new

Question 1

“A leaves to B for life, and then to A’s heirs” what interest do A’s heirs have?

Answer 1

no interest, doctrine of worthier title means this goes to A

Question 2

“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?

Answer 2

vested subject to open

Question 3

“to x for life, and then to x’s first child” (x has no children yet)

Answer 3

contingent remainder

Question 4

“to x for life, and then to y if y outlives x” what is y’s interest?

Answer 4

continent remainder

Question 5

Accessory before the fact vs a principal in the second degree

Answer 5

Principal in the second degree: physically or constructively present during commission of crime (getaway driver)Accessory before the fact: assistance before commission.

Question 6

allowable scope for a terry stop search

Answer 6

can only do a frisk and seize anything that’s obviously a weapon/contraband/evidence-rationale: officer’s safety

Question 7

are assignments revocable?

Answer 7

yes if no consideration

Question 8

are confessions produced by deceit invalid?

Answer 8

no. e.g. fake lie detectors okay

Question 9

are due on encumbrance clauses enforceable?

Answer 9

yes

Question 10

are leases covered by SOF?

Answer 10

not if

Question 11

are reserve or non-reserve auctions the default?

Answer 11

reserve

Question 12

At will tenancy where only one landlord has right to terminate. Does it matter if residential?

Answer 12

Unconscionable. Remedy=both get right to terminate. Commercial and residential

Question 13

attorney client privilege elements

Answer 13

confidential communication between client and lawyer for purpose of seeking legal advice

Question 14

authentication rule for old evidence

Answer 14

> 20 years old, likely to be in condition and place where it was if authentic

Question 15

best evidence rule

Answer 15

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

Question 16

business records hearsay exception

Answer 16

prepared in regular course of business. info from someone w/ personal knowledge. -medical records count

Question 17

Can a co-defendant’s admission be admitted against the D at a joint trial?

Answer 17

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

Question 18

Can a fed court decline to exercise supplemental jurisdiction?

Answer 18

Yes

Question 19

Can a P remove to federal court based on a counter-claim that meets amt in controversy?

Answer 19

No, only D can remove.

Question 20

Can a party introduce evidence that a confession was not voluntary after judge has decided to admit it?

Answer 20

Yes, to shape how much credibility the jury gives the evidence

Question 21

can a state directly tax fed govt?

Answer 21

no

Question 22

Can a testifying witness be impeached by cross-examining them about specific past acts?

Answer 22

Yes, if probative about what they’re testifying about.

Question 23

can an SOF writing be subsequently recorded?

Answer 23

yes

Question 24

Can bail be set higher than amount necessary to secure D’s presence at trial?

Answer 24

No, under 8th am and due process

Question 25

can corporations and groups bring defamation suits?

Answer 25

yes

Question 26

Can D waive fed right to grand jury indictment?

Answer 26

Yes

Question 27

can govt limit contributions to a ballot initiative?

Answer 27

no

Question 28

can husband and wife be conspirators at common law?

Answer 28

No

Question 29

Can information learned from an illegal wiretap be presented to a grand jury?

Answer 29

No, by federal statute

Question 30

Can judge instruct jury to accept judicially-noticed fact as conclusive?

Answer 30

Yes in civil, no in criminal

Question 31

Can judge take judicial notice of facts in criminal case on appeal?

Answer 31

Not against the criminal

Question 32

can law give publicly-funded candidates extra money if their opponents outspend?

Answer 32

no

Question 33

can lender purchase title at a privately run foreclosure sale?

Answer 33

not if mortgage, yes if deed of trust

Question 34

can officers enter a person’s home to arrest them with a warrant?

Answer 34

yes

Question 35

can prosecutor comment at trial on D not testifying?

Answer 35

no

Question 36

can seller accept a contract by shipping the wrong goods?

Answer 36

UCC says this is acceptance + breach

Question 37

can seller disclaim damages above a certain amount for breach of warranty?

Answer 37

yes for commercial damages; unconscionable for personal injury damages

Question 38

can statutory rape laws discrim based on gender?

Answer 38

yes

Question 39

can threat to destroy property constitute robbery?

Answer 39

no unless threat is about the victim’s house.

Question 40

can trespassers remove fixtures they installed?

Answer 40

common law: no. modern, yes (or recover value) as long as good faith

Question 41

Can witnesses introduce extrinsic ev (other witnesses) to testify about their truthfulness once it has been attacked?

Answer 41

Yes

Question 42

Can you claim self defense if you made a reasonable mistake of fact?

Answer 42

Yes

Question 43

can you gerrymander based on race?

Answer 43

yes, but not predominant factor

Question 44

Can you impeach a witness via specific past acts that are not convictions?

Answer 44

Yes, but must pass rule 403 balancing test. No extrinsic evidence

Question 45

Can you use extrinsic evidence to prove convictions when impeaching witnesses?

Answer 45

Yes

Question 46

Can you use force to retake your property?

Answer 46

Yes, but if initially lawfully held must use peaceful means first

Question 47

Citizenship of a guardian for diversity purposes?

Answer 47

The minor/incompetent, not the guardian.

Question 48

common law requirements for what must be included in an offer?

Answer 48

price, quantity, parties

Question 49

communications between spouses

Answer 49

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

Question 50

Conditions for attractive nuisance

Answer 50

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.

Question 51

Consequence for not having preliminary hearing to determine if probable cause on arrest?

Answer 51

Nothing, except evidence obtained as result of unlawful detention excluded.

Question 52

contribution actions for operating expenses

Answer 52

operating expenses: taxes, mortgage payments. due according to ownership interests. also can be deducted from rent distributions.

Question 53

Daubert test

Answer 53

fed rule standard for expert witnesses.

Question 54

Deadline for amending a pleading you have filed? (as of right)

Answer 54

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

Question 55

deadline for demand of jury trial in civil pleading?

Answer 55

14 days of last pleading (including yours)

Question 56

Deadline for expert witness disclosures? Remedy for failures?

Answer 56

90 days before start of trial. No problem if harmless.

Question 57

deadline for filing a motion for new trial?

Answer 57

28 days from judgment

Question 58

Deadline for filing a motion to strike part of a pleading?

Answer 58

Before you respond or 21 days if no response required.

Question 59

Deadline for filing motion for relief from judgment (rule 60)

Answer 59

within a reasonable time and no later than one year following the entry of the judgment.

Question 60

Deadline for pre-trial disclosures?

Answer 60

30 days before trial

Question 61

Deadline to appeal a judgment? What if discretionary interloc appeal?

Answer 61

30 days from entry of judgment. Interloc: 10 days

Question 62

Deadline to file notice of removal proceedings?

Answer 62

30 days from initial pleadings or summons

Question 63

Defamation requirement if statement about public figure or public official?

Answer 63

Actual malice: knew false or reckless disregard for the truth

Question 64

difference between a license and an easement?

Answer 64

can revoke a license

Question 65

diversity for class action

Answer 65

-assess diversity and amnt in controversy based on named representatives-CAFA: if >$5m + 100 class members -> minimal diversity, no amt in controvsery

Question 66

diversity for counter-claims

Answer 66

same transaction/occurrence.

Question 67

diversity for cross-claims

Answer 67

same transaction/occurrenceno diversity of citizenship / amount in controversy requirements

Question 68

do drug sniffing dogs constitute a search?

Answer 68

not on public street

Question 69

Do government officials have tort immunity for their acts?

Answer 69

Qualified immunity if discretionary actNo immunity if ministerial (e.g. driving car at work)

Question 70

do zoning regulations count as a taking?

Answer 70

no, as long as advance legitimate interest AND doesn’t extinguish fundamental attribute of ownership

Question 71

does 5th am protect you from giving handwriting or voice samples?

Answer 71

no - only testimony

Question 72

Does a D who testifies on one issue waive the 5th on others?

Answer 72

Not if preliminary issue, like whether a confession was voluntary

Question 73

does a gift to a charity need consideration?

Answer 73

no, but the promise must be in writing

Question 74

does a lie have to be material to count as perjury?

Answer 74

yes

Question 75

does burglary need the underlying felony to succeed?

Answer 75

no - still guilty of burglary + attempt to commit the other felony

Question 76

Does D have a right to a bench trial if waives jury trial right?

Answer 76

No

Question 77

does death by promisor excuse performance

Answer 77

no, unless wouldn’t make sense to continue obligation

Question 78

does death of a party terminate tenancy at will?

Answer 78

yes, either party

Question 79

does death of offeror terminate the offer?

Answer 79

yes unless consideration was paid to keep open

Question 80

does exclusionary rule apply to pre-trial proceedings?

Answer 80

no

Question 81

does implied warranty of merchantability cover non-merchants?

Answer 81

no

Question 82

does lawyer have right to be present during line-up?

Answer 82

yes, if post-indictment. no if pre-indictment

Question 83

does lawyer have right to be present when police use photo array?

Answer 83

no

Question 84

Does service establish PJ if D passing through the state for a summons in an unrelated case?

Answer 84

No

Question 85

does suicide count as homicide?

Answer 85

no, but assisting suicide can

Question 86

Does victim have to know about the intended battery for it to count as assault?

Answer 86

No (e.g. soliciting someone to commit battery).

Question 87

Durham Rule for insanity defense

Answer 87

mental defect was ‘but for’ cause of the act

Question 88

duty of care to an undiscovered trespasser?

Answer 88

no duty

Question 89

duty to a licensee (traditional approach)

Answer 89

warn of hidden dangers. No duty to inspect land for dangers.

Question 90

duty to disclose defects (in real estate sales contracts)

Answer 90

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”

Question 91

duty to licensees (restatement approach)

Answer 91

reasonable care w.r.t. artificial conditions. if commercial then reasonable care w.r.t. natural conditions too

Question 92

duty towards trespassers

Answer 92

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.

Question 93

Elements for a Private Nuisance Tort

Answer 93

Unreasonable interference in someone else’s landBlocking someone else’s view doesn’t count unless maliciousDefenses: assumption of the risk, coming to the nuisance

Question 94

elements for adverse possession

Answer 94

1) open and notorious2) continuous for statutory period3) hostile4) exclusive

Question 95

Elements for defamation

Answer 95

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

Question 96

elements for detrimental reliance on a contract

Answer 96

(promissory estoppel)-reasonable and detrimental reliance by promisee-foreseeable that would induce reliance-justice requires the promise be kept

Question 97

elements for forgery

Answer 97

fraudulently making a false writing that has apparent legal significance with the INTENT to defraud

Question 98

Elements for IIED

Answer 98

1) Extreme or outrageous conduct2) Causes P severe emotional distress3) Intentional or reckless

Question 99

Elements for intentional interference in business relationship

Answer 99

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)

Question 100

Elements for intentional misrepresentation business tort

Answer 100

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

Question 101

elements for larcenty by false pretenses crime

Answer 101

taking the title to someone else’s property after you’ve obtained their consent by misrepresentation

Question 102

elements for larceny-by-trick

Answer 102

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

Question 103

Elements for negligent infliction of emotional distress

Answer 103

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

Question 104

Elements for negligent misrepresentation tort

Answer 104

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

Question 105

Elements for public disclosure of private facts tort

Answer 105

D gives publicity to a matter in P’s private lifeHighly offensiveNot matter of legitimate concern to the public

Question 106

elements for receipt of stolen goods

Answer 106

D must know they’re stolen (unreasonable mistakes of fact are a defense)

Question 107

Elements for slander of title

Answer 107

D calls into question P’s ownership of propertyRequires actual malice

Question 108

Elements for strict products liability

Answer 108

Defective when left D’s control AND used in reasonably foreseeable way

Question 109

Elements for unreasonable intrusion upon seclusion

Answer 109

Intrusion into P’s private affairs in way that would be objectionable to reasonable persone.g. eavesdropping

Question 110

elements of arson at common law

Answer 110

maliciously burning someone’s property-only someone else’s-only a dwelling-must be fire (not just smoke) + damage to structure of building

Question 111

elements of assault

Answer 111

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)

Question 112

Elements of conversion tort

Answer 112

D intentionally took P’s propertyIf initial acquisition lawful, must have demanded return firstCan be constructive dispossession

Question 113

elements of embezzlement

Answer 113

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)

Question 114

elements of extortion

Answer 114

larceny + threat of future harm (physical or non-physical)

Question 115

Elements of False Imprisonment Tort

Answer 115

D intentionally confines P (threats count)If P contemporaneously aware of confinement then doesn’t need to show damagesShoplifter exception

Question 116

elements of kidnapping

Answer 116

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

Question 117

elements of larceny

Answer 117

1) taking someone else’s property2) without consent3) with intent to deprive them of the property permanently

Question 118

elements of robbery

Answer 118

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)

Question 119

elements of standing

Answer 119

NAME?

Question 120

Elements of Trespass to Chattels tort

Answer 120

D intentionally interferes with P’s use of his personal property

Question 121

Elements of Trespass to Land Tort

Answer 121

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

Question 122

elements to the lemon test

Answer 122

1) secular purpose2) no excessive entanglement in religion3) primary effect neither advances nor inhibits religion

Question 123

ex post facto law problem for civil liability?

Answer 123

no

Question 124

exceptions to attorney-client privilege

Answer 124

planning future crime/frauddisputes between attorney and client

Question 125

exceptions to full faith and credit to other court judgments

Answer 125

1) judgment court lacked jurisdiction2) changed circumstances

Question 126

expectation of privacy on your property?

Answer 126

yes in your backyard (curtliage to your house)not in an open fieldnot garbage cans once removed to the street

Question 127

Extra defamation requirement if matter of public concern

Answer 127

Must show negligence as to falsity of the statement

Question 128

false light tort

Answer 128

P made offensive public statement about DEither true but overall misleading OR ascribes P with false views or actions

Question 129

felonies that qualify for felony murder

Answer 129

BARRKburglary; arson; robbery; rape; kidnapping

Question 130

Forum non conveniens?

Answer 130

Switching courts when venue and PJ requirements are met.

Question 131

Frye test

Answer 131

for expert witnesses. theory/principle must be generally accepted w/in scientific community

Question 132

Gerstein hearing. When required? How quickly?

Answer 132

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.

Question 133

hearsay definition

Answer 133

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)

Question 134

hearsay exception for prior court judgments?

Answer 134

only convictions, not acquittals

Question 135

how decide if jury right if legal and equitable remedies asked for?

Answer 135

try the legal issues first

Question 136

How do you challenge service of process?

Answer 136

Like PJ or venue, must be in first response

Question 137

How long do you need to be missing for there to be a presumption that you’re dead?

Answer 137

7 years

Question 138

how long does D have to respond if waived service of process?

Answer 138

60 days (90 if foreign)

Question 139

how long does D have to respond to amended complaint?

Answer 139

14 days

Question 140

how long does D have to respond to complaint after receiving process?

Answer 140

21 days

Question 141

How long to file an answer after a court denies a 12b6 motion?

Answer 141

2 weeks

Question 142

How long to serve motion and notice before a hearing? When is response due?

Answer 142

14 days. 7 days.

Question 143

how long to serve notice of a hearing?

Answer 143

14 days (unless ex parte)

Question 144

how long to serve summons and complaint on D?

Answer 144

120 days (unless good cause)if fails, dismissed w/o prejudice

Question 145

How many extra days to respond if service or notice is electronic or unconventional?

Answer 145

3 days

Question 146

how many interrogatories is a party allowed?

Answer 146

25 (and can only be served on a party)

Question 147

how many preemptory challenges in jury selection? what can’t they be based on?

Answer 147

3. race and gender

Question 148

how waive implied warranty of merchantability

Answer 148

can be oral “as is” or very conspicuous if in writing

Question 149

If a testifying witness denies a specific bad act during cross-examination, can extrinsic evidence be introduced to prove it?

Answer 149

No, except for convictions.

Question 150

if class gift violates RAP as to one class member, what happens to other class member’s interests?

Answer 150

generally they disappear also. but class is saved once one class member is entitled to immediate possession, or when gift of definite size.

Question 151

If D tries to commit battery against P but fails and P doesn’t know, is it assault?

Answer 151

No

Question 152

If D’s pre-answer motion is denied, how long does D have to file an answer?

Answer 152

14 days from receiving notice of the court’s decision.

Question 153

if modified contract, when can party sue for satisfaction of original obligation?

Answer 153

if it was an accord (versus substitute agreement). and then only if the substitute performance didn’t occur

Question 154

if other sides breaches after you have partially performed, what are your damages?

Answer 154

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

Question 155

If police put undercover cop in prisoner’s cell to ask about the charged crime (i.e. post indictment), does that violate 6th am?

Answer 155

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

Question 156

impoundment rules

Answer 156

pres can’t refuse to spend money congress has required to be spent.

Question 157

in breach of contract suit, do you need to plead the condition precedents were satisfied for other side’s obligation to be triggered?

Answer 157

no

Question 158

In civil case, when is evidence of past conduct admissible? Convictions?

Answer 158

To prove element of case. extrinsic evidence fine.Impeachment: can ask about this on cross but no extrinsic evidence except convictions showing dishonesty.

Question 159

In comparative negligence analysis, when will courts consider negligence of third parties not in the suit

Answer 159

“imputed contributory negligence”. Not when:P=child, T=parentP and T are spousesP=passenger, T=driver

Question 160

In criminal case, when can D admit ev of victim’s bad character?

Answer 160

Reputation or opinion ev if relevant to the defense.

Question 161

in criminal case, when is evidence of D’s bad character admissible? What type?

Answer 161

Only to refute good character args by D. Reputation and opinion ev only.

Question 162

In criminal cases, what type of ev of D’s good character can he introduce?

Answer 162

Reputation and opinion. To show character inconsistent w/ nature of crime. Not general truthfulness to bolster testimony.

Question 163

inherent presidential powers

Answer 163

veto, pardon/commute, hire/fire executive officers (action on behalf of fed govt vs just investigative)

Question 164

intermediate scrutiny standard

Answer 164

substantially related to important interest

Question 165

is a contract void if made in furtherance of an illegal act?

Answer 165

no, only if the contract itself was illegal

Question 166

Is a motion from a party required for a court to order a new trial? Requirements for the order.

Answer 166

Yes. Court must specify reasons in the order.

Question 167

is a signature required under SOF?

Answer 167

only party being enforced against

Question 168

Is a spoken threat enough to constitute assault?

Answer 168

No

Question 169

Is employer liable for employee’s intentional torts?

Answer 169

Yes if w/in scope of employment (e.g. bouncer). Not if personal grudge.

Question 170

Is it a breaking if the D gets into house with consent and then opens locked door in the house?

Answer 170

Yes

Question 171

Is judicial notice of a fact mandatory?

Answer 171

Yes, if party requests it.

Question 172

Is physical evidence required from a voluntary but 5th amendment violating statement admissible?

Answer 172

Yes

Question 173

Is tenant liable for guest’s injuries on property if there’s a sublease?

Answer 173

Yes, both tenant and sub-tenant can be liable. About who has control over it (doesn’t make that much sense)

Question 174

Is there a detrimental reliance exception to SOF?

Answer 174

yes

Question 175

Is there diversity jurisdiction if amount exactly $75k?

Answer 175

No

Question 176

Jurisdiction requirements under interpleader statute?

Answer 176

At least 2 claimants must be citizens of different states.

Question 177

Last clear chance doctrine

Answer 177

Exception to contributory negligence defense

Question 178

Learned intermediary rule

Answer 178

Exception to inadequate warning defect, when used in supervision of trained professional

Question 179

Liability for domestic animal owners?

Answer 179

Negligence, unless they know animal is a danger

Question 180

Liability for harm by your animal on someone else’s property?

Answer 180

Strict liability unless domestic pet (unless known to be dangerous)

Question 181

liability for things falling from airplanes?

Answer 181

old rule: strict liability. new rule: negligence

Question 182

Liability for your animal attacking a trespasser?

Answer 182

Not generally unless watchdog

Question 183

Limits on depositions you get to ask?

Answer 183

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

Question 184

limits on expectation damages

Answer 184

NAME?

Question 185

limits on suing states

Answer 185

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

Question 186

M’Naghtan insanity defense

Answer 186

don’t know the nature of your act or that it is wrong

Question 187

MPC approach for insanity defense

Answer 187

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)

Question 188

Must prior inconsistent statements used for impeachment be disclosed?

Answer 188

Not to witness, yes to party’s atty upon request

Question 189

must prosecutor present exculpatory evidence to a grand jury?

Answer 189

no

Question 190

notice requirements when D is a fed agency or employee (in official capacity)?

Answer 190

notify as if suit against US govt + also the agency/employee

Question 191

Pinkerton Rule

Answer 191

every co-conspirator is guilty of any foreseeable substantive offense committed in furtherance of the conspiracy

Question 192

PJ over a business

Answer 192

if corp: state of incorporation + nerve centerif unincorporated entity: where partners/owners are

Question 193

power of treaties

Answer 193

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.

Question 194

priority in a race-notice recording statute state?

Answer 194

winner is first to record among those who purchased without notice

Question 195

priv and immunity clause of art 4

Answer 195

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)

Question 196

public records hearsay exception

Answer 196

prepared by public official / agency.if police report, can only report police activities (not observations / conclusions)

Question 197

purchase money mortgage priority vs subsequent mortgage that was recorded first w/o notice of first

Answer 197

purchase money mortgage one wins

Question 198

Rape shield law in civil cases

Answer 198

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

Question 199

Rape shield law in criminal cases

Answer 199

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

Question 200

remedies for breach of equitable servitude

Answer 200

just injunction

Question 201

remedies for violation of landlord’s implied warrnty of habitability

Answer 201

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

Question 202

remedy for breach of implied covenant of quiet enjoyment

Answer 202

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

Question 203

remedy for forced confessions?

Answer 203

never admissible against person who made the statement (can admit against others)

Question 204

remedy for knock and announce violations?

Answer 204

fine as long as they have a warrant

Question 205

remedy for miranda violations?

Answer 205

can’t be part of case-in-chief. okay for impeachment/rebuttal

Question 206

requirement for easement by implied prior use

Answer 206

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

Question 207

requirement for parental consent for abortion?

Answer 207

alternative way to get if go before a judge

Question 208

requirement for search warrant contents

Answer 208

describe w/ particularity the place to be searched and what will be searched

Question 209

requirement to do a terry stop

Answer 209

reasonable suspicion of criminal activity

Question 210

requirements for a covenant to bind a successor

Answer 210

1) writing (SOF)2) notice to successor3) intent to run with the land4) touch and concern the land5) privity

Question 211

requirements for a firm offer by a merchant

Answer 211

written promise to keep open-signature/initials/letterhead-reasonable amount of time (

Question 212

Requirements for a manufacturing defect

Answer 212

Deviated from intended design in way that made it more dangerous

Question 213

requirements for a witness to testify

Answer 213

promise to tell the truth + personal knowledge

Question 214

requirements for accomplice liability

Answer 214

NAME?

Question 215

requirements for an implied reciprocal servitude

Answer 215

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)

Question 216

requirements for anti-lapse statute to apply?

Answer 216

intended beneficiary = a relative, who has surviving issue

Question 217

requirements for catch-all hearsay exception?

Answer 217

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

Question 218

requirements for collateral estoppel

Answer 218

(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

Question 219

requirements for conspiracy under common law?

Answer 219

-agreement btwn people to commit a crime-can’t be one D and the rest people who don’t intend to go along

Question 220

requirements for easement by necessity

Answer 220

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)

Question 221

requirements for equitable servitude

Answer 221

1) writing (unless implied reciprocal servitude)2) notice3) touch and concern4) intent to bind successors

Question 222

requirements for impleader

Answer 222

(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

Question 223

requirements for interpleader statute (smj, pj, venue)

Answer 223

-$500 at stake-minimal diversity-PJ: whole country-venue: any district where any claimant resides

Question 224

Requirements for introducing a prior inconsistent statement to impeach a witness?

Answer 224

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.

Question 225

requirements for involuntary manslaughter

Answer 225

NAME?

Question 226

requirements for parental notification for abortion law?

Answer 226

fine

Question 227

requirements for removal

Answer 227

-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

Question 228

requirements for res judicata

Answer 228

(claim preclusion)-final judgment on the merits-same parties (or successors)-same claim (same trnsct/occurrence) or cause of action

Question 229

requirements for serving someone at their house?

Answer 229

leave with a person of suitable age and discretion at D’s primary adobe

Question 230

requirements to be an accessory after the fact?

Answer 230

NAME?

Question 231

requirements to create joint tenancy

Answer 231

clear expression of intent + survivorship language

Question 232

requirements to create tenancy by the entirety

Answer 232

clear expression of intent + survivorship language

Question 233

Requirements to file motion for judgment as a matter of law after jury verdict

Answer 233

Filed before evidence submitted to the jury (i.e. renewing it now) and w/in 28 days of judgment.

Question 234

requirements to maintain joint tenancy

Answer 234

(PITT) need unity of: interest; possession; timing; and title (must receive interest in same instrument or title)

Question 235

requirements to maintain tenancy by the entirety

Answer 235

same as joint tenancy + marriage

Question 236

Requirements to make a citizens arrest

Answer 236

1) arrest is for a felony2) the felony actually occurred3) reasonable grounds for thinking the arrested person did it

Question 237

requirements to meet obscenity exception

Answer 237

1) prurient2) lacking any serious value (nat’l standard)3) offensive to avg person4) not overbroad

Question 238

requirements to transfer to a district

Answer 238

it must have proper venue, unless initial district had proper venue and all parties consent

Question 239

restrictions on when court can impose capital punishment

Answer 239

if 1 victim, only if the victim diesD must not be under 18 at time of crime; mentally retarded; insane at time of execution

Question 240

Right to counsel at a Gerstein hearing?

Answer 240

No

Question 241

risk of loss if buyer repudiates before delivery?

Answer 241

if identified goods, then risk on buyer still for a commercially reasonable amount of time. buyer responsible for damages net of seller’s insurance.

Question 242

rules for appealing class cert decisions? deadline to file?

Answer 242

discretion of appellate court, must be w/in 14 days.

Question 243

rules for impeaching a witness through their character

Answer 243

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

Question 244

Rules for when adding a new party in an amended pleading gets the initial filing date for SOL purposes?

Answer 244

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

Question 245

scrutiny standard for illegitimate child discrimination?

Answer 245

intermediate

Question 246

service of process to a corp

Answer 246

give to agent/officercan’t just give to an employee

Question 247

Serving a complaint on a fed official sued personally

Answer 247

Must serve the US (letter to AG) + the officer individually under normal individual rules

Question 248

SOF requirements for sales of goods

Answer 248

(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

Question 249

special rules for tenancies by the entirety

Answer 249

can’t alienate/encumber interests without consent of other spouse

Question 250

speech or debate clause immunity for members of congress

Answer 250

can’t use their official acts (votes, introductions of bills) as evidence against them

Question 251

spousal immunity from testifying against other spouse

Answer 251

one spouse can choose not to testify against other in CRIMINAL trials, if married at time of trial

Question 252

Standard for a design defect

Answer 252

Consumer expectations test OR cost-benefit

Question 253

standard for a valid guilty plea

Answer 253

knowing and intelligent + allocution w/ judge

Question 254

standard for joinder of multiple claims between 1 P and 1 D

Answer 254

automatic, but no automatic supplemental jurisdiction

Question 255

standard for meeting implied warranty of merchantability?

Answer 255

fit for ordinary purposes

Question 256

Standard for ordering a new trial based on new evidence (civil)

Answer 256

(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.

Question 257

standard for present sense impressions hearsay exception

Answer 257

made contemporaneously w/ thing being described

Question 258

standard for something to count as a 4th am seizure?

Answer 258

reasonable person wouldn’t feel free to leave-must be intentional-if suspect gets shot

Question 259

standard for waiving 6th am right to counsel?

Answer 259

knowing and intelligent

Question 260

standard for warrantless automobile searches

Answer 260

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

Question 261

Standard for whether a contact is a battery

Answer 261

Person of ordinary sensibilities, unless D knew victim was hypersensitive.

Question 262

Standard of care for professionals

Answer 262

Skill knowledge and care of another professional in the community

Question 263

Standard of care for torts by children

Answer 263

Intelligence, education, and experience as a child of same age

Question 264

standard of review for bench trial finding of fact?

Answer 264

clearly erroneous

Question 265

standard of review for jury finding of fact?

Answer 265

substantial evidence

Question 266

standard of review on race based affirmative action

Answer 266

strict scrutiny

Question 267

Standard to do TRO hearing without notice to other party

Answer 267

Atty must certify in writing harm from giving notice / efforts to give notice

Question 268

standard to get a search warrant

Answer 268

probable cause that search will turn up-fruits of crime, instrumentalities of crime, or evidence

Question 269

standards for disclaiming implied warranty of fitness for a particular purpose

Answer 269

“as is”, conspicuous. MUST be written

Question 270

standards for IAC if conflict of interest

Answer 270

presumption not harmless if it affected atty’s behavior

Question 271

statement of RAP

Answer 271

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.

Question 272

statements to medical personnel hearsay exception

Answer 272

for diagnosis / treatment

Question 273

supplemental jurisdiction to add new P against same D

Answer 273

need diversity. don’t need amount in controversy

Question 274

Test for commercial speech prohibition to be valid

Answer 274

If speech is truthful/informational, the reg must directly advance a substantial govt interest and be narrowly tailored (reasonable fit)

Question 275

test to distinguish a gift from consideration

Answer 275

if offeree could have reasonably believed the intent of the offeror was to induce the action, then consideration.

Question 276

The Rule of Shelly’s Case

Answer 276

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

Question 277

timing of hearing for disability benefit revocation

Answer 277

post-deprivation is fine

Question 278

timing of hearing for dismissing student on academic grounds

Answer 278

must be pre-deprivation

Question 279

treatises hearsay exception

Answer 279

relied on by expert and reliable authority

Question 280

types of waste

Answer 280

affirmative; permissive; ameliorative (change in nature/use of property)

Question 281

UCC requirements for what must be included in an offer

Answer 281

quantity and parties

Question 282

under common law can accomplice be liable if principal not convicted?

Answer 282

no

Question 283

under common law, when does acceptance w/ new terms count as acceptance?

Answer 283

it doesn’t - mirror image rule

Question 284

under UCC, when acceptance included new terms from offer, which terms govern?

Answer 284

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

Question 285

under UCC, when does acceptance w/ new terms count as acceptance?

Answer 285

unless material changes or says accepting only if these new terms are accepted

Question 286

venue for business

Answer 286

-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

Question 287

venue for individuals

Answer 287

-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

Question 288

venue in suits against govt

Answer 288

NAME?

Question 289

venue requirements for foreign defendants?

Answer 289

any judicial district in the US

Question 290

Westfall Act

Answer 290

Fed employees immune from state tort law

Question 291

wharton rule

Answer 291

can’t have a conspiracy unless more people than needed to commit the crime (no 2 person adultery conspiracies)

Question 292

what are co-conspirators liable for?

Answer 292

the crime of conspiracy + any crime committed in furtherance of the conspiracy

Question 293

what are damages if substantial (but not perfect) performance?

Answer 293

extra cost to fully-perform, but sometimes limited to diminution in market value (unless willfull)

Question 294

what are exceptions to exclusionary rule?

Answer 294

-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)

Question 295

what are exceptions to mailbox rule?

Answer 295

-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

Question 296

what are privity requirements to pass down benefit of covenant to successor?

Answer 296

vertical privity (carved out of original interest)

Question 297

what are privity requirements to pass down burden of covenant to successor?

Answer 297

1) vertical privity (full interest)2) horizontal privity (grantor-grantee, common ownership interest)

Question 298

what are prosecutor’s duties to turn over exculpatory evidence?

Answer 298

covers: ev D didn’t commit the crime + ev against credibility of prosecution witnessscope: anything in govt’s possession (even if unaware)

Question 299

what are the elements of attempt?

Answer 299

1) specific intent to commit a crime2) substantial (major) step towards perpetrating the crime

Question 300

what are the two approaches to water rights?

Answer 300

riparian: next to water, can make reasonable uses.prior appropriation: first-in-time: must be using for beneficial use

Question 301

what are the types of implied easements?

Answer 301

1) easement by prescription2) easement by necessity3) easement by prior use4) easement by reliance

Question 302

what can a juror testify about

Answer 302

inappropriate external influences

Question 303

What can a witness’s prior inconsistent statement be used to prove?

Answer 303

ImpeachmentSubstantive point, since they’re testifying.

Question 304

what can officer do if suspect asks for a lawyer?

Answer 304

questioning must stop until1) lawyer shows up; 2)suspect initiates; 3) 2 wks + miranda re-read

Question 305

what can officer do if suspect says doesn’t want to answer questions?

Answer 305

must stop; can try again after substantial time

Question 306

what can party do if other side says they will breach, before the deadline.

Answer 306

can sue now or wait for the deadline.-can’t sue if you’re only waiting to get paid

Question 307

What creates presumption that a letter has been received by recipient?

Answer 307

Sender places properly addressed and stamped envelope into mailbox

Question 308

what crimes is accomplice liable for?

Answer 308

the planned crime + all crimes that are reasonably foreseeable

Question 309

what crimes trigger right to jury trial?

Answer 309

if authorized punishment >6 months prison

Question 310

What damages must be shown for libel

Answer 310

Only general damages, jury can estimate

Question 311

What damages must be shown for slander

Answer 311

Special damages (concrete, specific)Unless: commission of serious crime; loathsome disease; unfit for their business; severe sexual misconduct

Question 312

what does 5th am right to counsel guarantee?

Answer 312

lawyer during custodial interrogations (if you ask)

Question 313

what does 8th am cover

Answer 313

only punishments (stuff done in prison count)

Question 314

what does an anti-ademption statute do?

Answer 314

gives the intended recipient of the property that’s no longer in the estate the proceedsd from the sale of that estate

Question 315

what does double jeopardy protect against?

Answer 315

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

Question 316

what does L have tort liability for?

Answer 316

common areas; areas under L’s control; faulty repairs; hidden dangers T didn’t have notice of

Question 317

What evidence is considered self-authenticating?

Answer 317

Trade labelsPublic records (signed and sealed/certified)Business records (but must give other side notice and chance to inspect)Newspaper

Question 318

what happens if a lender transfers a mortgage w/o the note? or a note w/o the mortgage

Answer 318

usually they follow each other

Question 319

What happens if judge erroneously denies D’s preemptory challenge?

Answer 319

Ok if fed court, i.e. doesn’t violate constitution.States can choose whether automatic reversal or harmless error analysis.

Question 320

what happens if landlord accepts rent in a tenancy at sufferance?

Answer 320

converted to a periodic tenancy

Question 321

what happens if seller makes a bid at an auction

Answer 321

winner can take the goods at the price of the last good-faith bid-exception: forced sale or seller reserved the right to bid

Question 322

what if the goods identified in the contract are destroyed?

Answer 322

if risk has passed to buyer, on the buyer.otherwise contract is void(assuming not the fault of one of the parties)

Question 323

what interests does RAP apply to?

Answer 323

contingent remainders and executory interests. not when property reverts to grantor.

Question 324

what is “O gives to x, but if x is used as a farm then O can reenter x”

Answer 324

fee simple subject to condition of subsequent

Question 325

what is “to x, but if x is used as a farm, then to y”

Answer 325

fee simple subject to executory interest

Question 326

what is “to x, while x is used as a farm”

Answer 326

fee simple determinable

Question 327

what is a special warrant deed

Answer 327

guarantees against any defects in the deed the owner is responsible for

Question 328

what is a state’s criminal jurisdiction?

Answer 328

NAME?

Question 329

what is common law age that child can be prosecuted for a crime?

Answer 329

7.7-14 rebuttal presumption that incapable of committing the crime.

Question 330

what is common law rule when recording statute doesn’t apply?

Answer 330

first in time wins (first to receive valid deed)

Question 331

What is difference between survivor action and wrongful death action?

Answer 331

Survivor action brought on behalf of decedent’s estate, wrongful death brought by living relatives

Question 332

what is doctrine of worthier title?

Answer 332

presumption that reversion of life estate goes to grantor rather than grantor’s heirs

Question 333

what is effect of taking out a mortgage on a joint tenancy interest?

Answer 333

majority (lien states): fine. minority (title states): counts as transferring the title, so severs the mortgage

Question 334

What is effect of unlawful arrest?

Answer 334

Evidence seized pursuant to the arrest might be excluded. Confession closely connected to the illegal arrest might be excluded.

Question 335

what is exception to implied warranty of merchantability?

Answer 335

buyer had opportunity to inspect, and reasonable inspection would have revealed the defect

Question 336

what is federal criminal jurisdiction

Answer 336

US citizens anywhere they are, anyone in the US, on ships and planes

Question 337

what is implied covenant of marketable title?

Answer 337

implied into contract for sale of land. title must be free of unreasonable risk of litigation

Question 338

what is implied covenant of seizin?

Answer 338

deed describes the land in question

Question 339

what is implied warranty of fitness and suitability (for new construction). who can enforce?

Answer 339

no defects in new construction. first and second buyers can enforce.

Question 340

what is needed for exigent circumstances exception for search w/o warrant

Answer 340

likely immediate danger. not created by officers themselves.suspect fleeing counts, drunk driving doesn’t

Question 341

what is order of priority for debt repayment after a foreclosure?

Answer 341

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

Question 342

what is scope for a search incident to arrest?

Answer 342

where the suspect can reach at the time of arrest (rationale: officer safety, evidence in suspect’s possession). Also DNA sample.

Question 343

what is standard for a D being competent to stand trial?

Answer 343

capable of understanding proceedings against them AND able to assist their attorney

Question 344

What is standard for evidence being excluded under Rule 403?

Answer 344

Probative value substantially outweighed by prejudicial effect

Question 345

What is standard of care towards a foreseeable / known trespasser?

Answer 345

Warn of hidden dangers (same as licensee)

Question 346

what is the contract clause

Answer 346

states can’t legislate impairments to existing contracts, unless overriding need (e.g. great depression)-doesn’t apply to fed govt

Question 347

What is tort of injurious falsehood

Answer 347

Trade libel, like defamation but statements that harm your business, not your reputation

Question 348

what is your scope of possession after successful adverse possession?

Answer 348

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

Question 349

what liberty interests protected under procedural due process?

Answer 349

right to work, travel, procreate, marry, physical injury, legal rights (e.g. free speech), stigma that affect ability to be employed

Question 350

what must a valid arrest warrant include?

Answer 350

name of person to be arrested + crime they’re charged with

Question 351

what sentences does 8th am restrict?

Answer 351

doesn’t cover sentence length generally.juveniles can’t get mandatory life w/o parole, or life w/o parole for non-homicides

Question 352

what sources of information can expert witness rely on

Answer 352

personal observation; evidence from trial; evidence not admitted at trial if reasonably relied upon by such experts

Question 353

What statements can’t constitute defamation?

Answer 353

Between spousesJudicial proceedingLegislative proceedingPolitical statements a newspaper/radio required to carryConditional privilege (good faith, you have some duty)

Question 354

what terms govern a tenancy at sufferance?

Answer 354

last prior lease

Question 355

what triggers 6th am right to counsel?

Answer 355

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)

Question 356

what type of easements must be express?

Answer 356

a negative easement

Question 357

what violates landlord’s implied covenant of quiet enjoyment?

Answer 357

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

Question 358

what violates landlord’s implied warranty of habitability

Answer 358

L fails to maintain the property so that it’s suitable for residential use (safety/health code violations).

Question 359

What witnesses are allowed to hear the testimony of other witnesses?

Answer 359

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)

Question 360

when are “future modification in writing” terms valid?

Answer 360

if only 1 party is a merchant, then must be in writing

Question 361

When are interlocutory appeals available?

Answer 361

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)

Question 362

When are juvenile convictions admissible for impeachment?

Answer 362

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.

Question 363

when are laws against expressive conduct ok?

Answer 363

1) prohibiting the expressive part is secondary effect, not the purpose2) substantial interest3) burden no greater than necessary

Question 364

when are liquidated damages enforceable?

Answer 364

if amount is reasonable (judged from time of contracting) and actual damages too hard to prove-can’t be punitive

Question 365

When are multiple D’s liable for a tort if can’t prove which one did it?

Answer 365

if they were all negligent

Question 366

When are prior out of court identifications admissible?

Answer 366

The declarant must be testifying now. So not if declarant unavailable.

Question 367

when are right of first refusals subject to RAP?

Answer 367

always unless it’s a current tenant w/ option to purchased the rented land

Question 368

when are you liable if you cause a cave-in on neighbor’s land?

Answer 368

if all your fault then strictly liable. if they contributed then negligence

Question 369

when are you liable if your subjacent use of land causes damage to surface-level property?

Answer 369

strict liability if property there when you acquired the interestnegligence if built subsequently

Question 370

when can a buyer insure goods?

Answer 370

if they’re specifically identified (e.g. crops must have been planted)

Question 371

When can a bystander sue D for IIED conduct?

Answer 371

1) Bystander is member of victim’s immediate family AND D knows they’re presentOR 2) bystander suffers physical injury

Question 372

when can a contract be modified under common law?

Answer 372

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

Question 373

when can a contract be modified under UCC?

Answer 373

good faith

Question 374

when can a cop enter someone else’s home to arrest someone pursuant to an arrest warrant?

Answer 374

must be consent or exigent circumstances

Question 375

When can a D implead a third party? Does D need court’s permission?

Answer 375

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.

Question 376

When can a fed trial have less than 12 members?

Answer 376

Must be waived in writing and approved by the court11 is fine is one juror is excused for good cause after deliberations begin

Question 377

When can a federal trial be decided by a non-unanimous jury?

Answer 377

If parties stipulate.

Question 378

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?

Answer 378

Always. Only if made at formal proceeding.

Question 379

When can a prior statement by someone made at a formal proceeding be admitted?

Answer 379

Okay if they’re now testifying or if they’re unavailable.

Question 380

When can a state be sued in federal court?

Answer 380

1) injunctive relief2) congress authorizes as per 14th am3) P is US govt or a different state

Question 381

when can a state govt discriminate based on citizenship?

Answer 381

essential state function, like teacher, police, jury, voting

Question 382

When can a state tax commerce?

Answer 382

“substantial nexus” between taxing state and thing being taxed

Question 383

when can a state tax personal property in the state?

Answer 383

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

Question 384

when can a third-party contract beneficiary prevent the parties from modifying the contract to exclude them?

Answer 384

reliance, they’ve assented, or they’ve tried to enforce

Question 385

when can buyer get goods from seller? (equitable remedy)

Answer 385

-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

Question 386

when can buyer refuse delivery under UCC?

Answer 386

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

Question 387

When can compromise offers be admitted?

Answer 387

If no dispute as to their validity or amount.

Question 388

when can fed govt discriminate based on citizenship?

Answer 388

anytime

Question 389

when can govt limit contributions to a candidate?

Answer 389

yes if satisfies intermediate scrutiny. “closely drawn” to correspond to important interest

Question 390

when can govt limit independent expenditures

Answer 390

never

Question 391

when can govt regulate speech on private property

Answer 391

strict scrutiny

Question 392

when can govt regulate speech on public property that’s not a public forum?

Answer 392

must be reasonable (i.e. viewpoint neutral)

Question 393

when can govt regulate verbal speech in a public forum?

Answer 393

(TPM)1) content neutral (or exception applies)2) leaves open alternate channels of communication3) narrowly tailored to significant government interestOtherwise, strict scrutiny

Question 394

when can judge order a mis-trial?

Answer 394

“manifest necessity” = jury deadlocked OR D at fault

Question 395

when can landlord deny a sublease/assignment?

Answer 395

majority rule: commercially valid reason only. minority: anytime

Question 396

When can mortgagee sue borrower for outstanding balance of loan after a foreclosure?

Answer 396

Generally they can, but same states disallow if privately-supervised foreclosure sale or if purchase money mortgage

Question 397

When can mortgagor waive equity of redemption?

Answer 397

Only if waiver had consideration (courts don’t like to clog the equity)

Question 398

when can new P intervene to join a lawsuit?

Answer 398

(intervention)common question of fact or lawmust show jurisdiction

Question 399

when can officers enter a home to arrest without a warrant?

Answer 399

exigent circumstances or consent

Question 400

when can officers make an arrest without a warrant?

Answer 400

if not felony: only if they personally witness the crime, or learned from a terry stop

Question 401

when can omissions count as an actus reus?

Answer 401

NAME?

Question 402

when can one side waive an obligation of the other side under the UCC?

Answer 402

you can waive it, but you can revoke your waiver unless they relied on it

Question 403

when can one testify about conversations for settling / plea?

Answer 403

can’t unless knowingly waived with lawyer

Question 404

When can prosecution introduce evidence that D is violent if D argues self-defense?

Answer 404

Only if D introduces evidence that victim was violent.

Question 405

when can seller get unpaid-for goods back from buyer?

Answer 405

(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

Question 406

When can someone make citizens arrest for misdemeanor?

Answer 406

Only if breach of the peace occurring or imminent

Question 407

when can state deny public employment based on group membership?

Answer 407

1) active member of subversive group2) knowledge of group’s illegal activities3) specific intent to further group’s illegal activities

Question 408

when can third parties consent to a search?

Answer 408

if they have apparent authority. if co-occupant consents and you don’t, police can’t search you (if both present)

Question 409

when can you bolster a witness’s credibility?

Answer 409

only after it has been attacked

Question 410

when can you recover for economic damages in a negligence suit?

Answer 410

only if property damage / personal injury as well

Question 411

when can you recover for only emotional damages in negligence?

Answer 411

if negligent infliction of emotional distress, otherwise need something else too

Question 412

when can you search without a warrant?

Answer 412

Exigent circumstances; search incident to arrest; consent; automobile; plain view; administrative search; stop and frisk

Question 413

when can you stop performing if you think other side might breach?

Answer 413

can demand assurance of performance, and if they fail to respond that counts as repudiation

Question 414

when can you sue a state / state officials for money damages?

Answer 414

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

Question 415

When can you sue government contractor for a tort?

Answer 415

Same limits as suing government if conformed to regulations AND govt knew about the issue

Question 416

when can you sue government for torts

Answer 416

generally, unless traditional govt function or certain intentional torts:Assault, battery, false imprisonment, false arrest, malicious prosecution, libel, slander, misrepresentation, interference with contractual rights

Question 417

when can you tack on time of previous adverse possessor?

Answer 417

some formal relationship, e.g. privity between them

Question 418

when can you use criminal convictions to impeach witness?

Answer 418

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)

Question 419

when can you use external evidence to establish a witness’s prior inconsistent statement

Answer 419

generally, but other witnesses can only testify to refute or else hearsay

Question 420

when do junior interests survive a foreclosure?

Answer 420

if the jr mortgagee wasn’t given notice and joined as a party (rationale: they get chance to redeem sr mortgage)

Question 421

when do taxpayer’s have standing to challenge govt expenditure?

Answer 421

to challenge expenditure that violates establishment clause

Question 422

when does 1 person 1 vote apply?

Answer 422

elections of representatives by district (not senate)-exception: if limited government body, can apportion votes based on interest

Question 423

when does a confirming memo alter terms of an already existing oral agreement?

Answer 423

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

Question 424

when does a contract for sale of land not need to be written?

Answer 424

-part performance (2/3 of possession, improvement, payment)-detrimental reliance

Question 425

when does a deed transfer become valid?

Answer 425

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)

Question 426

when does a periodic tenancy terminate?

Answer 426

notice before beginning of what will be the last period

Question 427

when does a state reg violate dormant commerce clause?

Answer 427

-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

Question 428

when does a statute of limitations start to run for crimes/conspiracy

Answer 428

crimes: when completeconspiracy: when goal achieved or abandoned

Question 429

when does congress need to approve interstate compact?

Answer 429

when implicates a federal interest

Question 430

when does first jeopardy begin for double jeopardy purposes?

Answer 430

jury trial: jury sworn inbench trial: first witness sworn in(this is latest prosecutor can modify indictment charges)

Question 431

when does risk of loss pass to buyer?

Answer 431

-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

Question 432

when does silence constitute acceptance of a contract?

Answer 432

NAME?

Question 433

When does SOF 1 year countdown begin?

Answer 433

The day after the contract is agreed to. Must be complete w/in 1 year of that.

Question 434

when does soliciation turn into conspiracy?

Answer 434

if other person agrees to help

Question 435

when is a contract void b/c of duress

Answer 435

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

Question 436

when is a contract void b/c of untrue statement at time of contracting?

Answer 436

1) material OR fraudulent2) made under circumstances where justifiable to rely on the representation-exception: if false fact cured

Question 437

when is a contract void for misunderstanding?

Answer 437

1) both interpretations were reasonable2) actual difference of opinion existed3) neither side was aware of the confusion4) the term was material

Question 438

when is a contract void for unilateral mistake?

Answer 438

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

Question 439

when is a contract voidable against intoxicated person

Answer 439

other side must know AND you’re so intoxicated you don’t understand the nature of your actions

Question 440

when is a contract voidable against someone based on mental incapacity

Answer 440

-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

Question 441

when is a contract voidable by an under-age party?

Answer 441

always (unless ratified subsequently). if involved a necessity, the minor might still have to pay FMV

Question 442

when is a contract voidable for mutual mistake?

Answer 442

1) both sides mistaken about a basic material fact2) adversely affected party didn’t assume (contemplate) risk of mistake

Question 443

When is a covenant terminated?

Answer 443

NAME?

Question 444

When is a holdover tenant subject to a higher rent amount?

Answer 444

if the landlord gave notice before old lease ended and the increase is reasonable.

Question 445

when is a miranda warning required?

Answer 445

custodial interrogations (not free to leave and return to normal place b/c of police). exception: public safety

Question 446

when is a revocation effective?

Answer 446

when offeree learns of it

Question 447

when is a right of first refusal to buy property valid?

Answer 447

1) complies with SOF, 2) complies with RAP (if individual right then probably ok), 3) its terms are reasonable.

Question 448

when is a traffic checkpoint allowable?

Answer 448

predetermined basis for stopping cars-only certain car-related goals permissible (sobriety, not to find drugs)

Question 449

When is a voluntary dismissal with prejudice?

Answer 449

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)

Question 450

when is affirmative action valid

Answer 450

correcting past discrimination by same actor, ORcollege or grad school admissions (and holistic)

Question 451

when is an easement terminated?

Answer 451

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

Question 452

When is an employer liable for employee’s actions?

Answer 452

Employee vs indep contractor (control over how work is performed)w/in scope of employment

Question 453

when is an offer irrevocable?

Answer 453

NAME?

Question 454

When is consideration of mitigating factors required at sentencing?

Answer 454

Only in death penalty cases

Question 455

when is involuntary intoxication a defense?

Answer 455

anything but a strict liability crime.involuntary intoxication: if D was forced, or unexpected reaction

Question 456

when is jury right available in civil trials?

Answer 456

trials at law (damages). if overlap do legal issues first.

Question 457

when is mistake of law an excuse to a crime?

Answer 457

NAME?

Question 458

When is parent liable for acts of child?

Answer 458

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)

Question 459

when is SOF satisfied by performance on real estate deals

Answer 459

need 2/3:-possession-improvements-payment

Question 460

when is SOF satisfied via performance?

Answer 460

FULL performance of a service contract (unless real estate deal)

Question 461

When is the bubble of a presumption bursted?

Answer 461

After other party introduces sufficient evidence to conclude the opposite. Then presumption has no effect.

Question 462

when is there a hearsay exception for prior statements by a testifying witness?

Answer 462

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)

Question 463

when is there a hearsay exception for statements made by opposing party?

Answer 463

also covers agents speaking on your behalfalso covers co-conspirator statements that were on behalf of the conspiracy

Question 464

when is there a hearsay exception from declarant being unavailable to testify?

Answer 464

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

Question 465

When is there federal question jurisdiction if the cause of action was created under state law?

Answer 465

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.

Question 466

when is there general PJ over an individual D?

Answer 466

-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

Question 467

when is voluntary intoxication a defense?

Answer 467

NAME?

Question 468

when most worried about public endorsements of religion

Answer 468

settings where likely to be coercive (schools), or if clear endorsement. sometimes need to dilute religious message

Question 469

when must a modification be in writing

Answer 469

if the modified contract would be covered by SOF

Question 470

when one side’s performance takes place over time, when is payment due?

Answer 470

default rule: at end of performance

Question 471

when PJ over a foreign D?

Answer 471

domicile if there is oneany state, if fed question + no state has PJ + min contacts w/ US as whole

Question 472

When the United States is a defendant in a civil action, service must be made on the U.S.

Answer 472

Attorney General as well as the U.S. attorney for the district in which the action has been filed.

Question 473

When will courts enforce clauses in contract that disclaim tort liability?

Answer 473

Generally, but not when 1) recklessness, 2) gross disparity in bargaining power, 3) common carrier

Question 474

where can police do warrantless administrative searches?

Answer 474

airplane boarding areas; highly regulated industries; roadblocks for seeking information-fire/health inspectors looking for code violations need warrants

Question 475

Where is citizenship of an insurer?

Answer 475

Wherever it is incorporated + principal place of business + citizenship of its insured (rationale: otherwise could sue insurer if couldn’t reach insured)

Question 476

which content based speech regulations are okay?

Answer 476

(only ok if viewpoint neutral)-obscenity-incitement to violence-fighting words-defamation-commercial speech that’s misleading

Question 477

which district’s law governs after a transfer

Answer 477

if initial district had venue, old one’sif initial district lacked venue, new one’s

Question 478

Which types of criminal convictions can be admitted for impeachment? What is standard?

Answer 478

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

Question 479

which witnesses does D have right to cross-examine under confrontation clause?

Answer 479

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

Question 480

who bears risk of loss of property between contract signed and closing?

Answer 480

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)

Question 481

who can assert exclusionary rule to block piece of evidence from being admitted?

Answer 481

only if violation of D’s rights (no co-defendants)-car passengers count

Question 482

Who can enforce an equitable easement?

Answer 482

Only the successors in interest to the original deed (e.g. not neighbors)

Question 483

who gets an assignment if the assigned rights have been assigned twice?

Answer 483

if no consideration, the most recent one gets itif consideration, the first assignment gets priority

Question 484

who gets to file a habeas suit?

Answer 484

anyone detained by US in territory over which US has sovereign control (e.g. outside US)

Question 485

who gets to keep a fixture after a sale?

Answer 485

default: buyer does

Question 486

Who is liable in strict products liability?

Answer 486

Anyone in the business of selling the productNo privity requirement

Question 487

who is not protected by recording statutes?

Answer 487

people who get the interest by gift / inheritance

Question 488

who is protected from familial status discrimination under fair housing act?

Answer 488

families w/ kids under 18. doesn’t protect marital status. exception if senior living or restriction is for child’s safety

Question 489

Who may serve process in fed court?

Answer 489

Any non-party over 18 years old

Question 490

Who must answer be served to?

Answer 490

P’s atty w/in 21 days, and then filed with the court clerk w/in a reasonable time after service

Question 491

withdrawal from conspiracy under common law

Answer 491

can’t withdraw once agreement is formed, but can cut off liability for future crimes

Question 492

work product doctrine elements

Answer 492

document prepared by lawyer in anticipation of litigationmental impression notes require extremely high showing