Midterm REview

Question 1

Superseding Intervening Cause

Answer 1

An unforeseeable intervention that breaks the chain of causation between the initial wrongful act and the ultimate injury, relieving the original tortfeasor of any further liability.
Types of superseding causes include “acts of God,” criminal acts of third persons, intentional torts of third persons, and extraordinary forms of negligent conduct.

Question 2

Modern Modification of Contract (common law) must be…

Answer 2

Fair and reasonable under these circumstances.
Modernly, a promise is enforceable, despite the preexisting duty rule, where circumstances arise not reasonably anticipated by the parties at the time of contracting.

Question 3

Modification of Contract (UCC) must be…

Answer 3

made in good faith.

Question 4

Hearsay exception: independent legal significance

Answer 4

Statements constituting verbal acts or legally operative acts are not hearsay, because they are not offered for their truth. Rather, certain words have independent legal significance, such as words of a contract offer or acceptance, gifts, libel, slander, threats, etc.

Question 5

common law criminal assault

Answer 5

an attempted battery

Question 6

modern law criminal assault

Answer 6

either: (1) attempting to commit battery; or (2) intentionally causing the victim to fear an immediate battery.

Question 7

SoF exception for boundary disputes

Answer 7

Oral agreements to settle a boundary dispute enforceable if the parties subsequently accept the line for a sufficient time.

Question 8

Corporations “nerve center”

Answer 8

where decisions concerning the control and direction of the corporation are made

Question 9

Double Jeopardy

Answer 9

The Fifth Amendment prohibition on double jeopardy forbids a defendant from being tried twice for the same crime arising from the same set of facts.
It incorporates the concept of collateral estoppel–a defendant may not be tried for a different crime arising out of the same criminal conduct if a previous prosecution necessarily determined factual issues required for conviction in the defendant’s favor.

Question 10

forum non conveniens (foreign)

Answer 10

When the most convenient court is a foreign one, when the most convenient court is a foreign one. The court would have no power to transfer venue outside of the U.S.

Question 11

Consent as a defense to a charge of illegal search has three elements:

Answer 11

(1) the consent must be unforced and the result of an informed decision; (2) the search must not exceed the scope of the consent; and (3) the consenting party must have authority to consent.

Question 12

The covenant of quiet enjoyment runs with the land meaning…

Answer 12

a remote grantee can sue the original grantor for damages if a third-party claimant disturbs the grantee’s possession and enjoyment.

Question 13

Future Covenants: Run with the land and include

Answer 13

Quiet Enjoyment, Warranty and Further Assurances

Question 14

The shelter rule

Answer 14

doctrine under which a grantee who has received an interest in property from a bona fide purchaser will also be protected as a bona fide purchaser, even if the grantee would not legally qualify for this status (such as a donee).

Question 15

a defense to the imposition of strict liability

Answer 15

assumption of risk

Question 16

a school district may carry out voluntary racial balancing by taking action such as reassigning students, redrawing school zones, or building new schools if the segregation is…

Answer 16

De jure (caused by government action)

Question 17

Can congress sell property it owns to a foreign country?

Answer 17

Yes, Congress has the power to dispose of any property or territory which belongs to the United States. Therefore, Congress does indeed have the power to sell the property to a foreign country. As set forth in the Property Clause.

Question 18

Model Penal Code conspiracy

Answer 18

Model Penal Code applies the unilateral theory of conspiracy, which holds that a defendant can be found guilty of conspiracy regardless of whether other persons were true to their words of intent (can be undercover cop).

Question 19

upset price in foreclosure sale

Answer 19

the lowest acceptable selling price for a property in an auction.
This will bring the amount owed by the mortgagor down to the upset price.

Question 20

Does the takings clause of the fifth amendment apply to the states?

Answer 20

Yes, this rule does indeed extend to the states through the Due Process Clause of the Fourteenth Amendment.

Question 21

When will most likely grant specific performance in a property sales contract?

Answer 21

When the non-breaching party wishes to enforce the contract

Question 22

Safe harbor provision (civ pro)

Answer 22

A party may not file a motion for sanctions without first serving the motion upon the opposing party and providing the opposing party with 21 days to withdraw or correct the offending pleading, written motion, or other paper.

Question 23

When can the stakeholder commence an action for interpleader?

Answer 23

The stakeholding party, or “stakeholder,” can commence an action for interpleader to resolve liability where there are two or more adverse claimants. However, interpleader is only applicable where multiple claims demand the same thing or obligation–usually a piece of property, prize, or insurance policy.

Question 24

Does a court need to instructed a jury to accept a judicially noted fact is conclusively proved?

Answer 24

Yes, in a civil case.
In a criminal case, the judge should instruct the jury that it may, but need not, accept a judicially noticed fact as having been proved beyond doubt.

Question 25

FRCP mandatory disclosures

Answer 25

Federal Rule of Civil Procedure 26 requires the parties to make mandatory disclosures at the initial discovery conference or within two weeks afterward.
However, there is also a continuing duty to update throughout the litigation as new information becomes available (Even if the opposing party could easily find the information). The penalty for failing to update is generally that the party that does not update cannot use the new information at trial.

Question 26

Immunity that eliminates Fifth Amendment refusal to testify.

Answer 26

Testimony for which the individual has been granted use and derivative use immunity is not self-incriminating, and hence eliminates the privilege.

Question 27

the “separate sovereignties” doctrine

Answer 27

An exception to double jeopardy: it applies when two states, or a state and the federal government, prosecute for the same crime.

Question 28

The statement against interest hearsay exception only applies when…

Answer 28

the declarant is unavailable to testify

Question 29

protective order against depositions

Answer 29

a deposition may not be used against a party who received less than fourteen days’ notice of the deposition if that party filed a motion for protective order that was pending at the time of the deposition.

Question 30

Difference between a witness’s recollection and the “past recollection recorded” exception to the hearsay rule

Answer 30

At trial, a witness may use a writing (or any other item) to refresh her memory for the purpose of testifying. However, the witness may not read from the writing while testifying
The past record recollection can be read aloud but the witness must have prepared the report or adopted it after it was prepared.

Question 31

Must a court wait until the close of discovery to rule on a summary judgment motion?

Answer 31

No, a party can bring a summary judgment motion at any time until 30 days after discovery has closed. There is no need to wait until discovery is complete.

Question 32

An employment tax by a state only on nonresidents is unconstitutional under…

Answer 32

The Privileges and Immunities Clause of Article IV applies to discrimination against out-of-state residents. The income tax imposed on workers who live outside of the state discriminates on the basis of state residency in violation of the clause, which protects against discrimination regarding such basic rights as the pursuit of employment.

Question 33

Executive agreements prevail over…

Answer 33

any inconsistent state statutes, but not over federal statutes, regardless of the time of legislative enactment.

Question 34

Ouster

Answer 34

A physical act or an act in direct contravention of the co-tenant’s rights must occur. Can lead to adverse possession.

Question 35

How many Ex Post Facto Clauses are there in the U.S. Constitution

Answer 35

There are two Ex Post Facto Clauses in the U.S. Constitution that prevent both the state and federal governments from passing retroactive criminal laws [U.S. Const. art. I, Sec. 9; U.S. Const. art. I, Sec. 10].

Question 36

Does a public or private figure have a harder burden to prove in defamation claims?

Answer 36

Public figure. Where the plaintiff in a defamation action is a private party and the subject matter is not a matter of public concern, the plaintiff need not prove actual malice. In contrast, a public figure plaintiff must prove that the defendant acted with malice (knowing falsity or recklessness as to truth or falsity).

Question 37

Contract Novation

Answer 37

A novation occurs when the original obligee agrees to release the original obligor from performance. The obligor then makes an entirely new agreement with a third party to whom the obligee has delegated obligations.

Question 38

Difference between the two privileges and immunities clauses

Answer 38

The first privileges and immunities clause is found in Article IV of the United States Constitution. This clause says that ‘The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.’
There’s a second privileges and immunities clause found in the Fourteenth Amendment to the Constitution that doesn’t do much.

Question 39

Under the Uniform Vendor and Purchaser Risk Act the risk of loss is on…

Answer 39

The seller UNLESS the purchaser takes possession or takes legal title.

Question 40

imperfect self defense

Answer 40

While the defendant’s actions were unjustified, they did not have the malice element that is required to get a murder conviction. The charge may be reduced to manslaughter

Question 41

Can a right of redemption be waived in a mortgage contract?

Answer 41

The mortgagor cannot waive the right of redemption when the mortgage is created.

Question 42

statutory right of redemption

Answer 42

the mortgagor’s right of redemption continues after the foreclosure sale (by matching the foreclosure price) for 6-12 months.

Question 43

Is arson a crime against ownership or possession? Possession.

Answer 43

A homeowner can commit common law arson by burning their home possessed by a tenant.

Question 44

Difference between larceny by trick and false pretenses.

Answer 44

With false pretenses, the suspect gets possession and title to the property.

Question 45

In a legal malpractice action, a plaintiff must show

Answer 45

That the defendant was negligent and that the defendant’s negligence caused the plaintiff’s lawsuit to fail when it would otherwise have succeeded.

Question 46

When can congress use its taxing power as a regulating device?

Answer 46

Generally, as long as Congress has the power to regulate the activity taxed, the tax can then be used as a regulating device rather than for revenue-raising purposes.
Further, even when Congress does not have power to regulate the activity taxed, the tax will be upheld if the tax does, in fact, raise revenue (even where it has a substantial regulatory effect).

Question 47

Exception to the marital communication privilege

Answer 47

When the spouses were joint participants in a crime, the marital communication privilege does not apply with respect to communications about the crime.

Question 48

Courts are reluctant to permit offensive use of issue preclusion and will base their determination on:

Answer 48

(1) whether the plaintiff in the second suit could have easily joined in the first action; (2) whether there are procedural opportunities available to the defendant in the second suit that were unavailable in the earlier action; and (3) whether the defendant had incentive to litigate the issue in the first action.

Question 49

When is Public employment a protected property right

Answer 49

Public employment is a protected property right only when the employee can be terminated only “for cause,” either by statute, employment contract, or informal policies or customs of the workplace.

Question 50

When will a federal appeals court hear an interlocutory order before the conclusion of the case in which it has been granted?

Answer 50

the party seeking review must show that the order to be reviewed conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment.

Question 51

when is title unmarketable

Answer 51

A title to a piece of land is considered unmarketable if there are encumbrances on the land, such as mortgages or easements, unless the buyer waives them. Title is also unmarketable if the land was obtained through adverse possession, or if the land violates any zoning laws.

Question 52

Duty to known trespassers

Answer 52

The landowner is then obligated to exercise reasonable care to warn a known trespasser of hidden dangers that the landowner knows about but the trespasser may not.

Question 53

When are police officers permitted to conduct a protective sweep?

Answer 53

The protective search is limited to the person arrested and the area within the person’s “wingspan,” unless the officers have a reasonable and articulable suspicion that accomplices who might threaten the police are on the premises.

Question 54

Can the federal government or a sister state sue a state without its consent?

Answer 54

Yes

Question 55

When the federal government (or one of its agencies or instrumentalities) sues a state does the U.S. Supreme Court have original and exclusive jurisdiction?

Answer 55

the U.S. Supreme Court has original, but not exclusive, jurisdiction.

Question 56

When a state is sued by a sister state, does the U.S. Supreme Court have original and exclusive jurisdiction?

Answer 56

the Supreme Court has both original and exclusive jurisdiction.

Question 57

The Wharton Rule

Answer 57

A criminal offense that requires two parties cannot be the object of a conspiracy that consists of two parties.

Question 58

To prove prima facie defamation, a plaintiff must show four things:

Answer 58

1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the reputation

Question 59

Open mines doctrine

Answer 59

permits a tenant to commit voluntary waste on a piece of land by depleting it of natural resources when mining was previously done on the land and mines were currently open at the time the tenant took possession of the land.

Question 60

When is there an obligation to retreat before self-defense?

Answer 60

When the defender intends to use deadly force.