MEE rules from practice MEEs

Question 1

An exaction is a requirement to add or do something to private property in order to get a permit to build or add on to that property from the city. (Quid pro quo) An exaction will not be an unconstitutional taking if:

Answer 1

1. it has a legitimate purpose based on a public health or safety interest and
2. the exaction is reasonable to alleviate a public health or safety concern which would be caused by the reason for the permit.

Question 2

T or F Even though the ordinance does not constitute an occupation of the property by either the government or a third party, it is still subject to the three-factor balancing test to determine whether it is a regulatory taking.

What are the three elements considered in a balancing test to consider whether there is a regulatory taking

Answer 2

True

a court must balance (1) “[t]he economic impact of the regulation on the claimant,” (2) “the extent to which the regulation has interfered with distinct investment-backed expectations,” and (3) “the character of the governmental action.

Question 3

Requirements of third party impleader

Answer 3

To properly implead a third party into a lawsuit, for partial indemnity or contribution must claim derivative liability.

The defendant must file a 3rd party complaint within 14 days of answering the original complaint or after by leave of court.

Proper impleader also requires that the third party is properly served with complaint and summons (SOP) to get personal jurisdiction.

Finally, Supplemental jurisdiction is allowed under diversity or federal question, because common nucleus of operative fact.

Question 4

Abandonment occurs when a tenant vacates the lease before the end of the term and has no intent to return, and defaults in the payment of rent. Under the common law, a landlord has three options when a tenant abandons the premises:

Answer 4

1. accept a surrender of the premises, which extinguishes the tenant’s duty to pay rent due after the acceptance of surrender;
2. re-let or attempt to re-let the premises on the tenant’s behalf; or
3. leave the premises vacant and sue the tenant for unpaid rent.

Question 5

what are the rules under the common law and modern law for a LL regarding mitigating damages?

Answer 5

Under the common law the landlord is not required to mitigate damages.

Under modern law, he is obligated to take reasonable steps to mitigate damages.

Question 6

While contract rights are generally assignable, a contract is not assignable if the assignment

Answer 6

(i) would materially change the duty of the obligor (here, the painter),
(ii) would materially increase the burden or risk imposed on the obligor,
(iii) would materially impair the obligor’s chance of obtaining return performance or materially reduce the value of that return performance to the obligor,
(iv) is forbidden by statute or precluded by public policy, or
(v) is validly precluded by contract.

Question 7

When are charges multiplicitous and improper on double jeopardy grounds?

Answer 7

Charges are multiplicitous and improper of the prosecution must necessarily prove the elements of one crime in order to prove the elements of a second crime. All the elements of the “lesser included offense” must be contained in the “greater offense”.

Question 8

Define the double jeopardy clause

Answer 8

The Double Jeopardy Clause of the Fifth Amendment provides that a person shall not be twice put in jeopardy for the “same offense.”

Question 9

when is double jeopardy not violated?

Answer 9

If the elements of the lesser charge (theft) are not wholly contained in the greater charge (burglary)—i.e., if each charge requires proof of a fact that the other does not—then convicting the defendant of both crimes would not violate double jeopardy even when the two offenses occurred at the same time and are thus arguably part of the “same transaction.”

Question 10

The prosecution must prove every element of an offense beyond a reasonable doubt. The burden of proof cannot be shifted to the defendant by presuming an essential element upon proof of other elements of the offense. Why? what does it violate?

Answer 10

because shifting the burden of persuasion with respect to any element of a criminal offense is contrary to the Due Process Clause since it relieves the prosecution of its burden of having to prove every element beyond a reasonable doubt.

Question 11

other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”. why?

Answer 11

violation of 6th amendment right to a jury trial.
because “[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed because such facts must be established by proof beyond a reasonable doubt.”

Question 12

When does an officer have probable cause to make an arrest?

Answer 12

An officer has probable cause to make an arrest if, under the totality of the circumstances at the time of the arrest, an objectively reasonable police officer would find “a probability or substantial chance” that the person has committed a crime.

Question 13

define common law robbery

Answer 13

Under the common law, robbery is the taking with the intent to steal of the personal property of another from her person or in her presence, against her will, by violence or intimidation

Question 14

The Fourteenth Amendment’s due process clause bears on whether the on-scene and in-court identifications are admissible. Three issues ordinarily determine whether the state can properly introduce identification evidence:

Answer 14

(1) whether the police were involved in arranging the procedure,
(2) whether the identification process was highly suggestive and therefore unreliable, and if so,
(3) whether the suggestive procedure was necessary under the circumstances

Question 15

A jurisdiction analyzes a specific tort claim under the “most significant relationship” approach found in the Restatement (Second) of Conflict of Laws.

The Restatement lists four factors to determine which state has the most significant relationship to the occurrence and the parties (mnemonic=I Can’t Dance, Really).
note: Picture someone dancing and negligently hitting someone else in the head with his arm, which happened to cross state lines and cause a tort claim to arise:

Answer 15

(1) the place where the injury occurred;
(2) the place where the conduct causing the injury occurred;
(3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; and
(4) the place where the relationship, if any, between the parties is centered

Question 16

what choice of law does a court use for real property?

Answer 16

A court generally uses the law of the situs for land (i.e., the law where the real property is located). Occasionally, the state will characterize a dispute over real property as, say, a contract dispute, and look at which state has the most significant relationship to the property if it makes more sense in the given case.

Question 17

Inheritance: Whether a child is entitled to inherit depends on the law of the intestate’s domicile at the time of? except for real property what law determines real property

Answer 17

death. However, this is inapplicable to real property as the law governing real property is the law of the situs.

Question 18

Validity of a will: choice of law for validity of the will

CL

UPC

Non-UPC states

Answer 18

At common law, the validity of a will was determined under the law of the state where the testator was domiciled at the time of his death.

Under the Uniform Probate Code (UPC), a will is valid if it complies either with the law of the state in which it was executed or with the law of the place where the testator was domiciled when he signed his will or when he died.

Many non- UPC states have similar statutes