MC

Question 1

Examples of political, nonjusticiable questions (because they’re committed by the Constitution to a different branch of government)

Answer 1

Political questions:
- Deployment of troops
- recognition of foreign governments
- Impeaching president or other federal officials
- Racial gerrymandering is justiciable, but partisan gerrymandering is considered a political question

Question 2

Congress’s ability to regulate for general welfare

Answer 2

Congress is NOT allowed to create legislation “for general welfare”

But they have broad power to spend $$ for general welfare

Question 3

Encumbrances?

Define & give examples

Answer 3

An encumbrance is a right or interest that exists in someone other than the owner of real property that restricts or impairs the transfer of property

Ex: mortgage/liens are encumbrances but if they’re paid off by closing (seller can use purchase price to pay off), then title is marketable

Ex: easements, covenants, purchase options

Question 4

All protections of the Constitution apply to the states through the 14th Amendment EXCEPT for what limited exceptions?

Answer 4

(1) requirement to quarter/house soldiers
(2) requirement of a grand jury indictment for a criminal charge
(3) right to jury trial for a civil matter

Question 5

A sold land to B (who has title insurance), who sold land to C, who sold land to D (the current owner) with quitclaim deed.

D then discovered outstanding mortgage that predated all previous conveyances. Who can D sue?

Answer 5

D can sue B. And B can recover from title insurance company, even though B no longer owes the land.

If D sued insurance company directly, D would not get anything

Question 6

Builder of new house sold to Buyer. Buyer sold to Woman. Woman found latent defects. If Woman sues successfully, who does she sue and why does she succeed?

Answer 6

Woman can sue the Builder and if she’s successful, it means they were in a jurisdiction where the implied warranty of habitability/fitness/quality of new home construction is enforceable by a subsequent purchaser

Question 7

Equitable conversion

(When does buyer become the owner vs. when does buyer get actual legal title)

Answer 7

This is about liability during the period between contract and closing.

When contract is signed, buyer is deemed the owner but seller still has “legal title.”

Legal title only transfer from seller to buyer at closing

Question 8

Risk of loss

(equitable conversion - maj rule)
(uniform vendor and purchaser act - min rule)

“no applicable statute” = maj rule applies

Answer 8

MAJ RULE:
if property damaged prior to closing, risk of loss is imposed on the buyer. Buyer would have to cover any losses + pay purchase price to seller

Exceptions (aka when seller bears loss):
- it’s a NEW CONSTRUCTION: the constructor would be required to rebuild the whole thing
- if loss is caused by seller’s own negligence
- if at the time of loss, title was unmarketable

MIN RULE:
- places risk of loss on seller

Question 9

Deed

definition and validity requirements

Answer 9

Document that serves to pass legal title from grantor to grantee when it is (1) lawfully executed and (2) properly delivered

Requirements:
- identification of the parties (cannot be “leaders of all churches in York County” which is too broad)
- in writing and signed by grantor. grantee need not sign
- words of present / actual intent
- adequate land description
- proper delivery (1.g. recording, physical delivery, third party delivery)

Question 10

Delivery of deed and revocability

Answer 10

If grantor physically hands deed to grantee, title passes immediately to grantee and is not revocable.

• Doesn’t matter if grantor later asks grantee to destroy the deed.
• Or requests to delay the recording
• Handing deed back / tearing it up does not undo the conveyance of property through the deed

Question 11

Consequences of defective deed to future BFP

Answer 11

Void/defective deed will be set aside even if transferred to a BFP.
- Void deed&raquo_space; no BFP protection

Voidable deed will be set aside unless transferred to BFP.
- Voidable deed&raquo_space; BFP protection

Question 12

Estoppel by deed

Answer 12

AKA after-accquired title

If someone purports to convey an interest in real property that they don’t own at the time, but subsequently obtains title to the property, the property will automatically pass to the grantee once the grantor acquires title

Estoppel by deed only applies to transfer by warranty deed, not quitclaim deed

Question 13

Ademption

Answer 13

When a testator devised property to a specific person in their will, but the property is no longer part of the estate at the time of testator’s death

Question 14

Exoneration

Answer 14

When a person receives a bequest, and the property is subject to lien or mortgage, then the encumbrance will be paid off with estate’s personal property so that the recipient receives title free and clear of mortgage

Question 15

Lapse & anti-lapse

Answer 15

Lapse occurs when the beneficiary named in a will ends up dying before the testator, and thus the bequest fails

Anti-lapse statutes allow the predeceased beneficiary’s heirs to receive the bequest

Question 16

Wild deeds

Answer 16

Deed that is recorded outside the chain of title. Does NOT provide constructive notice because BFP wouldn’t be able to find it. .

Ex: Owner sells lot to Doctor. Doc does not record. Doc then sells to Surgeon and Surgeon records. Owner subsequently grants to Architect. Architect does not constructive notice

Question 17

New owner’s responsibility over mortgaged property: “subject to” versus “assumed mortgage”

Answer 17

Sale (or gift) “subject to” the mortgage
- Buyer is NOT personally liable for paying mortgage.
- Buyer is NOT personally liable for any deficiency in the case of a foreclosure

Assumption of mortgage
- Buyer agrees to be personally liable to original mortgagor/mortgagee for repayment of loan.
- Includes any deficiency if there’s a foreclosure
- original mortgagor still “secondarily liable” to the lender as a surety, unless there’s a “release of liability” from the lender

Question 18

Due on sale clause

Answer 18

This requires a property owner who transfers ownership of the property to pay the ENTIRE loan balance to mortgagee in full.

aka loan cannot be “assumed” to a new owner

due on sale clauses ARE reasonable and enforceable (if you see “unreasonable restraint on alienation” as an ac, that’s wrong)

Question 19

Lien Theory vs Title Theory for mortgages

and what it means for possession before foreclosure

Answer 19

Lien Theory (maj rule)
- Mortgagee / lender holds security interest only. Thus, they may not take possession before foreclosure

Title Theory (minority rule)
- Mortgagee/lender MAY take possession before foreclosure because mortgagee actually holds title until the loan has been paid or foreclosed.

Intermediate Theory
- upon default, legal title shifts to mortgagee/lender who can demand possession

Question 20

Equitable redemption

(and the right to redeem)

Answer 20

Meaning the mortgagor is allowed to pay off the entire mortgage before the foreclosure

This right to redeem cannot be waived. “Clogging the equity of redemption” is not allowed

Question 21

Statutory redemption

Answer 21

Some states allow this, which gives mortgagor opportunity for a fixed period after foreclosure (usually 6 months to 1 year) to “redeem” and pay off the amount due on mortgage

Question 22

Joint tenancy

definition, creation, key features

Answer 22

When 2 or more people hold a single, unified interest in a property

Features:
- automatic right to survivorship
- equal right to posses whole property
- each JT owns property in equal shares
- any JT can unilaterally sever

Question 23

Judgment lien does not sever joint tenancy.

What happens to the lien interest when the tenant that has the lien dies?

Answer 23

When the JT that has the lien against the dies, their interest evaporates and the judgment lien holder no longer attaches the property

But if the judgment lien is enforced by foreclosure, then the JT will be severed. Then property will be owned half to the judicial sale buyer and half to the original JT, as tenants in common

Question 24

Accounting between co-tenants

Answer 24

Co-tenants have duty to pay their proportionate share of “carrying costs” (e.g. taxes and mortgage payments. Also required to pay for necessary repairs

Co-tenants have NO duty to improve the property

Profits from rents and profits from land depletion must be shared

Question 25

Easement in gross

Answer 25

Holder of easement in gross gets "special use" of the property granted to them. This right is independent of ownership of another piece of land (e.g. holder of this easement doesn't have to be a neighbor) Ex: A particular person has permission to fish in my pond; the utility company has a right-of-way to install and service an underground gas pipeline

Question 26

5 ways to create easement

Answer 26

1. Express creation in writing (deed or will) 2. Easement by implication (previous use) - Land was originally one parcel - Land is severed - Easement is reasonably necessary to dominant land's use and enjoyment - Use of the property in this way existed prior to severance (usually landlocked examples) 3. Easement by necessity - Land was originally one parcel with common ownership - Land is severed - Easement is necessary bc there's no other way to access property - prior use is not required 4. Easement by prescription (adverse possession) - Different from "adverse possession" because the use need not be exclusive! It's fine that both the hunters and the man who had rerouted the path used the path on the neighbor's land 5. Easement by estoppel - Having relied on the promise of an easement / made improvements to it and thus contributed to increasing its value

Question 27

Burden "runs with the land"

Answer 27

This means that the covenant is binding on future purchasers Requirements: - writing between original parties - intent between the parties that the promise apply to successors - must "touch and concern" the land >>> makes land more useful - horizontal and vertical privity - notice

Question 28

Equitable servitude (restrictions on how land may be used) Equitable servitude vs. restrictive covenant

Answer 28

Equitable servitude - Like covenant, writing and notice required - LIke covenant, binding on successors - BUT NO privity requirement Restrictive covenant breach = damages Equitable servitude breach = injunction

Question 29

When does someone have "heirs"

Answer 29

Only if they die intestate (without a will) If they HAVE a will, then they don't have heirs and the entire estate goes to the will beneficiary

Question 30

The rule about using a state's substantive law applies only for what kinds of property issues? And when does it not apply?

Answer 30

Property is located in State A, so State A's substantive laws will apply -- this is used for property issues like whether a covenant is valid But dispute about awarding buyer damages based on fraudulent conveyance is takes the substantive law of whichever state has the greatest interest in the dispute

Question 31

Assignment of lease vs. sublease

Answer 31

Sublease – transfer of anything less than lessee's entire interest to third party Assignment – transfers lessee's entire interest in the leased premise to a third party (ex: transferred "lease rights" for the remaining nine months of the lease. 9 months is all that's left so this is an assignment, not a sublease)

Question 32

In the absence of agreement between landlord and tenant about removing chattel/fixtures, what happens?

Answer 32

Tenant CAN remove chattel that he attached to the space (e.g. special lighting, display cases, shelving, counters) as long as the removal does not substantially damage the premises This removal must occur before end of lease term. T has duty to repair damages if any, from the removal of chattel

Question 33

Landlord and Tenant and Sublesse Privity

Answer 33

Sublessee and Tenant are in privity of estate with each other. Only tenant remains in privity of estate with landlord. There is no privity of contract between sublessee and landlord because sublessee made no promise, either to landlord or tenant to pay rent to landlord. Although privity may not be required under an equitable servitude theory, a finding for the sublessee (not having to pay landlord) means court did not use such a theory

Question 34

Owner of property getting an agent to convey property through deed

Answer 34

If owner orally hires and instructs agent to sign owner's name, then deed is NOT valid. Because an agent signing a deed on behalf of principal must have his own authority to sign the deed in writing also. Agent's authority to act on behalf of the owner must be in writing.

Question 35

License (in property law)

Answer 35

Permission to use someone else's land Not subject to SOF (which means oral license is fine) Usually revocable at anytime (unless the licensee expended lots of money/resources substantially improving it)

Question 36

Things that make title unmarketable: - Defects in chain of title - Encumbrances

Answer 36

Defects in chain of title - Refers to any defect that indicates the vendor does not have full interest which he purports to convey Encumbrances - mortgages - liens - easements - use restrictions - encroachments - land use and zoning violations

Question 37

Merger Doctrine

Answer 37

Obligations imposed by contract of sale (marketable title) are discharged UNLESS repeated in the deed. Ex: if buyer contracted for marketable title but accepts a quitclaim deed, buyer would not be able to sue on contractual provisions. Under merger doctrine, marketability of title and related covenant claims are replaced by only "future covenants of the warranty deed" Aka real estate contracts are only relevant during the gap between signing and closing (aka delivery of the deed)

Question 38

When a mortgage is entered into "jointly" by tenants in common

Answer 38

Each co-tenant would be jointly and severally liable for the mortgage. One T can pay mortgage and compel the other T for contribution The only way the sister could have protected her one-half interest (if she doesn't want to pay bother's half) is to have obtained a mortgage ONLY on her own interest

Question 39

Seller has personal liability on a mortgage on land. Buyer "assumes the mortgage debt" Buyer doesn't make installment payments. To prevent default, seller pays. Can seller get reimbursement from buyer

Answer 39

Yes because law of suretyship Seller is the "third party" that the bank could go after if buyer doesn't pay. Thus, seller has the right to seek reimbursement if he pays for what the buyer is supposed to pay

Question 40

When is the window for challenging marketability of title closed?

Answer 40

When the deed is delivered, then contractual obligations (marketable title is discharged)

Question 41

Warranty Covenants (what does it cover / not cover once deed have been delivered)

Answer 41

Protects against third party interference with use and possession of land and/or claims of superior title Landlocked land, without access to public road, would have allowed buyer to challenge marketability of title, but must have been raised prior to transfer of deed. Under merger doctrine, marketability of title and related covenants are replaced by only "future covenants of the warranty deed"

Question 42

P’s awareness of the contact not required in what kind of tort?

Answer 42

Battery Ex: P does not like D. If D kisses P while P is sleeping, this is a battery even though P was unaware at the time since the contact is offensive to a reasonable person

Question 43

After being fired, VP was given 10 minutes to leave the building otherwise guards would physically throw him out. Assault?

Answer 43

Assault is the intentional causing of apprehension of imminent harmful or offensive contact 10 minutes = NOT imminent harm

Question 44

Examples of extreme & outrageous conduct

Answer 44

- Man placed microphone in former wife's bedroom - Man killed neighbor's cat in front of neighbor - Bill collector shouted through bullhorn that plaintiff was "deadbeat" - Bill collector threatens P that if no payment, bill collector will file complaint of fraud - Developer threatens elderly landowner that if she doesn't sell to developer, state law would allow him to have the home condemned

Question 45

Wrongful birth/pregnancy/life (definition and remedies)

Answer 45

Wrongful birth – baby born with congenital defects and pregnancy would've been terminated if properly diagnosed (remedy: extraordinary medical expenses and emotional distress) Wrongful pregnancy – contraception failure (remedy: pregnancy-related expenses and pain and suffering, but NOT child-raising costs) Wrongful life – not allowed. Brought by child to recover damages for having been born with defects

Question 46

What kinds of defendants would tell you that Joint & Several Liability apply?

Answer 46

CONCURRENT tortfeasors - where each defendant’s independent act would not have injured Plaintiff. But their combined action resulted in the harm SUBSTANTIAL FACTOR causation - where each defendant’s independent act alone was enough to injure the Plaintiff. INDIVISIBLE HARM - two negligent hunters fire guns simultaneously, but it’s unclear whose bullet caused the harm

Question 47

Defamation vs. Libel vs. Slander

Answer 47

Defamatory Statement - a false or derogatory statement of or concerning the plaintiff (must be a living person, or corporation) - is published (repeaters of defamatory statement counts) - to another person (one person is enough) - and causes damage to P's reputation Libel - communication in writing - general damages presumed. P doesn't need to prove special damages Slander - verbal defamation - special damages required (P suffered some pecuniary loss)

Question 48

Defamation involving a public figure

Answer 48

Public Figure (1) P must prove the statement was false AND (2) D acted with actual malice — aka knew it was false or acted with reckless disregard for the truth Private Person but matter of Public Concern (1) P must prove statement was false AND (2) that D acted with at least negligence about the truth

Question 49

Best defenses to torts

Answer 49

For Intentional Torts - Consent / assumption of risk (NOTE: P cannot assume the risk if they did not KNOW like actually been aware of the risk / have an alternative option) Negligence - Contributory negligence - can also have assumption of risk (more rare)

Question 50

Man who left his shotgun in the backseat of his car, whilst knowing that his friend recently joined a violent gang, will be FULLY indemnified for the judgment against him because the friend was an intentional tortfeasor

Answer 50

Because the friend was the intentional tortfeasor Man had nothing to do with it / knew nothing about it

Question 51

What are “substantive” issues pertinent to diversity cases (state substantive, federal procedural?

Answer 51

- statue of limitations - measure and type of damages - burden of proof - elements of claim or defense

Question 52

If D encroaches on neighbors land and then sells his property, can D still be sued for trespass?

Answer 52

Trespass liability is wrongful entry into another’s land, and liability attached AT the time of trespass. Although new owner may still be liable, D is still responsible for CAUSING the invasion.

Question 53

When a P is treated by medical team as a group and unconscious with anesthesia, what's the tort issue?

Answer 53

Res Ipsa Loquitur (1) the event that happened is one that does not usually occur absent negligent (2) the harm was caused by something in D's exclusive control and (3) P was not the one who caused the event to occur Why is it not negligence by "Ds acting in concert" --> there's no evidence that two Ds caused the burn. Could have just been one person. So "acting in concert / common scheme" requires responsibility and fault of AT LEAST 2 people who engage in wrongdoing. Here, it's possible just one person burned the patient

Question 54

Public disclosure of private facts

Answer 54

D published private information about P that would be highly offensive to the reasonable person and is not newsworthy.

Question 55

When we're evaluating the elements of whether a D's actions constitute BATTERY, then we would NOT ever be talking about the reasonableness of smoker D's conduct

Answer 55

Intentional torts ≠ Negligence

Question 56

Is an auctioneer considered a "seller/distributor/supplier" for purposs of strict liability in tort

Answer 56

No bc auctioneer is not in the business of selling tractors. And commercial sellers are strict liable if they're engaged in the business of selling the product in normal course of business

Question 57

A claim for NIED MUST be connected to a physical injury

Answer 57

Even if the dispatcher suffered severe emotional distress and was hospitalized at one point, the facts tell us there was "no physical injury" And thus company's motion for summary judgment should be granted bc negligent emotional distress must be connected to a physical injury

Question 58

Land possessor's duty to land entrants

Answer 58

Invitees - Must inspect to discover UNKNOWN dangers, - Make safe or warn guests about unknown dangers - And prevent harm Licensees - Must warn of known latent defects and use reasonable care in active operations - AKA no duty to warn of dangers licensees can discover / know already (grandpa with the toys) Known or anticipated trespassers - Warn of known artificial dangers and use reasonable care in active operations Unknown or unanticipated trespassers - No duty

Question 59

Modern approach of land possessor's duty to land entrants

Answer 59

Land possessor owes duty of reasonable care to all land entrants (except flagrant trespassers)

Question 60

When is a defamatory statement to a third party privileged

Answer 60

When D believes the statement/info is of interest to the third party (e.g. hiring) Or when it's not D voluntarily offering the information, but the third party specifically asking for it But D will still be liable for defamation if this privilege is abused, AKA: - When D knew the statement was FALSE or when D had substantial doubts to the accuracy

Question 61

What kind of property interest must plaintiff hold to have standing to sue for trespass?

Answer 61

Possessory interest (aka the right to occupy or control the property) So doesn't have to be owner of the property, can even be tenant

Question 62

Wrongful death (doctor’s malpractice) Traditional vs. modern rule

Answer 62

Traditional –  Decedent probably would've survived but for the defendant's malpractice (greater than 50%) Modern – Decedent's chance of survival was reduced by defendant's malpractice (45% chance reduced to 20%)

Question 63

Negligent Infliction of Emotional Distress (NIED) liability arises when? 2 theories

Answer 63

Bystander theory - Plaintiff is actually there to contemporaneously perceive harm done to a close relative Zone-of-danger - Plaintiff was placed at risk of immediate bodily injury AND the risk cause P serious emotional harm - We want manifestation of physical systems of some sort? (manifestation of physical systems = later harm like headaches and panic attacks due to the stress)

Question 64

P CAN recover for product liability when? and CANNOT recover when?

Answer 64

Damages resulting from personal injury or damage to the property other than the defective product itself. Claim for purely economic loss is not allowed. (Software glitch that’s causes loss of profits, spoiled food due to defective frig and thousands of dollars in wasted inventory but no injury, or car transmission fails but does not cause accidents or injuries)

Question 65

President’s exclusive Article II powers

Answer 65

- nominate principal officers - veto bills - pardon federal offenses - communicate / negotiate foreign governments - recognize foreign governments - enter into executive agreements

Question 66

When are passages/statements in a learned treatise or periodical admissible for truth (aka as substantive evidence)

Answer 66

(1) when publication is established as reasonably reliable authority by expert or judicial notice (2) AND statements are called to the attention of or relied on by an expert witness ANOTHER NOTE: these statements can ONLY be read into evidence, cannot be received as exhibit (same as recorded recollection— which cannot come in as an exhibit unless the opposing party so desires)

Question 67

Features about attorney-client privilege

Answer 67

Remains in effect even after professional attorney-client relationship has ended, even after client had died Physical evidence is not privileged. Only applies to communications Exceptions: - communications in furtherance of crime or fraud are not privileged - danger that pose immediate risk of harm to third party - attorney testimony is fine if there was previous joint representation and those clients are now in a lawsuit with each other

Question 68

Evidence rules on police reports

Answer 68

Police report likely falls within business or public records hearsay exception But doesn’t apply to eyewitness’s statements since eyewitness lacked a business or legal duty to report on the fight

Question 69

Plaintiff offers to testify that the day before her husband was killed, he described to her a chance meeting with the defendant on the street in which the defendant said “I’m going to blow your head off one of these days” Admissibility

Answer 69

D’s statement to Husband - admissible through “statement by party opponent” Husband’s statement to P - NOT admissible bc it’s not a present sense impression and it’s not an excited utterance Thus not admissible as double hearsay

Question 70

Use of a writing to refresh a witness’s recollection does not implicate the best evidence rule why?

Answer 70

Because BER only applies when a party is trying to prove the contents of the writing

Question 71

The best evidence rules allows the admission of a reliable duplicate (e.g. photocopy) without a showing that the original is unavailable. True or false??

Answer 71

True Unless (1) a genuine question is raised about the original’s authenticity or (2) circumstances make it unfair to admit the duplicate

Question 72

Speech restrictions in a public and designated public forum must be what?

Answer 72

(1) Content neutral (2) Serve a substantial/important government interest (3) Be narrowly tailored to serve that interest (4) Leave open alternative channels of communication

Question 73

Speech restrictions in nonpublic forums must what?

Answer 73

(1) Be viewpoint neutral (different from content neutral. Viewpoint neutral = you can't take sides) (2) Serve a legitimate government interest (3) Be reasonably related to that interest

Question 74

Landlord ~ tenant Subleasee Assignment Privity of contract and estate

Answer 74

L and T have privity of contract AND privity of estate A subleasee does not enter into either privity of contract or estate with landlord But assignment would make new tenant in privity of contract and estate with L?

Question 75

Best evidence rule only applies to what kind of evidence? When is it used?

Answer 75

- Only writings, photographs, and recordings - NOT physical models - not a “sales receipt” bc can be proved with testimony, transaction logs, security footage. Receipt is not actual legal contract. Used when a document’s contents are at issue - to prove the happening of an event (e.g. video of robbery) - doc with legal effect (e.g. audiotape of contract, WILL has independent legal significance, LEASE is a legally operative document) - witness is testifying based on facts learned from document (e.g. x-ray or audio recording) as opposed to personal first hand knowledge. In other words, document-dependent testimony, police officer testifying about victim’s diary where victim wrote about threats made against her: testimony is reliant on the writing and not personal knowledge.

Question 76

President had absolutely plenary authority to remove officers. And requiring “good cause” would be an unconstitutional legislative interference with an executive function unless what?

Answer 76

The officer either - belongs to a multi member body that’s balanced along partisan lines and exercises NO executive power (e.g. conducts investigations on behalf of congress) - or lacks policy making/administrative authority (independent counsel)

Question 77

A state tax that affects interstate commerce does not violate the DCC if it is what?

Answer 77

- applied to a person/activity that has a substantial nexus with the state (entities with poultry operations in the state) - is fairly apportioned (applies only to birds raised or processed) - non discriminatory (applies to all poultry operations in the state) - and is fairly related to services or benefits provided by the state

Question 78

Requirements of a valid deed delivered through a death escrow

Answer 78

- grantor must give deed to an escrow agent (attorney) with instructions to transfer it to the grantee upon grantor’s death - AND relinquish the right to take back the deed

Question 79

When does federal court have exclusive jurisdiction?

Answer 79

- bankruptcy (bc all governed by fed statutes) - patent, copyright/trademark - federal officers (position within federal agencies: FBI, US Marshal, Secret Service) - securities cases - antitrust - maritime - suits between states

Question 80

Can interrogatories or depositions be sent before a pretrial conference (arranging for initial disclosures/preparing discovery plan)

Answer 80

No that is not proper Because pretrial conference is required first. If the discovery is improper, D can refuse to answer them or seek a protective order

Question 81

A party must object to the judge’s proposed jury instruction when, otherwise the ability to raise issue on appeal is waived?

Answer 81

Party must object to jury instructions before they go to the jury or they waive the ability to raise the issue on appeal

Question 82

JMOL Define it Timing Standard

Answer 82

Moving party contends that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on the issue Standard: evidence is viewed most favorably to the non-moving party Timing: request motion for JMOL must occur BEFORE court submits case to jury, but after non-movant has been fully heard

Question 83

Exceptions to the final judgment rule Aka what can be appealed that is normally not appealable (before a final judgment is actually made)

Answer 83

- injunctions (like TROs becoming PI) - interlocutory appeal - collateral order - certification of class actions

Question 84

Claim Preclusion (Res judicata)

Answer 84

Precludes relitigation of a claim that has already been decided 1. There is a valid final judgment on the merits 2. Same exact plaintiff and same defendant as before (or prices, like a trustee/successor/representative) 3. The same claim and cause of action and transaction/occurrence is being litigation EX: - woman lost first claim of IIED. She cannot bring another action for NIED re the same transaction/occurrence - D that lost first case cannot file a new lawsuit with a claim that he should have brought as compulsory counterclaim in the first case

Question 85

Issue Preclusion (Collateral estoppel)

Answer 85

1. There was a final judgment on the merits 2. Same issue was ACTUALLY litigated 3. The issue was an essential part of the judgment 4. Can only be used against someone who was a party (or in privity with a party) in the interest of fairness so they have opportunity to defend the action EX: - D manufacturer won in first case. D can use issue preclusion to prevent another P customer from another state suing

Question 86

can assistant/colleague accept service of summons as an “authorized agent”? What about 14-year old kid who lives at the house

Answer 86

Interpreted narrowly in that an assistant/colleague CANNOT accept service of process absent explicit permission Kid who resides at home CAN accept

Question 87

Service on a corporation, partnership, or association?

Answer 87

Service can be effected by following state law or delivering summons+complaint to officer or managing agent MUST ALSO mail a copy to each defendant. Service by email is NOT allowed.

Question 88

What are examples of state substantive law that has to be applied in diversity cases

Answer 88

- Statue of limitations - Choice of law rules - Notice of claims requirements - Elements of a claim or defense - Burden of proof - Remittitur and additur - Issue and claim preclusion rules

Question 89

Conflicts on choice of law — what law will federal courts apply?

Answer 89

SMJ Federal Question - federal law Diversity Jurisdiction - the choice of law rules of the STATE where the federal court sits Transferred diversity case - original venue is proper >>> court applies choice of law rules of original forum - original venue not proper >>> court apples choice of law rules where the state sits

Question 90

Amending to add a new party will relate back if what requirements are met?

Answer 90

1. Concerns the same conduct, transaction, or occurrence as the original complaint 2. New party had notice within 90 days of its filing 3. New party also knew, or should have known, but for mistake, they would’ve been named as defendant in original complaint

Question 91

Permissive vs Required Joinder

Answer 91

Permissive: - plaintiffs or defendants can be joined if the claims arise from same transaction/occurrence - if SMJ based on diversity, joinder cannot destroy diversity Required necessary party if: 1. Court cannot provide complete relief without necessary party 2. Absent party’s interest will be harmed if they are not joined 3. Existing part would be subject to multiple inconsistent obligations

Question 92

If credit union (junior lien with lower priority than PMM) was NOT a party to the foreclosure action vs. WAS a party to the action, what effect on buyer’s interest in the house

Answer 92

If credit union was a party, then the foreclosure sale buyer gets the house free and clear of the mortgage. If credit union was not a party, buyer gets the house subject to the mortgage that the credit union has

Question 93

What does it mean for a defendant to make a false statement about the plaintiff with actual malice? (Defamation of public official/figure)

Answer 93

- knew that the statement was false or had reckless disregard about statement’s falsity - also a statement would only tend to harm the plaintiffs reputation if a third party is reasonable interpretation of that statement would tend to do so

Question 94

What requirements must be met for a defendant (ONLY D listed in Plaintiff’s complaint can remove. Not even someone who “joined” with D in counterclaim) to remove a case originally filed in state court to federal court?

Answer 94

(1) the federal court must have subject matter jurisdiction over the plaintiff claims otherwise the federal court can only retain the removable claims and not the non-removable ones (2) all defendants consent to removal (3) the defendant files a notice of removal within 30 days of receiving the plaintiffs initial complaint (4) a copy of the notice of removal is delivered to the state court and the other parties

Question 95

Only in a NOTICE recording jurisdiction, why will judgment creditors, not be protected, even if they record prior to a buyer?

Answer 95

Because a notice only act protects only subsequent purchasers for value who lack notice of prior interest in the land. So because judgment creditors are not purchasers for value since the judgment lien is merely security for a pre-existing debt, they won’t be protected

Question 96

Approaching questions on speech regulation and its constitutionality

Answer 96

1. Is it protected? think FIDO - fighting words - obscenity - illegal conduct (drugs, child pornography) - commercial speech: protected so long as it concerns, lawful activity and it’s not false or misleading 2. If commercial, standard is: - regulation directly advances a substantial government interest - is not more extensive than necessary to serve that interest - reasonably fit between means chosen and interest served 3. Content based (strict scrutiny) - narrowly tailored to serve a compelling government interest) 4. Content neutral (intermediate scrutiny) - narrowly tailored to serve an important government interest - leaves open ample alternative channels

Question 97

Character evidence is generally inadmissible when used to imply and prove that a person acted in conformity with his/her character. Except admissible in what cases? As what kind of evidence?

Answer 97

Character evidence (reputation or opinion testimony OR SIC like prior theft) CAN be used as substantive evidence When character is an essential element of a civil/criminal charge or asserted defense

Question 98

Larceny

Answer 98

Trespassory taking and carrying away of personal property of another with the intent to permanently deprive

Question 99

Larceny by trick

Answer 99

D obtains possession of the personal property another BY MEANS of a representation or promise that he knows is false at the time he takes possession (Like tricking the other party by lying or by fraud in order to get possession) But ONLY if you got possession of it BECAUSE if the lie

Question 100

Embezzlement

Answer 100

D is lawfully in possession of the property but then commits fraudulent conversion Ex: pawn shop owner who is supposed to hold a diamond ring for 60 days but ends up selling it 50 days later is guilty of embezzlement

Question 101

False pretenses

Answer 101

(1) D knowingly misrepresents past or present material fact (2) with the intent to defraud (3) to obtain title to someone’s property/cash

Question 102

Burglary

Answer 102

Breaking and entering into a building with the intent to commit felony

Question 103

Solicitation (Features)

Answer 103

- when one requests or encourages another to commit a crime - no withdrawal: solicitation has been committed one the q is asked. Doesn’t matter that D changed their mind later - solicitation mergers with the underlying crime

Question 104

Conspiracy (And acquittal for CL vs. MPC)

Answer 104

agreement between two or more persons who intend to commit Wharton Rule (which follows CL) If one D is acquitted, the other D cannot be convicted of conspriacy But if one D’s charges are just dropped, the other D can still be convicted Under MPC, A person can be guilty of conspiracy even if their co-conspirators are acquitted or never prosecuted

Question 105

Conspiracy (Number of parties and overt act required for CL vs. MPC)

Answer 105

Common Law: - requires bilateral agreement with two or more persons agreeing - no overt act required MPC: - unilateral agreement allowed. - In this case, a conspirator with undercover police officer CAN be charged and convicted - overt act required

Question 106

Diverting water from under neighbor’s ground But no excavation of soil or dirt

Answer 106

Would NOT be liable for neighbor’s house sinking or cracking

Question 107

Merger rule for inchoate crimes

Answer 107

Solicitation MERGES with the crime Attempt MERGES with the crime Conspiracy does NOT merge with the crime

Question 108

Defendant attempts to poison her boss with a substance believed to be poison, but the substance is actually a laxative. What kind of defense is this?

Answer 108

This is called factual impossibility bc the substance is actually not poisonous. So its not able to kill Factual impossibility IS a defense for murder. But NOT a defense for ATTEMPTED murder

Question 109

Examples of probable cause vs no probable cause

Answer 109

Probable cause: - person roaming around sketchily in an area that’s known for high crime and then throwing something in the bushes - police informant or trustworthy insider call No probable cause: - anonymous call about someone at the house

Question 110

Violation of miranda warnings vs police coercion and resulting admissibility

Answer 110

Violation of miranda warning (includes not providing counsel) VOLUNTARY confession = CAN still admissible for impeachment purpises Involuntary confession = Police coercion CANNOT be used either for case in chief or to impeach

Question 111

What does jeopardy apply to and when does it attach?

Answer 111

Jury trial: attaches when jury is empaneled Bench trial: attaches when first witness is sworn in Does not apply to preliminary hearings or grand jury proceedings (because they don’t involve the actual trial or judge). In other words, jeopardy only applies when like the trail actually begins / race has started

Question 112

Before officers interrogate a suspect in custody, officers must do what

Answer 112

Officers must administer Miranda warnings: (1) right to remain silent (2) anything said can and will be used against you in court (3) right to an attorney (4) if you can’t afford attorney, one will be provided But does not need to tell suspect that theyre under arrest

Question 113

Marital communications vs witness spouse privilege

Answer 113

Marital communications - extends to ANY confidential statement made between spouses during marriage. - This privilege survives divorce tho. So you can prevent spouse from testifying to communications made during marriage and during marriage ONLY (communications before / after marriage don’t count) Witness spouse - only criminal cases - can testify to things that occurred even before marriage - privilege to prevent testimony ends at divorce though

Question 114

What will be waived (vs can be brought anytime) if not raised in first motion or first response by defendant?

Answer 114

Lack of PJ Improper venue Insufficient service of process What’s not waived: - subject matter jurisdiction - failure to state a claim / join a necessary party

Question 115

What does the UCC allow when accepted goods seemed conforming but only upon later discovery can you even find out about the non-conformance of issue with the good?

Answer 115

Buyer can revoke acceptance of a good whose non-conformity substantially impairs the good’s value to him But must give notice within reasonable time

Question 116

UCC Perfect Tender Rule

Answer 116

Goods that at the time of delivery don’t conform to contract may be wholly rejected, wholly accepted, or partially accepted Seller also had right to cure the defect and is permitted a reasonable period of time to do so

Question 117

What kinds of conduct = police should know are reasonably likely to elicit an incriminating response from suspect and therefore D’s statement should be suppressed?

Answer 117

- police coercion - intimidation about what’s going to happen to those that D cares about - going to the club that D regularly frequents and chatting them up

Question 118

What’s fee simple determinable — and its affiliated future interest?

Answer 118

Durational - so long as - during Future interest - Grantor’s possibility of reverter

Question 119

What’s fee simple subject to condition subsequent — and its affiliated future interest?

Answer 119

Conditional - but if - provided that - unless Future Interesf - Grantor’s right of entry (but must be exercised and written in the doc “right to reclaim”)

Question 120

What are the specific future interests that could be subject to RAP?

Answer 120

Contingent reminders Vested remainders subject to open Executory interests Power of appointment ROFRs Options

Question 121

When is a prior consistent statement of the defendant admissible ?

Answer 121

If D’s or witness’s credibility has been attacked, that’s the only time prior consistent statement can come in as nonhearsay

Question 122

Warranty of merchantability vs Warranty of fitness for particular purpose

Answer 122

Warranty of merchantability - goods are fit for their ordinary purposes & conform to seller’s representations Fitness for particular purpose - seller has reason to know that buyer is relying on sellers skills to provide the goods

Question 123

Exceptions to warrant requirement

Answer 123

- search incident to arrest - administrative search of highly regulated industry - stop and frisk - automobile - consent - evanescent destruction of evidence, - emergency situation where there’s threat of physical harm, - hot pursuit of fleeing suspect Includes special government purpose - routine inventory search - special needs (search of students/government employees) - parolee - border search

Question 124

Congress’s taxing power

Answer 124

Direct tax (person or property) - apportioned evenly among states AND reasonably related to revenue raising Indirect tax (sales or excise) - uniformly applied in every state AND reasonably related to revenue raising Export tax - always unconstitutional

Question 125

The federal government, its agencies, and its instrumentalities are immune from direct taxation by the states unless Congress expressly consents. Give examples of impermissible direct vs. permissible indirect

Answer 125

Impermissible direct tax: - federal statute established a national lottery and created a new federal agency to administer it. Agency established outlets throughout the country. Some outlets are within a state that levies a general tax on gross receipts from all in-state gaming operations. - state tax on rental receipts (payments to fed gov, who leases concession/land to private individual). Why? Bc it’s income that fed gov ultimately receives and a tax on that would be specifically taxing fed gov Indirect tax that wouldn’t be counted as tax on federal gov: - tax on constructor, whose cost is paid by fed gov - state tax levied on private individual/entity’s USE and ENJOYMENT of federal property ( (kiosk operation in a federal park)

Question 126

Congress commerce power

Answer 126

(1) instrumentalities of commerce (2) channels of commerce (3) activities that substantially affect interstate commerce Cannot regulate local, non-economic activity

Question 127

Dormant Commerce Clause standards

Answer 127

If law discriminates on its face in state vs out of state: - state just show that regulation serves a compelling state interest and regulation is narrowly tailored to serve that interest Not discriminatory but law burdens interstate commerce: - court will apply a balancing test and law will be upheld unless the burden imposed on interstate commerce clearly outweighs local benefits State CAN discrimination only non-economic

Question 128

Is alienage a suspect class? (But what’s the exception case)

Answer 128

Yes state/local laws on alienage are suspect, except alienage CAN be considered for state employment positions involving the self-government process (police officers, primary and secondary schoolteachers)

Question 129

Privacy rights subject to strict scrutiny

Answer 129

- marriage - use of contraceptives - possession of obscene reading material at home - right to live with extended family - right to educate and raise children - right to choose schooling for children

Question 130

The 10th A prohibits federal government from requiring states to:

Answer 130

(1) enact state laws OR (2) enforce federal laws

Question 131

Misunderstanding can prevent contract formation but it is never grounds to what?

Answer 131

Mutual misunderstanding = contract was never formed. Unilateral mistake = contract may follow the understanding of the party not at fault (only if other party had reason to know of the mistake) Fraud/misrepresentation = voidable and rescission available

Question 132

Misrepresentation includes non disclosure of a material fact if D had a duty to disclosure it

Answer 132

- when d actively misrepresents a material fact - BUT ALSO includes non disclosure of a material fact if D had a duty to disclosure it

Question 133

Under 10th A, Congress is prohibited from imposing federal taxes on states that

Answer 133

(1) discriminate against states bc taxes apply to states and their agencies but not individuals/entities or (2) would unduly interfere with the states’ essential functions — ex: tax on core state functions like issuing bonds — ex: taxing revenue of state legislatures

Question 134

Public employees only have a property interest in their employment if what?

Answer 134

Only if they can be fire only “for cause” When employees “work at pleasure or mayor,” the employee has no property interest in their jobs

Question 135

When can mayor / government official require members of her administration to be politically loyal (and therefore can fire the members if not)?

Answer 135

Only if the loyally is essential to the performance of the job Chief of staff = can require political loyalty Assistant sending out water bills = clerical, and doesn’t require political loyalty

Question 136

Police who obtains entry to a home through deceit (e.g undercover cop lying after identity)

Answer 136

That’s okay. The police’s entry in that way would still constitute consent by the homeowner and be constitutional

Question 137

Cumulative zoning

Answer 137

Permits higher use in lower use zones (Allows homes to be in commercial/industrial use areas)

Question 138

Compliance with governmental safety standards and “state of the art” product design

Answer 138

Does NOT bar plaintiffs recovery against the commercial seller as a matter of law

Question 139

11th A gives states immunity from what?

Answer 139

- private party or foreign government suing state; or suing state official for violating state law Exceptions: - state consents to suit - immunity removed by 13/14/15th amendment - state official sued for injunctive/declaratory relief - damages to be paid by state officer personally - state official sued for prospective (not retroactive damages) to be paid by state treasury - actions brought by US government or other state governments - federally approved condemnation proceedings brought by private parties - private parties against state pursuant to federal statute enacted pursuant to Congress’s war and defense powers

Question 140

State regulation of interstate commerce prohibited unless (DCC)

Answer 140

Discriminatory law (passes strict scrutiny) - narrowly tailored to meet important government interest, aka no alternatives Nondiscriminatory Law (passes undue bruden test) - Burden does not clearly exceed benefit State Tax on interstate commerce - substantial nexus - fairly apprortioned - nondiscriminatory - fairly related to benefit Other exceptions: - congress approves the state regulation - state is a market participant - subsidiy - the regulation is of a traditional government function

Question 141

Doctrine of anticipatory repudiation as applied to leases

Answer 141

Maj rule: Anticipatory repudiation does not apply to leases, thus landlord is not entitled to damages of rent for the months after (tenant refused to pay, landlord notice to vacate, and contract terminated) Min rule: Anticipatory repudiation applies to leases

Question 142

Definition of malpractice

Answer 142

Professional (e.g. dentist, doctor, lawyer) deviated from the standard of care that reasonable professionals would have used under similar circumstances

Question 143

Is title obtained by adverse possession marketable?

Answer 143

No unless it has been quieted (supported by judicial decree) bc there’s risk of litigation

Question 144

Adverse possession vs easement by prescription

Answer 144

Easement by prescription: - it’s like adverse possession BUT the use need not be exclusive of the owner or other users (owner’s tenants, the hunters, using the path as well is fine)

Question 145

Exceptions to parole evidence rule

Answer 145

PER revolves around evidence to modify or contradict terms of an integrated writing But the rule does NOT apply - COLLATERAL agreement: when there’s a separate contract supported by separate consideration made at the same time - when party is clarifying what a term of the contract means - when party is attacking validity of agreement - when there’s a trade of usage/industry custom that doesn’t expressly negate the terms (most additions wouldn’t expressly negate and would only supplement. This would be ok)

Question 146

Venue is proper in any federal district where what?

Answer 146

- any D resides (so long as ALL Ds resides in same state) - substantial portion of events occurred - D is subject to PJ

Question 147

Choice of law rules upon transferring venue

Answer 147

For diversity cases: Venue was proper in original court— Apply choice of law rules of original court Venue was improper in original court— Apply choice of law rules of receiving court For federal cases: Federal law applies regardless of venue

Question 148

Strict products liability is imposed on commercial sellers without proof of fault/negligence — even if the seller did not create the defect. So long as defect existed at the time it left seller’s control

Answer 148

Even though manufacturer made windows in strict accordance with specifications provided by GC for the building and used reasonable care. Doesn’t matter- still liable on strict products liability

Question 149

Strict products liability claims can ONLY be brought against commercial suppliers or sellers Who can strict products liability NOT be brought against?

Answer 149

Business providing services are NOT subject to strict products liability claims - health clubs - hair stylists - doctors

Question 150

Exculpatory agreements / waivers to absolve liability does NOT bar a valid strict products liability claims

Answer 150

It DOES bar a breach of contract (like manufacturer delivery claim: if the goods were destroyed on route to buyer)

Question 151

Forgery

Answer 151

When someone makes (creates or alters) a false documents of apparent legal significance with the intent to defraud Examples: Bank checks Letter of recommendation Diploma Historical docs False introduction Artwork Financial statements

Question 152

Article IV privileges and immunities clause

Answer 152

Prohibits states from discriminating against citizens of other states: - travel/reside in state - pursue employment - own/transfer property - seek medical services - access state courts - civil liberties - creditors rights - tax exemptions

Question 153

D can remove a case to federal court if what?

Answer 153

(1) case falls within court’s original jurisdiction (2) all other defendants consent to removal (3) D files a notice of removal in federal court within 30 of receiving summons/complaint (4) copy of notice is provided to state court and other parties

Question 154

Home-court advantage (forum-defendant) rule

Answer 154

Prohibits removal when federal court’s original jurisdiction arises from diversity jurisdiction and a D is already a citizen of the state in which the case was filed

Question 155

Admissibility of statement when Miranda warnings were not given

Answer 155

Miranda HAS to be given prior to interrogation. If given during interrogation and D is asked to repeat, D’s statement still won’t be admitted

Question 156

False imprisonment

Answer 156

(1) D commits an act that was intended to confine P within a bounded area AND (2) P was either aware of confinement or in minority jurisdictions, harmed by confinement - immobilized car in shopping mall/by tow truck = NOT confinement bc the person is not confined. The person can up and leave and go home

Question 157

Each real estate property is unique

Answer 157

Thus, even if there are comparable properties, Specific performance is due every time!!

Question 158

Novation

Answer 158

Subsequent contract that substitutes a new party for one of the original parties

Question 159

Due process requires prosecution to prove every element of a criminal offense beyond a reasonable doubt Would sentencing be an element of criminal offense?

Answer 159

If the sentencing is enhanced (e.g. sentencing factors that would increase the statutorily imposed sentencing range)

Question 160

Bill of attainder

Answer 160

Prohibits legislative acts that inflict civil or criminal punishment against identified persons (or groups of persons) without a trial

Question 161

Ex post facto laws What’s the definition?

Answer 161

Prohibit enactment of retroactive criminal laws that (1) criminalize previously legal conduct…. In other words, makes criminal an act that was not a crime when committed (2) impose greater punishment than previously prescribed (3) eliminate previously available defenses (4) decrease prosecutions previous burden of proof

Question 162

Public employment is a property interest when what requirements are met? (5th A notice and meaningful opportunity to be heard before depriving life, liberty or property interest)

Answer 162

(1) employee has ongoing employment contract (2) can only be fired for cause (3) receives assurances of continued employment

Question 163

Affirmative defenses (insanity, self defense) do not challenge elements of a crime. These are just justifications for criminal conduct, so due process clause does not apply

Answer 163

DPC requires prosecution to prove every element of a criminal offense beyond a reasonable doubt - DPC does NOT apply to affirmative defenses. - State law can thus place ANY burden of proof to establish or negate an affirmative defenses

Question 164

Undue influence vs duress

Answer 164

Undue influence - parent’s succumbing was bc of unfair or excessive persuasion by someone who dominated or shared special relationship of trust with that person Ex: Elderly in poor healthy, Ex: unfairness in resulting bargain (sale of business for less than half FMV) Duress - threat. And there has to be no other option Ex: crime or tort

Question 165

School officials and whether they need warrant/probably cause to search a student on school grounds

Answer 165

School officials don’t need warrant/probably cause to search a student if: (1) they have reasonable suspicion that student is violating law or school rules (2) scope of search is reasonably related to the suspected offense and (3) search is not excessively intrusive given student’s age, sex, nature HOWEVER, if school official conducts search at direction of police, must be support by warrant based on probable cause or exception to warrant requirement

Question 166

When is supplemental jurisdiction NOT permitted, in the context of original claim being based on diversity jurisdiction

Answer 166

(1) if the supplemental claim would contaminate diversity of citizenship between the opposing plaintiffs and defendants OR (2) seeks $75k or less AND is made by a plaintiff

Question 167

When can P amend its original pleading once as a matter of course?

Answer 167

Within 21 days after: (1) serving the original pleading OR (2) being served with motion to dismiss or responsive pleading (answer) — whichever comes first

Question 168

Rule interpleader vs. Statutory interpleader

Answer 168

Interpleader – procedure used when multiple people claim an interest in the same property (e.g. wives claiming same life insurance proceeds) Insurance company can avoid multiple liability by joining the claimants: Rule interpleader — requires independent SMJ (1) action must involve a federal question OR (2) exceed 75k with complete diversity between stakeholder/insurance company and claimants Statutory interpleader — (1) AIC of at least $500 and minimal diversity between claimants is enough — nationwide service of process

Question 169

Judicial notice can be taken at what stages? Even on appeal?

Answer 169

At any stage of the proceeding (even on appeal) But in criminal case – jury cannot be instructed to accept a noticed fact as conclusive since this would impermissibly limit D’s right to a jury trial. But in Bench Trials or Civil Jury Trials, noticed fact generally must be accepted as conclusive

Question 170

Potential tortfeasors facing joint and several liability — would any one of them required party?

Answer 170

No

Question 171

Construction company and real estate developer enter into contract. Neither knew that there’d be a massive layer of granite at 15 ft. Regulations require excavation to 25 ft. Constructor will continue if they get paid more $$. Who prevails if developer sues construction company for breach of contract?

Answer 171

Mutual mistake bc at the time contract was made, neither party knew about this granite. However, court will decide that construction company assumed this risk because: (1) there’s a foreseeable risk of encountering subsurface materials in excavation projects like this one AND (2) construction company should have been aware of this risk and acted unreasonably by failing to hire a qualified expert to test for any subsurface complications

Question 172

Statement that candidate for public office was using illegal drugs Editor acted unreasonably in not investigating the accusation before publishing it. However, editor honestly believed accusation was true

Answer 172

Actual malice = (1) actually KNEW the statement was false OR (2) recklessly disregarded the falsity / recklessly failed to confirm truth Here, (1) Editor did NOT know statement was false (2) AND did not recklessly disregard its truth. Editor ONLY acted unreasonably

Question 173

Takings Clause (5th A, but also applied to the states aka state governments through 14A)

Answer 173

PERMANENT taking of private property for public use — Fed/state governments must pay just compensation when exercising eminent domain power. Public use is broadly defined as any use rationally related to legitimate public purpose YES a taking: — gov taking land to sell to private company to build luxury hotel is still “for public use” NOT a taking: — one year moratorium on developing land

Question 174

Analysis on whether a government regulation constitutes a taking?

Answer 174

Physical – physical invasion on property Regulatory – deprivation of all economically beneficial uses – Restricts use under totality of circumstances: look at (1) character of gov action, (2) economic impact, (3) reasonable investment-backed expectation Exaction – condition to obtain permit can be a taking if it’s overly burdenson

Question 175

Durational residency requirement Woman who moved to the state 2 months ago was denied access to state funding for a surgery

Answer 175

This law will be reviewed under EPC since it treats 2 classes of people differently Right to travel is a “fundamental privacy right” and will be treated with strict scrutiny!

Question 176

Who can a constitutional challenge be brought by?

Answer 176

US citizen located anywhere in the world OR foreign citizen located within US territories No one else possesses rights under the Constitution

Question 177

Media is shielded from liability for publishing information that is unlawfully obtained by a third party if what?

Answer 177

(1) if the information involves a matter of public concern AND (2) the publisher neither obtained it unlawfully nor knows who did

Question 178

Is there diversity in these cases? State A v. Foreign Citizen State A v. Foreign Citizen domiciled in State A State A v. Foreign Citizen domiciled in State B State A + Foreign Country 1 v. State B + Foreign Country 2 State A + Foreign Country 1 v. State B + Foreign Country 1 State A + Foreign Country 1 v. Foreign Country 1

Answer 178

Yes No Yes Yes Yes No

Question 179

What type of “mistake of fact” is a defense for SI vs GI crimes?

Answer 179

Specific Intent (FIAT) - honest mistake, but doesn’t have to be reasonable Ex: I honestly took someone else’s ring even though it looks nothing like mine. That’s still a defense to SI General Intent & Actual Malice (Voluntary/involuntary manslaughter) - honest mistake but has to be reasonable

Question 180

Emily enters a fenced-off private property honestly believing she’s allowed to because it “looked public.” However, there were clear “No Trespassing signs” posted around. Vs. Emily is hiking and crosses into a neighboring property, thinking she’s still within public boundaries. There were no signs or fences marking the property line.

Answer 180

(1) Emily’s honest but unreasonable mistake is NOT a defense to trespass (general intent crime) (2) Emily’s honest AND reasonable mistake would be a defense to general intent crime (which requires a higher standard to the mistake than defense for specific intent)

Question 181

Testimony to what a witness heard is generally inadmissible hearsay when what? And then admissible for what other purposes?

Answer 181

Generally inadmissible if offered for the truth of the matter asserted But may be admissible to show that the statement was made (notice was given) or affected another (caused officer to believe that P was the robber)

Question 182

Tenancy in common

Answer 182

Each co-tenant has a separate share of the property, but the right to possess and enjoy the entire property (I.e. separate but undivided interests) A co-tenant may bring an action to partition.

Question 183

What kind of partition is preferred?

Answer 183

Partition in kind (physical division into lots that are proportionate to each co-tenant’s ownership interest) is PREFERRED OVER Partition by sale (forced sale where proceeds are divided in accordance with each co-tenant’s ownership interest)

Question 184

Can government force a group to accept members who would significantly burden its views/mission?

Answer 184

(1) Private organizations are not state actors, so their acceptance policies need not comply with Constitution BUT ALSO If there’s a local ordinance that prohibits organizations from refusing certain members: that’s a violation of freedom of association (2) Under 1st A freedom of association, government cannot force a group to accept members who would significant burden its views unless that interference is necessary to achieve a compelling government interest

Question 185

Is legal impossibility a defense to attempt? What about factual impossibility to attempt?

Answer 185

Yes it’s a defense to “ATTEMPT” Because the intended act would not be criminal even if completed Ex: arson is defined in jurisdiction as “intentional burning of any building or structure of another, without the consent of the owner” >>> owner tried burning. She’s not even guilty of attempted arson. Factual impossibility is never a defense to attempt Ex: wife thought she was using poison in her husband’s drink but it was actually just electrolyte powder

Question 186

Mistake of law = ignorance of law (almost never a defense to criminal liability)

Question 187

Spending clause gives Congress broad power to “appropriate/spend” money for the general welfare. But any conditions placed on receipt of appropriated funds must met what requirements?

Answer 187

(1) conditions must be clearly stated (2) be reasonably related to the purpose of the expenditure (3) not induce the recipient to do anything unconstitutional AND (4) not unduly coercive

Question 188

What are structural errors that would warrant an appellate court to automatically reverse a conviction/sentence?

Answer 188

- Biased judge - Deprivation of right to counsel - Attorney enters guilty plea over D’s objection - Discriminatory selection of jurors - Exclusion of D from courtroom during trial - Denial of public trial / jury trial - Improper jury instruction on burden of proof

Question 189

What two requirements mean that the 6A right to an impartial jury are met?

Answer 189

(1) jury pool must be selected from a fair cross-section of the community AND (2) the impaneled jury must be unbiased

Question 190

Preemptory vs. For Cause jury panel challenges

Answer 190

Peremptory - Disqualifying potential juror for ANY reason except for discrimination based on race, ethnicity, or sex For Cause - Disqualifying potential juror due to juror not being able to be to fair or impartial (e.g. bias, prejudice, past experience)

Question 191

How can a non-movant avoid SJ?

Answer 191

Non-movant can either: (1) show specific disputed facts through affidavits, declarations, discovery or other materials containing admissible evidence OR (2) request that court postpone consideration of the motion until additional discovery can take place Note: non-movant CANNOT relay on pleadings because pleadings contain general allegations. Nonmovant must show specific disputed facts

Question 192

In limited situations, a party to an illegal contract (breaking criminal OR civil law) can recover either expectation damages OR restitute damages

Answer 192

Expectation - if the party was justifiably ignorant of the illegality Restitution - if the party was less culpable than the other party

Question 193

Absent a statutory or contractual duty, a commercial landlord has no duty to make repairs unless what?

Answer 193

The repair (1) is so substantial that it falls outside the tenant’s common-law duty to repair OR (2) would primarily benefit the value of the landlord’s property

Question 194

Article III gives SCOTUS original jurisdiction when?

Answer 194

Only 2 circumstances: (1) when a case affects an ambassador, public minister, or consul AND (2) when a state is a party to the suit

Question 195

Exception to final judgment rule - district court certification What must be met for this interlocutory appeal (exception to final judgment rule) to apply?

Answer 195

(1) that there’s a substantial difference of opinion on the controlling question of law AND (2) an appeal may materially advance the ultimate termination of the litigation Party seeking an appeal must then apply to appellate court within 10 DAYS after DC enters the order

Question 196

Easement holder MAY increase the manner, frequency and intensity of easement’s use and easement will not be terminated unless what?

Answer 196

Unless the expanded use unreasonably damages or interferes with the use or enjoyment of the servient estate Question has to TELL you that the servient estate is being burdened in some way. Just bc increased use and intensity doesn’t mean that the servient estate holder can self help

Question 197

Self-defense for forcibly removing someone off property

Answer 197

Non-deadly self-defense is justified when one subjectively and reasonably believes it is necessary (Roommate who didn’t know about the sublease and pushes the subleaser out is justified in their self-dense and will not be liable for injury) No need to retreat but the force shouldn’t be excessive

Question 198

What needs to be objected to at trial to get on the trial record otherwise will not be preserved

Answer 198

Appellate courts will not review errors that are not on the record of a trial court proceeding - For hearsay issue to be preserved, the testimony has to be contemporaneously objected to

Question 199

Civ Pro Timing: Deadline for initial disclosures Deadline for expert disclosure Deadline for pretrial disclosure Deadline to demand jury trial Deadline to file notice of appeal Motion to alter/amend final judgment

Answer 199

Deadline for initial disclosures = 14 days after initial planning conference Deadline for expert disclosure (90 days before trial begins) Deadline for pretrial disclosure (30 days before trial begins) Deadline to demand jury trial (14 days after “last pleading” which could D’s amended answer, but usually shows up in P’s complaint or after D’s answer) Deadline to file notice of appeal (within 30 days, file notice of appeal) Motion to alter/amend final judgment (within 28 days after final judgment)

Question 200

Doctrine of transferred intent applies to which torts?

Answer 200

Assault (intending to frighten the wife with dog meets assault. Then if leash breaks and dog bits woman - there’s transferred intent so the dog owner is liable for battery) Battery False imprisonment Trespass to land or chattels

Question 201

Protection against self-incrimination applies only to testimonial evidence

Answer 201

Displaying one’s arms to see if there’s evidence of heroin needle marks is non-testmonial and therefore not within the protection

Question 202

When judgment is based on adequate and independent state grounds? (SCOTUS thereby cannot review final state-court judgment)

Answer 202

Adequate and Independent State Grounds = (1) State law fully resolves the matter, so that federal law doesn’t impact the outcome of the case at all (2) State court did not rely on federal law to reach its decision

Question 203

Federal statute makes it so that any decision by a lower state court upholding state energy law may be appealed directly to SCOTUS (doesn’t have to go through the state’s higher level courts) Is this okay/constitutional?

Answer 203

Yes, per article III Under Article III, Congress has plenary power to establish and terminate lower federal courts and to remove the scope of their jurisdiction

Question 204

Voluntary intoxication as a defense

Answer 204

Only for specific intent crime if it negates the requisite mental state like purposely/knowingly But voluntary intoxication is NOT a defense to a general intent crime and will not negate recklessness, negligence or strict liability

Question 205

Easement by Estoppel

Answer 205

Arises from good-faith, reasonable, detrimental reliance on servient-estate owner’s permission to make limited use of land Can also be characterized as an irrevocable license

Question 206

When considering an initial or renewed motion for JMOL, trial court must follow what requirements?

Answer 206

(1) view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant (2) disregard any evidence favorable to the movant that the jury is not required to believe AND (3) not consider the credibility of witnesses or evaluate the weight of evidence.

Question 207

JMOL jury trial/bench trial?

Answer 207

JMOL only appropriate in jury trial, NOT at bench trial, as it directs the jury to enter a verdict for a party based on evidence introduced at trial. True that party may file a motion for JMOL at close of evidence to preserve rights to file renewed JMOL after verdict.

Question 208

How are trial court’s discretionary rulings (e.g. injunctions, admissibility of evidence) reviewed? How about trial court’s legal rulings (granting or denying JMOL)?

Answer 208

Discretionary rulings: abuse for discretion and given great deference — admissibility of evidence — injunction — sentencing decision — sanctions Legal rulings: reviewed de novo and given no deference — JMOL — SJ — jury instructions — interpretation of statute

Question 209

A plaintiff’s recovery for a strict products liability claim CAN be reduced in proportion to P’s contributory negligence

Answer 209

Elevator malfunctioned due to manufacturing defect. Worker was stuck, called for help, was in no danger, but after waiting 15 minutes for help, he became anxious and jumped 12 ft to get out and injured his back.

Question 210

What will get de novo standard of review?

Answer 210

When appellate court is evaluating legal issues: - Conclusions of law (jmol) - Content of jury instructions

Question 211

When will appellate standard of review be clear error?

Answer 211

Factual issues in BENCH trials - Credibility of witnesses - Factual determinations Standard is: will only be reversed if NO reasonable judge would have made such a finding

Question 212

When will appellate standard of review be abuse of discretion?

Answer 212

Discretionary rulings by judge: - Grant/denial of new trial - admissibility of evidence - injunctions

Question 213

Hearsay exception of former testimony allowed if what?

Answer 213

(1) D must be unavailable — like refuses to testify, cannot be found, etc (2) testimony was given at a trial or hearing or deposition (3) the party against whom testimony is offered HAD opportunity or similar motive to develop that testimony through cross NOTE: GRAND JURY PROCEEDINGS will almost NEVER work for former testimony bc prosecution does NOT have the motive to develop the testimony since likely there’s plenty of evidence enough for indictment already

Question 214

Examples of procedural & substantive issues (for diversity cases: state substantive/fed procedural)

Answer 214

Procedural: - filing deadlines - court rules - discovery practices - rules of evidence - summary judgment - jury size - right to jury - service of process Substantive: - elements of claim or defense - measure of damages (and type: punitive) - burden of proof (e.g negligence vs strict products liability) - statute of limitations (2 vs 3 years)

Question 215

What’s the standard for constitutionally regulating lawful and non-misleading commercial speech?

Answer 215

(1) must serve a substantial government interest (2) must directly advance the substantial government interest AND (3) must not be more extensive than necessary to serve that interest

Question 216

Under UCC parole evidence rule, express terms of a completely integrated contract CANNOT be contradicted by evidence of inconsistent prior or contemporaneous agreements. What’s the exception?

Answer 216

Evidence of trade usage CAN be admitted to explain or supplement contract terms so long as they’re reasonably consistent with contract’s express language. (Maj rule says that trade usage that delivered quantity within 5% is satisfactory IS REASONABLY CONSISTENT.) Maj rule: basically trade usage is always going to be consistent with the language of the contract unless it COMPLETELY NEGATES specific express language

Question 217

Liability for negligent misrepresentation (requirements in a commercial vs. non-commercial setting)

Answer 217

In a commercial setting: D negligently provides P with false information, P relies on that information and suffers pecuniary (MONEY loss) - Difference from normal setting: there MUST be monetary loss. If there’s only physical harm / emotional distress, D is not liable for negligent misrepresentation Non-commercial setting: Must have physical harm

Question 218

Documentary evidence (docs like letters or checks) must be “authenticated” before it can be admitted Authentication requires the proponent produce sufficient evidence to support a finding that the thing is what proponents claims it to be

Answer 218

Commonly authenticated by stipulation, eyewitness testimony, or handwriting verification. Handwriting verification process = IS the authentication process.

Question 219

Under the doctrine of promissory estoppel, a gift promise MAY be enforceable if what?

Answer 219

(1) the promisor should reasonably expect the promisee to rely on the promise (2) the promisee relies on the promise to his/her detriment AND (3) injustice can be avoided ONLY by enforcement of the promise

Question 220

If after conveyance of the property, grantee discovers some problem with the property, what can grantee do?

Answer 220

Grantee does NOT have a valid breach of contract claim. Grantee must rely on an action based on the deed to recover — whatever remedies are available under general warranty deed or under quitclaim deed etc.

Question 221

Offers to plead guilty and withdrawn guilty pleas are inadmissible against a defendant in ____ (what kind of cases)?

Answer 221

Not admissible in a pending criminal litigation or in a subsequent civil case

Question 222

Extrinsically: A witness’s credibility may be attacked by reputation/opinion evidence but NOT specific instances of conduct (with the exception of criminal convictions: dishonesty / felony) Bad acts can only be brought in intrinsically during testimony (usually during cross)

Answer 222

Thereafter, credibility can be supported by reputation/opinion evidence but NOT specific instances of conduct

Question 223

1st degree / 2nd degree murder distinction is only for MPC Common law does not divide murder into different degrees. Instead, common law is about murder with malice aforethought.

Answer 223

Provocation or other minimizing factor would reduce an intentional killing to a voluntary manslaughter

Question 224

What does it mean for a trial judge to “certify an interlocutory order (appealing a non-final / pre-trial decision) for appeal”?

Answer 224

This is when appeals for a non-final / pre-trial decision (like summary judgment) WOULD BE ALLOWED: (1) order involves a controlling question of law (2) there’s substantial ground for difference of opinion (3) an immediate appeal may materially advance the case’s resolution

Question 225

Default rule for missing place of delivery on UCC contract

Answer 225

Will be seller’s place of business unless otherwise agreed (idea is that if contract is silent on delivery, buyer should pick up goods from the seller)

Question 226

Relationships recognized as triggering duty of care to plaintiff?

Answer 226

- Employer/employee - School/pupil - Teacher/student - Parent/child - Jailer/prisoner

Question 227

Although Congress has the power to pass laws to enforce the 14A, what must Congress show?

Answer 227

(1) that state governments have engaged in widespread violations of the amendment AND (2) the legislative remedy is “congruent and proportional” to the violations

Question 228

Telltale signs that the q is testing the evidence rule on offer to settle

Answer 228

There IS an active dispute when: - lawsuit has been filed - P has retained attorney - D says he knows P has retained attorney Thats when the “offer to pay medical expenses if you promise not to sue” is an offer to settle/compromise as opposed to promise to pay medical expenses

Question 229

Privileges and Immunities of National Citizenship - apply to who?

Answer 229

Applies to citizens Does NOT apply to corporations, noncitizens Examples: - Interstate travel - Right to petition Congress for redress of grievances

Question 230

Congress has plenary power when?

Answer 230

- Noncitizens (subject to DPC for a noncitizen domiciled within US) - Naturalization - Legislative power over District of Columbia - Regulate federally owned lands and territories - Foreign commerce (including power to impose tariffs) - taxing and spending power - organizing military and declaring war - Indian affairs / governance of tribal lands

Question 231

Regulation of expressive conduct (picketing, leafletting, armband) is upheld if what?

Answer 231

(1) Furthers an IMPORTANT government interest (2) Regulation is unrelated to the suppression of ideas (3) is NO GREATER than necessary, aka narrowly tailored

Question 232

During a legal stop (doesn’t have to be an arrest), officer can ask driver and passengers to exit car even if there’s no reason to believe that passenger was criminal or dangerous.

Answer 232

Legal stop (reasonable suspicion) — arrest — traffic ticket/violation — simply looking nervous is not enough — matched description of suspect — stuffing something under seat What can officer do: — Can seize drugs/contraband in plain view — can conduct a frisk if there’s reasonable suspicion that driver/passenger is dangeorus — drug sniffing dog outside of car

Question 233

Officer walked into the stairwell leading to the front door of the apartment, and then saw that the curtains of the window were drawn except for a two inch opening. Renter was in there inhaling cocaine. Officer knocked on the door, announced presence, and immediately arrested rent. Can evidence of cocaine be suppressed?

Answer 233

No plain view because officer peered into the window while on the stairwell leading to front door (curtilage is part of D’s privacy) Plain view only applies - when drugs are just like on the table in plain view - or office can look into the residence while they’re standing in a place where there’s NO expectation of privacy (in the air / on the sidewalk)

Question 234

Man who was stuck in the elevator for 15 minutes and was in no harm or rush to get anywhere, but decided to jump out >>> ended up seriously hurting himself vs. Customer who was locked in the mall dressing room and insisted she absolutely had to be somewhere in an hour (had to pick up son from babysitter), took a dangerous route along drainpipe to get out >>> ended up injuring herself

Answer 234

In the first one, man assumed the risk of jumping out of the elevator while help was on the way. So D would not be liable for the injuries from jumping out In the second one, the woman’s attempt to escape was “not voluntary” because she had a pressing need to be somewhere. - D WOULD be liable for the woman’s injuries - because she did not undertake the risk of falling voluntarily

Question 235

Merchant makes a written, signed offer to sell goods and includes promise that the offer is irrevocable for 45 days. Two weeks later, potential buyer tries negotiating for a better deal “If you cannot discount the price by at least 10%, I will not be able to make the purchase from you.” Merchant actually sold the goods to someone else RIGHT before getting the note from potential buyer negotiating. Before 45 days is up, potential buyer tries to buy. And then sues for breach of contract?

Answer 235

(1) Merchant’s “firm offer” is irrevocable for maximum of 3 months (2) Merchant’s “firm offer” does NOT go away simply because the promisee tries negotiating (which would usually be seen as a counteroffer) (3) Merchant breached when he sold to another people = meaning he did not keep his firm offer open

Question 236

“Newsworthiness” is a defense to several forms of invasion of privacy torts, except for which one?

Answer 236

Intrusion into seclusion — D intentionally invades P’s private space in a way that would be highly offensive and P has reasonable expectation of privacy Celebrities can bring actions for “intrusion into seclusion” when they’re inside a private home, and therefore entitled to seclusion.

Question 237

“To 1 for life, then to A, but if A has no children then to B” What does A have?

Answer 237

A has a remainder subject to complete divestment (if the condition that eliminates its interest occurs)

Question 238

A D’s murder trial, D calls first witness to testify that D has peaceful and truthful reputation. Prosecutor objects. Why is peacefulness testimony allowed but not truthfulness?

Answer 238

D may only offer evidence of his/her truthful character if: (1) D has TESTIFIED AND (2) prosecution has impeached D or attacked D’s truthfulness

Question 239

If a foreign corporation has subsidiary in any of the states, does that grant specific jurisdiction over the corporation?

Answer 239

No, location/HQ/activities of corporation’s subsidiaries have NO effect on its domicile

Question 240

If a foreign corporation has subsidiary in any of the states, does that grant specific jurisdiction over the corporation?

Answer 240

No, location/HQ/activities of corporation’s subsidiaries have NO effect on its domicile

Question 241

Specific jurisdiction vs. General jurisdiction

Answer 241

Specific - when P’s claim arises from or is closely related to D’s minimum contacts with the forum state such that exercise of jurisdiction would not offend notions of fair play and justice General - when D has continuous and systematic contacts and is domiciled in the forum state

Question 242

Criminal defendants have right to effective assistance of counsel. D can have his/her conviction overturned by showing what?

Answer 242

Deficient Performance (1) That attorney’s performance during trial fell below professional standards AND Prejudice (2) there’s a reasonable probability that, but for the deficiency, trial’s outcome would have been different/

Question 243

Invasion of Privacy Torts: — Intrusion upon seclusion — Appropriation of name or likeness — Public disclosure of private facts — Publicity in false light

Answer 243

Intrusion upon seclusion - Highly offensive & intentional intrusion on P’s solitude, seclusion, or private affairs (Ex: phone tapping, photos of celebrity’s hair getting done inside locked salon, medical records disclosed) Appropriation of name or likeness - Using one’s name/likeness without their permission for financial benefit Public disclosure of private facts - Disclosure of private facts that are not of legitimate public concern Publicity in false light - Publicity given to false information about P, with actual malice

Question 244

Negligent Infliction of Emotional Distress (Special situations other than bystander / zone of danger)

Answer 244

P suffers serious emotional discussion because - D negligently delivered wrong announcement of death or illness OR - D mishandled a corpse or bodily remains OR - D contaminated food with a repulsive foreign object

Question 245

A party must take steps to preserve right to challenge a trial court’s ruling on appeal, through process called “preservation of error”

Answer 245

When party disagrees with a judge’s decision to exclude evidence, the party offering that evidence ordinarily must preserve error BY: (1) obtaining a definitive ruling ont he issue AND (2) make timely offer of proof: oral or written explanation of relevance and admissibility of the excluded evidence - made ON THE RECORD - OUTSIDE jury’s presence

Question 246

How issue preclusion / claim preclusion applies to new parties?

Answer 246

Issue Preclusion - Usually means only someone who was a party in first case (or in privity) can invoke this - BUT IF the state permits “nonmutual issue preclusion” >>> then non-party can assert issue preclusion Claim Preclusion - New defendants are really the ones who bring claim preclusion (they want to say that P’s claim in the second case is precluded) because P already had their chance to bring all related claims in the first suit - Ex: P sues store for defective product but loses. P later sues manufacturer over the same defective product, then mfg can assert claim preclusion

Question 247

How is modifying UCC different from service/property contract?

Answer 247

No need consideration required to support a modification under UCC

Question 248

In an installment contract, if seller has permitted buyer to make late payments, seller may be deemed to have waived the right to timely payment. How to regain right of timely payment?

Answer 248

Seed must inform the buyer in writing of the timeliness requirement

Question 249

Timing to file a notice of appeal

Answer 249

Generally, 30 days after final judgment entered But if there are post-trial motions, the post-trial motion deadline is 28 days after final judgment. And then notice of appeal must be by 30 days after ORDER disposing of the post-trial motion deadline Notice of appeal must be filed with DISTRICT COURT! Not appellate court

Question 250

President has exclusive power to nominate high-level executive officials: such as cabinet members, ambassadors, and heads of agencies.(with Senate approval) What about removal power?

Answer 250

President may remove any executive appointee without cause and without need for Congressional approval

Question 251

Party can attack the other party’s witness credibility through what and not through what?

Answer 251

Reputation and opinion testimony Felony conviction Crime of dishonesty Sensory competence Bias NOT specific instances of conduct (e.g. once cheated in community raffle)

Question 252

Article 1, Section 6 speech and debate clause (including any speech made on House/Senate floor regardless of whether speech relates to pending legislative business)

Answer 252

Senator/Rep has full civil and criminal immunity for official legislative activities

Question 253

UCC Contract between Merchants (Battle of the forms)

Answer 253

Tells you that acceptance is effective even if the acceptance included additional terms UNLESS: (1) offer explicitly required offeror’s acceptance to new terms (2) offeror rejects it after a reasonable period of time (3) new terms substantially alter the contract

Question 254

Doctrine of Frustration of Purpose

Answer 254

(1) Applies when an unexpected event arises that destroys one party’s purpose in entering into the contract (2) even if performance of the contract is not rendered impossible (3) event that arises must not be the fault of the frustrated party (4) nonoccurrence of this even must have been a basic assumption of the contract

Question 255

Prior Restraint Rule (Prevents speech from being heard before it even occurs)

Answer 255

Only allowed where the government can show: — irreparable / serious harm to the public will occur — narrowly drawn standards AND — a final determination of the validity of the restraint

Question 256

When does land owner/life tenant’s actions constitute “waste”?

Answer 256

An owner commits waste if he makes physical changes to the property securing the mortgage that result in reduction in property’s value. — Here, copper mine already existed. Miner made no physical changes but rather excavated the already-existing copper mine so that does not constitute waste.

Question 257

Trial courts have power to sanction under Rule 11 on their own initiative, BUT they must first enter an order to show cause because that ensures attorney has opportunity to be heard.

Answer 257

The 21-day “safe harbor” provision applies only to motions made by a party.

Question 258

Under the Pinkerton doctrine, each conspirator is liable for the crimes of all other co-conspirators if what requirements are met?

Answer 258

(1) If the crimes were a foreseeable outgrowth of the conspiracy and (2) in furtherance of the conspiratorial goal

Question 259

Under the Pinkerton doctrine, each conspirator is liable for the crimes of all other co-conspirators if what requirements are met?

Answer 259

(1) If the crimes were a foreseeable outgrowth of the conspiracy and (2) in furtherance of the conspiratorial goal

Question 260

Embezzlement vs Larceny of a “found” item

Answer 260

Embezzlement — when finder picks up property innocently, intending to return it, and only later forms intent to permanently deprive. — the innocent finder was initially in “lawful possession of it” Larceny — finder has immediate intent to steal/keep the item = trespassory taking. — finder was NEVER in lawful possession of it because the “found” item HAS an owner and the finder was never innocently going to give it to the rightful owner.

Question 261

How is AIC (which must be greater than $75k in diversity cases) measured?

Answer 261

Good-faith estimate CAN include: — punitive damages — attorney’s fees (if recoverable by contract/statute) NO include: — interests / expenses

Question 262

Supplemental jurisdiction when original jurisdiction is federal question vs. diversity

Answer 262

Federal Question cases — court has discretion to hear state law claims if they share CNOF Diversity cases — court can hear compulsory counterclaims (CNOF) — can only hear permission counterclaims if these individually meet diversity requirements — cross-claims yes if CNOF — joinder of parties cannot destroy complete diversity

Question 263

Taxpayer standing to bring federal court claim

Answer 263

Cannot challenge government expenditures generally The only time taxpayer has standing: (1) lawsuit challenges a specific legislative enactment (2) AND the spending allegedly violations establishment clause (I.e. gov is using tax dollars to support religion)

Question 264

When is third party standing allowed in federal court claim?

Answer 264

(1) members themselves have standing (2) the lawsuit aligns with the organization’s purpose (3) AND individual member participation is unnecessary

Question 265

Where is there a citizen vs. corporation application difference?

Answer 265

5th A Privilege against Self-Incrimination — privilege for individuals and sole proprietorships — NOT for corporations Tort of appropriation of name and likeness only for humans Article IV Privileges and Immunities

Question 266

Discriminating against non-citizens re “fundamental”/essential activities under Privileges and Immunities Clause?

Answer 266

Rights that are fundamental to national unity include: — pursuit of livelihood/private employment (e.g. commercial license fee, residency requirement) — owning property — access to courts Not protected: — recreational activities (fee for hunting license)

Question 267

Gov official told butler that butler would receive 25% of future earnings from sale of officials’ life story. Executor refused to give 1/4 of earnings Future right in a contract that does not exist at the time may not be assigned

Answer 267

Like any promise to make a gift, a purported assignment that is made gratuitously is not enforceable against assignor

Question 268

A class action notice must include the following information and advise the for “class member” about what?

Answer 268

— that the court will exclude any member of the class who requests exclusion — the the judgement, whether favorable or not, will be binding on all class members who do not request exclusion — and any member who does not seek exclusion may enter an appearance

Question 269

When “time is of the essence” is in a land-sale contract, it’s not just about closing date when purchase price is due. If the parties agree for buyer to make 1/2 half payment at a certain date before closing, even that will be strictly held to “time is of the essence”

Answer 269

Even if buyer makes the half payment a little late, the seller accepts it, and the buyer pays the remaining half of the purchase price on agreed-upon closing date, — seller could still take the delayed first payment as minor breach and obtain damages

Question 270

Fifth Amendment privilege against self-incrimination applies ONLY to evidence that is testimonial in nature.

Answer 270

Non-Testimonial — woman cannot prevent introduction of friend’s testimony as to woman’s statement “Yes I shot my husband’s ex-girlfriend with my shotgun, but I’d just call that immigration control”

Question 271

Quasi Contract (aka implied-in-law) Vs. Implied-in-fact

Answer 271

Quasi contract (implied-in-law) is not a real contract, but a legal remedy — doctor that heroically attempts to rescue the drowned storeowner. Even though the guy died, doctor rendered emergency services that “conferred a benefit” by enhancing the chance of survival, so doctor would recover Implied-in-fact contract — an actual contract that doesn’t meet the usual contractual oral or written validity requirements, but shows, through conduct, that promisor and promisee agreed to be bound

Question 272

Tort of appropriation of likeness has not been extended to animals, corporations, or other non-human plaintiffs

Answer 272

Owners of Harvey the Rabbit cannot recover damages from boarding kennel that used Harvey’s likeness in promoting opening of new facility

Question 273

Parol evidence rule does not bar the introduction of evidence that a condition precedent failed, where both parties’ obligations would be discharged by the failure of that condition.

Answer 273

Parol evidence rule DOES allow introduction of evidence of a subsequent agreement between parties.

Question 274

UCC firm offer rule (Just the party making the offer has to be a merchant… not that both parties need to be merchants)

Answer 274

“merchant” here means any type of businessperson involved in any commercial nature merchant’s firm offer is irrevocable and CANNOT be subsequently modified for time stated (cannot be over 3 months)

Question 275

Exclusions from accomplice liability — member of protected class — exempted necessary party — withdrawal

Answer 275

Member of protected class — criminal statute designed to protect member (e.g. statutory rape: victim would not be an accomplice) Exempted necessary party — the crime requires multiple participants, but criminal statute only imposes liability on one bc the others are immune from liability (e.g. sale of narcotics where drug dealer was undercover police) Withdrawal — accomplice repudiates encouragement early enough — undoes or neutralizes their assistance — notifies authorities early enough to prevent crime

Question 276

Commerce clause gives Congress power to regulate interstate commerce, but this power comes BENEATH Tenth Amendment constitutional provision that prohibits Congress form commandeering state or local legislatures. Congress has NO authority to require states to enact any specified legislation (or to enforce federal law)

Answer 276

“Here, federal statute requires states legislatures to criminalize the sale, near a school, of any controlled substance that had previously been transported in interstate commerce.” Congress can regulate this conduct but can do it themselves, cannot require states to do so.

Question 277

Default judgment Judgment on the pleadings Summary judgment

Answer 277

Default — D failed to timely serve answer — party who failed to comply with court order Judgment on pleadings — Pleadings, attached exhibits show (1) no genuine dispute of material fact AND (2) movant entitled to judgment as a matter of law Summary Judgment — pleadings, affidavits, declarations, discovery and other materials show (1) no genuine dispute of material fact and (2) movant is entitled to judgment as a matter of law

Question 278

Mistake/ignorance of the law is no defense usually Exception in what limited circumstances?

Answer 278

— D reasonably relied on the law (statute, court decision, or official interpretation) which is later invalidated — law is not reasonably available to defendant — knowledge of law is element of crime (e.g. sale of gun to a known felon)

Question 279

Doctrine of forum non conveniens allows a federal court to dismiss or stay a case if a state or foreign judicial system, NOT another federal court is better suited to hear the dispute.

Answer 279

So not really applicable to the typical suit between citizens of different states

Question 280

Seller’s duty to disclose — caveat emptor (minority rule) — modern rule

Answer 280

Modern: — sellers must disclose material defects that they KNOW about and that cannot be reasonably discovered (Here, woman never visited the house so she didn’t know about termite damage) (Here, disclosing to broker is not enough, but the “as is” in the contract controls) Sellers can DISCLAIM duty to disclose: (1) if disclaimer is clearly and specifically stated in contract (“as-is” condition) (2) and seller has not fraudulently misrepresented

Question 281

Collateral-order doctrine as an exception to the final judgment rule

Answer 281

Allows interlocutory appeal when: — district court order conclusively resolves an important issue — issue is separate from the merits of the underlying claim AND — order is effectively unreviewable on appeal from final judgment Examples: — denying state 11th amendment immunity — denying government official/employee immunity — vacating attachment of vessel — refusing to require security bond pursuant to state law — remanding action to state court based on abstention

Question 282

Collateral-order doctrine as an exception to the final judgment rule

Answer 282

Allows interlocutory appeal when: — district court order conclusively resolves an important issue — issue is separate from the merits of the underlying claim AND — order is effectively unreviewable on appeal from final judgment Examples: — denying state 11th amendment immunity — denying government official/employee immunity — vacating attachment of vessel — refusing to require security bond pursuant to state law — remanding action to state court based on abstention

Question 283

Fifth Amendment double jeopardy clause prohibits multiple punishments or a second prosecution for the same offense (aka when crimes have identical elements). But a second prosecution would be permitted if what is met?

Answer 283

— D is convicted of lesser offense in first trial — second trial involves greater offense (more serious crime) — the facts necessary to establish the greater offense did not exist at the time of first trial

Question 284

Voluntary vs involuntary manslaughter

Answer 284

Voluntary Manslaughter — Intentional killing resulting from: adequate provocation heat of passion OR other mitigating factor like imperfect self-defense Involuntary Manslaughter — Unintentional killing resulting from: criminal negligence (or recklessness under MPC) or commission of unlawful act (misdemeanor manslaughter)

Question 285

Fifth Amendment privilege against self-incrimination applies to BOTH civil and criminal cases?

Answer 285

Yes, witness in civil case can assert the privilege by: — refusing to answer question — due to reasonable belief that answer is incriminating

Question 286

How is privilege against self-incrimination waived?

Answer 286

For criminal D — privilege is waived by testifying as to his/her culpability Witness — does NOT waive privilege by voluntarily testifying — but if witness voluntarily testifies about a potentially incriminating matter, then it’s waived and opposing party may examine witness on that matter.

Question 287

Slander per se

Answer 287

No special damages required if P is accused of — commiting a crime — conduct disparaging P’s fitness for business/trade/profession — has a loathsome disease — sexual misconduct

Question 288

In most jurisdictions, joint tenancy will be severed even before legal title is officially conveyed.

Answer 288

A and B own house as joint tenants. A signed contract conveying interest to personal trainer. Before legal title is transferred, A dies and A’s sister is to inherit estate. What result? B + personal trainer + A’s sister own as tenants in common

Question 289

Non-use (long period of time) of an easement alone does not terminate the easement What’s required?

Answer 289

Termination of easement through abandonment requires proof of intent to abandon and some affirmative action showing the intent to abandon

Question 290

Is D liable for appropriation of P’s name and likeness if D just economically benefits from it? What else is needed?

Answer 290

The wrongful use of P’s identity or likeness MUST be in connection with promotion of product or service. (E.g. using actor’s image to market her own brand) The fact that D derived economic benefit alone does not constitute a violation. (E.g. selling picture to tabloid)

Question 291

Intentional Misrepresentation

Answer 291

Plaintiff must show that: — D knowingly or recklessly misrepresented a material fact with the intent to induce P’s reliance AND — P reasonably relied o the misrepresentation AND — P suffered pecuniary loss!

Question 292

Appurtenant vs. in gross easement (Appurtenant > Easement by Implication)

Answer 292

Appurtenant — easement that allows easement holder to use or control servient estate Ex: right of way to provide access to dominant estate In-Gross — easement that benefits easement holder personally. Burden transfers, but NOT benefit when land is conveyed

Question 293

Remittitur vs. Additur

Answer 293

Remittitur — D’s request to reduce jury award of excessive damages — Court will grant this motion when evidence presented at trial is insufficient to support amount awarded by jury — P then gets choice between (1) reduction of damages or (2) new trial on damages Additur — NEVER allowed in federal court

Question 294

Authentication

Answer 294

— ancient documents (20+ years old, no suspicion about authencity, and was located where you’d expect) — public records (filed in public office) — REPLY LETTER (doc written in response to communication and makes it unlikely that it was written by someone other than recipient of first communication) — handwriting (comparison by tier of fact, or witness with personal knowledge not acquired for litigation) — self-authenticating doc

Question 295

Consequential damages

Answer 295

Damages for losses stemming from the nonbreaching party’s special circumstances IF breaching party: — knew about the special circumstances — or could have reasonably foreseen harm caused by breach

Question 296

Collection of $2k was barred by SOL. Debtor then sold his car to a buyer under a written agreement in which buyer promised to pay $2k purchase price to creditor “in satisfaction of the debtor’s debt to creditor” Can creditor recover $2k from buyer?

Answer 296

Yes because the buyer’s promise to pay $2k to the creditor is enforceable as creditor is intended beneficiary. This is true regardless of whether debtor was legally obligated to pay creditor anything. Creditor can recover $2k from buyer NOT because buyer’s promise to pay $2k REVIVED the uncollectible debt. That’s not how uncollectible debt works.

Question 297

YES state gets immunity from being sued in federal court — suit against state by private party or foreign government — suit against state official for violating state law — against state official for retroactive damages to be paid by state treasury

Answer 297

NO Immunity for states — against state official for injunctive/declaratory relief — damages to be paid by state officer personally (not state treasury) — state official sued for PROSPECTIVE damages to be paid by state treasury — state consents to suit — immunity removed by 13/14/15A — suit brought by US gov / by another state — suits against local county/municipal governments — bankruptcy proceedings — eminent domain proceedings

Question 298

Accord/Satisfaction (as opposed to Novation)

Answer 298

Novation — new contract that SUBSTITUTES previous party for new party Accord — tender and acceptance of alternate performance discharged original contractual obligation

Question 299

Business records hearsay exception

Answer 299

Admissible if: (1) made at or near time that event occurred (2) record made by someone with personal knowledge of what was happening (3) made and kept as a regular practice in course of business activities

Question 300

State laws that discriminate based on citizenship are generally subject to strict scrutiny. But under the political-function exception?

Answer 300

Rational basis scrutiny applies when such laws restrict a noncitizen’s participation in government functinos allowing (1) direct formulation, execution, or review of public policy OR (2) exercise of broad discretion: serving on jury, schoolteacher, police officer, voting, public school teacher

Question 301

When should appellate court automatically reverse a defendant’s conviction?

Answer 301

If trial court committed a structural error: - biased judge - deprivation of right to counsel - attorney enters guilty plea over D’s objection - discriminatory selection of jurors - exclusion of D from courtroom during trial - denial of public trial and/or jury trial - improper jury instruction on burden of proof

Question 302

Can a non-party to an action be compelled to answer interrogatories?

Answer 302

No, non-party cannot be compelled to answer interrogatory. But their testimony can be obtained through use of subpoena for a deposition.

Question 304

Hearsay evidence is admissible in sentencing hearings. What else important to know about sentencing / aggravating factors?

Answer 304

Any aggravating factor that raises the presumptive imprisonment term must be proven beyond a reasonable doubt to a jury. Aggravating factors must be proven to a jury, and not a judge.

Question 305

A life tenant does have a duty to not impair the value of the estate. However, life tenant is not responsible for damage caused by others to the land.

Answer 305

Not a duty on life tenant: - insure the estate - prevent acts of others damaging it Yes a duty on life tenant: - don’t commit waste - pay interest on mortgage

Question 306

A promise of a gift is unenforceable under contract law. BUT always think about promissory estoppel — because a party may still recover under equitable theory of relief.

Answer 306

(1) promisor reasonably expected to induce promisee to rely on the promise (2) promisee DID in fact reasonably rely on the promise (2) promisee’s reliance caused substantial detriment AND (3) injustice can only be prevented by allowing recovery

Question 307

Jury trial cannot be withdrawn, unless both P and D agree. One party cannot unilaterally withdraw the jury trial demand. What other features about jury trial?

Answer 307

Jury must consist of at least 6, but no more than 12 members. And reach a unanimous verdict. If no unanimous verdict, then court should grant distributor’s motion for new trial.

Question 308

Evidence of witness’s religious beliefs admissibility?

Answer 308

Inadmissible to attack witness’s character for truthfulness But admissible to prove witness’s bias or self-interest

Question 309

It’s not that discharge of a contractual obligation must be in writing.

Answer 309

Any modification (even discharge of previous obligation) requires consideration.

Question 310

A government seizure of property for criminal investigation or forfeiture action is NOT a 5th A taking

Question 311

Congress cannot touch SC’s original jurisdiction But Congress can both expand and/or limit SC’s appellate jurisdiction Congress can both expand and/or limit federal court’s original or appellate jurisdiction

Answer 311

Congress cannot touch SC’s original jurisdiction — ex: congress cannot say that these cases ordinarily in SC’s original jurisdiction “must first be heard in federal district court.” Not allowed; these MUST go directly to SCOTUS Congress can both expand / limit SC’s appellate jurisdiction — limit example: congress can remove certain types of appeals, meaning that lower court’s decision would be final/it ends at federal circuit court — expand example: congress can create mandatory SC review, meaning SC must hear them even without certiorari Congress can both expand / limit federal court’s original and appellate jursidiction — congress can create or abolish lower federal courts entirely — expand their original jurisdiction (by adding more categories like patent law/immigration) — restrict their jurisdiction

Question 312

Torts that require pecuniary loss

Answer 312

- intentional misrepresentation - slander

Question 313

Customer respond to restaurant supplier “I accept your offer on the condition that you provide me with a warranty that the freezer is merchantable.”

Answer 313

Under UCC, warranty of merchantability is ALREADY implied in the sale / warranty is implied in all contracts for sale of goods by a merchant So this statement is an acceptance — condition is already a given so it’s not considered additional term

Question 314

Merchant’s firm offer rule

Answer 314

ONLY applies when merchant makes an offer in WRITING and signed - only seller has to be merchant, not the buyer - seller must promise to keep offer open for a certain period of time

Question 315

When you have a discriminatory law challenged under EPC

Answer 315

Usually just rational basis scrutiny: rationally related to a legitimate government purpose Heightened scrutiny applies when: (1) the law impacts a fundamental right (2) INTENTIONALLY discriminates against a suspect class (3) intentionally discriminates against a quasi-suspect class

Question 316

Contract clause prohibits state laws from substantially impair existing contracts (both public and private contracts)

Answer 316

State law would be invalid unless impairment is narrowly tailored to achieve significant public purpose

Question 317

Contract entered into while intoxicated is voidable by intoxicated party only when what requirements are met?

Answer 317

(1) party was TOO intoxicated to reasonably understand the nature or consequences of the contract AND (2) the other party had reason to know about the intoxication - diff from MC about drunk promisor joking about selling his land/car. The promisee had no idea that the promisor was just joking. Objective manifestation of offer and acceptance where there so contract was formed.

Question 318

Specificity of pleadings

Answer 318

General complaint: short & plain statement showing P is entitled to relief Fraud/mistake/mental condition - malice, intent, knowledge, or other mental condition may be alleged generally - but circumstances giving rise to fraud/mistake must be stated with particularity Damages - special damages must be specifically stated

Question 319

Court can poll the jurors individually after a verdict is returned, and if it’s not unanimous what can court do?

Answer 319

Order a new trial OR direct jury to deliberate further

Question 320

Accomplice

Answer 320

(1) intentionally aids OR encourages the principal before or during a crime (2) with the specific intent that the crime be completed

Question 321

Mortgages and how they affect joint tenancy

Answer 321

Lien theory jurisdiction (majority)— joint tenancy remains in tact bc mortgagor just has a lien interest Title theory jurisdiction— joint tenancy is severed to tenants in common

Question 322

Dismissals for failure to prosecute are with prejudice, so new attorney would not be able to help the case just by refiling the suit.

Answer 322

Prior judgment would need to be vacated before the suit could be refiled

Question 323

Rape shield law

Answer 323

Evidence of rape victim’s prior sexual conduct is generally inadmissible. Except admissible if: to prove that person other than the accused is the source of semen, victim’s injury, or other physical evidence.

Question 324

Assault (Remember: mere surprise or unintentional startling does not equal assault). Think about Defendant’s actions/motive

Answer 324

Attempted battery assault: D attempts to make harmful or offensive contact but fails Fear of imminent harm assault: D causes or intends to cause victim reasonable fear of imminent harmful or offensive contact.

Question 325

Larceny merges into robbery when property is taken from the victim’s person or presence by

Answer 325

(1) more force than necessary to acquire OR retain property — “grabbed purse off her seat and then pushed the woman out of the way and ran out of the subway” (that’s robbery bc used forced in leaving with the purse or (2) intimidation/threat

Question 326

Examples of non-testimonial statements

Answer 326

Physical evidence or conduct - needle marks on arm - fingerprints - DNA samples - handwriting samples - blood tests - line ups Casual comments - statements made in emergency situations - business records not created for prosecution - statements made spontaneously to friends

Question 327

Psychotherapist-patient privilege

Answer 327

Protects confidential communications between patient and therapist/social worker made during treatment or diagnosis Exceptions when protection does not apply — communication resulted from a court-ordered examn — case is commitment proceeding against the patient — patient’s mental condition is at issue

Question 328

Once an expert witness is qualified, witness may testify on a disputed issue if that testimony is what?

Answer 328

Relevant — testimony will help the trier of fact understand the evidence/assess a fact in issue Reliable — testimony is based on sufficient facts or data and product of reliable principles and methods

Question 329

A joint tenant CAN sever joint tenancy by conveying his/her interest to another only DURING lifetime

Answer 329

Joint tenant CANNOT devise interest through will. If so, at the joint tenant’s death, the other joint tenant acquires the whole property through right of survivorship

Question 330

A promise to make a gift at some time in the future is only legally enforceable IF all the elements of promissory estoppel are satisfied.

Answer 330

Essentially if the promisee relied on the promise. When is detrimental reliance not needed: — gift to charitable institution — gift made in anticipation of a marriage

Question 331

When does statute of frauds apply?

Answer 331

Sale of goods for $500 or more (note: not service, but sale of goods) Marriage contracts like prenuptial agreements Contracts that cannot be completed in a year Land sales Executor Suretyship

Question 332

Life estate transferability Reverter interest transferrability

Answer 332

Life estate - can be transferred during life - but life estate expires at the death of the holder, and cannot be devised by will Reversionary interest - can be transferred. NOT subject to RAP.

Question 333

Part performance exception to Statute of Frauds

Answer 333

Mom and daughter jointly orally agreed to buying the stereo that was $800. This contract was in violation of statute of frauds. But why would mom still be liable o the storeowner? Because part performance: the stereo was delivered and the daughter accepted it. Mom and daughter would be jointly liable.

Question 334

Receiving stolen goods

Answer 334

Requires that the receive be AWARE at the time he receives the goods that they are stolen. If receiver only later finds out that they were stolen, they aren’t guilty of receiving stolen goods or any crime

Question 335

Whether a liquidated damages provision (which includes non-refundable down payment) is enforceable

Answer 335

Must be a reasonable attempt at a fair compensation in event of breach, not penalty for failure to perform. 50% of purchase price would be penalty rather than fair compensation and would be invalid/unenforceable.

Question 336

A law that restricts candidates’ ability to show up on ballots ALSO indirectly affects voters’ rights

Answer 336

This impacts the right to vote because of voter choice and political association under 1st and 14th A Similarly: - laws that effectively prevent independent or minor-party candidates from running: STRICT scrutiny - but laws that impact filing deadlines/signature requirements: lower scrutiny

Question 337

Arson (CL vs. MPC)

Answer 337

Common Law — the malicious (intentional or reckless disregard) burning of the dwelling house of another — blackening/scorching is not enough MPC — purposely, knowing, recklessly causing a fire to ANY structure (including one’s own house). Burning/chat is not required.

Question 338

Conveyed to his friend “for life, remainder to the children of my son.” At the time of conveyance, son was married but had no children. What kind of interest do the children have?

Answer 338

Contingent remainder — remainders can be vested or contingent. — vested when (1) interest created in an ascertained person, and (2) not subject to a condition precedent — remainder not possessing these characteristics = continent Shifting or springing interests — when a “VESTED” remainder is subject to complete defeasance by executory limitation. Blackacre “to B, but if B marries X, then to C.” C has shifting executory interest

Question 339

A state’s collection of tax does NOT constitute an undue burden on commerce when what?

Answer 339

(1) interstate seller has a sufficient nexus with the taxing state — seen through: seller maintains an office within the taxing state, sends staff into the state — no sufficient nexus: if seller only sells through mail-order

Question 340

Offers to plead guilty vs settlement offers Admissibility

Answer 340

Offer to settle claim and its related statements are NOT admissible to prove claim validity, liability or amount. Offer to plead guilty is not admissible to prove culpability CEC: mediation proceeding also not admissible, but offer to plead guilty can come in

Question 341

Statute of Frauds (needed for land sale contract) requirements

Answer 341

Description of property and grantee must be ascertainable OK: — “10 acres of the westmost boundary” -FIND OTHER EXAMPLES NOT OK: — “to leaders of all churches in York County” — “chosen and bounded by the buyer”

Question 342

Teacher and Student released on bond. Upon request of DA, teacher asked student where he got the gun used in robbery. Student replied from cousin. Student’s attorney objected to this being offered into evidence. 5A protection against self-incrimination or 6A right to counsel?

Answer 342

5A applies to “custodial interrogations” or “testimonial statements” — student was NOT in custody. Released on bond = not undergoing a police interrogation Post-indictment: — Miranda rights are NOT at issue. They only come in before indictment —deliberate questioning without lawyer present is 6A violation

Question 344

Four privacy torts

Answer 344

Disclosure of private facts — D publishes private information about P — that is highly offensive to a reasonable person — AND not newsworthy Intrusion into seclusion — D invades P’s privacy — in a highly offensive way — where P has expectation of privacy False Light — D publishes false or misleading info about P — creates a false impression about P (Unlike defamation, doesn’t have to result in reputation harm. P’s own personal emotional harm is enough) — that’s not newsworthy Forth is appropriation of name and likeness

Question 345

If one tenant in common agrees with neighbor to establish boundary between their parcels without other tenant in common’s knowledge, can the other tenant in common be bounded?

Answer 345

Yes a co-tenant may exercise sole control over parcel as long as he does not attempt to transfer any interest that belongs to the other co-tenant Also co-tenant in sole possession need not give co-tenants notice of proper acts of control/management When is co-tenant ousted? when possessor refuses to share possession, attempts to convey sole ownership to a third person, hostile

Question 346

When homeowner has a “nondelegable” duty

Answer 346

It doesn’t mean that they’re strictly liable (which ONLY applies to commercial sellers, dangerous activities, wild animals) Homeowners is liable under NEGLIGENCE for failing to ensure the work was done safely.

Question 347

P sues manufacturer and pilot for (1) violation of a federal aviation statute and (2) negligence. All parties are citizens of state A. Can D’s remove action to federal court?

Answer 347

Any action of which district courts have original jurisdiction CAN be removed without regard to the citizenship or residence of the parties. — here, doesn’t matter that P and D aren’t diverse or that D’s are already located in the state A. Because it’s a federal question, Ds would have right to remove the action to federal court.

Question 348

An estate/fee simple subject to a condition subject = “to restaurant owner, provided that no alcoholic beverages of any kind are served on the premises.” Is grantor entitled to reclaim property?

Answer 348

No, because no power of termination (aka right of re-entry) was reserved Note: reverter interest not subject to RAP but power of termination IS Power of termination/right of re-entry MUST be explicitly stated in the conveyance.

Question 349

Compromise/settlement offers and offers to pay medical expenses are inadmissible to show liability But a refund to provide liability is admissible

Question 350

President can enter into treaties with foreign nations (2/3 Senate needs to approve the treaty) If US gov thereafter violates terms of treaty, what would be strongest constitutional argument that US gov’s act was permissible?

Answer 350

Treaty is supreme law of the land until it is superseded by a conflicting act of Congress — the last act in time controls. Congress enacts legislation superseding the treaty (cuts off the treaty because it is enacted after), then US gov would not be required to comply with it. ‘ Note: valid and approved treaty cannot be superseded by international law. Can only be superseded by later Congressional enactment

Question 351

An individual may not be punished or deprived of public employment for subversive group association unless what?

Answer 351

(1) she is an active member of a subversive organization (2) she knows that the group has illegal aims (3) and she has the specific intent to further those illegal ends (e.g. violent overthrow the government) Political affiliation is not a suspect classification so EPC is not implicated “At will” employees can have their jobs terminated because cannot be for unconstitutional reason

Question 352

A written statement expressing declarant’s state of mind may be admitted to show his in-the-moment thoughts/plan at the time of writing.

Answer 352

However, such a statement is only admissible to prove declarant’s state of mind. Has to be declarant’s statement Defendant’s fiancee’s authenticated letter wouldn’t be admissible as defendant’s statement or state of mind

Question 353

6A right to jury trial (incorporated to states through 14A) vs. right to effective counsel

Answer 353

Defendants have a right to a jury trial only for serious offenses — “Series offense” applies when imprisonment of more than 6 months Right to counsel — When imprisonment is involved, right to lawyer is there. Whether classified as petty offenses, misdemeanor, or felony offense.

Question 354

Signs of ineffective counsel (D is deprived of 6A right to effective counsel)

Answer 354

What you need to show ineffective counsel: (1) counsel was ineffective. Didn’t do any discovery / failed to respond to client / didn’t match standards (2) AND but for counsel’s errors, result of the proceeding would have been different Not a sign: — lawyers CAN change legal strategy / trial strategy in a case without conferring with the client

Question 355

After D has been formally charged / indicted, you’re usually in 6A right to counsel territory rather than 5A (custodial interrogations)

Answer 355

— informant working at direction of police trying to illicit info = breach of D’s 6A right to counsel

Question 356

Shopper that enters a shop is an invitee at first, but if they walk past sign “Keep Out / No Admittance,” then they become a trespasser.

Answer 356

The warning sign itself meets the “reasonable care” due to a known trespasser.

Question 357

Parents are generally not vicariously liable for the negligence of their children.

Answer 357

They’re typically only liable if their negligence is what caused/allowed child to act negligently towards someone else ex: parents leave gun with bullets out (not in it’s locked box) within child’s reach ex: they knew child has a tendency to travel down driveway into the street, and failed to stop the child (car on the street swerved to not hit the child and suffered injuries)

Question 358

Congress has no authority to resolve disputes between states — this authority rests exclusively in judicial branch.

Answer 358

Article III gives SCOTUS original jurisdiction in all cases which a state is a party Thus “a joint resolution of the houses of Congress resolving a dispute between New York and New Jersey regarding the ownership of Ellis Island” = unconstitutional

Question 359

All emails were automatically deleted every 3 months to free up storage space. When should court order? Are sanctions suitable?

Answer 359

Duty to preserve electronically store information arises when party knows or should know litigation is reasonably foreseeable. — If emails can still be recovered, court may order the party to bear costs if it was responsible for deletion after duty to preserve arose. — But if emails were deletion as part of ordinary course of business, BEFORE any duty to preserve arose, the party may not be required to pay

Question 360

Wharton Rule

Answer 360

Vice principal bribed councilman to vote in favor of a specific policy proposal. Both are charged for bribery and conspiracy related to bribery. Under the wharton rule, vice principal and principal are NOT convicted for conspiracy because there was no third person. Wharton rule requires: agreement involving an additional person not essential to the crime of bribery.

Question 361

Modifications of service contracts (Traditional vs. Modern Rule)

Answer 361

Traditionally (still the majority approach): modification of a contract where one party agrees to a lesser performance while rendering the same performance is NOT enforceable — ex: landowner accepting 1.8k sq ft daycare center instead of the 2k sq ft center that contractor was obligated to build. Modern approach: in the face of changed condition (e.g. price of some ingredient suddenly skyrocketed unexpectedly, or discovery of block of granite down in the soil) allows contract to be modified without traditional consideration. — ex: landowner can accept reduced performance while still paying the same amount

Question 362

Character evidence of victim offered in criminal case (Self-defense exception)

Answer 362

In self-defense claims, D can use victim’s history of violent behavior AND specific past acts to show defendant’s state of mind and why defendant reasonably believed he was in danger

Question 364

Manager takes the store’s money to gamble and pays the money + interest back

Answer 364

STILL EMBEZZLEMENT D placed that money at risk by gambling = intent to deprive.

Question 365

Removal is only available from state court to federal court.

Answer 365

No such thing that allows removal from federal court to state court

Question 366

Parole evidence rule applies when a written agreement is partially or completely integrated. This means either it says “fully integrated” as a merger clause or that the doc is a complete and exhaustive statmenet of the agreement.

Answer 366

When the written document clearly refers to prior conversations (“as per our conversations…”) — this is an indication that document is not the complete agreement and NOT fully integrated.

Question 367

Article IV Sec 2. Privileges and Immunities vs. 14A Privileges and Immunities

Answer 367

Article IV — protects fundamental rights related to economic participation Ex: state cannot require out-of-state worker to pay higher commercial licensing fee. Ex: state cannot deny non-residents ability to sue within courts Ex: states cannot bar non-residents from buying property Ex: states cannot bar access to emergency services BUT they can impose reasonable restrictions: reasonable waiting periods for residency-related benefits 14A — only for U.S. citizens (not for corporation or noncitizen) — protects a few federal rights Ex: right to travel, right to petition fed government/Congress, right to access courts seek redress for grievances

Question 368

List out intentional torts And their valid defenses

Answer 368

Battery Assault False imprisonment Trespass IIED They require purposeful conduct. Thus, defenses exist only when the act was justified Valid Defenses: — privilege (e.g. police officer using reasonable force to arrest suspect, merchant detaining shoplifter) — self-defense (must be proportionate: you cannot shoot someone trying to slap you) (cannot be preemptive: punching someone because you think they’ll attack later)

Question 369

In order to have standing, what are the 3 requirements?

Answer 369

(1) P must have suffered a concrete and particularized injury (2) there must be causation between D’s conduct and P’s injury (3) AND redressability must exist

Question 370

TRO vs. PI

Answer 370

To obtain TRO, moving party must show: (1) Movant will be irreparably harmed without the TRO (2) the merits of the case weigh in favor of movant (3) balances of hardships weigh in favor of P (outweighs harm to D) (4) public interest considerations TRO can be issued ex parte (without notifying the other party) if Movant can show irreparable harm and that P made reasonable efforts to notify D Preliminary injunctions requires the same 4 elements as TRO — CANNOT be issued ex parte - D must be notified and given a chance to respond

Question 371

Reasonable expectation of privacy: — cell phone records — home — locked box in someone else’s home with you name on it — cannot use drug-sniffing dog around exterior of house

Answer 371

No expectation of privacy: — if neighbor’s consent to police viewing D’s property from neighbor’s land and them see drugs through the window — ringleader does not have legitimate expectation of privacy in uncle’s home and thus cannot suppress the drugs that were in plain view in his uncle’s house that he was arrested in (search incident to arrest) — CAN use drug-sniffing dog around vehicle

Question 372

DUI checkpoint — when being stopped at the checkpoint would be illegal — when search would not be supported

Answer 372

Valid DUI checkpoint: — does not require that officer stop every car — but doesn’t give officer discretion — there needs to be pre-set rules: like stop every 5 cars, every 10 cars, etc. Also at a DUI checkpoint, police cannot make everyone get out of the car and search the inside without having reasonable suspicion

Question 373

Searching Vehicles — recent occupant rule

Answer 373

Even if D has been cuffed and detained inside police vehicle, police MAY search the car (1) if arrestee is within reaching distance of passenger compartment, or (2) if police believe car contains evidence of the arrest

Question 374

Police can use deception to obtain consent to enter & search house — that they’re a drug-buyer / posing as a delivery man — they CANNOT falsely claim they have a warrant

Question 375

Principal place of business on a temporary basis = sufficient for exercise of general PJ in that state

Answer 375

AKA company was foreign organization, but Pres moved to State A and confucted all affairs from State A with the intent to return to foreign country when centralized authority was back in power. Cause of action arose entirely in the foreign country, BUT there’s still general jurisdiction (bc company is conducting all affairs) over the corporation in State A

Question 376

Ordinarily impeachment evidence is NOT substantive evidence. Limited cases where prior inconsistent statement could serve as both impeachment and substantive (would usually be of a party like defendant him/herself, and rarely ever like an expert witness)

Answer 376

— if it were made under oath in a formal proceeding — made by a party-opponent — falls within hearsay exception

Question 378

IIED

Answer 378

One who through extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another

Question 379

When does malicious prosecution attach?

Answer 379

Search conducted by warrant (which meant probable cause existed) is insufficient Need arrest warrant or indictment for the proceeding to be considered commenced

Question 380

Attractive nuisance doctrine

Answer 380

(1) landowner knows or should know that children are likely to trespass (2) landowner knows or should know that trespassing children would be at risk of harm (3) the children bc of their age cannot appreciate the danger (4) burden of eliminating danger (e.g. preventing trespass by add a fence) is low compared to risk of harm

Question 381

Joint tenancy vs tenants in common

Answer 381

Presumed form of co-tenancy if unclear: Tenants in common Joint tenant— each co-tenant owns an undivided interest in the whole property and has a right of survivorship. But the deed must say ”as joint tenants, with the right of survivorship” Tenants in common— each co-tenant owns an equal right to posses the whole property

Question 382

Joint tenancy vs tenancy by the entirety

Answer 382

JT may be unilaterally severed (and tenancy in common created thereby) Tenancy by the entirety may not be severed by unilateral conveyance. The tenants must agree.

Question 383

One guilty of embezzlement cannot be guilty of larceny

Answer 383

Because embezzlement means that one is already in lawful possession. Larceny means you DONT have lawful position/it’s a trespassory taking

Question 384

Even if there were other exits, if P doesn’t know about them, then false imprisonment exists

Answer 384

If P was a frequent visitor (e.g. parents who regularly stay and watch the kids), only teachers/principals/students knowing about the other exits is not enough Principal would know that parents would be confined

Question 385

Under minority American rule, landlord only has duty to deliver legal possession of the premises.

Answer 385

Tenant has the right to evict holdover tenant

Question 386

Photograph is not a statement

Answer 386

Thus photograph is not hearsay