MBE

Question 1

1. Aerial Suvllience of your home (highest expectation of privacy) can be conducted, but only by eyes or equipment accessed by the general public. But if it’s a business site, high tech is allowed. And no protection over an open field.
2. Spending power -Congress giving money to state : is a condition attached reasonable related to legitimate federal interests?
3. 3rd beneficiary vest: 1. learn and agree, 2. learn and rely on 3. learn and sue.
4. Original evidence must be produced to prove material content, unless destroyed or unfound. Unless duplicate
5. Miranda is not offense specific, if you agree to talk, you can be asked on anything, and if you decline to talk, the police can not ask about any offense.
6. Content-based discrimination is presumedly unconstitutional.
7. The damage of conversion is the fair market value of chattel at the time of conversion, for trespass chattel, the damage is the cost to repair.
8. Important government function exception -> only needs rational basis but not ss in any case.
9. If the buyer accept non-conforming goods, the damage is difference between value of accepted goods and contracted goods, plus incidental damages., if reject the goods, then difference between the contract price and the cost of buying conforming goods.
10. Default judgement: Judge enter the judgement to determine the damage, if the defendant appear in the proceeding, they deserve a notification. Clerk can only enter when damage is certain.

Answer 1

11. Contract clause only applies to state laws, needs important governmental interests, and narrowly tailored
12. State action: only the government is significantly involved in the deprivation of liberty. Giving the land is not enough.
13. For Surety agreement, if the main purpose is to benefit the party which ensures, then no writing is required.
14. Motion for summary judgement can be filed anytime until 30 days after the close of discovery.
15. When the buyer of land agree to a mortgage, he is personally liable to the mortgage and severed and jointly liable with the original borrower. Usually, if he has not assumed or silent, he is not personal liable.
16. Cannot claim 3rd party claim unless trying claim indemnify or seeking contribution (cannot be denying liability)
17. Nonhearsay LESA: legally operative facts, Effect on listener (the example of radio question notifying), State of mind, admission.
18. Third party defendant may assert against the plaintiff if the claim is from same transaction or occurrence, the original defendant must.
19. Restrictive covenant -> binds if have notice (common development scheme counts as notice)
20. Voluntary intoxication is not defense to general intent crime.
21. Aware is not knowingly

Question 2

22. Judicial notice:criminal - burden of producing evidence on the fact judicially noticed is satisfied. Jury doesn’t have to take this as conclusive. Civil - CONCLUSIVELY established.
23. Buyer of real estate bears the risk of loss during the escrow period, he should have buy the insurance.
24. Character evidence is inadmissible in civil case, unless defamation case, civil fraud, for honesty at issue, negligent entrustment case, child custody case, self-defense claim on torious assault and battery. Habit evidence is different story
25. Present recollection refreshed - anything can be used to refresh recollection. -> if can’t remember, use past recollection recorded.
26. last bona fides mortgagor’s interests stay on the land in notice jurisidiction and after the foreclosure, the remaining money goes to the borrower.
27. Private figure - negligence, Public figure - Malice
28. Jury of Six, the verdict must be unanimous.
29. Junior mortgagor can exercise of redemption before foreclosure, basically buys the mortgagor from the senior mortgagor. (statutory right of redemption is after the foreclosure)
30. “I am going to….” -> state of mind exception of hearsay rule.

Answer 2

31. ACCORD - new agreement, suspend the original agreement, if obligation fails, can sue for original agreement or the new obligation.
32. Withdraw is not defense to conspiracy, but can be for subsequent crime (affirmative acts+timely notification)
33. Venue motion can only be filed in pre-answer motion.
34. A profit appurtenant benefit the dominant estate, can only be transferred with Dominant estate. profit in gross can be transferred independently, subject to just compensation
35. Stricit liability for wild animals includes liability for harm that results when a person flee.
36. Press has the right to publish the information a matter of public concern, it can only restricted by narrowly tailored, even for illegally obtained information in the first instance.
37. When RAP is violated, the part that violated RAP in the conyeance is void.
38. When having a arrest warrant, they can’t used to search the house - even if the evidence is placed in plain view.
39. Commerce clause -> for interstate commerce only rational basis is required, for noneconomic or noncommercial intrastate activity -> needs substantial economic effect on interstate commerce.
40. Intentional tort does not need to prove damages -> unconsent offensive touching is battery in medical cases.

Question 3

41. Motion to dismiss on personal jurisdiction may be asserted in the first response.
42. Claim amendment relate back: 1. Same transaction 2. if new party knew the case within 90 days of filing. 3. The defendant knew or should have known.
43. “Would you….” -> inquiry, is not a counter offer therefore not terminting the original offer.
44. Prior identification is admissible but the witness must be subject to cross
45. subject to the mortgage -> not personal liable, assumed the mortgage -> personal liable.
46. If invitee go beyond the area he is allowed to be in, their status is reduced to anticipated trespasser.
47. Double jeopardy attaches when conviction, acquittal, misconduct from prosecution side. For Jury trial - when first jury in panel. For bench trail - when first witness sworn in.
48. Grautituous assignment is usually revokable, for value is not (acceptance can be counted as revocation)
49. Federal court cannot give advisory opinion
50. Remitter: accept lesser amount or new trial.

Answer 3

51. The damage is presumed in emotional distress case when: mishandle of corpse or false death report.
52. President can not pardon state offender
53. In Real Estate transaction -> if the buyer died before closing, and his son has interests on his land, his daughter has all personal property, the son can still go through the sale and even compel his sister to pay.
54. Marital communication privilege - communication during marriage, survives dirvoce, apply to both criminal and civil proceeding, both spouse holds the privilege.
55. Spousal privilege - all communication,impression, observation both during and before the marriage, but the spouse can testify if he wants. And terminated upon divorce, and only apply to criminal proceeding.
56. If the defendant waives process, if can not raise PJ problem.
57. we cannot remove if either of these two
    exceptions applies:
    • No removal if any D is a citizen of the forum (instate
    D rule) AND
    • No removal more than one year after the case
    was filed in state court.
58. 6th amendment right is crime specific. Incriminating statement to a police agent does not violate 5th amendment right.
59. Habit can be establish by specific conduct. Watch for the words: haitutally, always
60. Motion for judgement as a matter of law can only be filed before the case submits to the jury.

Question 4

61. For public and designated forum -> 1. needs content neutral and narrowly tailored to serve important interests
62. Outrage and extreme conduct -> intentional infliction of ED, incidental -> negligent infliction.
63. For commercial speech, the standard is narrowly tailored to serve a substantial government interests
64. Without discrimtoary intent, discrimtoary effect alone is not sufficient.
65. Options and rights of first refusal are not subject to the Rule Against Perpetuities when connected to leaseholds.
66. In defamation case, actual injury encompasses not only damage to reputation but also humiliation and mental distress, for which the man could recover even if his reputation was not damaged.
67. One of the prerequisites for specific performance is that all of the plaintiff’s contractual conditions have been fulfilled. This includes the fulfillment of all conditions precedent and a readiness to perform any conditions concurrent.
68. when charged with felony robber and victim dies after trial begun, the prosecution can add the claim in the first trial but cannot sued again for felony murder again once the first trial has been decided。
69. the physician-patient privilege does not apply to any proceeding in which the condition of the patient has been put in issue by the patient. This is the case in the plaintiff’s suit
70. The search is valid even when police reasonably believed that the one who gives consent lives there, even if he does not.
71. each patron of the tavern had an individual right to be free of unreasonable searches, and presence at a location subject to search does not negate the requirement of probable cause to search the person present

Answer 4

71. Persons temporarily detained for routine traffic stops are not in custody for Miranda purposes. Therefore, the driver was not entitled to Miranda warnings, and her statement about the marijuana was not tainted. Her statement thus properly provided the probable cause for the search of her purse..
72. testify that he had told the plaintiff not to use -> non hearsay -> to show effects
73. where the statement was made under penalty of perjury at a prior proceeding, including a grand jury proceeding, it is admissible nonhearsay (i.e., it may be considered as substantive proof of the facts stated)
74. Affidavits that summarize the findings of forensic analysis and have the effect of accusing the defendant of criminal conduct are testimonial in nature and are not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross-examine.
75. the testimony of a witness who is unavailable, given at another hearing, is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examination at the prior hearing was meaningful. （if party is different, then they had no oppunirty to cross last time）
76. Dying declaration needs actual firsthand knowledge that accused did something.
77. The statement against interest exception to the hearsay rule requires that the declarant be unavailable as a witness.
78. Federal Rule 409 excludes offers to pay medical expenses, but not statements made in connection with such offers.
79. To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the identifying witness is familiar with the scene or object that is depicted.
80. Modern courts recognize that impracticability due to excessive and unreasonable difficulty or expense is a defense to breach of contract for nonperformance. Since the cost to the builder to perform under the original contract would exceed more than double what he would be paid, he likely would be excused from performance by commercial impracticability.

Question 5

81. Intoxication can be used as defense to avoid specific intent crime, for example, murder.
82. A public employee who is subject to removal only for “cause” has a property interest in her job and generally must be given notice of the charges against her that are to be the basis for her job termination, and a pre-termination opportunity to respond to those charges.
83. Where the seller is a merchant, the risk of loss does not pass to the buyer until the buyer takes physical possession of the goods.
84. The Federal Interpleader Act provides special rules for dealing with subject matter jurisdiction, personal jurisdiction, and venue. Under the act, interpleader can be brought if any two claimants are citizens of different states and the amount in controversy is $500 or more. Complete diversity is not required.
85. As a common carrier, the owner owes his passenger, the passenger, a very high degree of care; i.e., he will be liable for slight negligence. However, because his duty to provide a safe taxicab is not delegable, the fact that he was careful in selecting the mechanic is irrelevant.
86. for catch-all exception of hearsay, an elaborate pretrial notice procedure must be followed to assure that the other party has an opportunity to prepare to meet the hearsay evidence.
87. For negligent misrepresentation, the party made mispresentation must a party involved in business transaction.
88. If a deed is given for security purposes rather than as an outright transfer of the property, it will be treated as an “equitable” mortgage and the creditor will be required to foreclose it by judicial action like any other mortgage. In determining whether an absolute deed is really a mortgage, the court considers the following factors: (i) the existence of a debt or promise of payment by the deed’s grantor; (ii) the grantee’s promise to return the land if the debt is paid; (iii) the fact that the amount advanced to the grantor/debtor was much lower than the value of the property; (iv) the degree of the grantor’s financial distress; and (v) the parties’ prior negotiations. -> may sell only after foreclosing.
89. Although here the profit is nonexclusive, it is nevertheless an interest in property for which the company is entitled to compensation in any condemnation proceeding.
90. the parolee has a diminished expectation of privacy and the government has a heightened need for searching parolees; thus the warantless search is reasonable in a constitutional sense.

Answer 5

91. Regulation of foreign commerce is exclusively a federal power because of the need for the federal government to speak with one voice when regulating commercial relations with foreign governments.
92. A defendant may be found guilty of conspiracy even if the defendant’s co-conspirator are not convicted or even charged.
93. Liquidated damage - usually 10% of sales price, and if only gives one party a choice of possible remedies while not providing an pre-determined remedy for the other party - then Unenforceable.
94. If a person makes a false representation but believes that staff she took was hers, there will be no false presence
95. In service contract, time is not essence unless “time is essence” has been inserted to the contract.
96. For tortious interference claims against the delivery service, needs existing contract relationship between plaintiff and third party. Defedent knew of the relationship and intentionally interfered.
97. Public records exception of hearsay can also be “person proving he did not find certain records”.
98. It’s impermissible to have life without parole apply to a minor offender.
99. MPC conspiracy - requires only one party have genuine criminal intent. For example, if he conspires with one person that is an undercover law enforcement agent.
100. Contract rescinded on ground of supervening impossibility, can obtain restitution of any benefit conferred to the other party.
101. When an installment under a contract is non-conforming, the buyer must accept that installment if the seller gives adequate assurance of the defect’s cure, unless the non-conformity substantially impairs the value of the installment and cannot be cured.
102. If a plaintiff knowingly, voluntarily, and unreasonably subject himself to the danger, this will be a defense to Strict liability.
103. If a school search is conducted based on police’s requests, the search warrant will still be required.
104. Encouragement counts when considering accomplice.

Question 6

105. easement by necessity happens: common ownership -> servence.
106. In case of death of seller, At the closing the property must be conveyed to the buyer, after which the proceeds from the sale will pass to the taker of the seller’s personal property
107. DoG sniffing briefcase is not hearsay.
108. Dismiss of indictment is not a remedy to violation of 4th amendment
109. Auctionners are not subject to strict liability since they are not “seller”.
110. A corporation has no 5th amendment right. And producing documents does not violate 5th amendment rights.
111. Due process does not apply to legislative action. Ex posto only apply to criminal and penal measurement.
112. Violation of the zoning law render title unmarketable.
113. The business record exception at least require the record to be related to the nature of the business. merely filing a report after an accident during the business is not enough.
114. Joint tenant with right of survivorship is not served by the creation of a will.
115. Supreme Court can govern the dispute between two states.
116. Transfer intent can only be used on completed crimes but not attempted crimes.
117. For public proceeding defamation, the plaintiff needs to show actual malice.
118. Defamation of criminal activity is defamation per see -> no need to prove loss.
119. FRE allows the police officer testifying to refresh his collection using the report prepared by the other officer.
120. Officially sponsored prayers as part of public high school commencement ceremonies violate the Establishment Clause.
121. Insurance policy can be evidence used to show motive
122. Due process clause does not apply to legislative acts, Bill of attainder does.
123. The response made to a question by the treating physician and was made to explain how injuries occur is admissible. -> but usually not without accusition.
124. The oral condition agreed may be admissible as an exception of Parol evidence rule.
125. Monitoring of admin agency requires congress to use legislative action.
126. The present impression needs to explain an event or condition.
127. Common interests community -> Whether it is reasonably related to furthering a legitimate purpose of the association.
128. For entrapment defense, the prior related convictions can be properly introduced to rebuttal.
129. Specific Performance is generally not a remedy for personal services contract.
130. Offer to comprise -> statement leading to the comprise is not admissible.
131. There is no “taking” if the land can still be used to do other economical activity (If statute forbids mining, can still farm -> no taking).
132. Cannot have discretionary governmental power to be delegated to or shared with religious institutions. (violation of 1st and 14th).
133. If bank loan buyer money to purchase home and the loan is executed at the same time as the deed to the land, is a purchase-money mortgage, which takes precedence over all other lien that attaches.
134. Conveyance of land does not need cited consideration to be valid (if there is consideration on the instrument and conveyed, later consideration is not paid, deed still valid).
135. Damage is not necessary to prove trespass.
136. Consequential damage must be foreseeable at the time
137. Anti-assignment clause UCC -> Can still assign, and treated as breach of contract.
138. attempted crime needs specific intent to commit….
139. Absolute restraining on alienation is void even if there is a time limit.
140. Commany letterhead can be treated as signature. If acknowledgment no quantity ->not enforceable.
141. In employment contract, there is not required to accept inferior job to mitigate damage, and the damage seek will be a contracted salary.

Answer 6

113. The landlord only needs to provide a legal right to possession but not actual possession.
114. Larceny happens if the intent of keeping raised after the taking.
115. Good character evidence cannot be a specific instance of conduct.
116. adding arbitration clause is not a materially changed counteroffer.
117. admission of non-testimonial evidence without witness present at trial will not violate the confrontation clause.
118. When a witness has personal knowledge that is not reliant on the contents of the writing, recording, photograph, he may testify based on such firsthand knowledge and the best evidence rule will not apply.
119. At common law, no felony murder based on assault. For felony murder, look at the previous charges at trial, if acquitted, then can’t be tried again.
120. Equitable right of redemption exist before forclosure. Statutory right of redemption may be offered after foreclosure.
121. The solicitation will merge into conspiracy
122. Precautionary measures made following an injury can be admissible to rebut the claim that the precaution was not feasible (or too expensive)
123. Contributory negligence is not a defense to battery.
124. Lien priority can be affected by the modification of the mortgage. Where there is both a senior mortgage and a junior mortgage, modifications to the senior mortgage that are detrimental to the junior mortgage, such as raising the interest rate or the principal amount, thus making it more burdensome, will give the junior mortgage priority.
125. Double jeopardy does not apply to trials by separate sovereignty. And D cannot offer his good character by a specific instance of conduct unless the character is an essential element of the crime.
126. Contract recession does not require to be in writing. Modification of land contract does.
127. Non-delegate duty impose liability for hiring an independent contractor, who is negligent.
128. Gender neural legislation needed to only satisfy mere rational review (when there is only gender-specific effect)
129. No punitive damage for negligence.
130. Due on sale -> sale without consent ->accerlate
131. Easement by prescription does not need exclusivity.
132. For attempted rape but not statutory rape -> specific intent is still required.
133. For firm offer, it cannot exceed three months, seller can revoke after 3 months, but if buyer accepts before revoking, still enforceable.
134. Conveyance to a dead man is void.
135. Owner of commercial property in highly regulated industry are subject to lower expectation of privacy -> statute of warrantless search is constitutional.
136. Express condition ->good faith, even if substantially performed -> not enough.
137. The forced inclusion of an unwanted person in a group violates the group’s freedom of association if including that person would significantly affect the group’s ability to express its viewpoint.
138. An unmarketable title does not mean it cannot be conveyed. v. selling the land.
139. No expectation of privacy in bank records.
140. A congressional veto regarding federal agency’s action requires not only a majority vote by both house of congress, also must be presented to president to exercise his veto power.
141. Learned treatise, only expert of it can be read into evidence, not entire of it.
142. Service provider not subject to strict liability.
143. Can no long sue for title issue in the contract once deed has been delivered and accepted because of mergering.
144. A legal act cannot have its intent transferred, e.g. shooting animal but hit people, no intent for battery.
145. Demand jury trial -> 14 days runs from the defendant files answer.
146. Prior testimony does not requires same party
147. Two Illegally racing -> Act in concert in a dangerous activity.
148. The assignment of contractual rights, such as the right to be paid, are effective even if the contract prohibits it, unless it states the assignments are void or if the assignee had notice of the assignment.

Question 7

Civ More:

1. A court gains personal jurisdiction over a person who is served with process within the court’s jurisdiction, regardless of whether the person lives within the jurisdiction or is just visiting. But if from fraud, force or mispresentation, he is not subject to personal jurisdiction there.
2. If the company is on the brink of insolvency, a court will likely find the defendant’s burden in defending in particular State
3. The only question is whether the confinement of a person is in violation of his or her constitutional rights under the Fifth , Eighth , or Fourteenth Amendments to the U . S . Constitution for writ of hebeas corpus, but not 4th amendment.
4. In an action based on federal question jurisdiction, the action is removable without regard to the citizenship or residence of the parties. However, all defendants must consent or join in removal for removal to be proper. (all defendant must served within 30 days of the first defendant being served must join in an existing removal action or file their own)

5. 28 U.S.C. Sec. 1 332 creates original jurisdiction in federal courts for class action lawsuits in which the
aggregate amount in controversy exceeds $5,000,,000.

6. The Erie Doctrine applies when the federal court has subject-matter jurisdiction over a case based on
   diversity jurisdiction and a state law conflicts with a federal rule, statute, doctrine, or procedure. Generally,
   the federal court must use state substantive law and federal procedural rules.
7. If the federal court is uncertain about the state law to be followed, or if the law is unclear or unsettled, the
   court may: ( 1 ) abstain from hearing the state law claim; (2) if state law allows, certify the question to the
   state courts and obtain a ruling on the issue; or (3) try to predict how the state courts would rule on the
   issue, using all available and relevant resources. Importantly, federal circuit courts of appeal do not give
   deference to district courts’ interpretations of unsettled state law, but review those decisions de novo.
8. Federal courts have original jurisdiction over admiralty or maritime cases.
9. If the court determines that excluding a third party will only impair but not prejudice the original party, then they are not considered indispensable parties and the court need not dismiss the foreign-born employees’ suit.
10. Statute limitation and rules for tolling are substantive under Erie. Motion for new trail based on excessiveness of the verdict is also substantive under Erie.
11. Rule 11 action does not apply to disclosures and discovery requests, responses, objections, and motions.
12. Members of a class, other than the representative, do not necessarily know that the suit has been commenced.
13. Potential defendant who might be jointly and severally liable is not a necessary party for purposes of the federal rules.
14. For inconsistent jury verdict: must not enter, direct the jury to further consider its answers and verdict, or must order a new trial
15. A plaintiff may file a notice of dismissal without leave of the court if the defendant has not yet filed an answer or a motion for summary judgment. The dismissal will be without prejudice unless the plaintiff has previously dismissed any federal or state court action on the same claim. If two in a row -> adjudication and barred.
16. Treaty is federal question jurisdiction.
17. Implead -> want third party to answer the original complaint. -> derivately liable -> cannot claim plaintiff sued the wrong defendant.
18. Permissive Counterclaim needs to meet the requirement of diversity of $75000+. -> no supplemental jurisdiction because not same transaction or occurrence.

Answer 7

13. A court has personal jurisdiction over a defendant if she is present in the forum state when personally served with process.
14. Federal claim + State claim (Supplemental) -> If Federal claim is dismissed, then unless there is good basis for keep supplemental jurisdiction, the court should remand to state court.
15. Defendant need to be served with both a summons and a complaint. -> motion to dismiss for insufficient process.
16. Attorney fee -> not within attorney client privilege.
17. Pleading phase(motion for judgement on the pleading) -> after discovery (Summary judgement) -> during trial (JMOL)
18. New argument on pure matter of law may be considered on appeal, even if not properly presented in the trial court before, at court’s discretion.
19. Compensatory damage is substantive, but additur is not available in federal court, only remitter is.
20. choice of law of real property issue follows where the location of the property is.
21. Punitive Damage appeal is reviewed De Novo.
22. 7TH Amendment needs: 1. Legal in nature and 2. Asserted against the type of defendant that was suable at common law in 1791.
23. For Erie Analysis, if only federal question jurisdiction is invoked, apply federal law.
24. No physician-patient privilege in Federal court.
25. Preclusive effect of a federal court’s judgment in a diversity case is determined by federal common law. File in Federal court ->dismissed -> file in different jurisdiction, preclude?
26. State law remedies is available to federal court case under federal question jurisdiction.
27. Clear erroneous -> fact-finding;abuse of discretion -> deciding evidentiary or discovery ruling; question of law -> de novo.
28. FRC governs over conflicting state rules unless …..
29. Claim preclusion: The second state court must apply federal common law to determine how and whether it is bound by the prior diversity judgement -> dismissal has whatever effect on later action in other courts as such a dismissal would have if had been issued by the state where the federal diversity court sat. If the judgment of state court comes first, apply state law.
30. Dismissal not adjudication on the merits when:1. for lack of jurisdiction 2. for improper venue, 3. for failure to join party under 19. 4. To be without prejudice.
31. Rule Renew JMOL then have to conditionally rule on the motion for a new trial.
32. Due process allows the state to impose the burden on the defendant to prove self-defense by a preponderance of the evidence.
33. a court may consider a plain error in the instructions that was not preserved by proper objection if the error affects substantial rights.
34. Extension of 30 days TRO is equal to a preliminary injection.
35. Joint representation -> no attorney-client privilege.
36. Must begin with at least 6-12 juror, if depleted beyond its available alternates, the parties may still agree to accept a verdict.
37. If failed to supplement known information -> then cannot use it to oppose a summary judgement.
38. For transfer, if the case is brought in an improper venue, then court should either dismiss the case or to a venue that the case could have been bought.
39. TRO-> Notice not needed if immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard.

Preliminary injunction -> Only upon notice of the adverse party