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MBE Final Review > Notes 3 > Flashcards

Notes 3 Flashcards

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1
Q

Rights at grand jury?

A

≠ miranda, counsel inside jury room, confront witnesses, cross examine, introduce evidence, be present, exclusionary rules do not apply, Federal rules of evidence do not apply

ONLY PRIVILEGES APPLY

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2
Q

Transferred intent occurs when?

A

You mean to hit person X but miss and hit person Y

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3
Q

Risk of loss for new construction

A

When a building is destroyed without fault, builder bears the risk of loss

=breach if builder walks away

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4
Q

Risk of loss for renovations

A

When a building during renovation or remodeling is destroyed without fault, excuse builder’s duty to perform

≠ breach if builder walks away

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5
Q

Time limit on when a diversity case may be removed to federal court?
(2)

A

30 days after party or claim is added

≠ more than one year after original commencement of action (unless bad faith destroyed diversity to prevent removal)

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6
Q

When can you aggregate claims in diversity jurisdiction?

A

As long as the claims are against the same ∆

≠ punitive

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7
Q

Privileges and Immunities Clause prohibits?

A

Only applies to state action

One state from discriminating against the citizens of another state

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8
Q

Contracts Clause only applies to

A

state action invalidating contract rights of parties

≠fed gov’t

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9
Q

Equal Protection Clause of the 14th amendment only applies to?

A

The states

≠fed gov’t

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10
Q

Criminal trial impeachment with specific acts requires?

A

An open door + cross examination

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11
Q

Mailbox rule only applies to

A

An acceptance of an offer that is sent first

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12
Q

When can a state law supercede federal law?

3

A

When the federal gov’t sets the floor

  1. health
  2. safety
  3. welfare
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13
Q

Can the president sell military equipment?

A

No, only congress can sell federal property

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14
Q

When can former testimony come into a trial?

3

A
  1. Testimony given as a witness at another hearing of the same or difference proceeding, or in a deposition
  2. unavailable declarant
  3. Opportunity and similar motive to develop the testimony (even if π’s are different and suing same ∆)
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15
Q

Affirmative defenses that must be in a pleading or they will be waived?
(8)

A
  • assumption of risk;
  • contributory negligence;
  • duress;
  • failure of consideration;
  • fraud;
  • illegality;
  • statute of frauds;
  • statute of imitations;
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16
Q

FOB seller’s place of business
v.
FOB buyer’s place of business

A

Risk of loss is on the buyer during transit

Risk of loss on seller during transit

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17
Q

Requirements for Bona Fide Purchaser

3

A
  1. Pays Value
  2. Takes in good faith
  3. takes without notice (previous assignments/transfers on record)
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18
Q

Pays value for Bona Fide Purchaser includes?

A
  1. Purchaser
  2. Mortgagee
  3. Judgement creditor
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19
Q

Who wins in recording statutes

  1. Race
  2. Notice
  3. Race/Notice
A
  1. 1st to record wins
  2. last BFP wins (no requirement to record)
  3. 1st BFP to record wins
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20
Q

How to tell the difference between a notice v. race-notice statute?

A

The word “first” will be in the statute

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21
Q

When does the shelter rule apply and what is it’s effect?

A

Applies = When a grantee receives an interest in property from a BFP

-Three transactions Owner –> BFP –> Shelter

Grantee is protected as a BFP

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22
Q

Riparian Rights v. Surface Waters

A

Cannot exclude water from flowing downstream (streams, rivers an lakes)

Can exclude all surface

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23
Q

Duties of care owed to entrants onto land?

  1. Unknown Trespasser
  2. Known/Anticipated Trespasser
  3. Licensee
  4. Invitiee
A
  1. no duty
  2. Warn of known dangers
  3. Warn of known dangers
  4. inspect + make safe
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24
Q

A product may be defective as designed for strict liability if
(2)

A
  1. Where the magnitude of the danger > utility of product; or,
  2. Even if there is a warning, where feasible alternative designs are available with less harmful consequences
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25
Q

Strict Liability for ultra-hazordous activity requires?

2

A

Foreseeable Injury
+
Foreseeable victim (inside zone of danger)

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26
Q

A party, called as an adverse witness, is generally not allowed to be asked a leading question

A

by his own attorney on cross examination

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27
Q

Exception to surety/guarentee SOF requirement?

A

If the main purpose to the surety is for the benefit of the provider of the surety

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28
Q

Exceptions to the fundamental right to vote?

A

Special limited purpose voting districts

-limiting right based on: (1) age, (2) residency, (3) citizenship: apply rationale basis (if you can change it = rationale basis)

≠things you cannot change (race, gender)

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29
Q

What precludes jurors from being stricken on account of their race or gender

A

Equal protection clause

30
Q

What is a Batson challenge?

A

a challenge that someone has be strucken for race or gender

Remedy = showing a cause other than race or gender

31
Q

How many premeptory challenges are allowed in Fed?

A

3 strikes

32
Q

Negligent infliction of emotional distress requires?

A

Accompanying physical injury + mental consequences

-Presumed if there is mishandling of a corpse or report of a dead loved one

33
Q

Judicial notice is mandatory when?

A

If requested by a party and supplied with the necessary information

34
Q

Judicial notice is proper of facts?

2

A

Not subject to reasonable dispute

  1. generally known within the jurisdiction
  2. capable of accurate and ready determination by reliable sources
35
Q

Jury must accept a judicially noticed fact as:

  • Criminal Trial
  • Civil Trial
A

Criminal: may consider it

Civil: Must take as true

36
Q

What happens to joint tenancy in a title theory jurisdiction when taken out on property?

A

Joint tenancy is severed because title passes to mortgagee

37
Q

Commerce clause applies to commerce among

2

A

States with states

States with foreign nations

38
Q

Erie Doctrine Balancing Test

A

When federal case law v. state statute (sitting in diversity)

Is the state law integral to the substantive rights and obligations at issue

Yes = follow the state statute

≠when fed statute in diversity

39
Q

Defamation Elements

A
  1. statement of fact (not opinion)

2. ∆ publishes to a 3rd party who reasonably understands

40
Q

Defamation Standard of proof based upon the person

3

A
  1. Public official/Public Figure = Malice
  2. Private person Matter of public concern = negligence
  3. Private person + Matter of only private concern = publication only
41
Q

Defamation damages

2

A

General damages presumed

Special damages must be shown (unless libel or slander per se)

42
Q

Forum Non Conveniens standard

A

Court’s discretion

Can refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties

43
Q

Duty to retreat only applies

A

when deadly force is being threatened

44
Q

If an adverse possessor asserts his right out of color of title, what is his property interest?

A

The entire interest found in the deed

45
Q

In order for adverse possession to be tolled by disability, what must happen?

A

The adverse possession must begin during the disability

46
Q

Enforceability of contracts with

Mutual Mistake?
Unilateral Mistake?

A

Mutual: both parties mistaken of a material party of agreement = RECISSION of contract

Unilateral = ENFORCEABLE unless non-mistaken party knew or should have known of the other parties mistake

47
Q

Completeness doctrine applies when?

A

When Party 1 introduces part of a writing

Party 2 can introduce any other party of writing which in fairness ought to be brought in

≠ a hearsay exception

48
Q

Degree required for Truth as absolute defense to defamation?

A

The statement has to be close enough to true

49
Q

Full Faith and Credit Clause requires that

A

Every state must give full faith and credit to

  1. the public acts,
  2. records, and
  3. judicial proceedings

of every other state

50
Q

Presidential Powers

5

A

• Commander in Chief
• Appointment Powers
• Emergency Powers
• Clemency Powers
• Issuance of executive orders which have the
binding force of law upon federal agencies

51
Q

When can the President direct the actions of persons outside of the executive branch?

A

Only through a direct authorization by Congress

-Can only direct agencies

52
Q

Preliminary Injunction v. TRO

A

Preliminary Injunction occurs after a hearing - lasts until completion of the trial

TRO = party convinces the judge that immediate irreprable harm will occur (no hearing required) - lasts 14 days

53
Q

To terminate welfare benefits, what must happen?

A

A pre-termination notice + hearing

54
Q

Speech “content specific” regulation categories

2

A

protected speech = strict scrutiny

unprotected speech

55
Q

Unprotected speech content areas

6

A 
1. Clear and Present
Danger
2. Defamation
3. Obscenity
4. Child Pornography
5. Fighting words
6. Fraudulent commercial speech
56
Q

Test for regulation of commercial speech

3

A

Regulation must

  1. directly advance
  2. a substantial government interest, and
  3. be narrowly tailored to serve the substantial interest
57
Q

When a debt is barred by SOL, how can it be enforceable?

A

When there is a new promise to pay an amount

-amount new promise is binding (≠old debt)

58
Q

What is an aleatory condition?

A

Where the promisee’s right to cancel is dependent on a condition outside his control, the promise is not illusory and the agreement will be enforceable.

Contract is enforceable

59
Q

Requirements for accord and satisfaction?

3

A
  1. a genuine dispute
  2. parties agree to a new performance
  3. upon performance, the old contract is discharged
60
Q

Modification =
Novation =
Accord and Satisfaction =

A

Modification = same contract, different terms
Novation = same contract, new party/obligation
Accord and Satisfaction = new contract

61
Q

Open mines doctrine right?

A

A life tenant has the right to continue operations of existing mines on the premises

Life tenant ≠ open new mines (voluntary waste)

62
Q

New evidence that allows for a new trial/verdict set aside allowed when?

A

The evidence could not have been discovered before by reasonable diligence

63
Q

Generally, are dog sniffs a search?

A

No, and an alert can give probable cause

Is an violative search if the dog is violating an expectation of privacy

64
Q

Res Judicata Bars

A

any claims that arise from the same events—if those claims could have been brought in the first case

65
Q

What is offensive non-mutual collateral estoppel?

A

If it would be unfair to ∆to allow collateral estoppel

  1. little incentive in the first case
  2. parties could have intervened
66
Q

Summary Judgment Motions

Who makes it
When is it made
What is the standard
What is its effect

A
  1. either party
  2. within 30 days after discovery
  3. no issues of material fact and movant entitled to judgement as a
  4. dismissed
67
Q

Can depositions be used in a summary judgment motion?

A

yes

68
Q

Subjective v. objective impossibility and the duty to perform

A

Subjective impossibility = you can’t do it ≠ excuse duty to perform

Objective impossibility = nobody on earth can do it, does excuse duty to perform

69
Q

Offers to settle v. offer to pay medical expenses

A
  1. offers to settle prohibit all admissions made

2. offers to pay meds only excludes offer to pay meds, does not cover additional admissions

70
Q

Ex Post Facto Law categories

3

A
  1. makes criminal conduct that was not a crime when committed; or,
  2. increases the punishment, or
  3. decreases the amount of evidence needed to convict

MBE Final Review (4 decks)

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