MEE - Flashcards (All Subjects)

Question

What is Removal?

Answer 1

o Allows D to move to fed court if it could have been originally filed there o Must be sought within 30 days by D only o Fed Q: can remove if complaint discloses fed law o Diversity: need complete diversity, AIC, and action brought in state where no D is citizen

Answer 2

o Fed court sitting in diversity must apply the law of the forum state in which it sits, not its own fed law, regarding SUBSTANTIVE issues o Can apply fed law for PROCEDURAL issues Note: COL (Conflicts of Law) is substantive - must apply forum states COL rules

Answer 3

Apply the law of where the event that gave rise to the suit occurred; Apply the law of where the injury occurred, and where K was formed

Answer 4

o apply law of jx that has greater interest considering § Policies behind respective laws in forum and other jx § Whether it is reasonable for jxs to assert interest in application of policies under the circumstances

Answer 5

o apply law of jx with most significant relationship to issue considering: § Relevant policies of forum/other jx § Relevant policies of law at issue § Uniformity of result and § Ease of application of law to be applied K consideration: § Where K formed § Where negotiated § Place of performance § K subject matter location § Connection to forum Torts considerations: § Place of injury § Place where conduct causing injury occurred § Connection of parties to forum § Place where relationship b/w parties is

Answer 6

Mnemonic SAFE: o Same issue o Actually litigated o Final judgment o Essential to prior judgment

Answer 7

Mnemonic PAM: o Parties sufficiently identical o Action sufficiently identical o Merits decided

Answer 8

o Personal property: disposition governed by law of jx of decedents domicile o Real property: disposition governed by jx of where property located

Answer 9

o Used for interpretation purposes o If matter re: K validity or formation, parties may choose which law applies only if § Jx has some connection to K § COL not contrary to substantial policy interest of another jx with greater interest

Answer 10

Courts must give FFC to judgments of of other states unless there is any of the following defenses: § Lack of jx § Fraud § Not on merits § Lacking finality (NOT FINAL JUDGMENT)

Answer 11

o State action required to trigger individual constitutional protections o When state action exists in cases of private parties: § Private party exercises activities traditionally performed exclusively by the state OR § There are sufficient mutual contacts between the conduct of a private party and the government

Answer 12

o Jurisdictional bar that prohibits: § Citizens of a state/foreign country from suing another state in federal court AND § Suits in fed court against state officials for violating state law o Exceptions: § Consent § Injunctive relief against state official D § Individual damages w/ personally liable state official D § Congressional authorization

Answer 13

o If Congress has not acted re: area of interstate commerce, states can as long as the action does not: (1) Discriminate against out-of-state commerce (2) Unduly burden interstate commerce OR (3) Regulate wholly out-of-state activity o Exceptions: (1) State acting as a market participant (2) Legislation favors gov't entities performing a traditional gov't function OR (3) Congress explicitly permits

Answer 14

o Requires gov't to provide citizens equal protection of the laws o Suspect classes - strict scrutiny (narrowly tailored, compelling interest): § Race, ethnicity, national origin, alienage o Quasi-suspect classes - intermediate scrutiny (substantially related, important interest): § Gender and legitimacy o All others - rational basis (not rational, not legitimate) o Proving government intent to discriminate § Discriminatory on its face § Discriminatory application § Discriminatory motive

Answer 15

o Have the right to not speak o Cannot be overbroad or vague o Prior restraints unconstitutional w/ limited exceptions: § Particular harm avoided § Procedural safeguards provided to speaker o Content based restrictions are presumptively unconstitutional o Content neural subject to intermediate scrutiny: § Advance important interest unrelated to speech suppression § Not burden substantially more speech than necessary

Answer 16

o Public forums/designated public forums § PUBLIC FORUM = historically open to speech related activity § DESIGNATED PUBLIC FORUM = gov't has made open for such activities on permanent/limited basis by practice or policy § Can regulate w/ reasonable time, place manner laws that: · Content Neutral · Narrowly tailored, important gov't interest · Leave open alt channels o Limited public forums/nonpublic forums § LIMITED PUBLIC FORUM = not historically linked opened for specific speech activity § NONPUBLIC FORUM = gov't property not historically linked, not open for a specific activity § Can regulate if: · Viewpoint neutral · Reasonably related to legitimate gov't purpose

Answer 17

o Restrictions on content must be necessary to compelling gov't interest o Unprotected speech (1) Inciting imminent lawless action · Clear and present danger · Conduct is likely · Speaker intended to cause (2) Fighting words · Likely to incite immediate physical retaliation from average person (3) Obscenity · Appeals to prurient interest in sex · Patently offensive · Lacks literary, artistic, political, or scientific value (4) Defamatory speech (5) Some commercial speech - regs must: · Substantial govt interest · Directly advances · Narrowly tailored

Answer 18

o Reserved powers - all powers not assigned to feds are left to states/people o Fed has virtually unlimited power to reg states § Cannot command legislatures to make laws/administer fed programs, but can encourage through taxing and spending powers

Answer 19

o All foreign and interstate commerce § Channels, instrumentalities, or activities that have substantial effect on interstate commerce o Regulating intrastate activity is upheld if § Regulating economic or commercial activity AND § Rational basis that Congress could conclude activity in the aggregate substantially affects interstate commerce o Regulating noneconomic intrastate activity upheld if § Direct substantial economic effect on interstate commerce § Not aggregated

Answer 20

o 5A provides § Private property may be taken § For public use · Even to transfer to private party, have to show not related to conceivable public purpose § With just compensation (FMV) o Regulatory taking - consider: § Economic impact § Interference with owner's reasonable investment backed expectations AND § Character of the regulation o Per se regulatory takings § Permanent physical occupation of the property OR § Permanent total loss of the property's economic value

Answer 21

If contract is for sale of goods, apply the UCC; otherwise apply common law

Answer 22

(1) Mutual assent (offer + acceptance) (2) consideration (bargain for legal detriment) (3) no defenses to formation

Answer 23

- offeror expressly revokes - offeree learns offeror has taken action inconsistent with continuing ability to K - offeree rejects - counteroffer - offeror dies/incapacitated - lapse - SM illegal/destroyed

Answer 24

- goal is to put nonbreaching party in same economic position that it would be if K had been performed - must be proven with reasonable certainty - unforeseeable consequential damages not recoverable unless breaching party had reason to know about them

Answer 25

- manifestation of willingness to enter into K by offeree - bilateral: promise or start of performance - unilateral: complete performance - mailbox rule: acceptance valid when mailed out

Answer 26

CL - parties, subject quantity, price UCC - parties, subject, quantity unless requirement/output K

Answer 27

CL: must be supported by consideration, pre-existing duty is not consideration UCC: good faith requirement

Answer 28

COMMON LAW only: An acceptance must match the terms of the offer exactly otherwise is not acceptance, but a counteroffer

Answer 29

- fine unless made conditional on additional/different term - additional terms will govern if both parties are merchants unless original offer expressly limited, additional terms materially alter, offeror objects - Knock out rule: different terms knocked out leaving gap

Answer 30

CL: clear and unequivocal repudiation of a promise before its due; can be retracted until promisee relies on, signifies acceptance, or commences action for breach UCC: unequivocal refusal to perform OR reasonable grounds for insecurity arise and repudiating party fails to provide adequate assurances Remedies: non-repudiating party may treat the repudiation as breach and sue for damages OR ignore repudiation, urge performance, wait and see

Answer 31

CL - specific intent or objective - malice: reckless disregard of high risk - general intent of committing a legally prohibited act - strict liability (statute) MPC - purposely: conscious objective to engage in conduct/cause certain result - knowing/willful: aware of likely result - reckless: conscious disregard of substantial/unjustified risk - negligent: fails to perceive substantial/unjustified risk

Answer 32

Any incriminating statement taken during a custodial interrogation may not be used against D unless they have been given their miranda rights - CUSTODIAL: reasonable belief they are not free to leave or terminate the encounter with the government - INTERROGATION: when police know/should know words/actions likely to elicit incriminating response - Rights: (i) to remain silent (ii) statements may be used against D in court (iii) right to atty and (iv) right to atty appointment - waiver can only be knowing/voluntary - exceptions: public safety, suspect is not aware interrogator is cop, questions for routine booking purposes

Answer 33

REP in: hotels, homes, offices, curtilage, luggage No REP: public streets, open fields, garbage, abandoned property, visible from public airspace, anything that can be seen inside a home from public space No warrant needed: (ESCAPES) (1) Exigent circumstances (2) Search incident to a lawful arrest (3) Consent (4) Automobiles (5) Plain view (6) Evidence from admin searches (7) Stop and frisk

Answer 34

- taking - carrying away - of another's personal property - by trespass - with intent to permanently deprive

Answer 35

- fraudulent conversion - of another's personal property - by a person in lawful possession of that property

Answer 36

Unlawful killing with malice aforethought - intent to kill - intent to inflict great bodily injury - depraved heart - felony murder rule

Answer 37

would be murder but for existence of adequate provocation - provocation arouse sudden/intense passion in ordinary person AND - not sufficient cool off period AND - Defendant did not cool off

Answer 38

unintentional killing committed either: - with criminal negligence: gross negligence putting another at significant risk of bodily harm/death. OR - during unlawful act

Answer 39

usually second degree murder unless aggravating circumstances est. in statute: - premeditation: deliberate & premeditated, cool manner & reflection - felony murder: BARRK & inherently dangerous felonies - heinous: performed in a certain way (torture, mutilation)

Answer 40

- Death caused in commission of or attempt to commit a felony - must have committed underlying felony, defenses work - felony must be distinct from the murder - death must be foreseeable result of the felony

Answer 41

- Cause in fact: death would not have occurred but for D's conduct - proximate cause: death is natural and probable cause of D's conduct (negligent medical care/victim's refusal of treatment foreseeable)

Answer 42

- M'Naghten: because of mental defect D did not know (i) nature/quality of act OR (ii) wrongfulness of act - Irresistible impulse: because of mental defect D lacked capacity for (i) self-control/free choice OR (ii) conform to requirements of law - MPC test: because of mental defect D did not have capacity to (i) appreciate wrongfulness OR (ii) conform conduct to requirements of law - Durham test: act would not have been committed BUT FOR D's mental illness.

Answer 43

(1) Intoxication - voluntary: valid for specific intent crimes only - involuntary: valid defense for all crimes (2) Self Defense - non deadly force: ok when confronted with unlawful force and necessary to protect self from imminent use of force - deadly force: ok when unlawful force and reasonable belief of threat of death or great bodily harm - imperfect: can reduce murder charge if based on honest but unreasonable belief deadly force was necessary (3) Duress - if D reasonably believed other person would inflict death/bodily harm (4) Mistake of fact - specific intent crime: doesn't have to be reasonable - general/maile: must be reasonable

Answer 44

OOCS (Out-Of Court Statement) offered to prove the truth of the matter asserted statements = written, oral, conduct intended to be assertive

Answer 45

If not offered for TOMA (Truth Of the Matter Asserted): (1) independent legal significance (2) effect on listener (3) declarant's mental state/state of mind (4) impeachment Non-hearsay (1) prior inconsistent statements (subject to cross, under oath, inconsistent with present testimony) (2) prior consistent statements (subject to cross, before opp to fabricate) (3) prior statements of ID (subject to cross) (3) admissions by party opponent

Answer 46

- Probative: any tendency to make fact more true than without evidence - Material: fact of consequence in determining the action

Answer 47

Character Evidence in Civil Cases Not admissible for propensity purposes unless - character is essential element of claim/defense (all types) - cased on D's sexual misconduct

Answer 48

Not admissible by prosecution unless D opens door D can "open door" and offer positive character evidence when: - pertinent to crime charged AND - rep and op testimony only (no specific acts) Then P can introduce negative character evidence by: - calling in own character witness (rep/op) OR - cross D's character witness (specific instances related to trait in question) Victim's character - D can introduce if relevant to defense - P then can rebut by showing: D has same trait OR V has positive trait - Can use specific instances on cro

Answer 49

Specific instances of conduct admissible to show: - Motive/opportunity - Intent - Mistake (absence) - Identity - Common plan/preparation * must also have sufficient evidence to support jury verdict that D committed prior act AND PV (probative value) > UP (unfair prejudice)

Answer 50

- privilege - refuses - not remembering - cannot be present b/c of death/illness - absent Exceptions for unavailability only: - former testimony - dying declaration - statements against interest - forfeiture by wrongdoing

Answer 51

describes event as it takes place or immediately after

Answer 52

made while still under the stress of the startling / exciting event

Answer 53

statement of past/present condition for purposes of getting medical diagnosis/treatment can be made to nurses, fam, non-medical individuals can be made to enable physician to testify at trial

Answer 54

CHARACTER FOR TRUTHFULNESS: - through rep/op testimony - can't bolster credibility - can use specific instances on cross if: involves truthfulness, good faith belief, does not involve arrest/consequence of arrest - extrinsic evidence not admissible PRIOR CONVICTIONS: - involving dishonesty: always admissible (under 10 yr) - prior felony w/o dishonesty: if PV not substantially outweighed by UP - 10+ years since conviction/release: must show PV substantially outweighs UP - not admissible if pardon, annulment, later innocent PRIOR INCONSISTENT STATEMENTS: - extrinsic evidence only if witness can explain/deny - extrinsic evidence cannot be used for collateral matter

Answer 55

- meaningful relationship with parents - ability/willingness of parents - relationship of the child with parents, siblings, any others - Childs adjustment to home/school/community - mental and physical health of all involved - parents intent to relocate - wishes of Childs parents - wishes of the child (greater weight with age/maturity)

Answer 56

Analysis: - categorize property - determine equitable distribution of marital property Separate property: acquired before marriage, by gift, acquired with spouse's own proceeds, passive appreciation Marital property: all property acquired during marriage, active appreciation, reimbursement of support in pursuit of professional degrees

Answer 57

- income, property, liabilities - duration of marriage - obligations of prior marriage - lifestyle expectations - spousal contribution - fault is NOT factor

Answer 58

Valid if - in writing, signed by both - full disclosure - voluntary Under UPAA challenger must show - not voluntary - unconscionable when executed - no fair/reasonable disclosure - no adequate knowledge of other's assets *Child custody arrangements in premarital agreements are unenforceable, child support agreements that adversely affect the child are unenforceable

Answer 59

Annulment: majority is state where either party domiciled Divorce: valid & FFC applies when petitioning party (i) domiciled in state granting divorce and (ii) provides adequate notice to other spouse Divisible divorce: state does not have jx to divide marital property that is in another state absent PJ, but can rule on termination of marriage

Answer 60

- cohabitation for statutory period - held out to be married - intended to be married

Answer 61

Substantial changes in circumstances making prior order unreasonable some courts will not allow if the change was anticipated or voluntary unless in good faith must be done by court with home state jx if still home state of any party

Answer 62

parent must show - substantial change in circumstances - modification in child's best interests must be done by court with home state jx if still home state of any party

Answer 63

need substantial change in circumstances making prior order unreasonable some courts will not allow if the change was anticipated or voluntary

Answer 64

- consider income of noncustodial parent - provide for kid's healthcare needs - based on some formula

Answer 65

Established by - effective acknowledgement of paternity unless rescinded - adoption - adjudication Man is presumed to be father under UPA if - man/woman married & child born during marriage or w/in 300 days after divorce - same as above but with attempted marriage that was invalid for some reason - holding out minor child as his own - must be established by clear and convincing evidence

Answer 66

legal action brought by bio father to establish rights concerning child born out of wedlock man must show that he - assumed parental responsibilities - established substantial parent child relationship

Answer 67

General: warrants against all title defects even if grantor did not cause them Special: warrants against defects caused by grantor Quitclaim: no warranties

Answer 68

Present: - seisin (land as described & grantor is owner) - right to convey - against encumbrances (none undisclosed) Future - quiet enjoyment (G defends against future challenges) - warranty (G defends against future developments) - further assurances (G reasonably cures future title problems)