MBE Review Flashcards
When can a state be sued notwithstanding the 11th amendment?
When the state (i) consents to the suit, (ii) the bankruptcy clause exception applies, or (iii) Congress has abrogated the state’s sovereign immunity to enforce the 13, 14, or 15 amendments (equal protection)
What does the Privileges and Immunities clause of Article IV, Section 2 prohibit?
State’s from discriminating against PEOPLE (not corps) of another state in the exercise of their fundamental rights
What does the Privileges and Immunities clause of the 14th Amendment prohibit?
concerns only how a state treats it’s own citizens, not out of staters - primarily applies to restrictions on interstate travel
When will a discriminatory state law be found invalid under the PIC of Article 4 Section 2?
- relates to civil liberties or commercial activities
- is not necessary to achieve an important govt interest
The 13A prohibits slavery and…
“all its vestigages” - this includes racially motivated discrimination by PRIVATE persons
Does the contract clause apply to states and the feds?
No, just the states
When a party challenges a statute under the freedom of exercising religion clause, when will the law be upheld?
when it is a:
- facially neutral law
- of general applicability
When a party challenges a statute under the freedom of exercising religion clause, when will the law not be upheld?
when the law is discriminatory on it’s face and the government is unable to pass the strict scrutiny test
Under the DCC, what is the effect of a law NOT discriminating against out of staters, but rather uniformly apply a law to “everyone” (e.g., all shipowners)?
the law is presumptively valid & will be upheld unless the burden on IC outweighs the benefits to the state
State the rule, under the 1A & concerning freedom of speech, for prohibiting adult entertainment establishments:
a city may limit those establishments by zoning but cannot flatly prohibit them ALL
If Congress legitimately has the power to regulate IC by implementing workplace regulations on private entities, it ( MAY or MAY NOT ) extend coverage to state/gov employees.
MAY
What is the analysis & likely remedy when a party accepts by mail, but then calls and rejects the offer before the acceptance is received?
Under the Mailbox Rule, the acceptance was valid when sent. However, if a party then, calls up the other and attempts to reject despite the acceptance, and the other party detrimentally relies on that rejection, the accepting party will likely be estoppel from enforcing the otherwise valid acceptance
UCC 2-207 Battle of the Forms; explain and give merchant distinction
addtl terms will not constitute a rejection under the UCC. If both are merchants, those terms are included in the K unless: (i) material term, (ii) offer expressly limits to its terms, or (iii) other merchant rejects. If one is merchant, then still acceptance but terms are just proposals, not part of the k.
A fact pattern involving unconscionbility will almost always include…
some big company taking advantage of an uneducated consumer
when does the implied warranty of merchantablity apply and what does it warrant?
when the seller is a merchant & that the goods are fit for their ordinary use
when does the implied warranty of fitness for a particular purpose apply and what does it warrant?
when seller knows that buyer is buying for a particular purpose and is relying on seller’s knowledge to select the & it warrants that its recommended product will be fit for the consumers particular purpose
What should you know about an express condition?
- Must be complied with completely, substantial performance will not suffice.
- Failure to meet an express condition discharges the duty of performce
- A failure to meet a condition does not generally trigger damages and is not a breach
What is the “specially manufactured” exception regarding SoF and when does it not apply?
if specially manu, then that satisfies the SOF requirement UNLESS the item is able to be sold in the ordinary course of business
(special features on a car, not specially manufactured. extra tall door frames because yoa ming is buying a home, is specially manufactured)
If a seller does not have legal title to goods, when will a buyer (from that seller) take legal title to the goods?
when that buyer purchases them without knowledge of seller’s invalid title and for value (BFP)
What is the “insurance exception” for risk of loss in a K?
Generally, a party bears risk of loss until the risk shifts pursuant to the agreement (destination, shipment, seller’s POB) - however when the party who would’ve avoided the risk in is breach and the other does not have insurance coverage, the risk of loss shifts to the breaching party
When is the SOF marriage requirement implicated
when an agreement is entered to induce not marriage, not merely one surrounding marriage
Is an accomodation an acceptance? What is the legal effect of this?
No - one can’t be in breach and subject to damages for sending an accomadation because it is not an acceptance of the offer, so no k is formed
Derivative use immunity rule re testimony use
can’t use testimony or anything derived from it in a future CRIMINAL prosecution against the party
