new Flashcards
“A leaves to B for life, and then to A’s heirs” what interest do A’s heirs have?
no interest, doctrine of worthier title means this goes to A
“to A for life, then to A’s kids when they reach 21” (A’s kids are 25, 18, 17). What is the 25 year old’s interest?
vested subject to open
“to x for life, and then to x’s first child” (x has no children yet)
contingent remainder
“to x for life, and then to y if y outlives x” what is y’s interest?
continent remainder
Accessory before the fact vs a principal in the second degree
Principal in the second degree: physically or constructively present during commission of crime (getaway driver)Accessory before the fact: assistance before commission.
allowable scope for a terry stop search
can only do a frisk and seize anything that’s obviously a weapon/contraband/evidence-rationale: officer’s safety
are assignments revocable?
yes if no consideration
are confessions produced by deceit invalid?
no. e.g. fake lie detectors okay
are due on encumbrance clauses enforceable?
yes
are leases covered by SOF?
not if
are reserve or non-reserve auctions the default?
reserve
At will tenancy where only one landlord has right to terminate. Does it matter if residential?
Unconscionable. Remedy=both get right to terminate. Commercial and residential
attorney client privilege elements
confidential communication between client and lawyer for purpose of seeking legal advice
authentication rule for old evidence
> 20 years old, likely to be in condition and place where it was if authentic
best evidence rule
when contents of a document (or recording) are at issue or relied upon, must introduce original or a copyExceptions: original unavailable; other party has the document and knew you were going to use; summaries are fine
business records hearsay exception
prepared in regular course of business. info from someone w/ personal knowledge. -medical records count
Can a co-defendant’s admission be admitted against the D at a joint trial?
Yes, if co-defendant is testifying. No otherwise (unless bench trial). Harmless error analysis. Can either edit the confession or D can demand a separate trial
Can a fed court decline to exercise supplemental jurisdiction?
Yes
Can a P remove to federal court based on a counter-claim that meets amt in controversy?
No, only D can remove.
Can a party introduce evidence that a confession was not voluntary after judge has decided to admit it?
Yes, to shape how much credibility the jury gives the evidence
can a state directly tax fed govt?
no
Can a testifying witness be impeached by cross-examining them about specific past acts?
Yes, if probative about what they’re testifying about.
can an SOF writing be subsequently recorded?
yes
Can bail be set higher than amount necessary to secure D’s presence at trial?
No, under 8th am and due process
can corporations and groups bring defamation suits?
yes
Can D waive fed right to grand jury indictment?
Yes
can govt limit contributions to a ballot initiative?
no
can husband and wife be conspirators at common law?
No
Can information learned from an illegal wiretap be presented to a grand jury?
No, by federal statute
Can judge instruct jury to accept judicially-noticed fact as conclusive?
Yes in civil, no in criminal
Can judge take judicial notice of facts in criminal case on appeal?
Not against the criminal
can law give publicly-funded candidates extra money if their opponents outspend?
no
can lender purchase title at a privately run foreclosure sale?
not if mortgage, yes if deed of trust
can officers enter a person’s home to arrest them with a warrant?
yes
can prosecutor comment at trial on D not testifying?
no
can seller accept a contract by shipping the wrong goods?
UCC says this is acceptance + breach
can seller disclaim damages above a certain amount for breach of warranty?
yes for commercial damages; unconscionable for personal injury damages
can statutory rape laws discrim based on gender?
yes
can threat to destroy property constitute robbery?
no unless threat is about the victim’s house.
can trespassers remove fixtures they installed?
common law: no. modern, yes (or recover value) as long as good faith
Can witnesses introduce extrinsic ev (other witnesses) to testify about their truthfulness once it has been attacked?
Yes
Can you claim self defense if you made a reasonable mistake of fact?
Yes
can you gerrymander based on race?
yes, but not predominant factor
Can you impeach a witness via specific past acts that are not convictions?
Yes, but must pass rule 403 balancing test. No extrinsic evidence
Can you use extrinsic evidence to prove convictions when impeaching witnesses?
Yes
Can you use force to retake your property?
Yes, but if initially lawfully held must use peaceful means first
Citizenship of a guardian for diversity purposes?
The minor/incompetent, not the guardian.
common law requirements for what must be included in an offer?
price, quantity, parties
communications between spouses
can refuse to testify about communications made while married. can be invoked by EITHER spouse. criminal and civil trials. doesn’t apply to suits btwn spouses/child
Conditions for attractive nuisance
1) artificial condition in place owner knows kids are likely to trespass2) owner knows serious risk of bodily injury to the kids3) children can’t appreciate the danger because of their youth.Then reasonability standard.
Consequence for not having preliminary hearing to determine if probable cause on arrest?
Nothing, except evidence obtained as result of unlawful detention excluded.
contribution actions for operating expenses
operating expenses: taxes, mortgage payments. due according to ownership interests. also can be deducted from rent distributions.
Daubert test
fed rule standard for expert witnesses.
Deadline for amending a pleading you have filed? (as of right)
If no responsive pleading required, you have 21 days after filingIf responsive pleading required, you have 21 days after they filed the responsive pleading/motion to dismiss
deadline for demand of jury trial in civil pleading?
14 days of last pleading (including yours)
Deadline for expert witness disclosures? Remedy for failures?
90 days before start of trial. No problem if harmless.
deadline for filing a motion for new trial?
28 days from judgment
Deadline for filing a motion to strike part of a pleading?
Before you respond or 21 days if no response required.
Deadline for filing motion for relief from judgment (rule 60)
within a reasonable time and no later than one year following the entry of the judgment.
Deadline for pre-trial disclosures?
30 days before trial
Deadline to appeal a judgment? What if discretionary interloc appeal?
30 days from entry of judgment. Interloc: 10 days
Deadline to file notice of removal proceedings?
30 days from initial pleadings or summons
Defamation requirement if statement about public figure or public official?
Actual malice: knew false or reckless disregard for the truth
difference between a license and an easement?
can revoke a license
diversity for class action
-assess diversity and amnt in controversy based on named representatives-CAFA: if >$5m + 100 class members -> minimal diversity, no amt in controvsery
diversity for counter-claims
same transaction/occurrence.
diversity for cross-claims
same transaction/occurrenceno diversity of citizenship / amount in controversy requirements
do drug sniffing dogs constitute a search?
not on public street
Do government officials have tort immunity for their acts?
Qualified immunity if discretionary actNo immunity if ministerial (e.g. driving car at work)
do zoning regulations count as a taking?
no, as long as advance legitimate interest AND doesn’t extinguish fundamental attribute of ownership
does 5th am protect you from giving handwriting or voice samples?
no - only testimony
Does a D who testifies on one issue waive the 5th on others?
Not if preliminary issue, like whether a confession was voluntary
does a gift to a charity need consideration?
no, but the promise must be in writing
does a lie have to be material to count as perjury?
yes
does burglary need the underlying felony to succeed?
no - still guilty of burglary + attempt to commit the other felony
Does D have a right to a bench trial if waives jury trial right?
No
does death by promisor excuse performance
no, unless wouldn’t make sense to continue obligation
does death of a party terminate tenancy at will?
yes, either party
does death of offeror terminate the offer?
yes unless consideration was paid to keep open
does exclusionary rule apply to pre-trial proceedings?
no
does implied warranty of merchantability cover non-merchants?
no
does lawyer have right to be present during line-up?
yes, if post-indictment. no if pre-indictment
does lawyer have right to be present when police use photo array?
no
Does service establish PJ if D passing through the state for a summons in an unrelated case?
No
does suicide count as homicide?
no, but assisting suicide can
Does victim have to know about the intended battery for it to count as assault?
No (e.g. soliciting someone to commit battery).
Durham Rule for insanity defense
mental defect was ‘but for’ cause of the act
duty of care to an undiscovered trespasser?
no duty
duty to a licensee (traditional approach)
warn of hidden dangers. No duty to inspect land for dangers.
duty to disclose defects (in real estate sales contracts)
seller must disclose all known material physical defects (esp latent ones). material = substantially affects value of home, health/safety. can’t disclaim w/ general “as is”
duty to licensees (restatement approach)
reasonable care w.r.t. artificial conditions. if commercial then reasonable care w.r.t. natural conditions too
duty towards trespassers
refrain from reckless or willful misconduct. if discovered/anticipated then duty to warn of hidden dangers. No duty to warn of conditions that don’t involve risk or serious bodily injury.
Elements for a Private Nuisance Tort
Unreasonable interference in someone else’s landBlocking someone else’s view doesn’t count unless maliciousDefenses: assumption of the risk, coming to the nuisance
elements for adverse possession
1) open and notorious2) continuous for statutory period3) hostile4) exclusive
Elements for defamation
1) publication to third party (intentional or negligent)2) false3) damaged P’s reputation4) was about the P-additional requirements if public figure/official or matter of public concern
elements for detrimental reliance on a contract
(promissory estoppel)-reasonable and detrimental reliance by promisee-foreseeable that would induce reliance-justice requires the promise be kept
elements for forgery
fraudulently making a false writing that has apparent legal significance with the INTENT to defraud
Elements for IIED
1) Extreme or outrageous conduct2) Causes P severe emotional distress3) Intentional or reckless
Elements for intentional interference in business relationship
D induced T to break contract with PContract must have been valid, and not terminable at willCounts if make performance more difficultBeyond normal competition (eg persuading a bank not to lend money to competitor)
Elements for intentional misrepresentation business tort
1) False representation (no duty to disclose unless misleading past statement by D)2) scienter (knew false or reckless disregard)3) intent that P act based on the representation4) false statement caused entering into business relationship5) justifiable reliance6) damages
elements for larcenty by false pretenses crime
taking the title to someone else’s property after you’ve obtained their consent by misrepresentation
elements for larceny-by-trick
taking someone’s property after you’ve obtained their consent by fraud/deceit-not if take title to the property-intend to convert from the beginning
Elements for negligent infliction of emotional distress
P thinks about to suffer physical harm and this causes emotional distressGenerally P must be in “zone of danger” or a bystander with close relationship to the victim who observes the accidentAlso doctor misdiagnoses and illness, funeral home screws up a body
Elements for negligent misrepresentation tort
D (accountant) negligently provides false information to PP justifiably relies P and D in privity, OR D knew P was a third party beneficiaryD knew info would be used for particular transaction or wanted to influence it
Elements for public disclosure of private facts tort
D gives publicity to a matter in P’s private lifeHighly offensiveNot matter of legitimate concern to the public
elements for receipt of stolen goods
D must know they’re stolen (unreasonable mistakes of fact are a defense)
Elements for slander of title
D calls into question P’s ownership of propertyRequires actual malice
Elements for strict products liability
Defective when left D’s control AND used in reasonably foreseeable way
Elements for unreasonable intrusion upon seclusion
Intrusion into P’s private affairs in way that would be objectionable to reasonable persone.g. eavesdropping
elements of arson at common law
maliciously burning someone’s property-only someone else’s-only a dwelling-must be fire (not just smoke) + damage to structure of building
elements of assault
either1) intentionally placing someone in fear of imminent bodily injury (general intent crime), OR2) attempted (but failed) battery (specific intent, must not think the touching was consented to)
Elements of conversion tort
D intentionally took P’s propertyIf initial acquisition lawful, must have demanded return firstCan be constructive dispossession
elements of embezzlement
1) D is initially in lawful possession of victim’s property, and then2) converts that property to his own use(must not have intended to convert from beginning)
elements of extortion
larceny + threat of future harm (physical or non-physical)
Elements of False Imprisonment Tort
D intentionally confines P (threats count)If P contemporaneously aware of confinement then doesn’t need to show damagesShoplifter exception
elements of kidnapping
1) holding someone against their will2) by either moving or hiding them-there needs to be some movement of the person, can’t just tie them in place
elements of larceny
1) taking someone else’s property2) without consent3) with intent to deprive them of the property permanently
elements of robbery
larceny by force or threat of force-the taking of the property must be from victim’s person or in the presence of the victim (not pickpocket)
elements of standing
NAME?
Elements of Trespass to Chattels tort
D intentionally interferes with P’s use of his personal property
Elements of Trespass to Land Tort
D intentionally entered P’s land (D didn’t have to know he was committing a trespass).Only physical invasion (not nuisance). If necessity then actual damages only.If public necessity then no damages
elements to the lemon test
1) secular purpose2) no excessive entanglement in religion3) primary effect neither advances nor inhibits religion
ex post facto law problem for civil liability?
no
exceptions to attorney-client privilege
planning future crime/frauddisputes between attorney and client
exceptions to full faith and credit to other court judgments
1) judgment court lacked jurisdiction2) changed circumstances
expectation of privacy on your property?
yes in your backyard (curtliage to your house)not in an open fieldnot garbage cans once removed to the street
Extra defamation requirement if matter of public concern
Must show negligence as to falsity of the statement
false light tort
P made offensive public statement about DEither true but overall misleading OR ascribes P with false views or actions
felonies that qualify for felony murder
BARRKburglary; arson; robbery; rape; kidnapping
Forum non conveniens?
Switching courts when venue and PJ requirements are met.
Frye test
for expert witnesses. theory/principle must be generally accepted w/in scientific community
Gerstein hearing. When required? How quickly?
Preliminary hearing after arrest to determine if probable cause. not needed if judicial or grand jury determination of prob cause already. unreasonable delay if >48 hours.
hearsay definition
out of court statement introduced to prove the truth of the matter asserted in the statement(not if proving some utterance triggered objective interpretation like contract formation or effect on the listener)
hearsay exception for prior court judgments?
only convictions, not acquittals
how decide if jury right if legal and equitable remedies asked for?
try the legal issues first
How do you challenge service of process?
Like PJ or venue, must be in first response
How long do you need to be missing for there to be a presumption that you’re dead?
7 years
how long does D have to respond if waived service of process?
60 days (90 if foreign)
how long does D have to respond to amended complaint?
14 days
how long does D have to respond to complaint after receiving process?
21 days
How long to file an answer after a court denies a 12b6 motion?
2 weeks
How long to serve motion and notice before a hearing? When is response due?
14 days. 7 days.
how long to serve notice of a hearing?
14 days (unless ex parte)
how long to serve summons and complaint on D?
120 days (unless good cause)if fails, dismissed w/o prejudice
How many extra days to respond if service or notice is electronic or unconventional?
3 days
how many interrogatories is a party allowed?
25 (and can only be served on a party)
how many preemptory challenges in jury selection? what can’t they be based on?
- race and gender
how waive implied warranty of merchantability
can be oral “as is” or very conspicuous if in writing
If a testifying witness denies a specific bad act during cross-examination, can extrinsic evidence be introduced to prove it?
No, except for convictions.
if class gift violates RAP as to one class member, what happens to other class member’s interests?
generally they disappear also. but class is saved once one class member is entitled to immediate possession, or when gift of definite size.
If D tries to commit battery against P but fails and P doesn’t know, is it assault?
No
If D’s pre-answer motion is denied, how long does D have to file an answer?
14 days from receiving notice of the court’s decision.
if modified contract, when can party sue for satisfaction of original obligation?
if it was an accord (versus substitute agreement). and then only if the substitute performance didn’t occur
if other sides breaches after you have partially performed, what are your damages?
what your profit would have been + reimbursements for your net costs.-exception if you were giving a below-market price, and then you can get restitution
If police put undercover cop in prisoner’s cell to ask about the charged crime (i.e. post indictment), does that violate 6th am?
Yes. Standard: police intentionally create a situation likely to induce incriminating statements on the charged crime w/o assistance of counsel.Wouldn’t cover if asked about a different crime, b/c 5th am doesn’t apply to undercover cop
impoundment rules
pres can’t refuse to spend money congress has required to be spent.
in breach of contract suit, do you need to plead the condition precedents were satisfied for other side’s obligation to be triggered?
no
In civil case, when is evidence of past conduct admissible? Convictions?
To prove element of case. extrinsic evidence fine.Impeachment: can ask about this on cross but no extrinsic evidence except convictions showing dishonesty.
In comparative negligence analysis, when will courts consider negligence of third parties not in the suit
“imputed contributory negligence”. Not when:P=child, T=parentP and T are spousesP=passenger, T=driver
In criminal case, when can D admit ev of victim’s bad character?
Reputation or opinion ev if relevant to the defense.
in criminal case, when is evidence of D’s bad character admissible? What type?
Only to refute good character args by D. Reputation and opinion ev only.
In criminal cases, what type of ev of D’s good character can he introduce?
Reputation and opinion. To show character inconsistent w/ nature of crime. Not general truthfulness to bolster testimony.
inherent presidential powers
veto, pardon/commute, hire/fire executive officers (action on behalf of fed govt vs just investigative)
intermediate scrutiny standard
substantially related to important interest
is a contract void if made in furtherance of an illegal act?
no, only if the contract itself was illegal
Is a motion from a party required for a court to order a new trial? Requirements for the order.
Yes. Court must specify reasons in the order.
is a signature required under SOF?
only party being enforced against
Is a spoken threat enough to constitute assault?
No
Is employer liable for employee’s intentional torts?
Yes if w/in scope of employment (e.g. bouncer). Not if personal grudge.
Is it a breaking if the D gets into house with consent and then opens locked door in the house?
Yes
Is judicial notice of a fact mandatory?
Yes, if party requests it.
Is physical evidence required from a voluntary but 5th amendment violating statement admissible?
Yes
Is tenant liable for guest’s injuries on property if there’s a sublease?
Yes, both tenant and sub-tenant can be liable. About who has control over it (doesn’t make that much sense)
Is there a detrimental reliance exception to SOF?
yes
Is there diversity jurisdiction if amount exactly $75k?
No
Jurisdiction requirements under interpleader statute?
At least 2 claimants must be citizens of different states.
Last clear chance doctrine
Exception to contributory negligence defense
Learned intermediary rule
Exception to inadequate warning defect, when used in supervision of trained professional
Liability for domestic animal owners?
Negligence, unless they know animal is a danger
Liability for harm by your animal on someone else’s property?
Strict liability unless domestic pet (unless known to be dangerous)
liability for things falling from airplanes?
old rule: strict liability. new rule: negligence
Liability for your animal attacking a trespasser?
Not generally unless watchdog
Limits on depositions you get to ask?
Default: P’s, D’s, and third-party D’s (each as a group) get 10, by oral or written examination. Can do more w/ consent or if court okays
limits on expectation damages
NAME?
limits on suing states
can’t sue for money damages in its own court or in fed court, unless consents or 14th am.-can sue in other state courts-local govts not covered
M’Naghtan insanity defense
don’t know the nature of your act or that it is wrong
MPC approach for insanity defense
lack of substantial capacity to conform conduct to the law OR don’t know the nature of your act (combines irresistible impulse with M’Naghtan)
Must prior inconsistent statements used for impeachment be disclosed?
Not to witness, yes to party’s atty upon request
must prosecutor present exculpatory evidence to a grand jury?
no
notice requirements when D is a fed agency or employee (in official capacity)?
notify as if suit against US govt + also the agency/employee
Pinkerton Rule
every co-conspirator is guilty of any foreseeable substantive offense committed in furtherance of the conspiracy
PJ over a business
if corp: state of incorporation + nerve centerif unincorporated entity: where partners/owners are
power of treaties
once ratified, same status as statute. if not self-executing (implementing legislation) then doesn’t trump states. if executive agreement, then status of executive order.
priority in a race-notice recording statute state?
winner is first to record among those who purchased without notice
priv and immunity clause of art 4
no “serious discrimination” against out-of-state residents w/o sufficient justification.-serious: job requirements. park admissions, hunting licenses okay to discrim against.-ONLY INDIVIDUALS protected-so can’t require residency for private employment (can for public)
public records hearsay exception
prepared by public official / agency.if police report, can only report police activities (not observations / conclusions)
purchase money mortgage priority vs subsequent mortgage that was recorded first w/o notice of first
purchase money mortgage one wins
Rape shield law in civil cases
Sexual conduct of a victim isn’t admissible in civil or criminal sexual misconduct cases (i.e. objecting party is sexual misconduct victim. Harassment:yes, defamation:no)-applies to impeachment and substantive purposesException: probative value substantially outweighs prejudice-reputation evidence admissible only when placed in controversy by victim
Rape shield law in criminal cases
Sexual conduct of a victim isn’t admissible in civil or criminal sexual misconduct cases-applies to impeachment and substantive purposes-exceptions: criminal cases to prove D not source of semen/injury or to prove consent (must be specific conduct NOT reputation/opinion evidence to get the exception).-also to protect D’s constitutional rights
remedies for breach of equitable servitude
just injunction
remedies for violation of landlord’s implied warrnty of habitability
T can withhold rent or fix the problem and charge the L. if withhold rent, must have notified L and given reasonable opportunity to fix. T doesn’t need to vacate premises
remedy for breach of implied covenant of quiet enjoyment
no rent if actual eviction. if partial eviction: no rent if caused by L, partial rent if caused by someone under L’s control. constructive eviction: no rent if T vacates and gives notice w/in reasonable time
remedy for forced confessions?
never admissible against person who made the statement (can admit against others)
remedy for knock and announce violations?
fine as long as they have a warrant
remedy for miranda violations?
can’t be part of case-in-chief. okay for impeachment/rebuttal
requirement for easement by implied prior use
1) past common ownership2) before division, owner used land as if easement on it (quasi-easement)3) use was continuous and apparent at the time of severance4) must be reasonably necessary to dominant estate’s use and enjoyment
requirement for parental consent for abortion?
alternative way to get if go before a judge
requirement for search warrant contents
describe w/ particularity the place to be searched and what will be searched
requirement to do a terry stop
reasonable suspicion of criminal activity
requirements for a covenant to bind a successor
1) writing (SOF)2) notice to successor3) intent to run with the land4) touch and concern the land5) privity
requirements for a firm offer by a merchant
written promise to keep open-signature/initials/letterhead-reasonable amount of time (
Requirements for a manufacturing defect
Deviated from intended design in way that made it more dangerous
requirements for a witness to testify
promise to tell the truth + personal knowledge
requirements for accomplice liability
NAME?
requirements for an implied reciprocal servitude
1) intent to create a servitude on all plots2) must be negative3) successor must be on notice4) to show intent, must be common plan or scheme (e.g. map) (substitutes for the writing)
requirements for anti-lapse statute to apply?
intended beneficiary = a relative, who has surviving issue
requirements for catch-all hearsay exception?
1) circumstantial guarantees of trustworthiness2) more probative than any other reasonably attainable evidence.3) material fact4) promotes goals of FRE5) other side given pre-trial notice
requirements for collateral estoppel
(issue preclusion)-same factual issue-issue was actually and necessarily decided in prior suit-the party to be precluded was a party to the prior suit
requirements for conspiracy under common law?
-agreement btwn people to commit a crime-can’t be one D and the rest people who don’t intend to go along
requirements for easement by necessity
1) prior common ownership2) necessary to dominant estate’s use and enjoyment-necessity judged at the time of severance (but can end if necessity over)
requirements for equitable servitude
1) writing (unless implied reciprocal servitude)2) notice3) touch and concern4) intent to bind successors
requirements for impleader
(T=third party D)-T liable to D b/c of D’s liability to P-don’t need diversity wrt T-P must have diversity against T for claims against T-need PJ over T
requirements for interpleader statute (smj, pj, venue)
-$500 at stake-minimal diversity-PJ: whole country-venue: any district where any claimant resides
Requirements for introducing a prior inconsistent statement to impeach a witness?
Witness must be given chance to explain or deny the statement, and other side gets to examine witness about it.Unless statement is impeaching a hearsay declarant.
requirements for involuntary manslaughter
NAME?
requirements for parental notification for abortion law?
fine
requirements for removal
-All D’s must consent to removal w/in 30 days-if any D citizen of a state where suit brought, can’t remove on diversity grounds-1 year time-limit to remove unless bad faith by P
requirements for res judicata
(claim preclusion)-final judgment on the merits-same parties (or successors)-same claim (same trnsct/occurrence) or cause of action
requirements for serving someone at their house?
leave with a person of suitable age and discretion at D’s primary adobe
requirements to be an accessory after the fact?
NAME?
requirements to create joint tenancy
clear expression of intent + survivorship language
requirements to create tenancy by the entirety
clear expression of intent + survivorship language
Requirements to file motion for judgment as a matter of law after jury verdict
Filed before evidence submitted to the jury (i.e. renewing it now) and w/in 28 days of judgment.
requirements to maintain joint tenancy
(PITT) need unity of: interest; possession; timing; and title (must receive interest in same instrument or title)
requirements to maintain tenancy by the entirety
same as joint tenancy + marriage
Requirements to make a citizens arrest
1) arrest is for a felony2) the felony actually occurred3) reasonable grounds for thinking the arrested person did it
requirements to meet obscenity exception
1) prurient2) lacking any serious value (nat’l standard)3) offensive to avg person4) not overbroad
requirements to transfer to a district
it must have proper venue, unless initial district had proper venue and all parties consent
restrictions on when court can impose capital punishment
if 1 victim, only if the victim diesD must not be under 18 at time of crime; mentally retarded; insane at time of execution
Right to counsel at a Gerstein hearing?
No
risk of loss if buyer repudiates before delivery?
if identified goods, then risk on buyer still for a commercially reasonable amount of time. buyer responsible for damages net of seller’s insurance.
rules for appealing class cert decisions? deadline to file?
discretion of appellate court, must be w/in 14 days.
rules for impeaching a witness through their character
opinion and reputation ev fine.-prior acts generally not ok unless relevant to assessing witness’s truthfulness (balancing test)–can’t use extrinsic ev (new witness) to prove
Rules for when adding a new party in an amended pleading gets the initial filing date for SOL purposes?
1) same transaction as original; 2) new party got notice w/in 120 days of filing of original complaint, and 3) new party knew the action should have been brought against them
scrutiny standard for illegitimate child discrimination?
intermediate
service of process to a corp
give to agent/officercan’t just give to an employee
Serving a complaint on a fed official sued personally
Must serve the US (letter to AG) + the officer individually under normal individual rules
SOF requirements for sales of goods
(only if goods >$500)essential terms (quantity, parties)only enforceable for quantity written downenforceable if part-performance (delivered or paid for)exceptions:-custom-made goods-judicial admission the contract existed
special rules for tenancies by the entirety
can’t alienate/encumber interests without consent of other spouse
speech or debate clause immunity for members of congress
can’t use their official acts (votes, introductions of bills) as evidence against them
spousal immunity from testifying against other spouse
one spouse can choose not to testify against other in CRIMINAL trials, if married at time of trial
Standard for a design defect
Consumer expectations test OR cost-benefit
standard for a valid guilty plea
knowing and intelligent + allocution w/ judge
standard for joinder of multiple claims between 1 P and 1 D
automatic, but no automatic supplemental jurisdiction
standard for meeting implied warranty of merchantability?
fit for ordinary purposes
Standard for ordering a new trial based on new evidence (civil)
(discretionary). Prejudicial conduct of counsel, party, judge, or juror. Newly discovered ev that existed at time of trial but was excusably overlooked and likely would have altered outcomeVerdict against clear weight of the evidenceVerdict based on false ev s.t. new trial nec to prevent injusticeExcessive/inadequate damages in the verdict.
standard for present sense impressions hearsay exception
made contemporaneously w/ thing being described
standard for something to count as a 4th am seizure?
reasonable person wouldn’t feel free to leave-must be intentional-if suspect gets shot
standard for waiving 6th am right to counsel?
knowing and intelligent
standard for warrantless automobile searches
probable cause. (worry is that car could move). can search parts of car where think the contraband might be.also inventory search if car impounded
Standard for whether a contact is a battery
Person of ordinary sensibilities, unless D knew victim was hypersensitive.
Standard of care for professionals
Skill knowledge and care of another professional in the community
Standard of care for torts by children
Intelligence, education, and experience as a child of same age
standard of review for bench trial finding of fact?
clearly erroneous
standard of review for jury finding of fact?
substantial evidence
standard of review on race based affirmative action
strict scrutiny
Standard to do TRO hearing without notice to other party
Atty must certify in writing harm from giving notice / efforts to give notice
standard to get a search warrant
probable cause that search will turn up-fruits of crime, instrumentalities of crime, or evidence
standards for disclaiming implied warranty of fitness for a particular purpose
“as is”, conspicuous. MUST be written
standards for IAC if conflict of interest
presumption not harmless if it affected atty’s behavior
statement of RAP
An interest is valid only if it is certain to vest within the span of a life in being at the time the interest is created, plus 21 years.
statements to medical personnel hearsay exception
for diagnosis / treatment
supplemental jurisdiction to add new P against same D
need diversity. don’t need amount in controversy
Test for commercial speech prohibition to be valid
If speech is truthful/informational, the reg must directly advance a substantial govt interest and be narrowly tailored (reasonable fit)
test to distinguish a gift from consideration
if offeree could have reasonably believed the intent of the offeror was to induce the action, then consideration.
The Rule of Shelly’s Case
Presumption against giving remainders to the heirs of the recipient of a life interestE.g. A leaves to B for life, and then to B’s heirs
timing of hearing for disability benefit revocation
post-deprivation is fine
timing of hearing for dismissing student on academic grounds
must be pre-deprivation
treatises hearsay exception
relied on by expert and reliable authority
types of waste
affirmative; permissive; ameliorative (change in nature/use of property)
UCC requirements for what must be included in an offer
quantity and parties
under common law can accomplice be liable if principal not convicted?
no
under common law, when does acceptance w/ new terms count as acceptance?
it doesn’t - mirror image rule
under UCC, when acceptance included new terms from offer, which terms govern?
new terms only count if: (need all of these)-both parties are merchants-offer didn’t say on these terms only-new terms aren’t material changes-offeror doesn’t object w/in reasonable period
under UCC, when does acceptance w/ new terms count as acceptance?
unless material changes or says accepting only if these new terms are accepted
venue for business
-anywhere w/ PJ (whether corporation or not)-use the district that would have PJ if was a state (or the district w/ the most contact)-also where substantial part of the claim arose
venue for individuals
-if all D in one state, any district where 1 lives-where substantial part of claim arose-fallback: anywhere w/ PJ over 1 of the Ds-after removal, venue proper in any district where the state court sits
venue in suits against govt
NAME?
venue requirements for foreign defendants?
any judicial district in the US
Westfall Act
Fed employees immune from state tort law
wharton rule
can’t have a conspiracy unless more people than needed to commit the crime (no 2 person adultery conspiracies)
what are co-conspirators liable for?
the crime of conspiracy + any crime committed in furtherance of the conspiracy
what are damages if substantial (but not perfect) performance?
extra cost to fully-perform, but sometimes limited to diminution in market value (unless willfull)
what are exceptions to exclusionary rule?
-inevitable discovery-good faith rule (officers rely on law that’s later declared unconstitutional; warrant that’s facially valid but then declared invalid, unless obtained by fraud)-isolated negligence by police (accident that exclusion wouldn’t deter)
what are exceptions to mailbox rule?
-if first sent rejection before sending acceptance. then whichever one the offeror reads first will count-offeree tells offeror they’re rejecting after mailing acceptance + detrimental reliance-time limit in options contract
what are privity requirements to pass down benefit of covenant to successor?
vertical privity (carved out of original interest)
what are privity requirements to pass down burden of covenant to successor?
1) vertical privity (full interest)2) horizontal privity (grantor-grantee, common ownership interest)
what are prosecutor’s duties to turn over exculpatory evidence?
covers: ev D didn’t commit the crime + ev against credibility of prosecution witnessscope: anything in govt’s possession (even if unaware)
what are the elements of attempt?
1) specific intent to commit a crime2) substantial (major) step towards perpetrating the crime
what are the two approaches to water rights?
riparian: next to water, can make reasonable uses.prior appropriation: first-in-time: must be using for beneficial use
what are the types of implied easements?
1) easement by prescription2) easement by necessity3) easement by prior use4) easement by reliance
what can a juror testify about
inappropriate external influences
What can a witness’s prior inconsistent statement be used to prove?
ImpeachmentSubstantive point, since they’re testifying.
what can officer do if suspect asks for a lawyer?
questioning must stop until1) lawyer shows up; 2)suspect initiates; 3) 2 wks + miranda re-read
what can officer do if suspect says doesn’t want to answer questions?
must stop; can try again after substantial time
what can party do if other side says they will breach, before the deadline.
can sue now or wait for the deadline.-can’t sue if you’re only waiting to get paid
What creates presumption that a letter has been received by recipient?
Sender places properly addressed and stamped envelope into mailbox
what crimes is accomplice liable for?
the planned crime + all crimes that are reasonably foreseeable
what crimes trigger right to jury trial?
if authorized punishment >6 months prison
What damages must be shown for libel
Only general damages, jury can estimate
What damages must be shown for slander
Special damages (concrete, specific)Unless: commission of serious crime; loathsome disease; unfit for their business; severe sexual misconduct
what does 5th am right to counsel guarantee?
lawyer during custodial interrogations (if you ask)
what does 8th am cover
only punishments (stuff done in prison count)
what does an anti-ademption statute do?
gives the intended recipient of the property that’s no longer in the estate the proceedsd from the sale of that estate
what does double jeopardy protect against?
1) prosecution for same offense after conviction2) prosecution for same offense after acquittal3) multiple punishments/prosecutions for same offense-blockburger test-exception: separate sovereigns can try same crime
what does L have tort liability for?
common areas; areas under L’s control; faulty repairs; hidden dangers T didn’t have notice of
What evidence is considered self-authenticating?
Trade labelsPublic records (signed and sealed/certified)Business records (but must give other side notice and chance to inspect)Newspaper
what happens if a lender transfers a mortgage w/o the note? or a note w/o the mortgage
usually they follow each other
What happens if judge erroneously denies D’s preemptory challenge?
Ok if fed court, i.e. doesn’t violate constitution.States can choose whether automatic reversal or harmless error analysis.
what happens if landlord accepts rent in a tenancy at sufferance?
converted to a periodic tenancy
what happens if seller makes a bid at an auction
winner can take the goods at the price of the last good-faith bid-exception: forced sale or seller reserved the right to bid
what if the goods identified in the contract are destroyed?
if risk has passed to buyer, on the buyer.otherwise contract is void(assuming not the fault of one of the parties)
what interests does RAP apply to?
contingent remainders and executory interests. not when property reverts to grantor.
what is “O gives to x, but if x is used as a farm then O can reenter x”
fee simple subject to condition of subsequent
what is “to x, but if x is used as a farm, then to y”
fee simple subject to executory interest
what is “to x, while x is used as a farm”
fee simple determinable
what is a special warrant deed
guarantees against any defects in the deed the owner is responsible for
what is a state’s criminal jurisdiction?
NAME?
what is common law age that child can be prosecuted for a crime?
7.7-14 rebuttal presumption that incapable of committing the crime.
what is common law rule when recording statute doesn’t apply?
first in time wins (first to receive valid deed)
What is difference between survivor action and wrongful death action?
Survivor action brought on behalf of decedent’s estate, wrongful death brought by living relatives
what is doctrine of worthier title?
presumption that reversion of life estate goes to grantor rather than grantor’s heirs
what is effect of taking out a mortgage on a joint tenancy interest?
majority (lien states): fine. minority (title states): counts as transferring the title, so severs the mortgage
What is effect of unlawful arrest?
Evidence seized pursuant to the arrest might be excluded. Confession closely connected to the illegal arrest might be excluded.
what is exception to implied warranty of merchantability?
buyer had opportunity to inspect, and reasonable inspection would have revealed the defect
what is federal criminal jurisdiction
US citizens anywhere they are, anyone in the US, on ships and planes
what is implied covenant of marketable title?
implied into contract for sale of land. title must be free of unreasonable risk of litigation
what is implied covenant of seizin?
deed describes the land in question
what is implied warranty of fitness and suitability (for new construction). who can enforce?
no defects in new construction. first and second buyers can enforce.
what is needed for exigent circumstances exception for search w/o warrant
likely immediate danger. not created by officers themselves.suspect fleeing counts, drunk driving doesn’t
what is order of priority for debt repayment after a foreclosure?
junior interests extinguished. debts satisfied chronologically. exceptions:-purchase money mortgage paid back first-properly recorded junior mortgage gets priority over unrecorded sr mortgage as long as lacked knowledge-subordination agreement-sr mortgage modification that prejudices jr-future advances mortgage where amnt of loan not set at beginning
what is scope for a search incident to arrest?
where the suspect can reach at the time of arrest (rationale: officer safety, evidence in suspect’s possession). Also DNA sample.
what is standard for a D being competent to stand trial?
capable of understanding proceedings against them AND able to assist their attorney
What is standard for evidence being excluded under Rule 403?
Probative value substantially outweighed by prejudicial effect
What is standard of care towards a foreseeable / known trespasser?
Warn of hidden dangers (same as licensee)
what is the contract clause
states can’t legislate impairments to existing contracts, unless overriding need (e.g. great depression)-doesn’t apply to fed govt
What is tort of injurious falsehood
Trade libel, like defamation but statements that harm your business, not your reputation
what is your scope of possession after successful adverse possession?
can get whole property even if you only possessed a part as long as 1) entered under facially valid deed, and the amount possessed is a reasonable portion of the whole
what liberty interests protected under procedural due process?
right to work, travel, procreate, marry, physical injury, legal rights (e.g. free speech), stigma that affect ability to be employed
what must a valid arrest warrant include?
name of person to be arrested + crime they’re charged with
what sentences does 8th am restrict?
doesn’t cover sentence length generally.juveniles can’t get mandatory life w/o parole, or life w/o parole for non-homicides
what sources of information can expert witness rely on
personal observation; evidence from trial; evidence not admitted at trial if reasonably relied upon by such experts
What statements can’t constitute defamation?
Between spousesJudicial proceedingLegislative proceedingPolitical statements a newspaper/radio required to carryConditional privilege (good faith, you have some duty)
what terms govern a tenancy at sufferance?
last prior lease
what triggers 6th am right to counsel?
once charged w/ a qualifying crime.qualifying: prison sentence is any felony or misdemeanor w/ possibility of jail time (no problem if don’t get but no jail time)
what type of easements must be express?
a negative easement
what violates landlord’s implied covenant of quiet enjoyment?
L or someone under L’s control (tenant, someone w/ superior title to L) causes: actual eviction, partial eviction, or constructive eviction (no water). standard=unusable for intended purposes
what violates landlord’s implied warranty of habitability
L fails to maintain the property so that it’s suitable for residential use (safety/health code violations).
What witnesses are allowed to hear the testimony of other witnesses?
A party, or a person whose presence is essential to a party’s presentation of the case (e.g. cop in charge of the investigation), or a victim (unless court determines the victim’s testimony would be altered)
when are “future modification in writing” terms valid?
if only 1 party is a merchant, then must be in writing
When are interlocutory appeals available?
automatic: injunction (new or modification); class action cert; possession of property.discretionary: controlling Q of law + answering now will immediately advance termination of litigation. (certify)-collateral order doctrine (separable issue)
When are juvenile convictions admissible for impeachment?
Never against D, or in civil case. Okay if in crim case, otherwise admissible, and admitting the ev is nec to fairly determine guilt or innocence.
when are laws against expressive conduct ok?
1) prohibiting the expressive part is secondary effect, not the purpose2) substantial interest3) burden no greater than necessary
when are liquidated damages enforceable?
if amount is reasonable (judged from time of contracting) and actual damages too hard to prove-can’t be punitive
When are multiple D’s liable for a tort if can’t prove which one did it?
if they were all negligent
When are prior out of court identifications admissible?
The declarant must be testifying now. So not if declarant unavailable.
when are right of first refusals subject to RAP?
always unless it’s a current tenant w/ option to purchased the rented land
when are you liable if you cause a cave-in on neighbor’s land?
if all your fault then strictly liable. if they contributed then negligence
when are you liable if your subjacent use of land causes damage to surface-level property?
strict liability if property there when you acquired the interestnegligence if built subsequently
when can a buyer insure goods?
if they’re specifically identified (e.g. crops must have been planted)
When can a bystander sue D for IIED conduct?
1) Bystander is member of victim’s immediate family AND D knows they’re presentOR 2) bystander suffers physical injury
when can a contract be modified under common law?
generally only with consideration (e.g. both sides must give something up)-exceptions:-rescind first contract w/ outward sign (tear it up)-unforeseen difficulties that would otherwise excuse performance
when can a contract be modified under UCC?
good faith
when can a cop enter someone else’s home to arrest someone pursuant to an arrest warrant?
must be consent or exigent circumstances
When can a D implead a third party? Does D need court’s permission?
Anytime after the complaint filed. Doesn’t need court’s permission if filed w/in 14 days after serving his answer to P’s complaint.
When can a fed trial have less than 12 members?
Must be waived in writing and approved by the court11 is fine is one juror is excused for good cause after deliberations begin
When can a federal trial be decided by a non-unanimous jury?
If parties stipulate.
When can a prior inconsistent statement by a testifying witness be used to impeach the witness? When can it be used to prove the substantive claim?
Always. Only if made at formal proceeding.
When can a prior statement by someone made at a formal proceeding be admitted?
Okay if they’re now testifying or if they’re unavailable.
When can a state be sued in federal court?
1) injunctive relief2) congress authorizes as per 14th am3) P is US govt or a different state
when can a state govt discriminate based on citizenship?
essential state function, like teacher, police, jury, voting
When can a state tax commerce?
“substantial nexus” between taxing state and thing being taxed
when can a state tax personal property in the state?
any good physically in its borders, as long as good is stopped for a business purpose-can tax fraction of value of instrumentalities of commerce
when can a third-party contract beneficiary prevent the parties from modifying the contract to exclude them?
reliance, they’ve assented, or they’ve tried to enforce
when can buyer get goods from seller? (equitable remedy)
-if unique goods or can’t cover-if partial payment and either–seller goes insolvent w/in 10 days of receiving payment OR–household/personal goods
when can buyer refuse delivery under UCC?
whenever there’s not perfect tender (perfect goods + perfect performance).-must give seller a chance to cure if seller reasonably thought buyer would accept or still time left before deadline-Exception if installment contract: then can only reject if that delivery is substantially impaired (unless seller says can cure)-default: seller can demand payment w/ each delivery
When can compromise offers be admitted?
If no dispute as to their validity or amount.
when can fed govt discriminate based on citizenship?
anytime
when can govt limit contributions to a candidate?
yes if satisfies intermediate scrutiny. “closely drawn” to correspond to important interest
when can govt limit independent expenditures
never
when can govt regulate speech on private property
strict scrutiny
when can govt regulate speech on public property that’s not a public forum?
must be reasonable (i.e. viewpoint neutral)
when can govt regulate verbal speech in a public forum?
(TPM)1) content neutral (or exception applies)2) leaves open alternate channels of communication3) narrowly tailored to significant government interestOtherwise, strict scrutiny
when can judge order a mis-trial?
“manifest necessity” = jury deadlocked OR D at fault
when can landlord deny a sublease/assignment?
majority rule: commercially valid reason only. minority: anytime
When can mortgagee sue borrower for outstanding balance of loan after a foreclosure?
Generally they can, but same states disallow if privately-supervised foreclosure sale or if purchase money mortgage
When can mortgagor waive equity of redemption?
Only if waiver had consideration (courts don’t like to clog the equity)
when can new P intervene to join a lawsuit?
(intervention)common question of fact or lawmust show jurisdiction
when can officers enter a home to arrest without a warrant?
exigent circumstances or consent
when can officers make an arrest without a warrant?
if not felony: only if they personally witness the crime, or learned from a terry stop
when can omissions count as an actus reus?
NAME?
when can one side waive an obligation of the other side under the UCC?
you can waive it, but you can revoke your waiver unless they relied on it
when can one testify about conversations for settling / plea?
can’t unless knowingly waived with lawyer
When can prosecution introduce evidence that D is violent if D argues self-defense?
Only if D introduces evidence that victim was violent.
when can seller get unpaid-for goods back from buyer?
(right of reclamation)1) buyer insolvent2) seller demands w/in 10 days of delivery (or reasonable term if written assurance of solvency from buyer w/in 3 months)3) buyer must still have the goods
When can someone make citizens arrest for misdemeanor?
Only if breach of the peace occurring or imminent
when can state deny public employment based on group membership?
1) active member of subversive group2) knowledge of group’s illegal activities3) specific intent to further group’s illegal activities
when can third parties consent to a search?
if they have apparent authority. if co-occupant consents and you don’t, police can’t search you (if both present)
when can you bolster a witness’s credibility?
only after it has been attacked
when can you recover for economic damages in a negligence suit?
only if property damage / personal injury as well
when can you recover for only emotional damages in negligence?
if negligent infliction of emotional distress, otherwise need something else too
when can you search without a warrant?
Exigent circumstances; search incident to arrest; consent; automobile; plain view; administrative search; stop and frisk
when can you stop performing if you think other side might breach?
can demand assurance of performance, and if they fail to respond that counts as repudiation
when can you sue a state / state officials for money damages?
Fine if in another state’s court. If in its own or fed court, only if:-officials would be personally liable-fed govt is plaintiff-congress authorizes to enforce 14th am-the state consents-doesn’t apply to localities
When can you sue government contractor for a tort?
Same limits as suing government if conformed to regulations AND govt knew about the issue
when can you sue government for torts
generally, unless traditional govt function or certain intentional torts:Assault, battery, false imprisonment, false arrest, malicious prosecution, libel, slander, misrepresentation, interference with contractual rights
when can you tack on time of previous adverse possessor?
some formal relationship, e.g. privity between them
when can you use criminal convictions to impeach witness?
if the crime demonstrated dishonesty.admissible if w/in 10 yrs since released from prisonif >10 yrs then probative value must greatly outweigh prejudice–no juvenile convictions–not if pardoned (for innocence or no subsequent convictions)
when can you use external evidence to establish a witness’s prior inconsistent statement
generally, but other witnesses can only testify to refute or else hearsay
when do junior interests survive a foreclosure?
if the jr mortgagee wasn’t given notice and joined as a party (rationale: they get chance to redeem sr mortgage)
when do taxpayer’s have standing to challenge govt expenditure?
to challenge expenditure that violates establishment clause
when does 1 person 1 vote apply?
elections of representatives by district (not senate)-exception: if limited government body, can apportion votes based on interest
when does a confirming memo alter terms of an already existing oral agreement?
4 requirements:-both parties are merchants-offer didn’t say on these terms only-party doesn’t object w/in reasonable time-new terms aren’t material changes
when does a contract for sale of land not need to be written?
-part performance (2/3 of possession, improvement, payment)-detrimental reliance
when does a deed transfer become valid?
once delivered and accepted (doesn’t need to be physically delivered, irrevocable is key, like a phone call). must be signed by the grantor (SOF)
when does a periodic tenancy terminate?
notice before beginning of what will be the last period
when does a state reg violate dormant commerce clause?
-discrimination against out of state interests (e.g. requiring using in-state firms), OR-unduly burdens interstate commerce, OR-applies to wholly extra-territorial activity-undue burden = very high standard (very costly, tiny benefits; maybe met if less c
when does a statute of limitations start to run for crimes/conspiracy
crimes: when completeconspiracy: when goal achieved or abandoned
when does congress need to approve interstate compact?
when implicates a federal interest
when does first jeopardy begin for double jeopardy purposes?
jury trial: jury sworn inbench trial: first witness sworn in(this is latest prosecutor can modify indictment charges)
when does risk of loss pass to buyer?
-if any breach, risk is on that party-if third party delivery contract, depends on if destination or shipment contract (default). -otherwise on buyer unless seller is a merchant
when does silence constitute acceptance of a contract?
NAME?
When does SOF 1 year countdown begin?
The day after the contract is agreed to. Must be complete w/in 1 year of that.
when does soliciation turn into conspiracy?
if other person agrees to help
when is a contract void b/c of duress
impermissible threat-tort, criminal prosecution, bad faith civil prosecution, threatening to breach a contract that would violate fair dealing-also if third party caused the duress
when is a contract void b/c of untrue statement at time of contracting?
1) material OR fraudulent2) made under circumstances where justifiable to rely on the representation-exception: if false fact cured
when is a contract void for misunderstanding?
1) both interpretations were reasonable2) actual difference of opinion existed3) neither side was aware of the confusion4) the term was material
when is a contract void for unilateral mistake?
1) adversely affected party didn’t assume risk of mistake2) either-other party should have known about mistake-other party caused the mistake-absent the mistake the deal is unconscionable
when is a contract voidable against intoxicated person
other side must know AND you’re so intoxicated you don’t understand the nature of your actions
when is a contract voidable against someone based on mental incapacity
-if court ordered guardian over their property, then always-if other side knew, enough that put at a disadvantage in transaction-if other side didn’t know, only when don’t understand the nature of your actions
when is a contract voidable by an under-age party?
always (unless ratified subsequently). if involved a necessity, the minor might still have to pay FMV
when is a contract voidable for mutual mistake?
1) both sides mistaken about a basic material fact2) adversely affected party didn’t assume (contemplate) risk of mistake
When is a covenant terminated?
NAME?
When is a holdover tenant subject to a higher rent amount?
if the landlord gave notice before old lease ended and the increase is reasonable.
when is a miranda warning required?
custodial interrogations (not free to leave and return to normal place b/c of police). exception: public safety
when is a revocation effective?
when offeree learns of it
when is a right of first refusal to buy property valid?
1) complies with SOF, 2) complies with RAP (if individual right then probably ok), 3) its terms are reasonable.
when is a traffic checkpoint allowable?
predetermined basis for stopping cars-only certain car-related goals permissible (sobriety, not to find drugs)
When is a voluntary dismissal with prejudice?
If P has previously dismissed a prior action based on the same claim (in state or fed court).-P can only dismiss before D files an answer or motion for summary judgment (unless all parties consent)
when is affirmative action valid
correcting past discrimination by same actor, ORcollege or grad school admissions (and holistic)
when is an easement terminated?
1) release (writing, SOF)2) merger (common owner)3) estoppel4) abandonment (w/ evidence)5) sale to bona fide purchaser (recording failure)6) end of necessity
When is an employer liable for employee’s actions?
Employee vs indep contractor (control over how work is performed)w/in scope of employment
when is an offer irrevocable?
NAME?
When is consideration of mitigating factors required at sentencing?
Only in death penalty cases
when is involuntary intoxication a defense?
anything but a strict liability crime.involuntary intoxication: if D was forced, or unexpected reaction
when is jury right available in civil trials?
trials at law (damages). if overlap do legal issues first.
when is mistake of law an excuse to a crime?
NAME?
When is parent liable for acts of child?
1) Child acting as agent of parent2) Child harms a third party (intentional or accident) and parents were negligent (e.g. failure to warn third party)
when is SOF satisfied by performance on real estate deals
need 2/3:-possession-improvements-payment
when is SOF satisfied via performance?
FULL performance of a service contract (unless real estate deal)
When is the bubble of a presumption bursted?
After other party introduces sufficient evidence to conclude the opposite. Then presumption has no effect.
when is there a hearsay exception for prior statements by a testifying witness?
if prior statement was at a formal proceeding under oath, either side can admit to show either consistent or inconsistent with current testimony-also prior identification statement (picking D out of lineup)
when is there a hearsay exception for statements made by opposing party?
also covers agents speaking on your behalfalso covers co-conspirator statements that were on behalf of the conspiracy
when is there a hearsay exception from declarant being unavailable to testify?
unavailable (e.g. refuses) AND either:-former testimony under oath (not grand jury, party against whom it was offered had similar motives and chance to cross); -dying declaration (pertains to cause of death, only homicide or civil cases);-statements against interest (but can’t say another D took blame for crime);-statements about declarant’s personal history;-any statement if you made them unavailable to keep them from testifying
When is there federal question jurisdiction if the cause of action was created under state law?
An element in the cause of action must involve a real and substantive issue of federal law, and its determination must necessarily depend on the resolution of the federal issue.
when is there general PJ over an individual D?
-domicile-served process in state (unless there for summons or b/c of force/fraud)-served process w/in 100 miles if third-party D or necessary D
when is voluntary intoxication a defense?
NAME?
when most worried about public endorsements of religion
settings where likely to be coercive (schools), or if clear endorsement. sometimes need to dilute religious message
when must a modification be in writing
if the modified contract would be covered by SOF
when one side’s performance takes place over time, when is payment due?
default rule: at end of performance
when PJ over a foreign D?
domicile if there is oneany state, if fed question + no state has PJ + min contacts w/ US as whole
When the United States is a defendant in a civil action, service must be made on the U.S.
Attorney General as well as the U.S. attorney for the district in which the action has been filed.
When will courts enforce clauses in contract that disclaim tort liability?
Generally, but not when 1) recklessness, 2) gross disparity in bargaining power, 3) common carrier
where can police do warrantless administrative searches?
airplane boarding areas; highly regulated industries; roadblocks for seeking information-fire/health inspectors looking for code violations need warrants
Where is citizenship of an insurer?
Wherever it is incorporated + principal place of business + citizenship of its insured (rationale: otherwise could sue insurer if couldn’t reach insured)
which content based speech regulations are okay?
(only ok if viewpoint neutral)-obscenity-incitement to violence-fighting words-defamation-commercial speech that’s misleading
which district’s law governs after a transfer
if initial district had venue, old one’sif initial district lacked venue, new one’s
Which types of criminal convictions can be admitted for impeachment? What is standard?
Those necessarily involving dishonesty or false statement w/in 10 yrs (no probative vs prejudice test)Felonies w/in 10 yrs, if 403 balancing test met. If witness is D, stricter standard (probative value outweighs its prejudicial effect)Any conviction >10yrs (probative value substantially outweighs prejudicial effect) AND written notice to other side
which witnesses does D have right to cross-examine under confrontation clause?
anyone who made “testimonial statement” = declarant knew info likely used for prosecution or identification of perpetrator of crime-includes accusers who are co-defendants-only in criminal trialsexceptions:-D had prior chance to cross-examine AND unavailable.-deathbed declarations-still violation if D made accuser unavailable unless did so for purpose of preventing testimony
who bears risk of loss of property between contract signed and closing?
majority rule: buyer holds equitable title (risk of loss)seller holds legal title: right to possessionexception for seller’s negligence or intentional actsminority put risk on seller unless buyer had possession (Uniform Vendor and Purchaser Risk Act)
who can assert exclusionary rule to block piece of evidence from being admitted?
only if violation of D’s rights (no co-defendants)-car passengers count
Who can enforce an equitable easement?
Only the successors in interest to the original deed (e.g. not neighbors)
who gets an assignment if the assigned rights have been assigned twice?
if no consideration, the most recent one gets itif consideration, the first assignment gets priority
who gets to file a habeas suit?
anyone detained by US in territory over which US has sovereign control (e.g. outside US)
who gets to keep a fixture after a sale?
default: buyer does
Who is liable in strict products liability?
Anyone in the business of selling the productNo privity requirement
who is not protected by recording statutes?
people who get the interest by gift / inheritance
who is protected from familial status discrimination under fair housing act?
families w/ kids under 18. doesn’t protect marital status. exception if senior living or restriction is for child’s safety
Who may serve process in fed court?
Any non-party over 18 years old
Who must answer be served to?
P’s atty w/in 21 days, and then filed with the court clerk w/in a reasonable time after service
withdrawal from conspiracy under common law
can’t withdraw once agreement is formed, but can cut off liability for future crimes
work product doctrine elements
document prepared by lawyer in anticipation of litigationmental impression notes require extremely high showing
