MEE Other Subjects Flashcards
1
Q
What is personal jurisdiction?
A
The power of a court to exercise authority over a defendant
Personal jurisdiction can be general or specific and relates to fairness to the defendant.
2
Q
What are the two types of personal jurisdiction?
A
- General (obtained by consent, presence, or domicile)
- Specific
3
Q
What must you state when discussing federal personal jurisdiction?
A
“Federal district courts may exercise personal jurisdiction to the same extent as the courts of general jurisdiction of the state in which the district court sits.”
4
Q
What must you state when discussing specific personal jurisdiction?
A
“State courts of general jurisdiction may exercise personal jurisdiction over nonresident defendants to the extent authorized by both the state’s long-arm statute and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.”
5
Q
What does the Due Process Clause of the Fourteenth Amendment permit?
A
“The Due Process Clause of the Fourteenth Amendment permits states to assert personal jurisdiction over nonresident defendants who have established minimum contacts with the state such that the exercise of personal jurisdiction would not offend traditional notions of fair play and substantial justice.”
Look for “purposeful availment” of the benefits and protections of the state. Then, examine the quality of the contacts with the state.
6
Q
What is subject-matter jurisdiction (SMJ)?
A
Is the power of a court to hear a certain type of case.
7
Q
What kind of jurisdiction do federal courts have?
A
Federal courts are courts of limited jurisdiction—that is, they can only hear certain types of cases.
8
Q
What are the three categories of SMJ that are tested?
A
- Federal-question jurisdiction
- Diversity jurisdiction
- Supplemental jurisdiction
9
Q
What is required for federal-question jurisdiction?
A
The federal question must appear on the face of the plaintiff’s well-pleaded complaint. It cannot appear in the answer. Further, the plaintiff cannot merely anticipate a federal defense in its complaint.
On the MEE, this has virtually always been tested with personal jurisdiction. And, the issue has always been the well-pleaded complaint rule!
10
Q
What are the two requirements for diversity jurisdiction?
A
(1) there must be complete diversity of citizenship between the plaintiffs and defendants, and
(2) the amount in controversy must be **over $75,000.00. **
11
Q
Is complete diversity required for class actions?
A
No, minimal diversity suffices.
12
Q
Where is a person domiciled?
A
“Where it is her permanent home, a place where the person intends to remain indefinitely, and the place to which the person intends to return when temporarily absent.”
Note: look to see where the party is domiciled at the time the lawsuit is filed.
13
Q
Where is a corporation domiciled?
A
A corporation is domiciled both where it is incorporated and where its principal place of business is located.
Note: look to see where the party is domiciled at the time the lawsuit is filed.
14
Q
What is supplemental jurisdiction?
A
This is an issue when there is a jurisdictional basis for one claim but not the other (e.g., a plaintiff brings a federal question claim and tacks on a related state claim).
Remember that a plaintiff cannot use supplemental jurisdiction to add a claim against a nondiverse party if the sole basis for SMJ is diversity.
15
Q
What is the rule regarding removal under 28 U.S. Code § 1441?
A
Defendants (but not plaintiffs) may remove an action
from state court to the federal court that geographically embraces it if the plaintiff could have initially brought the case in federal court. Generally, if the plaintiff could not have brought the case in federal court, then the defendant cannot remove it either.
16
Q
Can a defendant remove a case if sued in his home state?
A
A defendant may not remove a case if he is sued in his home state and the only basis for removal is diversity.
This exception is not generally tested on the MEE.
17
Q
What is the general rule for venue?
A
Venue is proper in a district where (1) any defendant resides if all defendants reside in the same state, (2) in a district where a substantial part of the events or omissions giving rise to the claim occurred, or (3) a substantial part of property that is subject to the action is situated.
There are also narrow fallback rules which, so far, have not been emphasized on the MEE.
18
Q
How to know the proper district in which a corporate is deemed to reside?
A
A corporate defendant is deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. To figure out where a corporate defendant resides, divide the state into districts (if it has more than one district) and see if the defendant would be subject to personal jurisdiction in any of those districts.
19
Q
What does 28 U.S.C. § 1404 authorize?
A
The federal court has authority to transfer a case to another federal district for the convenience of the parties and witnesses and in the interest of justice. The new forum must have subject-matter jurisdiction and personal jurisdiction.
Transfer to a more appropriate forum
20
Q
What must a court apply when transferring a case to a more appropriate forum?
A
The court will apply the law of the transferor forum. A motion to transfer to a more appropriate forum should be denied if the case could not have been filed there to begin with.
Note: This is different than “transfer to a proper venue” where a case is filed in the wrong venue, and, if transferred, the law of the transferee court would apply. Transfer to a proper venue has not been tested on the MEE.
21
Q
What is a summary judgment?
Rule 56
A
A case (or part of a case) is decided in favor of the plaintiff or the defendant without a trial.
22
Q
What standard must be met to grant a summary judgment motion?
A
“Federal Rule of Civil Procedure 56(a) allows a summary judgment motion to be granted only if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”
23
Q
What types of evidence can support a motion for summary judgment?
A
“A motion for summary judgment may be supported by depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials.”
24
Q
Who has the burden to prove in the summary judgement?
A
The moving party must produce evidence to show there is no genuine issue of material fact. The burden then shifts to the nonmoving party, which must then produce evidence to show that there is a genuine issue of material fact for trial. The motion is looked at in the light most favorable to the nonmoving party.
25
What is a temporary restraining order (**TRO**)?
A TRO can be issued without notice to the adverse party (but only in limited circumstances and for a limited time).
26
How long does a TRO last?
Only long enough for the court to consider and resolve a request, but not longer than 14 days (unless the court extends it for good cause or the adverse party consents to an extension).
27
What must a plaintiff show to secure a TRO without notice?
To secure a TRO without notice, the plaintiff needs to show a risk of “immediate and irreparable injury.”
28
What is the purpose of a TRO?
TROs are considered to be stopgap measures and last until the court decides whether to grant a preliminary injunction.
29
What is the purpose of a **preliminary injunction**?
A preliminary injunction is equitable relief with the objective of preserving the status quo. If it is granted, the matter must be tried within six months unless the parties stipulate or good cause is shown.
## Footnote
The court must give notice to the adverse party.
30
Which are the four factors to consider for a preliminary injuction?
**HELP**
(1) **Harm**: the significance of the threat of irreparable harm to the plaintiff if the injunction is not granted,
(2) **Evaluation of injuries**: the balance between this harm and the injury that granting the injunction would inflict on the defendant,
(3) **Likelihood of prevailing**: the probability that
the plaintiff will succeed on the merits, and
(4) the **Public interest**.
31
What is the definition of work product?
Work product is any material prepared in anticipation of litigation.
## Footnote
If it is not prepared in anticipation of litigation, it is not work product!
32
Under what circumstances can written statements by witnesses be discoverable?
***Written statements*** given by witnesses might be discoverable even if they are considered work product if the other party can show ***substantial need*** and ***undue hardshi***p.
## Footnote
However, an attorney’s mental impressions are never discoverable.
33
What is the general rule about appealability of judgments?
Final judgments are generally appealable and nonfinal judgments are generally not appealable.
## Footnote
The MEE tests the exceptions to this rule.
34
What are some exceptions to the general rule about appealability of judgments?
Exceptions include when there are final orders in cases involving multiple claims and multiple parties and some are still pending—the other parties may be able to appeal their orders; orders involving injunctions, garnishments, and other temporary remedies; interlocutory orders by leave; and orders constituting a final judgment on collateral matters.
35
What is **issue preclusion**?
Issues that were actually litigated and decided and essential to the judgment in a previous case cannot be litigated again.
36
What is **claim preclusion**?
A claim that has been litigated to a final judgment on the merits cannot be relitigated by the parties (or their privies).
37
To what extent can the Congress regulate interstate commerce?
Congress can regulate the channels and instrumentalities of interstate commerce, persons and things in interstate commerce, or anything that has a “substantial effect” on interstate commerce—meaning, it can regulate anything economic or anything noneconomic that “substantially affects” interstate commerce (even if it is purely “intrastate”—i.e., within a state).
38
What cannot Congress do regarding intestate commerce?
Congress cannot “commandeer” states and force states to enforce federal laws. Congress will either have to regulate directly (if within its commerce power) or regulate indirectly by threatening to take away funding if the state does not adopt a law (under Congress’s spending power).
39
What is the Dormant Commerce Clause?
States lack the power to discriminate against interstate commerce or unreasonably burden it.
## Footnote
Also known as negative Commerce Clause.
40
Under what conditions is a state law that ***discriminates*** against interstate commerce considered valid?
If a law ***discriminates*** against interstate commerce, it is invalid unless the state can show that the law was ***necessary*** to serve a ***compelling state interest*** and there is ***no reasonable nondiscriminatory alternative (strict scrutiny)***.
## Footnote
***A state law that discriminates against interstate commerce is usually unconstitutional.
41
Under what conditions is a state law that is ***nondiscriminatory*** on its face but still burdens interstate commerce considered valid?
If a state law is ***nondiscriminatory*** on its face (i.e., it imposes the same burden on those in-state and out-of-state) but it still ***burdens interstate commerce***, it is valid only if it serves an ***important state interest*** and does not impose an ***unreasonable burden on interstate commerce.***
## Footnote
***A state law that merely burdens interstate commerce is more likely to be constitutional.
42
What is the ***market-participant*** doctrine?
The state is acting as a market participant or business rather than regulator. If the state is acting as a market
participant, it is allowed to favor its own residents.
43
What limits does Congress have on its powers?
Congress’s powers are limited to those given to it by the Constitution. It has the power to enforce constitutional rights under its enforcement power found in the Thirteenth, Fourteenth, and Fifteenth Amendments, but it does not have the power to expand rights.
44
What is required to sue under the First, Fourteenth, or Fifteenth Amendment?
State action is required to sue under these amendments.
45
What is the **general rule** if a plaintiff is suing under the First, Fourteenth, or Fifteenth Amendment?
If a plaintiff is suing under the First, Fourteenth, or Fifteenth Amendment (for free speech, due process, Equal Protection Clause issues, or voting rights) the plaintiff needs to find a ***government actor*** or action “fairly attributable to the government.”
## Footnote
One cannot sue a business or a private individual for, say, violating one’s free speech rights under the First Amendment.
46
When is **state action** present?
State action is present when a state passes a law, when a state permits its officials to take action, when a private actor is performing a ***traditional and exclusive*** government function (e.g., conducting elections, or running a company town—this is pretty narrow), or when private action is closely controlled by the state.
47
What are the three standards under the Equal Protection Clause?
* Strict scrutiny
* Intermediate scrutiny
* Rational basis
48
What must the government show under **strict scrutiny**?
The government must prove that the law is ***narrowly tailored (necessary)*** to achieve a ***compelling interest***.
## Footnote
The government usually loses under a strict scrutiny analysis.
49
Strict scrutiny applies to what?
Strict scrutiny applies to fundamental rights, racial or ethnic discrimination, and alienage when the classification is made by the state.
## Footnote
There are exceptions for alienage where strict scrutiny does not apply—e.g., if the public-function doctrine applies or if the law regulates illegal aliens.
50
What must the government prove under **intermediate scrutiny**?
The ***government*** must prove the classification is ***substantially related*** to an ***important government interest***. This applies to classifications regarding gender and illegitimacy.
51
What must the plaintiff prove regarding **rational basis**?
The ***plaintiff*** must prove that the law is ***not rationally related*** to a ***legitimate*** government interest. (The plaintiff usually loses.) This applies to every other classification—poverty, wealth, age, education, etc.
52
When can the government face strict scrutiny regarding a regulation of ***private*** speech?
The government faces strict scrutiny if it engages in content-based discrimination (forbidding communication about certain ideas) or viewpoint-based discrimination (forbidding communication about a certain viewpoint).
53
When is constitutional a law that regulates **symbolic speech**?
A law which regulates conduct and places an incidental burden on speech is constitutional if the regulation is ***narrowly tailored*** to an ***important governmental interest*** and is ***unrelated to the suppression of the speech***.
54
What needs a law to regulate **unprotected speech**?
A law regulating unprotected speech needs to pass ***rational basis*** scrutiny
55
Explain the categories of speech that are not protected under the First Amendment.
* **Speech inciting immediate lawless or violent behavior** (“clear and present danger”): speech that is ***directed at inciting*** and ***likely to incite*** imminent lawlessness.
* **Fighting words**: words likely to incite an immediate violent reaction.
* **True threats or words as conduct**: defamation, harassment, and other forms of “words as conduct.”
* **Obscene speech**
56
What are the three criteria used to test for obscenity?
The test for obscenity examines whether the speech appeals to a prurient interest in sex, whether it depicts or describes sexual conduct in a patently offensive way, and whether it lacks serious literary, artistic, political, or scientific value.
## Footnote
Obscene speech is not usually tested.
57
What is the Central Hudson test related to?
Commercial speech
58
What states the *Central Hudson* test?
(1) the speech must be **lawful and not misleading**,
(2) the statute must serve a **substantial governmental
interest**,
(3) the statute must **directly advance that interest**, and
(4) the statute must be **narrowly tailored**.
59
What is the role of the law regarding **sexual or indecent speech**?
The law must serve a ***substantial governmental interest*** and leave open ***reasonable alternative channels*** of communication.
60
What must a **time-place-or-manner restriction** in a public forum be?
A restriction in a public forum—i.e., one *historically*
associated with free speech rights (e.g., streets, sidewalks, parks), or a designated public forum (e.g., a school that opens its doors to after-school activities) must be ***content neutral, narrowly tailored*** to serve an ***important governmental interest***, and leave open ***alternative channels of communication***. A restriction in a nonpublic forum (e.g., airports, government workplaces, etc.) must be ***viewpoint neutral*** and ***reasonably related to a legitimate governmental interest***.
61
True or False: Students have free speech rights in public schools.
True.
However, speech in schools may be regulated so long as the regulations are ***reasonably related*** to ***legitimate pedagogical*** (educational) ***concerns***.
62
Which general principles could make uncontitutional a law regulating speech?
| **Principles to keep in mind**
There is a presumption against a prior restraint (stopping speech before it happens). If a law is ***overbroad*** (prohibits substantially more expression than necessary) or ***vague*** (a reasonable person could not tell what is prohibited by the law), it is unconstitutional.
63
What are the **rights of the press** regarding speech?
The press has no greater free speech rights than anyone else. The press may publish information that is lawfully obtained and that is a matter of public concern.
64
What are the **rights of corporations** regarding speech?
Independent political expenditures by a for-profit corporation constitutes free speech protected by the First Amendment.
65
What entails the principle of eminent domain?
Neither the federal government nor the state may take private property for public use without just compensation. This arises from the Fifth Amendment and is applied to the states through the Fourteenth Amendment. A “public use” is defined broadly and may include giving land to a private party for commercial development
66
How can a **exaction** be defined (or recognized)?
An exaction exists when the government enacts a regulation that restricts the owner’s use of a property as a condition to allowing the owner to develop the land. These are takings unless the government can show a ***legitimate government interest*** and “***rough proportionality***” (i.e., the adverse impact of the proposed development is roughly proportional to the loss suffered by the property owner).
67
What are the two types of takings?
A taking can be ***physical*** or ***regulatory*** (e.g., an exaction). A physical taking occurs when there is a permanent physical occupation regardless of what public interests it may serve.
68
How can a **taking** be defined (or recognized)?
When a regulation deprives an owner of all economically beneficial use of her property or destroys all reasonable investment-backed expectations, it is a taking.
69
What to answer if article 2 of the Uniform Commercial Code (UCC) is tested?
“Article 2 of the Uniform Commercial Code (UCC) applies to
transactions in goods. Goods are ‘things moveable’ at the time of identification to the contract. A contract under Article 2 may be made in ‘any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.’ ”
70
What constitutes an **offer**?
A person makes an offer when the person communicates to another a statement of “willingness to enter into a bargain” so that the other understands that “his assent to the bargain is invited and will conclude it.” The terms of an offer need to be reasonably certain (e.g., as to parties, subject matter, price, etc.).
71
What is a **counteroffer**?
At common law, a statement is a counteroffer, rather than an acceptance, when the terms of the initial offer are changed.
## Footnote
Mirror-image rule.
72
Fill in the blank: A promise to hold an offer open requires _______ to be binding.
consideration
## Footnote
Unless the UCC firm offer exception applies.
73
What is an **acceptance**?
An acceptance is a manifestation of assent to the terms of an offer made in a manner invited by the offer. It is effective upon dispatch (the mailbox rule).
74
What is a **rejection**?
A rejection is a manifestation of intent to not accept the offer. It terminates the offeree’s power to accept an offer. It is effective when received by the
offeror.
## Footnote
Note: if a rejection is sent and then an acceptance is sent, whichever the recipient receives first is effective.
75
What is the **preexisting-duty rule**?
Under common law, promising to perform a legal duty already owed to a promisor is not valid consideration. Exceptions include if the duty is changed (even slightly), unforeseen circumstances, etc.
76
What is the exception of the **material benefit**?
Some states recognize an exception to past consideration limitations in which a promise is made after receipt of a significant benefit (usually promise arises after a benefit received in an emergency).
77
What is needed under the UCC to modify a contract?
Only **good faith**.
78
What does '**promissory estoppel**' substitute for?
Consideration
79
What is needed for a promisory stoppel?
If there is (1) a ***promise***, (2) ***reliance*** that is foreseeable and justifiable, and (3) ***enforcement*** is necessary to avoid injustice, the promise will be enforced.
80
What is meant by '**gap fillers**' in contract law?
A contract for the sale of goods doesn’t fail because one or more terms are missing if the parties intended to make a contract and there is an appropriate remedy for breach. Gap fillers include ***course of performance, course of dealing***, and ***trade usage***.
81
Under common law, what must a party do to demand performance from another party?
A party must “substantially perform” its contractual
obligations in order to demand performance (usually payment) from the other party. Courts will look at several factors to determine whether performance was substantial.
## Footnote
Note that this is different from UCC Article 2, which requires perfect tender for one-shot deals.
82
What is required for a **contract** to be **divisible**?
A contract is divisible so long as (1) it is apportionable and (2) the parties would have contracted for each part separately. A party that performs one or more parts of the contract may collect payment for those parts even if he does not substantially complete performance of his duties.
83
What is the perfect tender rule?
A buyer can reject goods for any reason if they do not conform perfectly to the contract
## Footnote
There are exceptions, such as in installment contracts.
84
True or false: If a buyer accepts the goods, he can no longer reject them.
True
85
What are the conditions under which a buyer *can revoke his acceptance* of goods?
(1) the nonconformity ***substantially impairs the value to him***;
(2) he accepted the goods because he had a ***reasonable belief the nonconformity would be cured*** (and it wasn’t), or he didn’t discover the nonconformity because ***the nonconformity was difficult to discover***, or ***because of seller’s assurances***;
(3) he revokes within a ***reasonable time after*** he discovers or should’ve discovered the nonconformity; and
(4) he revokes before any ***substantial change in condition of the goods which is not caused by their own defect***.
## Footnote
A buyer who revokes his acceptance may recover the purchase price paid.
86
Define **anticipatory repudiation**.
This occurs when there is an ***unequivocal manifestation*** by one party to the other that the party ***cannot or will not perform its obligations*** under the contract (a mere expression of doubt is not enough) and this statement is made ***before*** the repudiating party’s performance is due. The other party may wait for a reasonable time for performance or resort to any remedy for breach of contract.
87
What is **prospective inability to perform**?
This occurs when a party has ***reasonable grounds for insecurity*** that the other party is ***unable or unwilling to perform***. This is merely *doubt*, it does not rise to the level of an anticipatory repudiation.
88
What can a party do if they have reasonable grounds for insecurity regarding performance?
Under the UCC, the party may then, in writing, ***demand adequate assurance of performance***, and until she receives such assurance, may suspend her performance. If such assurance is not given within a reasonable time, not exceeding 30 days, the other party may treat it as a repudiation.
89
In what circumstances can a **repudiation be retracted**?
The party who has repudiated can retract his repudiation unless the other party cancelled the contract, materially changed his position in reliance on the repudiation, or indicated that she considers the repudiation to be final.
90
What is required for a contract to satisfy the Statute of Frauds?
“A contract within the Statute of Frauds satisfies that statute and is enforceable if it is evidenced by a writing signed by ‘the party to be charged,’ which (1) reasonably identifies the ***subject matter*** of the contract, (2) is sufficient to indicate that a ***contract has been made***, and (3) states with reasonable certainty the ***essential terms*** of the contract.”
91
List the types of contracts that fall under the Statute of Frauds using the mnemonic **MYLEGS**.
Contracts made in consideration of **Marriage**, contracts that cannot be performed in a **Year**, contracts for the sale of an interest in **Land**, promises by an **Executor** to pay a debt of an estate out of his personal funds, sale of **Goods** for $500 or more (subject to additional UCC rules, see next), and **Suretyship** contracts.
92
What is the enforceability requirement for contracts involving the sale of goods for $500 or more under the UCC?
Is not enforceable unless there’s a ***writing signed by the party against whom enforcement is sought*** that is sufficient to indicate that a contract for the sale of goods has been made between the parties. The writing need not contain all terms of the contract, but it’s not enforceable beyond the ***quantity*** of the goods shown.
93
What are the exceptions to the UCC's writing requirement?
* Merchant confirmatory memo
* Part performance
* Specially manufactured goods
* Judicial admissions
94
Define **duress** in the context of contracts.
A contract is voidable when it is established that a party’s manifestation of assent is induced by an improper threat that leaves the party no reasonable alternative.
95
What creates an **express warranty** under Article 2?
Affirmations of fact relating to the goods that are part of the basis of the bargain create express warranties that the goods will conform to those affirmations and descriptions. This warranty is breached if they do not conform.
96
What is the normal measure of **damages for breach of contract**?
“The normal measure of damages for breach of contract is expectation damages, which aim to give the nonbreaching party the benefit of his bargain.”
Expectation damages must be foreseeable and proven with reasonable certainty. This is similar to the UCC rule, which puts the aggrieved party “in as good a position as if the other party had fully performed.” A buyer may recover the difference between the cost to “cover” by purchasing in good faith substitute goods and the contract price. Expectation damages aim to give the nonbreaching party the benefit of their bargain.
97
True or False: **Punitive damages** are generally recoverable in breach of contract actions.
False, “unless the conduct constituting the breach is also a tort for which punitive damages can be recovered.”
98
What is **restitution** in contract law?
| Also called unjust enrichment or *quantum meruit*
A party may be able to recover restitution for any benefit conferred by way of part performance in excess of the loss that he caused by his own breach.
99
Define **mitigation** in the context of damages.
As a general rule, a party cannot recover damages for a loss that the party could have avoided by reasonable efforts
100
What are the basic elements of a crime?
* Act
* Intent
* Causation
* Concurrence
101
What is required to establish causation in a crime?
Causation requires showing that the defendant's acts were both the ***actual*** and ***proximate*** cause of the outcome. Proximate cause is present if the outcome was foreseeable.
102
Define accomplice liability.
A person is guilty as an accomplice if he ***assists or encourages*** the principal with *dual intents*: (1) the intent to assist the primary party, and (2) the intent that the primary party commit the offense charged. Remember a person is not liable for accomplice liability—they are liable for the crime committed through the theory of accomplice liability.
103
What is needed to be guilty of murder?
“In order to be guilty of murder, the defendant must have the mens rea of malice aforethought which is satisfied in most jurisdictions with intent to kill (first-degree), with knowledge that his acts would kill (first-degree), with intent to inflict great bodily harm (second-degree), or with reckless disregard of an extreme risk to human life (second-degree).”
104
What is **first-degree murder**?
Is the intent to kill with ***premeditation*** and ***deliberation***. Some states follow the rule that premeditation and deliberation require proof of a cool mind capable of reflection and some period of reflection. Other states follow the view that premeditation and deliberation can occur in an instant and can be inferred from circumstantial evidence (e.g., using a deadly weapon).
105
What constitutes **second-degree murder**?
This is satisfied by the intent to inflict ***great bodily harm*** or by acting with reckless disregard of an extreme risk to human life (***depraved heart*** murder).
## Footnote
Note: it is also the catchall—i.e., when an act constitutes “murder” but is not quite first-degree.
106
What are the requirements for depraver heart murder?
Usually requires that the defendant acted recklessly and that the defendant’s conduct shows a “high degree of indifference to the value of human life.”
107
What is **felony murder**?
Applies to any killing that occurs during the ***commission*** of a felony, an ***attempt*** to commit a felony, or a ***flight*** from a felony. The felony must be inherently dangerous, and the purpose of the felonious conduct must be independent of the homicide.
108
Define **voluntary manslaughter**.
An intentional killing of a human being without malice aforethought committed in the ***heat of passion*** due to ***adequate provocation***.
109
What is **involuntary manslaughter**?
| Misdemeanor manslaughter
The defendant causes the death of another human being by engaging in conduct that creates an unreasonable risk of death or serious bodily injury. The majority view is that the defendant must have acted “recklessly.”
## Footnote
Some states say that “gross negligence” is enough.
110
What are the two elements required to prove attempt as an inchoate crime?
(1) The defendant ***intended*** to commit the crime, and
(2) the defendant’s acts went sufficiently beyond “***mere preparation***” to commit the crime.
## Footnote
The common law uses the words “dangerously close” to the crime, whereas the Model Penal Code requires that the defendant’s conduct is a “substantial step” toward the crime and corroborative of his criminal intent.
111
True or False: Abandonment is a defense to an attempt in most states.
False
## Footnote
In most states, abandonment is not a defense to attempt.
112
Define **duress** in the context of criminal defense.
The defendant commits a crime because there was a threat or use of force by another which caused a *reasonable fear* that, if the defendant did not perform the crime, either he or a third person would suffer imminent death or serious bodily injury.
## Footnote
One cannot use duress as a defense to an intentional homicide.
113
What test do most states use to determine **insanity**?
*M’Naghten* test
114
What must the defendant prove under the *M’Naghten* test?
The defendant must prove he suffered a ***disease of the mind*** that caused a ***defect of reason***, and as a result he ***lacked the ability*** to know the ***wrongfulness*** of the actions or understand the ***nature and quality*** of his actions.
115
What is the **general rule** regarding the Fourth Amendment?
The Fourth Amendment applies to ***searches or seizures*** conducted by ***government agents*** in areas where there is a reasonable expectation of privacy
## Footnote
An agent typically needs a ***warrant***, but there are exceptions.
116
What is required for a person to have **standing** to raise a Fourth Amendment challenge?
A person has standing to raise a Fourth Amendment challenge if he has an expectation of privacy in the thing searched or seized.
117
List some exceptions to the requirement for a warrant under the Fourth Amendment.
* Exigent circumstances
* Search incident to arrest
* Consent
* Automobile exception
* Plain view
* Inventory searches
* Special needs
* *Terry* stops/frisks
118
What does the plain view exception allow law enforcement to do?
If officers are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to it, they may seize it without a warrant.
119
What is required for a **Terry stop**?
The Fourth Amendment permits detention of an individual for a brief period of time if the police have “***reasonable, articulable suspicion***” that the individual has been recently involved in criminal activity.
120
What is the standard for excluding a confession under the Fourteenth Amendment?
| Due Process Clause
(1) whether the police subjected the suspect to ***coercive conduct*** and
(2) whether the conduct was sufficient to ***overcome the will of the suspect***.
## Footnote
Neither the confession nor the fruits of the confession can be admitted if the Fourteenth Amendment is violated.
121
What right provides the **Sixth Amendment**?
The Sixth Amendment, as applied to the states through the Fourteenth Amendment, provides that the accused has the right “to have Assistance of Counsel for his defense.”
122
When does the Sixth Amendment right to counsel attach?
When judicial proceedings have begun—i.e., when the accused is ***formally charged*** via indictment, arraignment, preliminary hearing, etc. It does ***not*** attach upon ***arrest***. It applies to all “critical stages” of the prosecution after formal charges are filed.
123
What happens when the right to counsel attach?
Once it attaches, any attempts to ***deliberately elicit*** an incriminating statement about the offense that the defendant was charged with, in the absence of counsel or a knowing, intelligent, and voluntary waiver, violates the Sixth Amendment.
124
What does the Fifth Amendment entail in the criminal process?
"Law enforcement officers are required to read Miranda warnings to a suspect when the suspect is subjected to a ***custodial interrogation***.”
| **Right to counsel and right to remain silent**
125
When are the Miranda warnings not required?
**Public safety**: warnings are not required if the questions are intended to protect public safety (e.g., to secure weapons after a shooting).
126
When is a suspect in **custody**?
A suspect is in custody if there is a formal arrest, or a restraint on freedom of movement to the degree associated with a formal arrest.
127
What constitutes **interrogation**?
This includes questioning initiated by law enforcement officers or any words or actions that the police should know are reasonably likely to lead to an incriminating response from the suspect.
128
What must a **valid *Miranda* waiver** entail?
The suspect must make a “knowing, intelligent, and voluntary” waiver. This is a low bar.
129
What are the requirements for **a valid *Miranda* invocation**?
For both the right to remain silent and the right to counsel, the suspect must be explicit, unambiguous, and unequivocal in making the request (e.g., “I think I need a lawyer” is not enough).
130
What happens if a **violation** of the Fifth Amendment **occurs**?
The statements are excluded from the prosecutor’s case-in-chief. The physical fruits are not excluded if the statements were made voluntarily.
131
When there is hearsay question, what is the best approach to answer?
**DIA**
* **Define** hearsay
* State why it is **Important** to determine if a statement is hearsay
* **Analyze** exceptions
132
What is the **definition of hearsay**?
Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
133
Why it is important to determine if a statement is hearsay?
Hearsay is not admissible unless it comes within an exception.
134
What are some of the **exceptions** to hearsay?
* Excited utterance
* Present sense impression
* Statement for purpose of medical treatment or diagnosis
* Business records
* Recollection recorded
* Then-existing state of mind exception
* Prior statement of identification hearsay exclusion
* Opposing party's statement
* Statement against interest
* Public records
135
What is an **excited utterance**?
A “statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused.”
136
What qualifies as a **present sense impression**?
“A statement describing or explaining an event or condition made while or immediately after the declarant perceived it.”
137
How the **statements for purpose of medical treatment or diagnosis** work?
These statements must be made for and reasonably pertinent to medical diagnosis or treatment and describe medical history, past or present symptoms or sensations, their inception, or their general cause.
138
What are **business records** under hearsay exceptions?
A record of “acts, events, conditions, opinions, or diagnoses” is admissible if it is made “at or near the time” of the event recorded by a “person with knowledge” of the event. Further, the making of the record must occur in the course of a regularly conducted business activity, and it must be the regular practice of the business to make such a record.
139
What is a **recollection recorded**?
| Hearsay exception
A record that is on a matter that the witness once knew about, but now cannot recall well enough to testify fully and accurately, which was made while the matter was fresh in the witness’s memory, may be read into evidence (however, the proponent may not offer it as an exhibit).
140
What is the **then-existing state of mind exception** to hearsay?
If a statement shows a declarant’s mental, emotional, or physical condition (including motive, intent, or plan) it is not hearsay.
141
True or False: A witness’s prior identification is considered hearsay.
False
## Footnote
A prior statement of identification is not considered hearsay.
142
What constitutes an **opposing party’s statement**?
A statement made by an opposing party offered against that party is not hearsay.
143
Define '**statement against interest**'.
A statement that a reasonable person in the declarant’s
position would have made only if the person believed it to be true because, when made, it had a tendancy to expose the declarant to civil or criminal liability. The declarant must be unavailable.
144
Under what circumstances may **public records** be admitted?
**Public records** may be admitted in some circumstances but not matters observed by law enforcement personnel when proffered by the prosecutor against the defendant in a criminal case.
145
What is the definition of relevancy in legal terms?
Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.
146
What are the conditions under which relevant evidence may be excluded?
All relevant evidence is admissible unless a statute or rule says otherwise, or the probative value is ***substantially outweighed*** by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
147
What is required for **lay witnesses** to testify?
A ***lay witness*** must have ***personal knowledge***. Her opinion must be rationally based on her perception; helpful; and not based on scientific, technical, or specialized knowledge.
148
What distinguishes expert witnesses from lay witnesses?
An ***expert witness*** does ***not need personal knowledge*** but can instead testify based on facts he has been made aware of at trial or through some other means (e.g., facts not on the record if other experts would rely on them).
149
What is the general rule regarding impeachment of witnesses?
Any party may impeach a witness (even the party that called the witness).
150
What are the seven ways to impeach a witness?
1. Prior inconsistent statements
2. Bias and interest
3. Conviction of a crime
4. Bad acts
5. Reputation or opinion for untruthfulness
6. Sensory deficiencies
7. Contradiction
151
What are the conditions for using **prior inconsistent statements** as evidence?
These can be used as substantive evidence as well if they
fall within a hearsay exception or exclusion. The witness must be given the opportunity to explain or deny the statement if extrinsic evidence is used, unless the witness is the opposing party, not in court, or if the interests of justice so require.
152
What are the rules regarding **bias and interest** regarding impeachment of witnesses?
The witness must be confronted on the stand. Extrinsic evidence can only be used if the witness is asked about the bias first.
153
What factors determine the admissibility of a witness's prior conviction?
**NAD**
* the ***N*ature** of the crime (felonies or misdemeanors of dishonesty are automatically admissible; any felony is admissible if it passes a balancing test),
* the ***A*mount of time** that has passed (if more than 10 years after conviction or release has passed, whichever is later, it is generally not admissible),
* and (only in criminal cases) whether the witness is a
***D*efendant** (it’s less likely to be admitted if the witness is a defendant because the probative value must outweigh its prejudicial effect).
154
What are the rules for questioning the past **bad acts** of the witness?
Questioning about acts that are probative of truthfulness or untruthfulness (e.g., filing a false tax return) is permitted. Extrinsic evidence is not permitted.
## Footnote
Note that on both exams when this was tested, the question was whether a party could admit extrinsic evidence that the witness lied on a job application or resume (and the answer is that extrinsic evidence would not be permitted).
155
How **reputation or opinion for untruthfulness** works to impeach a witness?
The witness cannot testify to specific facts. (Extrinsic evidence is permitted because the witness *is* extrinsic evidence.)
156
What are the rules regarding **sensory deficiencies** of the witness?
This is the ability to observe, remember, or relate accurately. Extrinsic evidence is permitted.
157
What are the rules regarding a **contradiction** of the witness?
If the witness made a mistake in her testimony or lied during direct examination, she may be contradicted. Extrinsic evidence can be used if she doesn’t admit her mistake
158
True or False: Character evidence is generally admissible to prove conformity.
False.
## Footnote
It is rarely admissible in civil cases (it must be an “essential element”) and is only admissible in criminal cases when the defendant opens the door.
159
What is the **general rule** regarding character evidence?
Character evidence is *inadmissible* to prove that someone acted in accordance with his character at the time the event occurred.
160
In what situations is character evidence admissible in **civil cases**?
Character evidence is only permitted when character is an ***essential element*** of the case. Character is an essential element in cases involving negligent entrustment or hiring, defamation, or child custody. Reputation, opinion, and specific acts can be used to prove character.
161
In what situations is character evidence admissible in **criminal cases**?
Generally, character evidence is inadmissible in the ***prosecutor’s case-in-chief*** to prove that the defendant acted in conformity with his own character. However, the ***defendant*** in a ***criminal case*** may introduce evidence of a pertinent (relevant) character trait to prove that he acted in conformity with his character at the time in question. He can do this by ***reputation*** or ***opinion***. Then, the prosecutor may rebut by using ***reputation, opinion***, or cross-examining the defendant’s witness by asking about ***specific acts***.
162
What is the significance of the Sixth Amendment Confrontation Clause?
If a statement is ***testimonial***, the declarant is ***unavailable***, and the defendant did not have the opportunity to ***cross-examine the declarant***, then admission of the statement will violate the defendant’s right to confrontation.
## Footnote
Note: a statement is not “testimonial” if the primary purpose of the statement is to address an ***ongoing emergency***.
163
What are **privileges** in legal evidence, and provide examples?
Privileges such as the attorney-client privilege, the spousal privileges, the physician-patient privilege (recognized in some jurisdictions), or the psychotherapist-patient privilege (recognized federally) can keep otherwise admissible evidence from being admitted.
164
Is an offer to settle admissible to prove the ***validity*** of a ***disputed claim***?
No
165
Fill in the blank: An offer to _ is not admissible to prove liability or the existence of an injury.
pay medical expenses
166
What can prove a **subsequent remedial measure**?
This is not admissible to prove negligence or liability, but may be used for impeachment, or to prove ownership, control, or feasibility of precautionary measures if disputed.
167
What an **insurance** can prove?
The existence of an insurance policy is not admissible to prove liability, but may be used to prove agency, ownership or control, or impeachment
168
What does the principle of **equitable conversion** entail?
Under ***equitable conversion***, as soon as the contract is signed (but before closing), the buyer’s interest is *real property* (the land he contracted to buy) and the seller’s interest is *personal property* (money he will get from the sale). Thus, the risk of loss remains on the buyer under equitable conversion, even if the seller remains in possession and control of the land.
169
What are the requirements for a **deed to be valid**?
To be valid, a deed must identify the buyer and the seller, describe the land, contain words denoting a present intent to convey, and be signed by the grantor. It must also be delivered. Delivery is a question of ***intent*** to pass title presently.
170
What is a **quitclaim deed**?
The grantor gives no covenants (promises nothing) and the grantee gets whatever the grantor has. The grantee takes the land subject to a defect in the title, an undisclosed easement, or other problem, and has no recourse.
171
What are the six covenants provided in a **warranty deed**?
Three present covenants and three future covenants.
## Footnote
The MEE tends to test present covenants rather than future covenants.
172
What are the present covenants in a warranty deed?
P**R**E**S**E**N**T
* the ***R*ight to convey**,
* the covenant of ***S*eisen** (both of these essentially meaning that the seller guarantees he owns the land he is selling),
* and the covenant against encumbrances (“***N*o encumbrances**”—i.e., there are no existing easements, liens, or encumbrances that are not stated in the deed).
173
What are the future covenants in a warranty deed?
**FEW**
* ***F*urther assurances**,
* **quiet *E*njoyment**,
* and ***W*arranty**.
## Footnote
Under common law, remote grantees can sue only under future (not present) covenants. However, note in your answer that some jurisdictions do not follow the common law rule.
174
What happens to the contract for sale on the closing date?
On the closing date, the contract for sale merges into the deed, so at that point, the buyer can only sue on ***the deed***.
175
What does the **implied warranty of fitness and habitability** cover?
A builder of new homes impliedly warrants to the buyer that the home is habitable and fit for its intended purposes. This warranty applies to defects that are discovered within a reasonable time and are due to the builder’s negligence or failure to do work in a workmanlike manner.
176
What principle governs the rights of a grantor under common law?
The first-in-time first-in-right principle.
## Footnote
A grantor can only convey rights they had at the time of the conveyance.
177
What are the three kinds of recording statutes?
* Notice statutes
* Race-notice statutes
* Pure race statutes
## Footnote
Each type of statute governs the validity of property interests based on recording.
178
How the **notice status** work?
**Notice statutes** protect subsequent bona fide purchasers for value who take ***without notice*** of the earlier transaction. (E.g., “A conveyance of interest in land is not valid against any subsequent purchaser for value ***without notice*** unless it is ***recorded***.”)
179
How the **race notice status** work?
**Race-notice statutes** protect subsequent bona fide purchasers for value who take ***without* notice** and are the ***first to record***. (E.g., “No conveyance of an interest in land is valid against any subsequent purchaser for value ***without notice*** unless it is ***first recorded***.”)
180
How the **pure race status** work?
**Pure race statutes** protect subsequent purchasers who are first to record.
## Footnote
These are rare!
181
Explain the three types of notice.
**AIR**
* ***A*ctual notice**: the grantee actually knows about the conveyance.
* ***I*nquiry notice**: examination of the land or reference in an instrument would lead a reasonable person to inquire.
* ***R*ecord notice**: The interest is recorded in the chain of title.
182
What is a **wild deed**?
Deeds that are recorded too late or too early are ***wild deeds***. Wild deeds do not give notice.
183
What is the **general rule** regarding liability on a mortgage when title is transferred?
A mortgagor (homeowner) can transfer title to the property. However, the mortgage will remain on the property and the mortgagor is still personally liable on the note. Generally, a new transferee who takes the land “***subject to***” the mortgage is not personally liable. However, if the transferee “***assumes***” the mortgage, he is personally liable along with the original mortgagor.
## Footnote
Some jurisdictions say that if the transferee pays the mortgage payments, he impliedly assumes the mortgage. This view is brought up on the MEE, but it is considered the wrong answer on the MBE.
184
What is a **novation** in the context of mortgages?
A ***novation*** occurs if the initial mortgagor, the new transferee, and the mortgagee all agree that the mortgagor is no longer liable and the transferee assumes all of the mortgagor’s duties.
185
What is a **term for years lease**?
A term for years lease specifies both a beginning date and an end date.
186
What is a **periodic tenancy**?
A periodic tenancy has no fixed end date (e.g., month-to-month lease = periodic tenancy). It simply repeats until one party gives valid notice to the other. It can be created by an express agreement, implication (where the lease contains no end date), or operation of law (e.g., an oral lease that violates the Statute of Frauds because the term is more than one year).
187
What is required to terminate a periodic tenancy?
Valid notice (i.e., notice equal to the rent payment term) is required to terminate a periodic tenancy.
188
True or false: if the lease does not prohibit an assignment or sublease, a tenant can assign or sublease her
interest in the lease.
True
189
What is **constructive eviction**?
A tenant can sue for ***constructive eviction*** (commercial or residential) if the tenant can prove that the landlord ***breached a duty*** to the tenant (e.g., the duty to repair) and this breach caused a loss of ***substantial use and enjoyment*** of the premises, and the tenant ***vacated*** the premises within a reasonable time after ***giving the landlord adequate notice***.
190
What is the **implied warranty of habitability** breached?
Is breached only in a ***residential lease*** if the premises are ***uninhabitable***. If this occurs, the tenant has several remedies including vacating the premises, suing for damages, offsetting damages, etc.
191
Which are the **duties of a tenant**?
The tenant must pay rent. If the tenant does not pay rent but has abandoned the property, the landlord can sue the tenant for damages or treat it as a surrender (the latter excuses future rent obligations).
192
What is the **duty to mitigate**?
Under common law, the landlord has no duty to mitigate damages. Many states have abandoned this approach and require that the landlord make a reasonable effort to mitigate damages (e.g., by attempting to re-rent the premises if the tenant leaves).
193
What does the **Fair Housing Act** prohibit?
This act disallows discrimination in housing sales or rentals on the basis of race, color, religion, sex, familial status, or national origin (but not occupation). This does not apply if the owner occupies one of the units in a multiple-unit dwelling containing no more than four units occupied by persons “living independently of each other.” However, an owner may not place a discriminatory advertisement. If such advertisement is made, the owner and publisher will have violated the act.
194
How can easements be **created**?
Easements can be created expressly, impliedly (by prior use or necessity), or by prescription.
195
What are ways easements may be **terminated**?
* By their express terms
* Written release
* Merger of the dominant and servient tenements
* Prescription
* Estoppel
* Condemnation
* Abandonment
## Footnote
For abandonment, mere nonuse of the easement is not sufficient to abandon it. There must be an act of abandonment.
196
What are the four unities required to create a joint tenancy?
**TTIP**
* Time
* Title
* Interest
* Possession
## Footnote
Most states also require using the language “joint tenancy” and adding an express reference to “survivorship” or “survivors” to create a joint tenancy.
197
What are the four ways to sever a joint tenancy?
**G SAM**
* by ***Giving*** it away during life,
* by ***Signing*** a contract for sale,
* by an ***Actual*** judicial sale by a judgment lien creditor,
* or by granting a ***Mortgage*** in a ***title theory*** state.
198
What are the **requirements** for adverse possession?
The requirements include possession that’s (mnemonic=**CHANGE**):
* ***C*ontinuous**
* ***H*ostile** and under a claim of right
* ***A*ctual**
* **open** and ***N*otorious**
* ***G*oes** on for the statutory period
* ***E*xclusive**
## Footnote
One only acquires title to the area one actually possesses (unless there is color of title, a unitary tract, and possession of an amount that is reasonable in relation to the whole—in which case, the adverse possessor can acquire the whole tract).
199
What does '**tacking**' refer to in the context of adverse possession?
In some circumstances, an adverse possessor may *tack on* the time that a prior adverse possessor had possessed the land to his own time to reach the statutory period.
200
True or False: An adverse possessor will prevail over a subsequent bona fide purchaser who complies with the recording act.
True
## Footnote
This is because there is no document that the interest holder could record.
201
How should you start your negligence essays?
“In any negligence action, a plaintiff must show that the defendant owed the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others, that the defendant’s conduct fell below the applicable standard of care, and that the defendant’s conduct was both the cause in fact and the proximate cause of the plaintiff’s injuries.”
202
What is the general standard of care in negligence cases?
To act as a reasonable person would.
203
How is the duty of care defined for **children** in negligence cases?
A child owes the duty of care of a hypothetical child of similar ***age, intelligence***, and ***experience***, acting under similar circumstances.
204
What is the **exception** to the duty of care for children engaged in **adult activities**?
If the child is engaged in adult activity—i.e., one which is “normally undertaken only by adults, and for which adult qualifications are required” (e.g., driving a car, tractor, motorcycle, motor scooter, snowmobile, etc.)—then the child will be held to the same standard of care as a reasonably prudent adult engaged in such activity.
205
What is the **tender-years** doctrine?
Some states recognize the tender-years doctrine in which a child less than seven years of age cannot be found negligent.
206
What the **premises liability** states?
The standard of care owed depends on the legal status of the plaintiff.
207
What is an **undiscovered trespasser**?
One who comes onto the land without permission or privilege who the premises possessor does not know about. Rule: undiscovered trespassers are ***not owed any duty of care***.
208
What is the duty owed to **discovered trespassers**?
The possessor must **warn or make safe** any **unreasonably dangerous concealed artificial conditions** that the landowner knows of.
209
What are the five elements that establish liability under the **attractive nuisance** doctrine?
The premises possessor is liable if
(1) he knows or has reason to know that ***children are likely to trespass***,
(2) the condition is one which he knows or should know involves an ***unreasonable risk*** of death or serious bodily harm,
(3) the children because of their youth ***do not discover*** the condition or realize the risk involved,
(4) the ***burden of eliminating the danger is slight*** compared with the risk involved and the benefit to the possessor, and
(5) the possessor ***fails to exercise reasonable care*** to protect the children.
## Footnote
This doctrine applies only if the child is engaging in an activity appropriate for children (i.e., not an “adult activity”).
210
What is the definition of a **licensee**?
A social guest who has permission to enter the land but does not confer an economic benefit on the possessor of land.
211
What is the general **rule regarding** licensees?
The landowner must ***warn or make safe all concealed dangers*** (artificial or not, unreasonably dangerous or not) that the landowner ***knows of***.
## Footnote
***Note: Most MEE answers state that a premises possessor owes a licensee the duty to “reveal hidden dangers of which the landowner knows or has reason to know and which the entrant is unlikely to discover.” (This is very similar to the invitee standard, below, but you should still state it on the MEE.)
212
What is the definition of **invitee**?
Those that enter either to confer an economic benefit (e.g., customers or employees of a store) or enter land that is open to the public at large (e.g., church, museum, etc.).
213
What is the duty owed to an **invitee**?
The premises possessor must ***warn or make safe all dangers*** that the landowner ***knows or should know of***. The premises possessor has a duty to inspect!
214
What is **negligence per se**?
Negligence per se refers to a doctrine where a plaintiff can sue if they can show that the defendant violated a statute intended to protect them.
## Footnote
Discuss this doctrine when you see a *statute that sets the standard of care*.
215
What are the three elements a plaintiff must establish for negligence per se?
The plaintiff must show:
* the ***defendant violated a statute*** without excuse
* the plaintiff was in the ***class of people*** the statute was protecting
* the plaintiff received the ***injury*** the statute was trying to prevent.
## Footnote
If a plaintiff can establish the above elements, he has offered conclusive proof of ***duty*** and ***breach***. (He must still prove cause and harm.)
216
What does the doctrine of **res ipsa loquitur** allow?
It allows the jury to infer negligence when the event is of a kind which ordinarily does not occur in the absence of negligence, other responsible causes are sufficiently eliminated by the evidence, and the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
217
What is the **eggshell-skull rule**?
A defendant takes his victim as he finds him. The plaintiff with an “eggshell skull” who suffers damages greatly in excess of those that a normal victim would suffer is entitled to recover fully for his injuries.
218
What is **negligent infliction of emotional distress**?
This may be applicable when the defendant is negligent and the plaintiff has not sustained any actual physical trauma to his body. There generally must be a ***physical manifestation*** of emotional distress (e.g., heart attack). Some jurisdictions only allow recovery if the plaintiff was “***within the zone of danger***.” Others allow it when the plaintiff was ***closely related to the victim***, was located ***near the scene of the accident***, and suffered shock resulting from “***the sensory and contemporaneous observance of the accident***.”
## Footnote
In almost all jurisdictions, mere receipt of news relating to an accident does not suffice.
219
What is **comparative negligence**?
The trier of fact (i.e., the judge or jury) ***apportions fault among the parties***. The amount of damages apportioned to the plaintiff because of the plaintiff’s negligence is subtracted from the total damages awarded by the jury. This is known as pure comparative negligence.
## Footnote
There are some jurisdictions in which apportionment is not available unless the jury concludes that the plaintiff is less than 50% at fault. In these “partial” or “modified” comparative negligence jurisdictions, if the jury concludes that the plaintiff was 50% or more at fault, he cannot recover.
(MEE sample answers do not typically name the doctrines “pure” or “partial,” they simply describe them.)
220
What is the difference between pure and modified comparative negligence?
In pure comparative negligence, the plaintiff can recover damages regardless of their fault percentage, while in modified comparative negligence, they cannot recover if they are 50% or more at fault.
221
What is **contributory negligence**?
This is a common law doctrine that states if the jury finds that the plaintiff’s negligence contributed to his injuries to any degree, the plaintiff cannot recover.
## Footnote
Most states have abandoned this doctrine.
222
What are the two intentional torts tested on the MEE?
Battery and false imprisonment.
## Footnote
Intentional torts are not heavily tested.
223
Define **battery**.
An ***act with intent*** to cause a ***harmful or offensive contact*** or imminent apprehension of that contact and a harmful or offensive contact ***directly or indirectly results***.
224
What is the primary difference between an assault and a battery?
The primary difference between an assault and a battery is the harm suffered (for an assault, the plaintiff suffers imminent apprehension).
225
Define **false imprisonment**.
An ***act*** with ***intent to confine or restrain*** a person to a bounded area, ***actual confinement occurs***, and the ***plaintiff knows of the confinement or is hurt by the confinement***.
226
What is **consent** in the context of intentional torts?
Consent is a defense to an intentional tort. Consent can be express or implied.
227
What is vicarious liability?
Employers are vicariously liable for torts of their employees if the torts are committed within the scope of employment. (This is called respondeat superior.) Intentional torts are usually outside the scope of employment unless they were done for the ***purpose of serving*** the employer or if they ***were foreseeable***.
228
When are employers **directly liable**?
The employer can be directly liable for his own negligence if, for example, he fails to supervise employees or otherwise acts negligently in hiring, firing, or entrustment.
229
What is **indemnification**?
Is *full* reimbursement for damages paid to the plaintiff. This is when one defendant can seek 100% of the damages from the other defendant.
230
When indemnification tends to occur?
This usually occurs when the paying defendant was not at fault in causing plaintiff’s injuries, and the non-paying defendant was at fault. E.g., an employer who is liable based solely on the principle of respondeat superior may seek indemnification from the employee who was negligent.
231
Who must the defendant be for strict products liability to be tested?
A merchant, not a casual seller of goods.
232
What must be true under a manufacturing defect theory?
The product must be defective from the time it left the manufacturer’s hands.
233
Are all commercial sellers liable for manufacturing defects?
Yes, including the store that sold the product.
