Missed Questions Flashcards
Power of Appointment
Gives a life tenant the right to designate recipients of a beneficial property interest.
If the life tenant does not exercise this power, then the property will go to the remainder man.
Negation Defense
- Challenges element of the crime (eg. alibi, lack of intent)
- 5th Amendment assigns burden to prosecution to prove element beyond a reasonable doubt.
Conspiracy
Requires proof that
1) the D entered an agreement with the specific intent to commit a crime and
2) an overt act was committed in furtherance of that agreement
Attorney-expert communications are privileged unless they:
1) relate to the expert’s compensation
OR
2) identify facts, data, or assumptions provided by the attorney that the expert considered or relied on in forming his/her opinions.
Accomplice
An accomplice intentionally aids or encourages the principal before or during a crime with specific intent that the crime be completed. But mere presence at a crime scene does not make a person an accomplice.
In a removal action, a party preserves its right to a jury trial by
1) demanding a jury in state court before removal
OR
2) serving a jury trial demand within 14 days after filing or being served with the notice of removal, so long as all necessary pleadings had been served before removal.
The 1st Amendment shields the media from liability for publishing truthful information that was unlawfully obtained by a third party if
1) the information involves a matter of public concern
AND
2) the publisher neither obtained it unlawfully nor knows who did.
Two Dismissal Rule
A voluntary dismissal of a second action operates as an adjudication on the merits when the plaintiff voluntarily dismissed
1) the first action in federal or state court without a court order
AND
2) the second action based on the same claim in federal court by filing a notice of dismissal
Civil Forfeiture seizure of personal property
May be seized prior to providing notice and a hearing when:
- The seizure serves a signifcant government interest
- That interest would be frustrated by advance notice of the seizure,
AND
- the seizure is performed by the government.
Civil Forfeiture seizure of real property
To determine if may be seized by the government prior to providing notice and a hearing, court must balance:
- the private interest affected by deprivation
- risk of erroneous deprivation of that interest through current procedures and the probable value of additional or substitute procedural safeguards
AND
- the government’s interest, including the fiscal and administrative burdens that other safeguards would entail.
Heightened Scrutiny
Used when a law substantially impacts a fundamental right or intentionally discriminates against a quasi-suspect or suspect class
Intentional discrimination
A law can:
- on its face (the language of law distinguishes between different classes (intent presumed))
- in its application (facially neutral law is purposefully applied differently to different classes
OR
- in its motive (an otherwise neutral law was enacted to disproportionately impact a protected class
Laws Imposing Citizenship Requirements
Laws that impose these discriminate agasint noncitizens (a suspect class).
As a result, these laws violate the EPC unless they pass strict scrutiny (state must show law is necessary to achieve compelling state interest.)
21st Amendment
Grants states broad authority to regulate alcohol within their borders. This authority includes the ability to prohibit the importation, transportation, or sale of alcohol within the state and to delegate such authority to local governments.
State Electoral Regulation Standards
Must comply with 1st Am freedom of association and 14th Am EPC. The standard for reviewing depends on whether the burden imposed is ordinary (rational basis) or severe (strict scrutiny).
EPC Challenges to Discriminatory State Taxes
Subject to rational basis review.
Although encouraging a growth of an industry within a state is permissible, promoting domestic (in-state) business by discriminating against nonresident competitors is unconstitutional
Article 1 contains
Commerce Clause
14th Am Limitation on Citizenship Revocation
Prohibits congress from revoking the citizenship of any U.S. citizen without their consent unless it was obtained by fraud or in bad faith
Federal Officer
Someone who
1) Holds a continuing public office
AND
2) Has significant discretionary authority to administer or enforce laws (ie, executive powers).
Must be appointed by President or in a manner otherwise consistent with Art II appointments clause, so Congress can’t appoint.
Art III Property Clause
Give sCongress complete power to dispose of and regulate federally owned land and territories.
(Includes power to regulate private property that affects federal public lands when such regulation is necessary to protect those lands.)
Defenses that can be asserted anytime before end of trial
- Failure to join a required party
and - Failure to state a claim on which relief can be granted
Intent for Attempted Murder
Attempt is a specific intent crime.
Therefore, attempted murder requires proof that the defendant acted with the intent to kill - no other form of malice aforethought will suffice.
Durational Residency Requirements
Since they burden the fundamental right to travel, they are strictly scrutinized and almost always held unconstitutional under the EPC
State Immunization from Federal Taxes
10th Am immunizes states from federal taxes that
- discriminate against states
OR
- unduly interfere with essential state functions
To appeal for sufficiency of the evidence, the party must
1) move for JMOL prior to submission to jury
AND
2) File renewed JMOL within 28 days after entry of final judgment
Legislator’s Standing to sue
Has standing to challenge the constitutionality of government action when that action causes the legislator personal and concrete harm -
NOT institutional, abstract harm shared equally any all legislators in that respective body.
Class Action Fairness Act
Provides SMJ when:
1) the class contains at least 100 members
2) any class member is diverse from at least one defendant
AND
3) the amount in controversy exceeds $5 million when the members claims are aggregated.
Heinous Act Murder
Murder that results from an especially egregious act, such as ambush, torture, bombing, terrorism, or poisoning.
Constitutes 1st degree Murder
Unilateral Contract Notice
Notice is not required to effectively accept an offer by starting performance unless the offer so requires.
BUT if the offer should know that the offeror has no convenient way of learning within a reasonable time that performance has begun, the offer must notify the offeror. Otherwise, the offer’s contractual duty will be discharged.
UCC No Oral Modification Clause
Generally enforceable when contained in a written, signed contract. As a result any attempt by the parties to modify the contract orally in violation of a no-oral-modification clause is unenforceable
False Imprisonment
Unlawful Confinement Without Consent
Res Ipsa Loquitur and Circumstantial Evidence
RIL allows D’s negligence to be inferred from circumstantial evidence if
1) the plaintiff suffered a type of harm that is usually caused by negligence of someone in the defendant’s position
AND
2) the evidence tends to eliminate other potential causes of that harm
Adverse Poss of Mineral Estates
If a mineral estate has previously been severed from the surface estate, then an adverse possessor can only acquire title to the mineral estate by actually possessing the minerals
Exception to Best Evidence Rule
Allows party to introduce there evidence of a document’s content when the original
1) is in the possession of a person or entity that is not a party to the litigation
AND
2) cannot be obtained by any available judicial process
Best Evidence Rule
Applies when
A witness relies on a document’s content while testifying
OR
When the content of a document is at issue
Art I Suspension Clause
Persons in federal custody can challenge their detention by filing a writ of habeas corpus in federal courts unless Congress has suspended the writ.
Establishment Clause Challenges
Generally reviewed under historical test .
BUT strict scrutiny can be used instead when a law directly benefits or burdens a particular religion.
“One Person, One Vote”
Art I Sect 2 - Congressional election - District size should be almost exact equality (<3% variance)
EPC - State and Local Elections - No unjustifiably larger inequality (<17% variance)
Facial Challenge of Free Speech
An ordinance restricting protected speech will be deemed facially invalid if it is either:
- Overbroad - the law restricts a substantial amount of constitutionally protected expression
OR
- Unduly vague - the law fails to give person of ordinary intelligence fair notice of prohibited expression.
Regulatory Taking Substantial Restriction
Evaluated under the totality of the circumstances, including:
- the character or nature of the government action
- the economic impact on the property
- the interference with the owner’s reasonable investment backed expectations regarding the use of the property.
Shielding of Media
First Amendment shields the media from criminal and civil liability for publishing lawfully obtained private facts and other truthful information involving matters of public concern (Newsworthy events)
Legal vs Equitable Claims
If an action involves legal and equitable claims that raise issues of fact common to both, then under the 7th Am, the jury must be permitted to determine these issues by trying the legal claim first.
Thereafter, the court determines the equitable claim, but it is bound by the jury’s findings of fact on the legal claim.
“Passing Through” exception
If a defendant is voluntarily present in the forum state and is served with process while there, then the state will generally have personal jurisdiction over the defendant. However, an exception occurs when the defendant is merely “passing through” to attend other judiciary proceedings
PJ over Foreign Defendant
Rule 4(k)(2) provides for personal jurisdiction by a federal court when no state court can exercise jurisdiction over the defendant, it requires both that:
- the claim against the defendant be based on federal law
AND
- that there be minimum contacts such that the exercise of personal jurisdiction in federal court is consistent with the laws of the United States and the United States Constitution.
Diversity Res Judicata (Claim Preclusion)
Federal common law requires that the claim-preclusive effect of a judgment by a federal court sitting in diversity must be governed by the law of claim preclusion of the federal court’s forum state, unless the state law is incompatible with federal interests.
Deposition Limitations
Without leave of the court, the plaintiffs and the defendants, each as a group, are limited to 10 depositions by oral or written examination.
Unless the parties agree to the deposition, leave of the court must be obtained to:
(i) exceed the 10-deposition limitation,
(ii) depose a witness a second time,
OR
(iii) depose a person before the deposing party has complied with its initial disclosure requirements under Rule 26(a).
Burglary Exit Force
Use of force to exit a dwelling after commission of a felony therein does not constitute a breaking
Voluntary Intoxication Defense
A defense to specific intent crimes when the intoxication prevented the person from forming such intent
Contract Misunderstanding
A misunderstanding occurs when the contracting parties attach different meanings to the same material term.
This prevents contract formation when neither OR both parties have reason to know of the misunderstanding
Bill of Attainder Clause
Prohibits legislative acts that inflict vicil or criminal punishment on named individuals - or easily identifiable groups of individuals - without a trial.
Exclusion form a profession or vocation is a type of civil punishment.
Prosecutorial Immunity
A prosecutor is absolutely immune from civil liability for damages resulting from his prosecutorial acts unless it is clear that the prosecutor did not have jurisdiction (Even if he acted with malice)
Requirements for Government Affirmative Action
For affirmative action based on race to serve, the relevant governmental entity must show more than a history of societal discrimination. The government must itself bw guilty of specific past discrimination against the group it is seeking to favor, and the remedy must be narrowly tailored to end that discrimination and eliminate its effects.
Restrictions to Commercial Speech
Commercial speech is entitled to intermediate 1A protection when it concerns lawful activity and is neither false nor misleading. Restrictions are valid if the regulation is narrowly tailored to serve a substantial governmental interest.
Nonpublic forum restrictions
Any public property that is not a traditional or designated public forum.
The government may regulate speech0related activities in nonpublic forums as long as the regulation is
- viewpoint-neutral
AND
- reasonably related to a legitimate governmental interest
Speech and Debate Clause
Art I Sect 6 - Protects the members of Congress from civil and criminal liability for statements and conduct made in the regular course of the legislative process.
However, this protection does not foreclose prosecution for crime, including the taking of bribes, when the crime does not require proof of legislative acts or inquiring into the motive behind those acts.
UCC Price Gap Filler
Reasonable price at time for delivery
Then existing state of mind - Emotional or Physical condition
Then existing condition such as fear pain, bodily health, or pregnancy, is admissible as substantive evidence.
When considering an initial or renewed motion for JMOL, the court must:
- view the evidence and draw all reasonable inferences in the light most favorable to the nonmoving
- disregard any evidence favorable to the movant that the jury is not required to believe
AND - not consider the credibility of witnesses or evaluate the weight of evidence
Voting Protections
14th Ak - Prohibits substantial impairment of voting rights
15th A - Prohibits denial or abridgment of voting rights based on race, color, previous servitude
19th A - Prohibits denial or abridgment of voting rights based on sex
24th A - Abolishes poll taxes
26th - Establishes right to vote at 18
Juvenile Adjudication Admissibility
Nondefendant witness’s juvenile adjudication is admissible to attack their character for truthfulness if:
1) the adjudication is offered in a criminal case, 2) an adult’s conviction for that offense would be admissible to attack the witness’s credibility, and 3) admitting the evidence is necessary to fairly determine guilt or innocence.
Sanctions on party who fails to make required disclosures
1) prohibit the use of the undisclosed evidence,
2) order the payment of the opposing party’s reasonable expenses,
3) inform the jury of the nondisclosure,
and
4) impose any other appropriate sanction (except for contempt of court)
An accomplice’s intent to aid the principal can be inferred when the accomplice:
1) provides highly specialized goods or services,
2) receives unusually large profits from a sale,
OR
3) has some greater interest in the crime’s success
Time to file an answer after a motion to dismiss is denied:
14 Days
Prosecutor’s expression of opinion
Prosecutor may not express opinion about the defendant’s guilt or innocence
Self Executing Treaty
Treaty that does not need congress to enact legislation to implement it
Section 5 Enabling Clause of 14th Am
Permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the Fourteenth Amendment, as long as there is “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end. Congress may override state government action that infringes upon Fourteenth Amendment rights if the “congruence and proportionality” test is satisfied, but it may not regulate wholly private conduct under this amendment.
Wharton Rule
If a crime requires two or more participants, there isn conspiracy unless more parties than are necessary to complete th crime agree to commit the crime
noncitizen’s participation in government functions
A growing exception exists, however, for state laws that restrict or prohibit a noncitizen’s participation in government functions. Such laws need only have a rational relationship to a legitimate state interest, and are generally upheld as preventing noncitizens from having a direct effect on the functioning of the government.
Law that interferes with Freedom of speech:
Will be struck down on its face if it is over broad or unduly vague
Real property and C/L Larceny
A Defendant who unlawfully severs and then immediately carries away an item of real property is not guilty of larceny because such an item does not constitute personal property
Warranty of Merchantability
Always implied in all contracts for sale of goods under UCC if seller is a merchant
Exceptions to Final Judgment Rule
Mnemonic: In Certain Circumstances, An Appeal Can Be Made Prematurely
Injunction
Certification by district court
Class action certification
Appointment of receiver
Admiratly case
Collateral-order doctrine
Bankruptcy cases (certain orders)
Mandamus (petition for writ)
Patent infringement order (only accounting left)
Bivens Actions (Implied Causes of Action)
SCOTUS has only recognized 3:
- 4th A claim for unlawful search and seizure
- 5th A due process claim for sex based employment discrimination
- 8th A cruel and unusual punishment claim for failure to provide medical treatment
Rough Proportionality
Individualized and quantifiable findings show that the proposed development’s impact non the community is roughly proportional to the imposed condition’s impact on the landowner.
(For exception to Takings)
