MBE RULES Flashcards
Claim Preclusion Requirements
Civ Pro
Valid judgment on merits (substantive grounds)
Same claim
Same parties (or those in privity)
Merger of LSK
Property
All obligations in a LSK merge into the deed and can only be enforced if they are incorporated into the deed
Modified Comparative Negligence Recovery
Torts
Negligent P can recover unless % not more that D
Can states sue the government?
Con Law
No, the operations of the federal government (including agencies) are immune from state regulation unless Congress consents
Enforcement of a Final Judgment
Civil Procedure
Most judgments are stayed 30 days unless injunction, accounting in patent infringement - effective and enforced immediately
The CC grants congress broad authority to regulate interstate commerce which includes
Con Law
Channels
Instrumentalities
Persons/Things
Activities that substantially impact
10A limits power by prohibiting Congress from requiring state and local governments to enforce a fed law or enact state or local law
Expert Witnesses and Hypothetical Qs
Evidence
Allowed if it includes any undisputed material facts
Expert Witnesses and Hypothetical Qs
Evidence
Allowed if it includes any undisputed material facts
Ordinary vs Severe Burden
Con Law
Ordinary: challenging party must prove not rationally related to legit gove interest (RB)
Severe: state must show regulation is least restrictive means to achieve compelling state interest (SS)
When can a court reform a contract?
Contracts
When it fails to accurately express the parties’ agreement bc of a mistake by both parties as to its content or legal effect
SOF - Land Sale K
Contracts
Must be in writing, signed by the party against whom enforcement is sought, and all essential terms.
Time of performance is NOT an essential term and courts will assume “reasonable time” if not expressly stated
What do possession offenses require?
Crim
Knowingly received an illegal item or exercised dominion or control after learning item is illegal
11th Amendment
Con Law
Bars private parties and foreign governments from suing a state in federal court without the state’s consent.
Suits brought by the USA vs States is OK
Assuming the Mortgage
Real Property
A buyer who assumes the mortgage expressly agrees to become liable for the mortgage debt
They are primarily liable for paying any deficiency resulting from foreclosure
When does a seller deliver marketable title in an installment LSK?
Real Property
Once purchase price is fully paid
Political Question
Con Law
Contitution reserves the issue to a different branch of government and the court lacks judicially discoverable and manageable standards to resolve the issue
UCC Gap Fillers
Contracts
Court can gap fill unless parties, subject matter, quantity
Quantity must be certain or capable of being made certain
K Void - Unilateral Mistake
Contracts
Not grounds to void a k unless mistake would make enforcement unconscionable or nonmistaken party knew or had reason to know of mistake
Attorney/Client Priv Scope
Evidence
Confidential communications for the purpose of obtaining or providing legal advice to clients
Rendering business advice or opinions are NOT protected
Motion for Extraordinary Relief from Judgment
Civ Pro
Based on mistake, inadvertance, surprise or excusable neglect will be granted if moving party demonstrates meritorious defense
When can JMOL be filed?
Civ Pro
Before case submitted to jury but only after nonmovant party has had opportunity to present their case
Renewed JMOL
Civ Pro
Within 28 days after judgment to seek to overturn an adverse verdict
JMOL
Civ Pro
Used to remove a case from a jury’s consideration if there is legally insufficient evidence for a jury to find in the nonmovant’s favor
Cantractual Rights of a 3P Beneficiary
Contracts
Vests when the beneficiary
1. detrimentally relies
2. manifests assent to the k
3. files a lawsuit to enforce it
After vesting, any attempts to modify or rescind not allowed without 3P permission
Character Evidence in Civil Cases
Evidence
Ok if character is at issue or an essential element of the claim
Character Evidence in Criminal Cases
Evidence
The prosecution is generally not allowed to introduce bad character evidence about a defendant
If defendant introduces –> Opens the Door and P may:
1. Call a W to rebut (opinion or reputation)
2. Cross examine D’s character W (reputation, opinion, orspecific bad acts)
D introduces V’s character: only when relevant to defense. P may now:
1. introduce rebuttle evidence of V’s character (reputation/opinion)
2. Attack the D’s character for same trait
D’s Prior/Specific Bad Acts
Evidence
Prosecution may not introduce to prove character but can be admitted if MIMIC
- Motive
- Intent
- absense of Mistake
- Identity
- Common plan
Waiver of Conditions
Contracts
Non-occurence of a condition can be excused if the party who benefits waives by words or conduct
Delegating party after a delegation
Contracts
After a delegation, the delegating party remains liable unless the other party agrees to release and substitute
Attempt
Criminal Law
Defendant has the specific intent to commit the crime, performs an overt act in furtherence (mere prep not enough), and does not complete it
Attempt
Criminal Law
Defendant has the specific intent to commit the crime, performs an overt act in furtherence (mere prep not enough) or dangerously close, and does not complete it
Witness is generally presumed competent to testify if
Evidence
- Recall or narrarate the imressions of the occurence at issue
- Understand the importance of telling the truth
Expert Witness Qualifications
Evidence
Question for the court, not jury. Court is not bound by the rules of evidence
Difference between spousal immunity and marital communications
Evidence
SI: Shields witness from testifying about things that happened before or during marriage - witness spouse holds
MC: Protects confidential communications between spouses during marriage - both hold
Who do title insurance policies protect?
Property
Only named insurereds who are affected by an undisclosed title defect
Worthier Title Doctrine
Property
When a grantor makes an inter vivos conveyance to with a future interest in the grantor’s heirs, the future interest creates a reversion to the grantor not a remainder in the grantor’s heirs
Hospital DOC
Torts
Duty to exercise reasonable care to protect its patients from harm arising within the scope of a hospital patient relationship
SPL imposed upon who?
Torts
ONLY commercial sellers, not casual sellers
When is a defamatory statement privileged?
Torts
When the D reasonably believes that
1. the statement affects an important interest of the TP and
2. the communication is socially acceptable
This priv is lost if the D knows that statement is false or recklessly disregards that possiility
Conversion Recovery
Torts
FMV at time of the conversion
When does an easement terminate?
Property
Destruction of serviant estate
Abandonment
Merger
Prescription
Estoppel
Release (satisfy SOF)
Wrongful Birth Claim
Torts
Allows parents to recover for the child’s life if they can show that
1. the doctor negligently failed to inform them of a substantial risk that the child might be born with a defect and
2. If they knew of the risk they would not have conceived the child
Erie and Diversity Exception
Civil Procedure
A federal court sitting in diversity must apply state substantive law and federal procedural law unless a uniquely federal interest conflicts w the state law
Contract Modifications
Contracts
CL ignores the “no oral modification” clauses and allows oral modifications of written contracts unless the modification is subject to the SOF
The Spending Clause allows Congress to…
Con Law
place receipts on conditions of federal funds if conditions are
1. clearly stated
2. reasonably related to the purpose of the expenditure
3. do not induce unconstitutional behavior or
4. are not unduly coercive
Subsequent Remedial Measures
Evidence
Not admissible to prove negligence or other culpable conduct. Admissible to
1. resolve a dispute as to the feasibility of remedial measures
2. prove ownership or control
3. to impeach a witness
Motion to Strike
Civ Pro
Party can move to strike insufficient, immaterial, redundant, scandalous, impertinent matter or defense. Must make before responding to the pleading or within 21 days after being served if a response is not allowed
Setting Aside Entry of Default
Civ Pro
Court can set aside if showing good cause
1. failure to timely respond was a result of the defendant’sexcusable neglect
2. defendant presented meritorious defense
3. plainitff not substantially prejudiced if case was reopened
Congress can explicitly authorize states and municipalities to act in ways that would otherwise violate the dormant commerce clause
Con Law
Congress can explicityly authorize states and municipalities to act in ways that would otherwise violate the dormant commerce clause
When can a party obtain extraordinary relief from judgment within a year of entry of the final judgment?
Civ Pro
If the entry of judgment was made based on:
1. Mistake, inadvertance, surprise or excusable neglect of the parties or court,
2. Newly discovered evidence, or
3. Opposing counsel’s fraud, misrepresentation, misconduct
When is mistake of fact a defense?
Crim
Never for SL
Belief would have justified the D’s criminal act had the belief been true or if it negates the requisite mens rea for the charged crime
Are negligent intervening acts foreseaable?
Torts
Typically seen as foreseeable and so they do not reak the chain of causation (think med mal)
11th Amendment
Con Law
Bans suits against state governments in federal court but does not extend to suing local governments like couties and municipalities
When does spousal priv not apply?
Evidence
In federal cases where a spouse is being charged with a crime against spouse or their child/stepchild/spouse’s child
What do you do when you receive pleadings that are vague and ambiguous?
Civ Pro
Move for a more definite statement
Grand Jury Proceedings for Witnesses
Crim
W can consult with attorney outside jury room, but no 6th amendment right to counsel inside.
Exclusionary rule does not apply in grand jury proceedings
Requirements Contract
Contracts
An exclusive agreement between a buyer and a seller for the sale of as many goods as the buyer requires for a certain period of time. UCC
The buyer’s failure to purchase violates implied duty of good faith and fair dealing and is breach of contract under the UCC
Dormant Commerce Clause
Con Law
State laws that favor in state vs out of state economic interests violates the dormant commerce clause unless they further legit noneconomic state interest and no reasonable alternatives exist
Bars states from enacting non discrim regulations that unduly burden on IS commerce when the regulation clearly exceeds its local beneft
Supremacy Clause
Con Law
A state law is void if it is expressly or impliedly preempted by federal law. All state laws must be at least reasonably related to a legit state interest to comply with due process
UCC Statute of Frauds Exception
Contracts
When some amount of payment was made and accepted
Intentional Infliction of Emotional Distress - Distress
Torts
Requires severe emotional distress or distress beyond what a reasonable person can endure. Severity depends on 1. intensity and duration, 2. D’s conduct, and 3. presence of bodily harm
Trespass to Chattels
Torts
Intentional interference with another’s tanglible personal property through dispossession, use, or intermeddling. D’s erroneous belief because of a mistake of fact or law, that they were privileged to use, is not a defense
When can Congress delegate?
Con Law
Congress can delegate incidental legislative powers if it provides an intelligible principle: Clear statements defining…
- the policy Congress seeks to advance
- the agency to carry out that policy
- the scope of the agency’s authority
Writ of Habeus Corpus in Federal Court
Con Law
A court order that the person be brought to determine if their detention is legal.
If a person is in federal custody, only a federal court can issue the writ.
First Amendment and Reporters
Con Law
The 1A protects the right of the press to publish lawfully obtained and truthful information about matters of public significance, but it does not shield them from general applicable laws in an effort to obtain the information
Mootness
Con Law
A federal court may only hear the merits of cases that are actual cases or controversys capable of judicial resolution. If case or controversy ceases to exist or if legal proceedings will have no affect = MOOT (a cow’s opinion)
Political Question Doctrine
Con Law
The PQ doctrine bars actions that require courts to resolve issues concerning diplomatic recognition of a foreign government
HOWEVER, courts have the authority to determine interbranch disputes when it concerns the validity of a statute
What do the courts consider when determining if Congress can regulate an activity?
Con Law
Whether
1. Activity is economic in nature
2. Regulation contains a jurisdictional element
3. Congress made express findings as to the affect on IS commerce and
4. If there is a strong link between the activity and the affect
When does the president have the authority to remove federal executive officers?
Con Law
Always with two exceptions
Congress cannot directly remove unless done through impeachment
Principal Federal Officers
Con Law
Someone who holds continuing public office and has significant discretionary authority to administer or enforce laws
The president has power to appoint with advice and consent of the Senate
When is a private action treated as a government action?
Con Law
- Private actor performs traditional and exclusive government function
- Gov is significantly involved in the private actor’s functions
Who are immune from direct taxation unless Congress explicitly consents?
Con Law
The federal government, its agencies, and its instrumentalities
When can a D remove to federal court?
Civ Pro
A D can remove from state to federal if federal allowed to hear because of subject matter jdx through diversity or federal question
Waiver of Service on D
Civ Pro
A D is encouraged but not required to waive service of process by returning a signed waiver request. If D does not do so, P has to serve proper process before D answers
TRO must contain…
Civ Pro
- Reasons why it was issued
- Reasonable description of prohibited or commanded acts (must be made without reference to another complaint or document)
- Specific terms
Counterclaims
Civ Pro
A counterclaim is a claim for relief asserted against an opposing party in response to that party’s earlier claim.
Compulsory: STO as other party’s claim and does not require adding another party that the court cannot have jurisdiction over
Permissive: all other counterclaims which may be asserted in the pending lawsuit or future litigation
Undue Influence
Contracts
K is voidable if assent stems from unfair or excessive persuasion by someone who dominates or holds a special relationship of trust and confidence with the assenting party
Indefiniteness at Common Law
Contracts
At common law, all essential terms must be covered and must be sufficiently certain and definite for a k to be valid and enforceable
Non-Disclosure of a Known Fact
Contracts
Treated as an untrue assertion of fact if the non disclosing party knows that the diclosure is necessary to preven a previous assertion of being a misrepresentation
Anticipatory Repudiation
Contracts
When a party clearly and unequivocally communicates through words or conduct, that it does not intend to perform. Mere insecurity about a party’s inability to perform is not enough but enough to demand assurances
Contract Modifications
Contracts
At CL, contract modifications must be supported by new consideration unless fair and reasonable in light of unanticipated circumstances and must have mutual assent to the modifications by both parties
Evidence showing consciousness of guilt
Evidence
Relevant because it makes a material fact of the D being guilty more or less probable
When is expert testimony admissible?
Evidence
If it will help the jury understand the evidence or determine a fact AND is based on sufficient facts or data and the product of principles or methods reliably applied by the expert
How is a photograph authenticated?
Evidence
By testimony of a witness with personal knowledge of the thing depicted to be a fairly and accurate depiction of the thing
What must the D have done to forfeit a hearsay or confrontation clause objection?
Evidence
D wrongfully caused W’s unavailability and done so for the purpose of them being unavailable to testify
What must the D have done to forfeit a hearsay or confrontation clause objection?
Evidence
D wrongfully caused W’s unavailability and done so for the purpose of them being unavailable to testify
When should a court allow lay witness testimony?
Evidence
- Rationally based on W’s perception
- Helpful to clearly understand W’s testimony or fact in issue
- Not based on scientific, technical, or other specialized knowledge
Physical Objects being Admitted in Trial
Evidence
Must be authenticated through a prima facie showing that the object is what the proponent claims it to be - commonly done through testimony of someone with personal knowledge
Extrinsic evidence to impeach
Evidence
Not allowed UNLESS
1. the W has a chance to explain, deny, and the opposing party can question
2. justice so requires
Prior-Consistent Statement = Non-Hearsay when
Evidence
- Made by declarant who has testified and is subject to x
- Offered to rebut a charge of fabrication or improper influence
