MEE Flashcards
Does the police’s failure to inform the suspect that the lawyer is trying to talk to him to see him violate 6 & 5 amendment right
No, as long as adversary judicial proceedings have not commenced
-Voluntary confessions admissible
A Miranda waiver must be?
Knowing and Voluntary
What does it mean that the Sixth Amendment right to counsel is offense specific?
If a defendant’s sixth amendment right to counsel has been attached regarding on charge, he may be questioned without council to an unrelated issue that he has not yet been charged with.
Subject Matter Jurisdiction - Supplemental Jurisdiction
Once a court has subject matter jurisdiction over a case in , it will have supplemental jurisdiction over any other claims arising from the common nucleus of fact. This standard is broader than the same action or occurrence standard for motions. Rather to analyze whether there is a common nucleus of operative fact courts will ask if much of the evidence will be the same and if the underlying occurrences are largely the same.
A court must have independent grounds for each claim
What procedural rules do Federal courts apply when exercising federal question jurisdiction?
Federal Rules
What law do federal courts generally apply when hearing a state law claim (State or Federal)?
State
When should the forum selection clause in a contract not be applied
When there are extraordinary circumstances unrelated to the coven or the parties
(1) what law applies
(2) is the community burdened with jury service
(3) keep local controversy local
Public forum speech restriction must be?
Content neutral narrowly tailored to significant government interest and leave open alternative channels of communication
An easement is Implied from existing use when:
before tract is divided, apparent and continuous use on the servant part and the parties intended to use to continue after division
The doctrine of equitable subrogation states:
A person other than the mortgagor who pays off a mortgage can step into the shoes of the now-paid-off mortgagee.
Counterveining Equity
Countervailing equity refers to the concept of balancing competing equities or interests in legal disputes. It involves taking into account the various interests and factors at play in a situation and determining an equitable solution that addresses these competing interests. The idea is that the court should consider not only the interests of one party but also the interests of other parties or the public interest, and then balance these interests to arrive at a fair outcome.
What does the removing party need to do in order to remove from federal court
-Files notice with the federal district court and division in which the action is pending
-Copies of notice set to parties and state
-Filed within 30 days of receipt of the complaint by D
-If based on diversity no more than 1 year from the case being filed ) unless bas faith by p
-All Ds must join
-No removal if D is Citizen of forum state
Permissive Joinder of Ps
Parties may be joined as Ps or Ds whenever: (i) some class is made by each P and
against each I, relating to or arising out of the same series of transactions/occur-
rences (T/O); and (i) there is a question of law or fact common to all the parties
What does supplemental Jurisdiction Require
The tye supplimantal claim arises out of tye same nucleus of fact as the claim invoking tye original SMJ
Note: Supplimantal Jurisdiction cannot be used to destroy DoC jxd
What is JMOL
What is Summary Judment
Summary judgment is usually granted when one party (the moving party) can show that there is no genuine issue of material fact in the case and that they are entitled to judgment as a matter of law. In other words, the moving party argues that even if all the facts are taken in the light most favorable to the other party, there is still no way the other party could win the case as a matter of law
What is a renewed JMOL and when can it be filed
Can be filed no longer than 28 days after judgement in entered and cannot be extended.
Explain The Rule Against Perpetuities (RAP) and what interest it applies to
The RAP voids any interest if there is a possibility that the interest may vest more than 21 years after some life in being at the creation of the interest. The RAP applies to the following future interests in personal or real property: (i) contingent remainders; (ii) executory interests; (iii) class gifts (EVEN if vested remainders); (iv) options and rights of first refusal; and (v) powers of appointment.
Are statements made during settlement negotiations in a private civil action admissible in a subsequent criminal case that arises out of the same incident?
No
What rule(12)b defenses are waived if not put in the first Rule(12)b response (motion or answer)?
-A lack of personal jurisdiction
-Improper Venue
-Improper Process (a problem with the papers)
-Improper Service of Process
What Rule (12)b defenses can be raised until trial
-Failure to state a claim
-Failure to join an indispensable party
Elements for strict products liability
(1) Commerical Supplier
(2) Production or sale of the defective product
(3) actual and proximate cause
(4) damages
Effect of divorce on a will
-UPS everything revoked from ex-spouse and ex-spouses relatives
-the majority of states everting revoked only from the ex-spouse
How can a will be revoked
By a subsequent written instrument or physical act
-To revoke a will by written instrument, there must be a present intent to revoke and the instrument must be executed with the same formalities as required for execution
What is needed for a will contract
Well a common law a contract to make a gift by will not being writing unless the land is involved, some states have enacted statutes requiring all contracts to Make a gift by well to be in writing. In those states following the uniform probate code UPC, a contract to make a will can be established by (1) Provisions in the well stating the material provisions of the contract;(2) an express reference in the will to the contract and extrinsic evidence proving the terms of the contract; (3) for a writing sign by the decedent evidencing the contract.
What is Quantum meruit?
A reasonable sum of money to be paid for services rendered for work done when the amount due is not stipulated in a legally enforceable contract
What is the cypres doctrine?
The cy-près doctrine is a legal doctrine that allows a court to amend a legal document to enforce it “as near as possible” to the original intent of the instrument, in situations where it becomes impossible, impracticable, or illegal to enforce it under its original terms
When does the membership of a class gift close (ie when can people stop being added or qualifying)
When some member of the class can call for distribution.
When can a beneficiary disclaim a trust?
A beneficiary can disclaim a trust within a reasonable time of being notified of it. In most states, a disclaimer is not effective unless it is in writing and is filed within nine months of the decedent’s death.
Trustees in a revocable trust versus a irrevocable trust
Irrevocable trus- Jose duty to act for the benefit of all beneficiaries including the Setlor and the beneficiaries
Revocable Trust -has duty to act for the benefit of only the Setlor because set lure is treated as owner of the trust assets
If an Agent has actual authority to act but acts for themself or a third party is the principal still liable?
No
Does the state where divorce is granted have effect on disputes over marital property
Only property in that state where the divorce was granted
What factors does a court look at when awarding custody
Parents wishes, child wishes, interrelationship with the parents, siblings, child’s adjustment to home, School, and community, and mental and physical health of parties
What is needed for actual authority in a partnership
Majority vote for normal matters, unanimous vote for matters outside of the business
Apparent authority in partnership
Partner acts in the ordinary course of the partnership business or of the kind carried out by the partnership will bind the partnership unless the third party knew that the partner had no authority.
Can child support be modified retroactively
No
Under the uniform child custody jurisdiction enforcement act (UCCJEA) wish has been adopted in nearly every state, the court that made the initial custody germination has continuing, exclusive jurisdiction over the matter until that court determines that:
Neither the child nor the parents continued reside in the States, or the child no longer has a significant connection with the state and substantial evidence relating to the child’s care, protection, training, and personal relationship is no longer available in the state
Under the full faith and credit for child support orders act (FFACCSOA) full faith and credit must be given to another court’s child support order if:
The court had jurisdiction over the matter and the parties, and the parties had a reasonable notice and opportunity to be heard
Three requirements for full faith and credit to be satisfied for conflicts of law
Correct jurisdiction, on the merits, finality
What are examples of judgments not on the merits
Lack of jurisdiction, misjoinder, improper venue, failure to state a claim
Our public policy and mistake reasons for a recognizing court to not recognize the rendering courts judgment
No
In a secure transaction when can the right to redemption be waived
Only after default
When can a secured party be prevented from collecting a deficiency
Arco-9 provides that a secure party will be liable to the debtor for any damages caused by failure to fall and even its rules and will be prohibited from collecting any deficiency if it’s default rules are broken unless the secure party can show that the breach did not cause the deficiency
What are the rules article 9 provides for when it’s secure party can use self-help to repossess after it’s been a default
After there’s been a defaults the creditor can use self-help to repossess the collateral however a secured party can use self-help to repossess collateral only if it can do so without a breach of the piece. If it breaches the piece then Article 9 is violated
What happens if a secure party violates article 9
A secure party reliables or debtor for any damages caused by failure to follow Article 9 rules
Directors conflicting interest transaction will not be set aside if:
: (1) the director disclosesall material facts and deal is approved by disinterested majority of directors (2) the shareholders of (3) the deal is fair
Can a shareholder allow someone else to vote for them
Yes by proxy issue 100 can allow someone else to vote on with the shares proxies are generally revocable unless connected with an interest and if stated a irrevocable
Does holding a proxy vote at a shareholder meeting count as being present with those shares for calculating quorum
Yes
What is needed for a public figure to bring a defamation case
The statement must have been made with actual malice
When is a lease actually a security agreement
A transaction will be deemed to create a security interest rather than a lease if the rental obligation is not terminatable by the lessee and at the end of the lease the lease has an option to purchase the goods for no or nominal consideration
What happens when all of the funds are used in the foreclosure sale with respect to the third partie creditors of lower priority that don’t get any money
The creditors interest in the collateral that was sold is discharged
Does the builder sell the new house carry implied warranty of fitness and quality
Yes the house must be designed and constructed in a reasonably and work like manner and suitable for human habitation. Some courts will even extend this implied warranty to someone who buys a house from the original owner
If you buy something subject to a recorded mortgage are you liable before it
If a mortgage or sells property and conveys a deed, the grantee takes subject to a recorded mortgage, which remains on the land. If the grantee signs an assumption agreement, promising to pay the mortgage loan, he becomes primary liable to lender, while the original mortgager becomes secondary liable has a surety
Minority: In some jurisdictions a grantee who pays the seller of real property and amount equal to the value of the property minus the outstanding balance on the mortgage might be deemed to have assumed the mortgage by implication
For redemption purposes does a specific gift of stock include additional dividends
Under common law specific bequest of stock includes any additional shares produced by a stock split but does not include shares produced by a stock dividend
The majority role in most states and under the UPC is that specific quest of stock also includes shares of stock produced by a stock dividend
What happens when a property that is specifically bequest under a testator’s estate is destroyed sold or given away
Under the common law doctrine of redemption, when specifically bequest property is not in the testators estate at death ie it was destroyed sold given away or lost the request is a deemed thus it fails
Most courts decide the redemption issue solely on the basis of an objective test whether the specific quest property is a part of the estate and does not consider intent. Some states have adopted a more lenient intent test under which the beneficiaries entitled to substitute property owned by the testator if the beneficiary can prove that the testator intended the beneficiary to take the substitute property
Under the federal rules of evidence explain impeachment based on a felony, a crime, and a misdemeanor
Also talk aby remoteness of the crime
Hey what is his character for truthfulness maybe attacked by 1 and he felony or 2 any crime 3 misdemeanor, if it can be readily determined that conviction of the crime required proof or admission of an act of the assignment state or false statement.
If a conviction is for a felony does not involve dishonesty or false statement, the court has discretion to exclude it if it fails the rule 403 balancing test (ie danger of unfair prejudice outweighs probably value)
Under the federal rules a conviction is usually two remote and inadmissible if more than 10 years have passed since the date of conviction or the date of release from the confinement imposed for the conviction whatever is the later dates
Are any prior acts of misconduct admissible for impeachment of a witness
No, only prior axis misconduct that are probative of truthfulness, even if the witness was never convicted. Extrinsic evidence of the prior act is not permitted. Even if the witness denies the act the cross examiner cannot refute the answer by calling another witness or producing other evidence.
When can the government take private property for public use under the fifth amendment
Want to provides just compensation to the owner
Does a restriction of how real property is used constitute a taking under the fifth amendment
Generally it does not but it can if it (1) amount to a physical appropriation (2) denies an owner of all economic use, or (3) unreasonably interferes with the distinct investment back expectations of the owner
When will it taking under the 5th amendment of public property generally be found
It taking will be almost found if there is an actional physical appropriation or destruction of a person’s property
Can the government force a landowner to convey interest in their land in exchange for permission to build improvements on the property
Generally cannot these force conveyances usually violate to taking cause of the fifth amendment
Exceptions: however a city can impose such requirement if (1) a close Nexus exists (The government can show the condition relates to a legitimate government interest) and (2) proportionality exists (The Everest impact of the proposed building / development on the area is roughly proportional to the lost caused to the property owner from the forest transfer of occupation rates)
What is needed to validly assign a contract
To sign a contract a party must manifest the intent to transfer his rights under the contract to an assignee. Oral assignments are generally effective. Most contracts are rights may be assigned unless the contract for business assignment, assignment is forbidden by law, or the assignment with substantially changed duty or risk. Contract or personal services cannot be assigned if the performance of the service so involves the personality or personal characteristic of the onligor such that it would be unfair to require the obligore to perform for a third party.
