MBE rules Flashcards
Exclusionary rule
Only applies to acts of government actors/acts ratified by government actors, does not apply to private actor even if private actor is violating a federal statute
13th amendment
No slavery/involuntary servitude by government/private actors
Defemation extra rule for private citizen making statement about issue of public concern
AND IF PRIVATE CITIZEN AND MATTER OF PUBLIC CONCERN, - D was at least negligent as to falsity of statement
Removal
only DEFENDANT can remove (this DOES NOT include 3rd parties joined by counterclaim of D)
Privileges recognized at common law
(a) attorney-client
(b) work product
(c) spousal
(d) psychotherapist-patient
(e) religious
- NOTE: no physician-patient exists
Mortgages: Equitable right of redemption/statutory right of redemption
Equitable: Always exists (right to pay debt PRIOR to foreclosure)
Statutory: State must pass statute (right to purchase back property for certain time after foreclosure sale)
Tort doctrine of alternative liability
(1) multiple TORTFEASORS, (2) at least one caused the harm, (3) impossible to tell which
- NOTE:
– Requires P to actually show each was a tortfeasor, CAN’T be random people one of which is a the tortfeasor
Doctrine of independent and adequate state grounds
SCOTUS can only review state court decisions based on federal law, not adequate and independent state grounds
- adequate = state law fully resolves
- independent = federal law not involved
- NOTE**: This is essentially the “no advisory opinions doctirine” AKA: if the SCOTUS decision wouldn’t change the outcome, they won’t hear it based on intendent and adequate state grounds
Trespass
(1) intentional, (2) unlawful, (3) physical entry land of another
- BUT EXCEPTION:
– PRIVATE NECESSITY: (1) reasonably believe, (2) serious, (3) private harm
Robbery/larceny/false pretenses
Robbery = taking from physical person
Larceny = Taking property not from physical person
Larceny by misrepresentation + only obtaining possession = larceny by trick
Larceny by misrepresentation + obtaining actual title = false pretenses
Embezzlement = taking property of another + while in lawful possession
FRE 803(3): Then existing state of mind/emotional/mental/physical condition
Motive, intent, plan, mental state, pain, bodily health, BUT NOT memory
Rule 12(b) motions to dismiss
PJ/Venue/Service/Process (PPVS) = (a) must be in original motion, AND (b) defense permanently waived
Fail state claim/legal defense/joinder (FLJ) = (a) must be in original motion, BUT defenses not permanently waived, can be raised at trial
SMJ = (a) doesn’t need to be in original motion, AND defense not permanently waived, can be raised whenever
Conditions on government funding
Government CAN put conditions on how funds are spent, but government CAN’T put conditions on recipient’s conduct that is unrelated to the funding’s purpose
Tort: non-delegable duties
land possessor’s duty to safely conduct activities on the land that pose foreseeable risk of harm to others
- Even IF tort is committed by an independent contractor that is hired by homeowner
Specific v general intent crimes
Potential pneumonics:
- Students Can Always Fake a Laugh Even For Ridiculous Bar Facts.
- FIAT = First degree murder, Inchoate crimes, Assault, Theft crimes
Specific intent = Solicitatation, Conspiracy, Attempt, First degree murder, Assault, Larceny, Embezzlement, False pretenses, Robbery, Burglary, Forgery.
Nuisance as a matter of law
Toxic wastes and fumes are typically considerd nuisance as a matter of law, EVEN IF the tortfeasor complies with state law/outputs same amount as other similar tortfeasors
Common law murder / arson
Common law murder: (1) unlawful, (2) killing of another person, (3) with malice aforethought (a) intent to kill, (b) intent to cause serious bodily injury, (c) reckless indifference to human life)
Arson: (1) malicious (2) burning (3) of dwelling/building of another
- malicious = intent or reckless
Protective sweep incident to arrest
Protective sweep incident to arrest is reasonable if (1) reasonable suspicion (specific articulable facts) that armed threat present, (2) limited to cursory locations where person could hide
Dormant commerce clause: State taxes on things in interstate commerce
(1) substantial nexus (2) fairly apportioned (3) not discriminatory, (4) fairly related to services
NADR
Abandoned property with mortgage on it
Mortgagee (person who granted the mortgage (ie bank)), owns/possesses the property if the mortgagor abandons the property, therfore the mortgagee incurs tort liability as if they were the owner
Mortgage pre-payments
Majority: pre-payment ALLOWED unless K says otherwise
Common law: pre-payment NOT-ALLOWED unless K says otherwise
Pre-payment clauses that set minimum time until pre-payment is allowed AND clauses that set early payment fees are valid and enforceable
Warrant exceptions = SADSPACES
Search incident to arrest
ADministrative searches of highly regulated industries
Stop and frisk
Plain view
Automobile
Consent
Exigent emergency circumstance
Special government purpose
Consent = Actual (has legal right to occupy), apparent (reasonable belief person has actual)
Negligent infliction of emotional distress
(a) zone of danger (D’s negligence put P in immediate risk of harm, and P suffered severe emotional distress)
(b) bystander (D negligently injured close relative, P was present and saw it, severe emotional distress)
(c) special circumstances (mishandle body/remains, mistaken announcement of death/illness, contaminated food with repulsive object, THUS causing severe emotional distress)
“Substantive law” when determining whether state/fed law applies is:
Substantive = (1) elements of claim/defense, (2) burdens of proof, (3) statutes of limitations
Procedural = (1) filing deadlines, (2) court rules/procedures, (3) discovery rules, (4) evidence rules
Landowner right to light
generally no right to light, UNLESS (a) statute, (b) express agreement creating negative easement/covenant regarding light with other landlowner
Larceny
Larceny = unlawful taking of the property of another with intent to permanently deprive
- larceny complete upon the initial taking, so even if change mind about permanently depriving later, larceny was still committed)
Larceny by trick = larceny accomplished by knowing misrepresentation relied upon by the VICTIM (not the D’s agent they trick to go steal)
Deadlines for amending complaint/answers/filing jury demand
Amend once as matter of right within 21 days of (a) serving their pleading, or (b) being served with responsive pleading
Demand jury (1) within 14 days of last pleading to the issue (usually the answer), and (2) filed with the court
Common law burglary
Unlawful breaking and entering of another’s dwelling at night with intent to commit felony within
- NO BREAKING AND ENTERING IF VOLUNTARILY INVITED, THEN BROKE SOMETHING LATER TO ESCAPE WITH STOLEN GOODS
- aka common law burglary is complete upon entry, not upon exit
If gov policy discriminates (favors in-state vs out of state interest) against out of state commerce
Then strict scrutiny (1) legitimate gov interest (2) no alternative means
K damages: consequential (special damages)
D only liable if (a) knew, or (b) should of known, of special damages P would suffer from breach
K damages: delayed use of property
Entitled to: (a) fair market rental value during time period they are denied use of the property, (b) interest on the value of the property that has been made unproductive by the breach
Insanity defenses: M’Naghten
Can’t understand nature of criminal act or know actions are wrong
- BASICALLY: UNDERSTAND
Insanity defenses: Irresistible impulse
Can’t control acts/conform conduct to law
- BASICALLY: CONTROL
Insanity defenses: MPC
Can’t appreciate criminality OR conform conduct to law
- NOTE: ESSENTIALLY COMBINES M’NAGHTEN AND IRRESSISTABLE IMPULSE (aka understand or control)
Mailbox rule
ACCEPTANCE is effective on dispatch
- BUT:
– OFFER/REVOCATION/REJECTION all effective only upon RECEIPT
Deadly force self-defesne
(1) REASONABLY believe, (2) unlawful, (3) imminent, (4) deadly force
Criminal law: Doctrine of merger
Lesser included offenses (crimes , all the elements of which, are encompassed in another crime), are merged into the greater crime if the greater crime is found committed, such that you cannot be convicted of both a lesser included offense and the greater offense
Takings
(1) taking in first place?, (2) public purpose and just compensation?
Physical: Possession/Physical invasion of property
Regulatory: 3 part test: (1) economic impact on P, (2) interference with P’s intended use, (3) character of government action
Conditional regulatory taking (benefit in exchange for gov taking), constitutional if: (1) nexus between benefit and taking, (2) proportional
Amount of force required to constitute larceny v robbery
Larceny: (1) unlawful, (2) taking of the property of another, (3) permanent intent to deprive
Robbery: (1) unlawful, (2) taking of property of another, (3) permanent intent to deprive, (4) with force/intimidation from the person of another
- NOTE TEMPORAL MOMENT WHEN FORCE IS USED, BEFORE/AFTER THE TAKING: Even if the force is used after taking (ie pushing after grabbing the purse, that CAN be robbery,)
- NOTE AMOUNT OF FORCE REQUIRED FOR ROBBERY: THE USE OF MORE FORCE THAN NECESSARY TO PHYSICALLY TAKE THE ITEM, is enough for ROBBERY (ie, takes the purse then shoves the person (the shove is more force than necessary to physically take the purse, therefore it is robbery)
- NOTE LOCATION OF ITEM TAKEN: even if the item is not physically being held by the person (ie sitting next to them) it can be robbery if they use force after grabbing the purse
Strict products liability
REQUIRES (1) commercial seller of that product, (2) defective when left control, (3) no change after left control (4) defect caused the harm
- NOTE: so someone who simply uses a defective product and harms someone is not themselves strictly liable under products liability, because they are not the commercial seller/can’t meet the other elements above
Damages under UCC
(1) Cost of cover (K price v cover goods price) (2) incidental (reasonable costs of covering), (3) consequantal (particular to P losses if (1) D knew of it at time of K, (2) no way to avoid)
- NOTE: UNDER UCC NO ATTORNEY’S FEE PROVISION, so not recoverable
liability for 3rd party’s tort
(1) DIRECT LIABILITY: (a) Special relationship, (b) know/should know, (c) business, (d) custody, (e) common carrier, (f) innkeeper
(2) INDIRECT LIABIITY: “respondeat superior” (1) employee, (2) scope of employment
Hearsay exception: unavailable declarant’s prior testimony
Hearsay exception: (1) declarant unavailable, (2) testimony given at prior trial/hearing/deposition, (3) involving similar parties/issues, (4) offered against party who had similar motive/opportunity to develop the testimony (cross examine)
State action doctrine
Constitution only protects from GOVERNMENT actors, UNLESS: (1) private actor performing government function, and (2) government has significant involvement in private actors actions
Sale of real property: Implied warranty of marketability and what is considered an “encumbrance” that violates it
Warranty of marketability = title is free from doubt AND no threat of litigation
- “encumbrances” violates marketability
Although an existing mortgage is technically an “encumbrance”, since hte mortgagee can pay it off at closing, selling a house with a mortgage on it doesn’t violate the warranty of marketability
BUT, existing easements are “encumbrances” that destroy marketability if easement “reduces property value”. UTILITY easements aren’t considerd encumbrances because they allow some government service provider to benefit the property. BUT right-of-way easements give someone a right to use the property in a detrimental way and therefore lower property value and are therefore considered encumbrances that destroy marketability
Quitclaim deed
Convey titles with no warranties (like implied warranty of merchantability that says no encumbrances)
Tort liability for injury after selling property
INJURY AFTER SELLING PROPERTY:
- (1) INJURY OCCURRED ON PROPERTY (2) NATURAL/ARTIFICIAL condition existed at time of sale, (3) seller knew or should have known of conditions unreasonable risk of harm, (4) buyer did not know/should know condition, (5) seller had reason to believe buyer would not discover, seller liable for injuries until buyer discovers/opportunity to discover condition and has reasonable opportunity to remedy
- (1) INJURY OCCURRED OFF PROPERTY (2) ARTIFICIAL (man-made) condition (3) seller knew or should have known artificial condition existed and posed unreasonable risk to persons off land
6th amendment right to jury trial
(1) criminal case, (2) crime punishable by more than 6 months in jail
Minimum 6 members
unanimous verdict
“no consideration to support the creditor’s promise to sue”
IN BAR TERMINOLOGY THIS MEANS THAT THE DEBTOR DID NOT PUT UP CONSIDERATION, the wording makes no fucking sense but if there is “no consideration to support X’s promise” that means that Y DID NOT PUT UP VALID CONSIDERATION
Hearsay: truth of the matter asserted
THINK ABOUT WHAT ITS ATTEMPTING TO PROVE
- ie: Officer testifying about dispatch’s description of robber being charged with false arrest, the description of robber statement not being used to prove the actual description of robber, just the effect on the officer that it made him believe he had probable cause to arrest…
ECONOMIC DAMAGES in products liability
PURE ECONOMIC HARM (aka only damage to product itself) NOT recoverable in tort, must sue under K law
PHYSICAL HARM is recoverable however (this includes (a) physical harm to person, AND (b) harm to anything not the defective product itself, ie a building or another object)
Diversity Jurisdiction: calculating the amount in controvesy
If no monetary amount asserted in complaint or only equitable claim for relief, AIC can be calculated as the larger of: (1) cost to defendant, or (2) worth to plaintiff, of the equitable relief.
Alternative mortgages
Landowner can convey deed to their property on oral promise that lendor who is loaning them money will reconvey the land back after loan repaid (aka absolute deed aka equitable mortgage)
Even if the reconveyance conditions was made orally, since the court can use the oral agreement as extrinsic evidence to show parties intent as being to create a mortgage
Thus the party with lendor possessing the deed can bring a foreclosure action against the debtor who conveyed the land once they default
Self-defense duty to retreat
Non-deadly self-defense: no duty to retreat
Deadly self-defense: (majority: no duty to retreat) (minority: duty to retreat if possible with reasonable safety, AND not in own home)
Products liability: strict liability
(1) defect, (2) commercial supplier, (3) defect when left D’s control, (4) no change circumstance, (5) injury occurred when product being used in FORESEEABLE way
- NOTE: Therefore, even if P is committing a crime with the product, and the product is being used in a foreseeable and intended manner, they can sue the D for strict liability
Negligent infliction of emotional distress
“zone of danger” theory: P was in zone of danger of D’s negligence, causing them severe emotional distress
“Bystander” theory: (1) family member, (2) injured in front of them, (3) they saw it happen, (4) by D’s negligence, (5) caused severe emotional distress
Criminal defenses of duress and necessity
ONLY available if NOT a homicide case
- SO can’t be coerced/threatened into killing someone
Presidential appointment/removal powers
Appointment OF EXECUTIVE OFFICERS:
- (a) principal officer: appointed by president, approved by senate
- (b) inferior officer: appointment can be delegated to president, federal courts, or head of executive departments
Removal: President has absolute authority to remove FEDERAL EXECUTIVE OFFICERS,
- UNLESS:
(a) belong to multi-member body that is balanced along partisan lines and exercises no executive power, (ex: committees that conduct investigations for congress)
OR (b) lack policymaking or administrative authority (ex: independent counsel who investigates and prosecutes alleged crimes by gov officials)
Duty to protect others v breach
There IS a duty to protect somone you have special relationship with (ICCSHEP) (a) innkeeper (b) common carrier, (c) custody, (d) shopkeeper, (e) hospital/patient, (f) employer/employee, (g) parent/child
THIS ONLY ESTABLISHES DUTY, still need to establish BREACH
Defamation: V must be ALIVE
Defamation is not actionable if made against a dead person,
UNLESS (a) made when they were alive then estate can sue, or (b) defamation of dead person that in pracicality amounts to defamation of a living person
Landlord’s duties
(1) warn of known defects (not open and obvious)
(2) safely perform repairs
(3) COMMON AREAS SAFE (a) reasonable care, (b) safe common areas, (c) remain under landlord’s control, (d) owed to tenants and foreseeable persons on premises (guests)
(4) maintain safe premises (eg walls, roof)
(5) dangerous condition on land leased for public purpose
Proving joint and several liability in negligence when can’t tell which D caused the harm
MUST FIRST PROVE EACH D WAS INDIVIDUALLY NEGLIGENT, then the burden shifts to each D to prove their negligence wasn’t the cause of P’s harm
Claim preclusion
(1) same nucleus of operative facts, (2) claim could have been raised in first action, THEN VALID CLAIM PRECLUSION
Defamation elements requires intentional/negligent publishing
D intentionally or negligently published to 3rd party
Statute of frauds signed writing
Generally needs to be signed by party to be charged, BUT if BOTH PARTIES MERCHANTS, then a written confirmation not signed by party to be charged will bind both parties if not objected to in writing within 10 days
- AND NOTE: to satisfy the UCC (sale of goods) WRITING requirements, needs to have QUANTITY OF GOODS
Defense to battery: Consent (emergency)
must REASONABLY believe emergency
Free speech protections: Adult-entertainment business regulations
SCOTUS: Zoning ordinances regulating adult-entertainment business target SECONDARY EFFECTS of the business on the surrounding community, the CONTENT of their business, therefore they are considered CONTENT-NEUTRAL speech restrictions subject to intermediate scrutiny
- Thus, an ordinance that (1) doesn’t ban adult entertainment business everywhere, and (2) is justified by a substantial interest in keeping its commercial center free of harmful uses, passes intermediate scrutiny and is constitutional
Larceny by trick and false pretenses
Requires: (1) knowing misrepresentation of material fact with (2) intent to defraud
1st amendment free speech protections: commercial speech
GENERALLY protected: Intermediate Scrutiny (1) narrowly tailored (no greater than necessary, (2) substantial government interest
BUT: misleading/unlawful advertising receives NO 1st amendment protections
- EVEN IF D didn’t know it was false
Attractive nuisance
(1) man-made condition, (2) D knows/should know children likely to trespass, (3) D knows/should know condition unreasonable risk of serious harm/death, (4) CHILD OF P’S AGE CANNOT REASONABLY DISCOVERY or APPRECIATE RISK, (5) risk of harm outweighs utility/burden of eliminating manmade condition
- NOTE:
– COMPLETE BAR to recovery if child of P’s age would have appreciated the risk
– REDUCTION of liability for child who failed to exercise the reasonable care of a child that age (comparative fault)