyer does

302
Q

can trespassers remove fixtures they installed?

A

common law: no. modern, yes (or recover value) as long as good faith

303
Q

requirements for anti-lapse statute to apply?

A

intended beneficiary = a relative, who has surviving issue

304
Q

what type of easements must be express?

A

a negative easement

305
Q

what are the types of implied easements?

A

1) easement by prescription
2) easement by necessity
3) easement by prior use
4) easement by reliance

306
Q

requirement for easement by implied prior use

A

1) past common ownership
2) before division, owner used land as if easement on it (quasi-easement)
3) use was continuous and apparent at the time of severance
4) must be reasonably necessary to dominant estate’s use and enjoyment

307
Q

requirements for easement by necessity

A

1) prior common ownership
2) necessary to dominant estate’s use and enjoyment
- necessity judged at the time of severance (but can end if necessity over)

308
Q

when is an easement terminated?

A

1) release (writing, SOF)
2) merger (common owner)
3) estoppel
4) abandonment (w/ evidence)
5) sale to bona fide purchaser (recording failure)
6) end of necessity

309
Q

difference between a license and an easement?

A

can revoke a license

310
Q

when are you liable if you cause a cave-in on neighbor’s land?

A

if all your fault then strictly liable. if they contributed then negligence

311
Q

when are you liable if your subjacent use of land causes damage to surface-level property?

A

strict liability if property there when you acquired the interest
negligence if built subsequently

312
Q

what are the two approaches to water rights?

A

riparian: next to water, can make reasonable uses.

prior appropriation: first-in-time: must be using for beneficial use

313
Q

requirements for a covenant to bind a successor

A

1) writing (SOF)
2) notice to successor
3) intent to run with the land
4) touch and concern the land
5) privity

314
Q

what are privity requirements to pass down burden of covenant to successor?

A

1) vertical privity (full interest)

2) horizontal privity (grantor-grantee, common ownership interest)

315
Q

what are privity requirements to pass down benefit of covenant to successor?

A

vertical privity (carved out of original interest)

316
Q

remedies for breach of equitable servitude

A

just injunction

317
Q

requirements for equitable servitude

A

1) writing (unless implied reciprocal servitude)
2) notice
3) touch and concern
4) intent to bind successors

318
Q

requirements for an implied reciprocal servitude

A

1) intent to create a servitude on all plots
2) must be negative
3) successor must be on notice
4) to show intent, must be common plan or scheme (e.g. map) (substitutes for the writing)

319
Q

Standard for whether a contact is a battery

A

Person of ordinary sensibilities, unless D knew victim was hypersensitive.

320
Q

If D tries to commit battery against P but fails and P doesn’t know, is it assault?

A

No

321
Q

Is a spoken threat enough to constitute assault?

A

No

322
Q

Elements for IIED

A

1) Extreme or outrageous conduct
2) Causes P severe emotional distress
3) Intentional or reckless

323
Q

When can a bystander sue D for IIED conduct?

A

1) Bystander is member of victim’s immediate family AND D knows they’re present
OR 2) bystander suffers physical injury

324
Q

Elements of False Imprisonment Tort

A

D intentionally confines P (threats count)
If P contemporaneously aware of confinement then doesn’t need to show damages
Shoplifter exception

325
Q

Can you claim self defense if you made a reasonable mistake of fact?

A

Yes

326
Q

Can you use force to retake your property?

A

Yes, but if initially lawfully held must use peaceful means first

327
Q

Requirements to make a citizens arrest

A

1) arrest is for a felony
2) the felony actually occurred
3) reasonable grounds for thinking the arrested person did it

328
Q

When can someone make citizens arrest for misdemeanor?

A

Only if breach of the peace occurring or imminent

329
Q

Elements of Trespass to Chattels tort

A

D intentionally interferes with P’s use of his personal property

330
Q

Elements of conversion tort

A

D intentionally took P’s property
If initial acquisition lawful, must have demanded return first
Can be constructive dispossession

331
Q

what is common law age that child can be prosecuted for a crime?

A

7.

7-14 rebuttal presumption that incapable of committing the crime.

332
Q

duty towards trespassers

A

refrain from reckless or willful misconduct. if discovered/anticipated then duty to warn of hidden dangers. No duty to warn of conditions that don’t involve risk or serious bodily injury.

333
Q

duty to a licensee (traditional approach)

A

warn of hidden dangers. No duty to inspect land for dangers.

334
Q

When are multiple D’s liable for a tort if can’t prove which one did it?

A

if they were all negligent

335
Q

when can you recover for economic damages in a negligence suit?

A

only if property damage / personal injury as well

336
Q

when can you recover for only emotional damages in negligence?

A

if negligent infliction of emotional distress, otherwise need something else too

337
Q

when can you sue government for torts

A

generally, unless traditional govt function or certain intentional torts:
Assault, battery, false imprisonment, false arrest, malicious prosecution, libel, slander, misrepresentation, interference with contractual rights

338
Q

Elements of Trespass to Land Tort

A

D intentionally entered P’s land (D didn’t have to know he was committing a trespass).
Only physical invasion (not nuisance). If necessity then actual damages only.
If public necessity then no damages

339
Q

Elements for a Private Nuisance Tort

A

Unreasonable interference in someone else’s land
Blocking someone else’s view doesn’t count unless malicious
Defenses: assumption of the risk, coming to the nuisance

340
Q

Standard of care for professionals

A

Skill knowledge and care of another professional in the community

341
Q

Standard of care for torts by children

A

Intelligence, education, and experience as a child of same age

342
Q

Elements for negligent infliction of emotional distress

A

P thinks about to suffer physical harm and this causes emotional distress
Generally P must be in “zone of danger” or a bystander with close relationship to the victim who observes the accident
Also doctor misdiagnoses and illness, funeral home screws up a body

343
Q

What is difference between survivor action and wrongful death action?

A

Survivor action brought on behalf of decedent’s estate, wrongful death brought by living relatives

344
Q

When is an employer liable for employee’s actions?

A

Employee vs indep contractor (control over how work is performed)
w/in scope of employment

345
Q

When is parent liable for acts of child?

A

1) Child acting as agent of parent

2) Child harms a third party (intentional or accident) and parents were negligent (e.g. failure to warn third party)

346
Q

What is standard of care towards a foreseeable / known trespasser?

A

Warn of hidden dangers (same as licensee)

347
Q

When can you sue government contractor for a tort?

A

Same limits as suing government if conformed to regulations AND govt knew about the issue

348
Q

Do government officials have tort immunity for their acts?

A

Qualified immunity if discretionary act

No immunity if ministerial (e.g. driving car at work)

349
Q

Westfall Act

A

Fed employees immune from state tort law

350
Q

Last clear chance doctrine

A

Exception to contributory negligence defense

351
Q

In comparative negligence analysis, when will courts consider negligence of third parties not in the suit

A

“imputed contributory negligence”. Not when:
P=child, T=parent
P and T are spouses
P=passenger, T=driver

352
Q

When will courts enforce clauses in contract that disclaim tort liability?

A

Generally, but not when 1) recklessness, 2) gross disparity in bargaining power, 3) common carrier

353
Q

Liability for your animal attacking a trespasser?

A

Not generally unless watchdog

354
Q

Liability for harm by your animal on someone else’s property?

A

Strict liability unless domestic pet (unless known to be dangerous)

355
Q

Liability for domestic animal owners?

A

Negligence, unless they know animal is a danger

356
Q

Elements for strict products liability

A

Defective when left D’s control AND used in reasonably foreseeable way

357
Q

Requirements for a manufacturing defect

A

Deviated from intended design in way that made it more dangerous

358
Q

Standard for a design defect

A

Consumer expectations test OR cost-benefit

359
Q

Learned intermediary rule

A

Exception to inadequate warning defect, when used in supervision of trained professional

360
Q

Who is liable in strict products liability?

A

Anyone in the business of selling the product

No privity requirement

361
Q

Elements for defamation

A

1) publication to third party (intentional or negligent)
2) false
3) damaged P’s reputation
4) was about the P
- additional requirements if public figure/official or matter of public concern

362
Q

Defamation requirement if statement about public figure or public official?

A

Actual malice: knew false or reckless disregard for the truth

363
Q

Extra defamation requirement if matter of public concern

A

Must show negligence as to falsity of the statement

364
Q

What damages must be shown for libel

A

Only general damages, jury can estimate

365
Q

What damages must be shown for slander

A 
Special damages (concrete, specific)
Unless: commission of serious crime; loathsome disease; unfit for their business; severe sexual misconduct
366
Q

What statements can’t constitute defamation?

A

Between spouses
Judicial proceeding
Legislative proceeding
Political statements a newspaper/radio required to carry
Conditional privilege (good faith, you have some duty)

367
Q

Elements for unreasonable intrusion upon seclusion

A

Intrusion into P’s private affairs in way that would be objectionable to reasonable person
e.g. eavesdropping

368
Q

false light tort

A

P made offensive public statement about D

Either true but overall misleading OR ascribes P with false views or actions

369
Q

Elements for public disclosure of private facts tort

A

D gives publicity to a matter in P’s private life
Highly offensive
Not matter of legitimate concern to the public

370
Q

Elements for intentional misrepresentation business tort

A

1) False representation (no duty to disclose unless misleading past statement by D)
2) scienter (knew false or reckless disregard)
3) intent that P act based on the representation
4) false statement caused entering into business relationship
5) justifiable reliance
6) damages

371
Q

Elements for negligent misrepresentation tort

A

D (accountant) negligently provides false information to P
P justifiably relies
P and D in privity, OR D knew P was a third party beneficiary
D knew info would be used for particular transaction or wanted to influence it

372
Q

Elements for intentional interference in business relationship

A

D induced T to break contract with P
Contract must have been valid, and not terminable at will
Counts if make performance more difficult
Beyond normal competition (eg persuading a bank not to lend money to competitor)

373
Q

What is tort of injurious falsehood

A

Trade libel, like defamation but statements that harm your business, not your reputation

374
Q

Elements for slander of title

A

D calls into question P’s ownership of property

Requires actual malice

375
Q

duty to licensees (restatement approach)

A

reasonable care w.r.t. artificial conditions. if commercial then reasonable care w.r.t. natural conditions too

376
Q

can corporations and groups bring defamation suits?

A

yes

377
Q

duty of care to an undiscovered trespasser?

A

no duty

378
Q

liability for things falling from airplanes?

A

old rule: strict liability. new rule: negligence

379
Q

test to distinguish a gift from consideration

A

if offeree could have reasonably believed the intent of the offeror was to induce the action, then consideration.

380
Q

deadline for demand of jury trial in civil pleading?

A

14 days of last pleading (including yours)

381
Q

when can a cop enter someone else’s home to arrest someone pursuant to an arrest warrant?

A

must be consent or exigent circumstances

382
Q

What is effect of unlawful arrest?

A

Evidence seized pursuant to the arrest might be excluded. Confession closely connected to the illegal arrest might be excluded.

383
Q

purchase money mortgage priority vs subsequent mortgage that was recorded first w/o notice of first

A

purchase money mortgage one wins

384
Q

At will tenancy where only one landlord has right to terminate. Does it matter if residential?

A

Unconscionable. Remedy=both get right to terminate. Commercial and residential

385
Q

when do junior interests survive a foreclosure?

A

if the jr mortgagee wasn’t given notice and joined as a party (rationale: they get chance to redeem sr mortgage)

386
Q

contribution actions for operating expenses

A

operating expenses: taxes, mortgage payments. due according to ownership interests. also can be deducted from rent distributions.

387
Q

In civil case, when is evidence of past conduct admissible? Convictions?

A

To prove element of case. extrinsic evidence fine.

Impeachment: can ask about this on cross but no extrinsic evidence except convictions showing dishonesty.

388
Q

in criminal case, when is evidence of D’s bad character admissible? What type?

A

Only to refute good character args by D. Reputation and opinion ev only.

389
Q

In criminal cases, what type of ev of D’s good character can he introduce?

A

Reputation and opinion. To show character inconsistent w/ nature of crime. Not general truthfulness to bolster testimony.

390
Q

In criminal case, when can D admit ev of victim’s bad character?

A

Reputation or opinion ev if relevant to the defense.

391
Q

What can a witness’s prior inconsistent statement be used to prove?

A

Impeachment

Substantive point, since they’re testifying.

392
Q

Is judicial notice of a fact mandatory?

A

Yes, if party requests it.

393
Q

Can judge instruct jury to accept judicially-noticed fact as conclusive?

A

Yes in civil, no in criminal

394
Q

Can judge take judicial notice of facts in criminal case on appeal?

A

Not against the criminal

395
Q

Does a D who testifies on one issue waive the 5th on others?

A

Not if preliminary issue, like whether a confession was voluntary

396
Q

What witnesses are allowed to hear the testimony of other witnesses?

A

A party, or a person whose presence is essential to a party’s presentation of the case (e.g. cop in charge of the investigation), or a victim (unless court determines the victim’s testimony would be altered)

397
Q

How long do you need to be missing for there to be a presumption that you’re dead?

A

7 years

398
Q

What creates presumption that a letter has been received by recipient?

A

Sender places properly addressed and stamped envelope into mailbox

399
Q

When is the bubble of a presumption bursted?

A

After other party introduces sufficient evidence to conclude the opposite. Then presumption has no effect.

400
Q

When can prosecution introduce evidence that D is violent if D argues self-defense?

A

Only if D introduces evidence that victim was violent.

401
Q

What is standard for evidence being excluded under Rule 403?

A

Probative value substantially outweighed by prejudicial effect

402
Q

Can a testifying witness be impeached by cross-examining them about specific past acts?

A

Yes, if probative about what they’re testifying about.

403
Q

If a testifying witness denies a specific bad act during cross-examination, can extrinsic evidence be introduced to prove it?

A

No, except for convictions.

404
Q

Which types of criminal convictions can be admitted for impeachment? What is standard?

A

Those necessarily involving dishonesty or false statement w/in 10 yrs (no probative vs prejudice test)
Felonies w/in 10 yrs, if 403 balancing test met. If witness is D, stricter standard (probative value outweighs its prejudicial effect)
Any conviction >10yrs (probative value substantially outweighs prejudicial effect) AND written notice to other side

405
Q

When are juvenile convictions admissible for impeachment?

A

Never against D, or in civil case. Okay if in crim case, otherwise admissible, and admitting the ev is nec to fairly determine guilt or innocence.

406
Q

Must prior inconsistent statements used for impeachment be disclosed?

A

Not to witness, yes to party’s atty upon request

407
Q

Requirements for introducing a prior inconsistent statement to impeach a witness?

A

Witness must be given chance to explain or deny the statement, and other side gets to examine witness about it.
Unless statement is impeaching a hearsay declarant.

408
Q

Can you impeach a witness via specific past acts that are not convictions?

A

Yes, but must pass rule 403 balancing test. No extrinsic evidence

409
Q

Can you use extrinsic evidence to prove convictions when impeaching witnesses?

A

Yes

410
Q

Can a party introduce evidence that a confession was not voluntary after judge has decided to admit it?

A

Yes, to shape how much credibility the jury gives the evidence

411
Q

When can a prior inconsistent statement by a testifying witness be used to impeach the witness? When can it be used to prove the substantive claim?

A

Always. Only if made at formal proceeding.

412
Q

When can a prior statement by someone made at a formal proceeding be admitted?

A

Okay if they’re now testifying or if they’re unavailable.

413
Q

When are prior out of court identifications admissible?

A

The declarant must be testifying now. So not if declarant unavailable.

414
Q

Can witnesses introduce extrinsic ev (other witnesses) to testify about their truthfulness once it has been attacked?

A

Yes

415
Q

What evidence is considered self-authenticating?

A

Trade labels
Public records (signed and sealed/certified)
Business records (but must give other side notice and chance to inspect)
Newspaper

416
Q

When can compromise offers be admitted?

A

If no dispute as to their validity or amount.

417
Q

Test for commercial speech prohibition to be valid

A

If speech is truthful/informational, the reg must directly advance a substantial govt interest and be narrowly tailored (reasonable fit)

418
Q

when can state deny public employment based on group membership?

A

1) active member of subversive group
2) knowledge of group’s illegal activities
3) specific intent to further group’s illegal activities

419
Q

When can a state be sued in federal court?

A

1) injunctive relief
2) congress authorizes as per 14th am
3) P is US govt or a different state

420
Q

If police put undercover cop in prisoner’s cell to ask about the charged crime (i.e. post indictment), does that violate 6th am?

A

Yes. Standard: police intentionally create a situation likely to induce incriminating statements on the charged crime w/o assistance of counsel.
Wouldn’t cover if asked about a different crime, b/c 5th am doesn’t apply to undercover cop

421
Q

Gerstein hearing. When required? How quickly?

A

Preliminary hearing after arrest to determine if probable cause. not needed if judicial or grand jury determination of prob cause already. unreasonable delay if >48 hours.

422
Q

Right to counsel at a Gerstein hearing?

A

No

423
Q

Can a co-defendant’s admission be admitted against the D at a joint trial?

A

Yes, if co-defendant is testifying. No otherwise (unless bench trial). Harmless error analysis. Can either edit the confession or D can demand a separate trial

424
Q

When can a fed trial have less than 12 members?

A

Must be waived in writing and approved by the court

11 is fine is one juror is excused for good cause after deliberations begin

425
Q

What happens if judge erroneously denies D’s preemptory challenge?

A

Ok if fed court, i.e. doesn’t violate constitution.

States can choose whether automatic reversal or harmless error analysis.

426
Q

Does D have a right to a bench trial if waives jury trial right?

A

No

427
Q

Can information learned from an illegal wiretap be presented to a grand jury?

A

No, by federal statute

428
Q

Can bail be set higher than amount necessary to secure D’s presence at trial?

A

No, under 8th am and due process

429
Q

Consequence for not having preliminary hearing to determine if probable cause on arrest?

A

Nothing, except evidence obtained as result of unlawful detention excluded.

430
Q

Can D waive fed right to grand jury indictment?

A

Yes

431
Q

can threat to destroy property constitute robbery?

A

no unless threat is about the victim’s house.

432
Q

Pinkerton Rule

A

every co-conspirator is guilty of any foreseeable substantive offense committed in furtherance of the conspiracy

433
Q

Accessory before the fact vs a principal in the second degree

A

Principal in the second degree: physically or constructively present during commission of crime (getaway driver)
Accessory before the fact: assistance before commission.

434
Q

When can mortgagee sue borrower for outstanding balance of loan after a foreclosure?

A

Generally they can, but same states disallow if privately-supervised foreclosure sale or if purchase money mortgage

435
Q

can lender purchase title at a privately run foreclosure sale?

A

not if mortgage, yes if deed of trust

436
Q

When can mortgagor waive equity of redemption?

A

Only if waiver had consideration (courts don’t like to clog the equity)

437
Q

when is a right of first refusal to buy property valid?

A

1) complies with SOF, 2) complies with RAP (if individual right then probably ok), 3) its terms are reasonable.

438
Q

what does an anti-ademption statute do?

A

gives the intended recipient of the property that’s no longer in the estate the proceedsd from the sale of that estate

439
Q

When is a covenant terminated?

A
  • the parties abandon it (some affirmative conduct, not just statements of intent or nonuse)
  • merger of estates
  • estoppel
  • release (written to satisfy SOF)
440
Q

Is tenant liable for guest’s injuries on property if there’s a sublease?

A

Yes, both tenant and sub-tenant can be liable. About who has control over it (doesn’t make that much sense)

441
Q

Is there a detrimental reliance exception to SOF?

A

yes

442
Q

Limits on depositions you get to ask?

A

Default: P’s, D’s, and third-party D’s (each as a group) get 10, by oral or written examination. Can do more w/ consent or if court okays

443
Q

Standard to do TRO hearing without notice to other party

A

Atty must certify in writing harm from giving notice / efforts to give notice

444
Q

Deadline for amending a pleading you have filed? (as of right)

A

If no responsive pleading required, you have 21 days after filing
If responsive pleading required, you have 21 days after they filed the responsive pleading/motion to dismiss

445
Q

When can a D implead a third party? Does D need court’s permission?

A

Anytime after the complaint filed. Doesn’t need court’s permission if filed w/in 14 days after serving his answer to P’s complaint.

446
Q

Does service establish PJ if D passing through the state for a summons in an unrelated case?

A

No

447
Q

How do you challenge service of process?

A

Like PJ or venue, must be in first response

448
Q

Who may serve process in fed court?

A

Any non-party over 18 years old

449
Q

Is there diversity jurisdiction if amount exactly $75k?

A

No

450
Q

Is a motion from a party required for a court to order a new trial? Requirements for the order.

A

Yes. Court must specify reasons in the order.

451
Q

Forum non conveniens?

A

Switching courts when venue and PJ requirements are met.

452
Q

Deadline to file notice of removal proceedings?

A

30 days from initial pleadings or summons

453
Q

Who must answer be served to?

A

P’s atty w/in 21 days, and then filed with the court clerk w/in a reasonable time after service

454
Q

Deadline for pre-trial disclosures?

A

30 days before trial

455
Q

When can a federal trial be decided by a non-unanimous jury?

A

If parties stipulate.

456
Q

when can you sue a state / state officials for money damages?

A

Fine if in another state’s court. If in its own or fed court, only if:

  • officials would be personally liable
  • fed govt is plaintiff
  • congress authorizes to enforce 14th am
  • the state consents
  • doesn’t apply to localities
457
Q

Deadline for expert witness disclosures? Remedy for failures?

A

90 days before start of trial. No problem if harmless.

458
Q

Citizenship of a guardian for diversity purposes?

A

The minor/incompetent, not the guardian.

459
Q

Can a P remove to federal court based on a counter-claim that meets amt in controversy?

A

No, only D can remove.

460
Q

Can a fed court decline to exercise supplemental jurisdiction?

A

Yes

461
Q

Where is citizenship of an insurer?

A

Wherever it is incorporated + principal place of business + citizenship of its insured (rationale: otherwise could sue insurer if couldn’t reach insured)

462
Q

How long to serve motion and notice before a hearing? When is response due?

A

14 days. 7 days.

463
Q

How many extra days to respond if service or notice is electronic or unconventional?

A

3 days

464
Q

How long to file an answer after a court denies a 12b6 motion?

A

2 weeks

465
Q

Deadline to request a jury trial?

A

2 weeks after last responsive pleading on the issue that would go before the jury

466
Q

Rules for when adding a new party in an amended pleading gets the initial filing date for SOL purposes?

A

1) same transaction as original; 2) new party got notice w/in 120 days of filing of original complaint, and 3) new party knew the action should have been brought against them

467
Q

Serving a complaint on a fed official sued personally

A

Must serve the US (letter to AG) + the officer individually under normal individual rules

468
Q

When is there federal question jurisdiction if the cause of action was created under state law?

A

An element in the cause of action must involve a real and substantive issue of federal law, and its determination must necessarily depend on the resolution of the federal issue.

469
Q

Deadline for filing a motion to strike part of a pleading?

A

Before you respond or 21 days if no response required.

470
Q

Jurisdiction requirements under interpleader statute?

A

At least 2 claimants must be citizens of different states.

471
Q

When the United States is a defendant in a civil action, service must be made on the U.S.

A

Attorney General as well as the U.S. attorney for the district in which the action has been filed.

472
Q

notice requirements when D is a fed agency or employee (in official capacity)?

A

notify as if suit against US govt + also the agency/employee

473
Q

can husband and wife be conspirators at common law?

A

No

474
Q

Does victim have to know about the intended battery for it to count as assault?

A

No (e.g. soliciting someone to commit battery).

475
Q

When does SOF 1 year countdown begin?

A

The day after the contract is agreed to. Must be complete w/in 1 year of that.

476
Q

Deadline for filing motion for relief from judgment (rule 60)

A

within a reasonable time and no later than one year following the entry of the judgment.

477
Q

Is physical evidence required from a voluntary but 5th amendment violating statement admissible?

A

Yes

478
Q

When is a holdover tenant subject to a higher rent amount?

A

if the landlord gave notice before old lease ended and the increase is reasonable.

479
Q

are due on encumbrance clauses enforceable?

A

yes

480
Q

Is it a breaking if the D gets into house with consent and then opens locked door in the house?

A

Yes

481
Q

When is consideration of mitigating factors required at sentencing?

A

Only in death penalty cases

482
Q

When is a voluntary dismissal with prejudice?

A

If P has previously dismissed a prior action based on the same claim (in state or fed court).
-P can only dismiss before D files an answer or motion for summary judgment (unless all parties consent)

483
Q

Conditions for attractive nuisance

A

1) artificial condition in place owner knows kids are likely to trespass
2) owner knows serious risk of bodily injury to the kids
3) children can’t appreciate the danger because of their youth.
Then reasonability standard.

484
Q

Who can enforce an equitable easement?

A

Only the successors in interest to the original deed (e.g. not neighbors)

485
Q

Rape shield law in criminal cases

A

Sexual conduct of a victim isn’t admissible in civil or criminal sexual misconduct cases

  • applies to impeachment and substantive purposes
  • exceptions: criminal cases to prove D not source of semen/injury or to prove consent (must be specific conduct NOT reputation/opinion evidence to get the exception).
  • also to protect D’s constitutional rights
486
Q

Rape shield law in civil cases

A

Sexual conduct of a victim isn’t admissible in civil or criminal sexual misconduct cases (i.e. objecting party is sexual misconduct victim. Harassment:yes, defamation:no)
-applies to impeachment and substantive purposes
Exception: probative value substantially outweighs prejudice
-reputation evidence admissible only when placed in controversy by victim

487
Q

Requirements to file motion for judgment as a matter of law after jury verdict

A

Filed before evidence submitted to the jury (i.e. renewing it now) and w/in 28 days of judgment.

488
Q

Standard for ordering a new trial based on new evidence (civil)

A

(discretionary).
Prejudicial conduct of counsel, party, judge, or juror.
Newly discovered ev that existed at time of trial but was excusably overlooked and likely would have altered outcome
Verdict against clear weight of the evidence
Verdict based on false ev s.t. new trial nec to prevent injustice
Excessive/inadequate damages in the verdict.

489
Q

Deadline for filing motion for new trial

A

28 days after judgment

490
Q

Deadline to appeal a judgment? What if discretionary interloc appeal?

A

30 days from entry of judgment. Interloc: 10 days

491
Q

If D’s pre-answer motion is denied, how long does D have to file an answer?

A

14 days from receiving notice of the court’s decision.

492
Q

rules for appealing class cert decisions? deadline to file?

A

discretion of appellate court, must be w/in 14 days.

493
Q

how many interrogatories is a party allowed?

A

25 (and can only be served on a party)

494
Q

Is employer liable for employee’s intentional torts?

A

Yes if w/in scope of employment (e.g. bouncer). Not if personal grudge.

mbe (4 decks)

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