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
does immunity apply in a subsequent civil trial
no, does not extend
If an officer has a reasonable suspicion, what does that allow him to do
to stop and detain you to talk, but not to arrest and search you
What is the dual sovereignty doctrine
double jeopardy will not apply to bar prosecution in state court for a crime that has been prosecuted in federal court, and vice versa
Present automobile exception ltd by Arizona v Gantt
If PC to believe ev of the crime for which you have arrested the person for, then you can search that car
What are the two ways an inconsistent statement can be proved?
testimony of a witness
extrinsic evidence
When is extrinsic evidence appropriate to prove an inconsistent statement?
when the witness is given an opportunity to explain the inconsistency and the statement is relevant to some issue in the case
Generally, who is excluded and permitted under Rule 615 (sequestering witnesses)
fact witnesses are generally excluded, & necessary parties are not (e.g., experts or lead law enforcement investigator)
What is the rule concerning business records prepared in anticipation of litigation?
they are hearsay and do not meet the business records exception because they are not kept in the regular course of business
A learned treatise is adm when
direct or cross of an expert
When can a learned treatise be adm into evidence itself so that its an exhibit
never
When is character ev regarding one’s character for peacefulness adm?
When that party asserts a self defense theory in CRIMINAL cases
When are all three methods of proving character adm (e.g., when is specific acts ev ok)?
*reputation, opinion, and specific acts
- when the character of a party is an essential element of the claim/defense (“directly at issue”) (e.g., defamation or negligent entrustment)
- child custody dispute
- wrongful death (character of decedent for purposes of determining damages - e.g., earning income)
Can you impeach a witness with non-conviction misconduct relating to dishonesty?
Yes, but - only on CX and you must “take the answer”, that is, you cannot introduce extrinsic evidence to refute the Ws answer
When can a D in a criminal trial enter character ev without provocation?
by way of reputation or opinon (law abiding (any case), peacefulness, truthful) if pertinent to the charged offense
May a defendant enter specific acts to show characted?
no - no specific acts
What can the prosecutor do when the D asserts character ev regarding the victim?
- rebuttle evidence of Victim’s good character
- rebuttle evidence of D’s same bad trait
settlement negotiations are not adm to…
show fault
establish damages
impeach
For a “dying declaration”, what are the requirements and applicability?
- unavailable declarant
- stm made under belief of imminent death
- stm about the cause of that death
- civil or homicide trial
Rule 59 FRCP re New Trial
judge has discretion to allow new trial on issue of damages, may offer remittur
Res Judicata
All claims that arise out of the same CNOF must be brought together, else they will be waiver and later barred if brought
When is expert testimony allowed despite not being provided to op co by the pretrial disclosure deadline?
- harmless
- substantially justified (in disclosing late)
FRCP 48 re # of Jurors
- 6-12 jurors, each must participate unless excused
- must be unanimous unless parties stip otherwise
CAFA requirements
- aggregate AIC must be 5mil
- minimal diversity
what is the “special rule” about preliminary injunctions in civ pro
immidiately appeallable as a matter of right within 30 days
when will a JAML fail for untimeliness
when made after the jury renders verdict
special rule re diversity jx where there is a direct action against an insurer
insurer is considered a domiciliary of the insured’s state
Under collateral estoppel (issue preclusion) whom must have been a party in the prior case
the party against whom CE is now asserted (asserting party need not have been party to prior litigation)
what should a defendant do if a plaintiff files a complaint that states conclusory allegations absent specific facts?
file a 12b6 motion to dismiss for failure to state a claim upon which relief can be granted
If you have a property subject to a mortgage are you liable to repair/avoid/fix waste?
yes, so long as the issue w the property impairs the mortgagees security interest
after acquired property doctrine says that…
if you convey some land that you don’t actually have title to, but then later acquire title, you are bound to that prior sale
explain the part performance doctrine of property law
if there is a non-SOF compliant writing the k will nonetheless be enforceable where 2/3 are met: payment, possession, improvement to the land
whats the trick to determine if a statute is a notice or race notice
look for the word first - then it is a race notice
IIED elements
- intentional OR reckless
- e/o conduct
- causation
- damages in form of severe ED
how does comparative negligence affect AoR
they “merge” - if the jx recognizes comp neg there is no AoR
defamation analysis when party is dead
no - can’t defame a dead boi
