MBE Final Review Flashcards
What is Larceny?
- Unlawful taking of property;
- in someone else’s possession;
- with intent to steal (permanently deprive)
What is Embezzlement?
- Unlawful conversion of property
- In your lawful possession;
- with intent to steal (permanently deprive)
Theft by False Pretenses
- Obtaining TITLE to property
- owned by someone else
- via fraud (false rep of past or present material fact)
* title = legal ownership (implies possession)*
Larceny by Trick
- Obtaining POSSESSION (but not title)
- via fraud (false rep of past/present material fact)
- with intent to steal (permanently deprive)
* possession = full dominion and control, but NOT title*
What is the Rule in Dumpor’s Case?
A condition against assignment is “entire and indivisible,” and having once been waived, cannot be enforced again.
Exception: If the landlord expressly states that the waiver is “this time only,” etc.
When are leading questions allowed?
- Cross Examination
- Hostile/Adverse witnesses
- Children
- Refreshing Witness
- Prelininary Matters
When is Character Evidence admissibile in Civil Cases?
When “character is in issue”
- Defamation: Regarding the Plaintiff
- Child Custody: Regarding Parents
- Negligent Entrustment: The Entrustee
- Negligent Hiring: The Employee
Rights of a grantee who “assumes” v. “takes subject to” a mortgage.
Assumes = personally liable
Subject to = NOT personally liable
Types of Deeds:
Quitclaim
Special Warranty
General Warranty
Quitclaim = You get what the grantor has (may be nothing!)
Special Warranty Deed = Guaranteed title free of defects from the grantor
General Warranty Deed = Guaranteed title free of defects created by grantor AND all prior title holders
What are the six covenants of title?
3 Present (Do NOT run with land)
- Covenant of Seisin
- Covenant of Right to Convey
- Covenant Against Encumbrances
3 Future (DO Run with land)
- Quiet Enjoyment
- General Warranty
- Further Assurances
SCEEWF
Modification of Contracts
UCC: Only “good faith” required!
Common Law: Requires new consideration b/c of “Pre-Existing Duty” Rule
What is required to challenge a facially neutral statute as discriminatory?
In order to elevate the burden of persuasion above RB, P must show:
- Discriminatory Effect; and
- Discriminatory Purpose
Right to Counsel at ID Proceedings
Photo Arrays: NO right to counsel at either pre- or post-charge arrays.
Lineups & Showups: Right to counsel at post-charge ONLY.
How to challenge ID proceedings via Due Process
Identification Must;
- Be Unneccessarily Suggestive; and
- Create a substantial likelihood of misidentification
If successful, ID will be kept out unless an independent source exists.
Tort Intervening Forces
- Initial Negigent Act
- Intervening Force
Is the intervening force foreseeable?
YES: D remains liable
NO: D not liable b/c superseding
When is a title obtained by Adverse Possession marketable?
Must obtain a judicial decree. A title obtained by adverse possession without decree will be conveyed with a lawsuit.
Best Evidence Rule- FRE 1002
Applies whenever “contents are in issue”:
1) Where the testimony is reliant on the writing, not on personal knowledge,
or
2) Where the writing has independent significance
Then it’s better to have the writing as opposed to testimony about the writing…
What is Private Nuisance?
A substantial and unreasonable interference with P’s use and enjoyment of his property.
Trade Fixture
Chattel annexed to land by a “tenant” for pecuniary gain
Can be removed before lease expires
What is a “Taking?”
A regulation that denies the owner ALL reasonable economically viable use of his land.
“Inverse Condemnation” is a suit by a owner against gov’t asserting that a Taking has occurred.
“Public Use” Requirement for Takings
Burden on the government to show the measure is rationally related to any conceivable purpose
To qualify as a “public purpose” the property does not have to be held out for use by the general public
Statutory Right of Redemption
The mortagor’s right to pay off the debt during a defined statutory period AFTER a foreclosure sale.
Parol Evidence Rule
Once parties have reduced their agreement to a writing, evidence of any prior oral or written or contemporaneous oral agreements is inadmissible to alter, vary, or contradict the terms of the writing.
Contract Reformation
Requires an antecedent valid agreement that is incorrectly reflected in the writing.
This must be established by C&C evidence.
Contracts Clause Article 1, Section 10
Prevents the states from retroactively impairing the obligation of an existing public or private contract.
Insanity
Burden of Production / Persuasion
Production: D must first present “some evidence” of insanity at the time of the offense.
Persuasion:
- Fed Courts: D must prove by C&C evidence
- State Courts: Split;
- MPC = D prove by preponderance of evidence
- Common Law = P must prove sanity beyond reasonable doubt
- NC = D must prove insanity “to satisfaction of jury”
Voluntary Manslaughter
An intentional killing! This is mitigated murder.
- Adequate provocation (objective standard); or
- Justification (i.e. imperfect defense)
Confrontation Clause in Criminal Cases
Requires that where declarant is unavailable:
“Testimonial” evidence will be admissible only if D is given an opportunity to cross-examine the declarant.
What is “Testimonial” Evidence?
Evidence where the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Note: Evidence is NOT “testimonial” where its primary purpose is to obtain police assistance for an ongoing emergency.
Deed Absolute
A deed absolute intended as security is construed as a
mortgage, not as an outright conveyance, and does NOT
cut off the mortgagor’s right of redemption.
Parol Evidence (PE)
• Inadmissible: To alter, vary, or contradict
• Admissible: To explain, supplement or interpret
General policy: Courts are liberal in allowing PE to show the parties attached a special meaning to any word in the contract
What is included under the Fundamental Right to Privacy?
Contraception
Abortion
Marriage
Procreation
private Education
family Relations
(“CAMPER”)
Con Law recommended approach
- Who is passing the law?
- What is the purpose of the law?
- Who is affected by the law?
- Apply the appropriate standard
Pinkerton Doctrine
A co-conspirator is guilty of all crimes committed “In furtherance” of the conspiracy
Withdrawal requires:
- D notifies all othe rmembers of the conspiracy; and
- Does so in a timely manner such that the other members have opportunity to abort as well
Spousal Privilege
Applies in criminal cases only
Protects communications before AND during marriage (including impressions/observations)
Lost at divorce
Held by party spouse at common law
Held by witness spouse under FRE
Marital Privilege
Protects communications made DURING marriage
Survives divorce
Applies in criminal AND civil cases
Held by both spouses
FRE 801(d)(1)(B) Prior Consistent Statements
Statements offered substantively on redirect to rebut a charge of recent fabrication or improper influence.
- Declarant must testify at trial (under oath); AND
- Be subject to cross; AND
- W’s prior statement must be made BEFOREthe charged fabrication arose.
Justiciability requires what?
RAMPS
Ripeness
Advisory Opinions
Mootness
Political Questions
Standing
Merchant’s Confirmatory Memos
Between merchants, the SoF is satisfied provided that:
- one party sends a written confirmatory memo
- to the other party (who has reason to know of its contents)
- notification of objection not given within 10 days
Regulation of Commercial Speech
“Central Hudson” Test
The Regulation must:
- Directly advance
- A substantial gov’t interest; and
- Be narrowly tailored to serve the substantial interest.
NOTE: “Least restrictive” not required, just a reasonable fit betwee means and end.
Legislation does not vilolate the Establishment Clause if:
“Lemon Test”
- The government’s action must have a secular legislative purpose;
- The government’s action must not have the primary effect of either advancing or inhibiting religion;
- The government’s action must not result in an “excessive government entanglement” with religion.
Remember “Lemons make you PEE”
Purpose/Effect/Entanglement
Grand Juries
Fifth Amendment right to jury NOT incorporated against the states!
NO right to (1) confront witnesses, (2) cross-examine, (3) introduce evidence, or even (4) to be present!
NO right to Miranda warnings, no right to counsel
FRE do not apply (except privileges)
No Fourth Amendment exclusionary rule
May meet with attorney outside courtroom
Risk of Loss - Consruction Ks
New Construction - If no fault on either party, builder bears risk of loss.
Renovation - If no fault on either party, excuses Builder’s duty to perform
Hierarchy of Laws
- Constitution
- Acts of Congress / Treaty (last in time prevails)
- Executive Agreement - foreign policyExecutive Order - domestic policy
- State law
Buyer’s Duties as to Rightfully Rejected Goods
Buyer must not take acts “inconsistent with seller’s ownership.”
Buyer may make reasonable efforts to resell for seller’s account.
Buyer rmay be reimbursed for expenses (up to 10% of resale price)
Bona Fide Purchaser (BFP)
- Pays value (purchaser, mortgagee, judgment creditor)
- Takes in good faith
- Without notice
Recording Statutes
Race: First to Record wins
Notice: last BFP wins
Race/Notice: 1st BFP to record wins
Statute of Frauds applies to what? (MBE)
MY LEGS
Marriage
Contracts not performable within one Year
Transfer of an interest in Land
Executor
Guarantee or surety
Sale of goods >$500
Judicial Notice
A court shall take JN if requested by a party and supplied with the necessary info.
A civil jury MUST accept JN as conclusive fact
A criminal jury MAY accept JN as conclusive fact
Mutual Mistake
If both parties are mistaken as to a material element that goes to the heart or essence of the bargain.
Remedy: Rescission of K
Unilaterial Mistake
K remains enforceable against the mistaken party.
Exception: Non-Mistaken party knew or should have known of other’s mistake.
Procedural Due Process
The procedural safeguards of NOTICE and HEARING are available whenever there is a serious deprivation of any life, liberty, or property interest.
Unprotected Speech
“Strict Scrutiny” does not apply to six categories:
- Clear and Present Danger
- Defamation
- Obscenity
- Child Porn
- Fighting Words
- Fraudulent Commercial Speech
Brandenburg Test for “Clear & Present Danger” Speech
The standard developed determined that speech advocating the use of force or crime could only be proscribed where two conditions were satisfied:
(1) the advocacy is “directed to inciting or producing imminent lawless action,” and
(2) the advocacy is also “likely to incite or produce such action.”
Batson Challenges
Equal Protection Clause prohibits striking of jurors solely on the basis of RACE or GENDER.
Rule Against Perpetuities
No interest is good unless it must vest, if at all, not later than twenty-one years after the death of some life in being at the creation of the interest.
One does not look to whether an interest actually will vest more than 21 years after the lives in being. Instead, if there exists any possibility at the time of the grant, however unlikely or remote, that an interest will vest outside of the perpetuities period, the interest is void and is stricken from the grant.
- Contingent Remainders / Class Gifts
- Option to purchase conected with a fee
- Powers of Appointment
- Executory Interests
- Rights of First Refusal
Res Ipsa Loquitur
Creates an “inference” of negligence sufficient to avoid a directed verdict.
Establishes DUTY and BREACH.
Rights of Opposing Counsel re:
Refreshing Recollection v. Past Recollection Recorded
Refreshing Recollection
- Can inspect the document
- Can cross with it
- Can introduce relevant portions ONLY for impeachment purposes.
Past Recollection Recorded
- Inspect
- Cross
- Introduce relevant portions as SUBSTANTIVE evidence.
Right to Jury Trial
Sixth Amendment
Applies to the States
Arises for “serious offenses” i.e. imprisonment for 6+ months possible.
