MBE Practice Exam Cards Flashcards
What are the 3 factors for the collateral order doctrine
Under the collateral-order doctrine, a court of appeals has discretion to hear and rule on a district court order if it (1) conclusively determines the disputed question, (2) resolves an important issue that is completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgement
When is diversity of parties considered?
at time complaint is filed
In general, who can file cases under diversity jurisdiction
US citizens and lawful resident aliens
In a class action under DJ, can parties join if they don’t meet the AIC?
Yes, they can join under supplemental jurisdiction as long as one party meets AIC
In DJ - When first plaintiff meets requirements and another plaintiff wants to join under permissive joinder, what do you need?
- doesn’t destroy diversity
- does not have to meet AIC since first plaintiff does
In DJ - when a defendant wants to join under permissive joinder, what do you need?
- doesn’t destroy diversity
- Claims against each D must meet the AIC
(Defendant who is joining needs to meet both diversity requirements because there’s no supplemental jurisdiction for Ds who join under permissive joinder)
___________ counterclaims don’t need to meet AIC
compulsory
permissive counterclaims need to meet AIC because supplemental jurisdiction doesn’t apply for them
What is rule 4k2?
A federal court may exercise PJ over a foreign D, even though the court would not otherwise have PJ over the D due to D’s lack of “minimum contacts” with the forum state
- P’s claims have to be based on federal law
- D must have sufficient contacts with the US as a whole
Once a court with PJ renders a judgement, does a court in another state need minimum contacts to render the judgement?
no!
How long does a D have to respond to an amended complaint?
14 days after amended complaint was served
When filing a pleading, does an attorney need to have complete evidentiary support?
No, so long as she’s reasonably sure she will get it after an investigation or discovery and she tells the court that in the pleading
What are the 4 requirements for a class action?
- numerosity
- common questions
- typiciality
- adequate representation
What kind of class actions require notice?
Common questions of law or fact predominate and class action is superior to other available methods for fairly and efficiently adjudicating the controversy
When do pretrial disclosures need to be made?
at least 30 days before trial
When do initial disclosures need to be made?
at or within 14 days of the discovery conference
When do expert witness disclosures need to be made?
At least 90 days before date set for trial
What kind of judgements can be appealed?
final judgements only
When does a litigaent have third party standing?
when there’s a special relationship between the litigant and the injured party (i.e. private school asserting its students’ rights to attend despite a statute requiring attendance at public schools)
What is the difference between the Dormant Commerce Clause and the Commerce Clause? (When should you choose each one for an answer)
Dormant Commerce Clause – restricts the power of the STATES to act with regard to interstate commerce
Commerce Clause – gives CONGRESS power to regulate any activity that is commercial or is an essential part of regulation of a large economic activity that in the aggregate has a substantial economic effect upon or effect on movement in interstate commerce
Section 5 of the 14th Amendment does what?
- lets Congress pass legislation to enforce the EPC and DP rights of the 14th Amendment
- DOES NOT let Congress expand those rights or make new ones
When Congress delegates legislative power what needs to happen?
Needs to give an intelligible principle - can be ANYTHING and doesn’t have to be specific
Reasonable restrictions on voting get what level of scrutiny?
Rational Basis
Unreasonable restrictions on voting get what level of scrutiny?
Strict Scrutiny
What is an example of a reasonable restriction on voting?
a 30 day residency period
Congressional Action directed towards aliens is only subject to challenge under what standard?
When it’s arbitrary and unreasonable
When can a local government exact promises from a developer (such as setting aside a portion of the land being developed for a particular use or a demand for an additional expenditure, in exchange for issuing the necessary construction permits) when is that not a taking?
- If there is an essential nexus between legitimate state interests and the conditions imposed on the property owner,
- and a rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development.
T/F - An ex post facto law doesn’t matter if the defendant is serving his sentences concurrently
FALSE - ex post facto matters as long as the law creates a new criminal offense that wasn’t criminal at the time D committed the offense
Where do you never have a right to picket?
At a particular residence
Can a “fighting words” statute prohibit certain viewpoints?
No - must be content neutral
When is a defendant not guilty as an accomplice?
When the person’s action is itself an essential element of the crime
What is the M’Naghten test?
a defendant is not guilty if he does not know the nature, quality, or wrongfulness of his act because of his mental disease.
What is malice aforethought? (needed for common law murder)
- intent to kill
- intent to inflict serious bodily injury
- reckless indifference to an unjustifiably high risk to human life (depraved heart)
- intent to commit certain felonies (felony murder)
What is larceny by trick?
taking of personal property known to be owned by another that results in conversion of the property, with the intent to permanently deprive the person of that property, by fraudulently inducing the victim to deliver possession of the property
(when someone obtains possession of - but not title to - the property of another person by lies)
Can you assert a defense of others for property?
No! Only for defense of others for the other individual’s person
What is defense of arrest?
A civilian can use reasonable force to stop someone from escaping the scene of a crime before police can come and arrest him
Does someone have a reasonable expectation of privacy over their bank records?
No - so a search is not in violation of the 4th Amendment
The 5th Amendment privilege only applies to whom?
individuals (not corporations)
When can the privilege against self incrimination be applied?
At any proceeding (including a grand jury)
What kind of person cannot use the privilege against self-incrimination?
a custodian of corporate records in his capacity as a corporation employee (can use it in an individual capacity though!)
When does the Due Process Clause prohibit the imposition of a harsher sentence upon retrial of a defendant who successfully appeals a conviction?
When the harsher service constitutes a penalty imposed on the D for the exercise of her right to appeal her conviction
When a party uses extrinsic evidence of a conviction to impeach someone, do they need to ask that person about it on the stand?
No - can admit it into evidence without asking the person about it
A conviction may not be used for impeachment purposes if the witness has been pardoned, provided that what 2 things are met:
(i) the action was based on a finding of innocence; or
(ii) the witness has not been subsequently convicted of another felony.
An offer of settlement made by whom is inadmissible to prove liability?
either party
Is an appeal of a remand order generally proper?
No! (not unless it’s an order remanding a civil rights case removed pursuant to §1443 or a remand order in a class action, if the application for review is made to the court of appeals not more than 10 days after the entry of the order)
When is PJ waived?
- failure to include defense of lack of PJ in your earliest motion or answer
(so if you make a pre answer motion and don’t mention PJ, you waived it!)
Can a federal district court transfer an action to a court in a foreign country?
No - if the other forum is more appropriate it can only dismiss under forum non conveniens
When can a D’s attorney request to poll the jury?
- after the jury returns a special verdict and before the judge dismissed the jury
** the court is required by FRCP 48(c) to poll the jury if a timely request is made; court can also decide itself to poll**
When can a mistaken party void a contract?
If he didn’t bear the risk of the mistake
Frustration of purpose
an unexpected event occurs, even though the nonoccurrence of the event was a basic assumption of the contract, without the fault of the frustrated party and the event destroys that party’s purpose in entering into the contract
With a unilateral mistake, when can a party void the contract?
When only one party is mistaken as to an essential element of the K, the mistaken party can void if grounds for mutual mistake exist and either
(1) the mistake would make enforcement of the K unconscionable or
(2) the on-mistaken party
- caused the mistake,
- had a duty to disclose or failed to disclose the mistake,
- or knew or should have known the other party was mistaken
** mistake must be about an existing fact**
Mutual Mistake
- mistake of fact existing at the time the contract was formed
- the mistake relates to a basic assumption of the contract
- the mistake has a material impact on the transaction and
- the adversely affected party did not assume the risk of the mistake
When do the rights of an intended beneficiary vest?
- When the beneficiary materially relies on the rights created,
- manifests assent to the contract at one party’s request
- or flies a lawsuit to enforce the contract
** until the beneficiary’s rights vest, the parties can freely modify or rescind the contract**
Can an intended donee beneficiary sue the promisor?
Yes, if her rights under the contract have vested
When, on cross-examination, a witness denies a specific instance of conduct, extrinsic evidence _____ admissible to prove that instance in order to attack or support the witness’s character for truthfulness.
is not
If an agent is making an investigative report as part of his statutory duty, what parts of the report are allowed in under the public records exception?
- factual findings
- opinions
- evaluations
- conclusions
implied reciprocal servitude
- must be intent to crate a servitude on all real property interests (common scheme)
- servitude must be negative (promise to refrain from doing something)
- party against whom enforcement of the servitude is sought must have actual, record, or inquiry notice
Assault (tort)
plaintiff’s reasonable apprehension of an imminent harmful or offensive bodily contact caused by the D’s action or threat with the intent to cause either the apprehension of such contact or the contact itself
Trespass to land
when D’s intentional act causes a physical invasion of the land of another
** D only needs intent to enter the land, not the intent to commit a wrongful trespass**
** no proof of actual damages required**
when does the privilege of necessity apply?
if the interference was reasonably necessary to prevent a serious injury from nature or another force not connected with the property owner
private nuisance
a thing or activity that substantially and unreasonably interferes with another individual’s use or enjoyment of his land
What does a P need to prove to recover under a products liability theory?
- product was defective
- defect existed when it left the D’s control
- defect caused the P’s injuries when the product was used in an intended or reasonably foreseeable way
When can someone not change their domicile for purposes of diversity?
If it’s really a sham - they don’t intend to remain in their “new domicile”
The sanction of dismissal of the case is only applied when?
When a party’s conduct is serious, repeated, extreme, or otherwise inexcusable
elements of fraudulent misrepresentation in contracts
- misrepresentation is fraudulent (false assertion of fact made knowingly or recklessly without knowledge of its truth with intent to mislead other party)
- misrepresentation induced assent to the contract,
- adversely affected party justifiably relied on the misrepresentation
Disclaimers for the implied warranty of merchantability have to be __________
conspicuous
When does a seller have a right to cure defective tender?
- time for performance under the contract has not yet elapsed
- seller had reasonable grounds to believe that the buyer would accept despite the nonconformity
The death of a co-felon during a felony is not felony murder if the co-felon was killed by whom?
- the victim
2. a police officer
To be charged with possession, a defendant has to do what with the item?
exercise control over it (be aware that it’s in his possession)
In determining if an individual has intellectual disabilities, a state cannot do what?
impose a strict cutoff on IQ (i.e. IQ of 70 means you’re definitely competent to stand trial)
** creates an unacceptable risk that someone with a mental disability will be executed **
For double jeopardy purposes, what is equivalent to an acquittal
a grant of demurrer
motion to dismiss in favor of accused for prosecution’s failure to prove elements of a crime at the close of the state’s case
If a criminal defendant presents a character witness, who can be asked about specific bad acts to rebut the character witness?
only that witness!
D can only be asked about specific instances rebutting his good character trait (not prior convictions or dishonesty) on cross if he testified about it on direct
if a land sales contract isn’t in writing, what can make it enforceable?
- payment of all or part of purchase price
- possession by purchaser
- substantial improvement of the property by the purchaser
Who cannot remove to federal court?
plaintiffs
Is common law murder the same thing as voluntary manslaughter?
NO - voluntary manslaughter is less severe (has malice but also has mitigating circumstances)
Police need what to use the vehicle exception to search a car?
probable cause
T/F - a criminal defendant CAN be convicted solely on circumstantial evidence
TRUE
In property, what does a special use exemption require?
the enumeration of the special use in the zoning ordinance as a use that can be permitted in a zone if the permit is obtained
when do you need physical harm for an emotional distress claim?
when you’re making the claim as a bystander
attractive nuisance
- artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass
- land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children
- the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition
- the utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to the children
- the land possessor fails to exercise reasonable care to protect children from the harm
An accomplice’s intent to aid the principal can be inferred when the accomplice:
- provides highly specialized goods or services
- receives unusually large profits from a sale
- has some greater interest in the crime’s success
Who is moving to dismiss during an involuntary dismissal?
the defendant
When is a child liable for an intentional tort?
If capable of forming requisite intent
When is a child liable for negligence?
If child failed to act as a reasonable child of a similar age, intelligence, & experience would have acted under similar circumstances
Who can raise a constitutional challenge?
- US citizen
- foreign citizen located within US territories
___________- interpleader requires complete diversity
___________ interpleader requires minimal diversity
rule
statutory
