Other MBE

Question 1

A scheduling Order may be modified with (2)

Answer 1

Good cause and judge’s consent

Question 2

Appeal deadline?
A final judgment means___________

Answer 2

30D
A party may only appeal a final judgment, which is one that ends the lit on the merits, resolving all claims and leaving the ct nothing but to execute the judgment.

Question 3

6 Exceptions to the final judgment rule

Answer 3

Exceptions =
1. multiple parties/claims where ct directs entry of only some claims & ct determined no just reason for delay
2. Dist cert + app agreement (10D deadline from entry) - ex. Controlling Q of L, sub difference of opinion, & immediate appeal will materially advance term of lit
3. Collateral order- separate from merits that’s unreviewable on app (DNI FS CL)
4. Mandamus
5. Inextricable intertwinement / nec to ensure meaningful review
6. Granting/denying class action cert (must file w/in 14D + app agreement)

Question 4

Under the Doctrine of Comity, fed courts __________ give FF&C to foreign judgments

Answer 4

Courts MAY give FF&C to foreign judgments

Question 5

conditions placed on the approval of permits do not constitute a 5th A taking as long as…. (2)

Answer 5

1. There is an ESSENTIAL NEXUS btwn the state interest and the permit condition
2. And govt determination that condition is roughly proportional to advancing that govt int

Question 6

Fighting words are ____________ or ______________

Answer 6

Words that by their very utterance inflict injury or tend to incite immediate breach of the peace

Question 7

For a govt employees speech to be con protected, an employee must have spoken __________ and ____________

Answer 7

As a citizen and on a matter of public concern

Question 8

Quantum meriut is when _______
+ under what theory?

Answer 8

The breaching party may recover the rsb value of the benefit conferred to the other P
(Quasi-K theory)

Question 9

Modification UCC vs CL

Answer 9

UCC - no consideration needed (only good faith)
CL- need consideration

Question 10

Contracts entered into by a person who lacks capacity are _________ by ____________.

Answer 10

Voidable by the person who lacked capacity

Question 11

Elements of mutual mistake (3)

Answer 11

1. Both parties are mistaken as to a basic assumption on which K is made at the time it was made
2. Mistake = material
3. Person asserting the mistake did not assume the risk

Question 12

Seller and buyer can agree to limit buyer’s remedies for breach of warranty as long as____________

Answer 12

Limitation is not unconscionable

Note: limiting remedy for PI consumer goods = presumed unconscionable

Question 13

Remedy for contract issues pertaining to FORMATION

Answer 13

Rescission

Question 14

Accomplice withdrawal only allowed if

Answer 14

Withdrawal occurs before the crime becomes unstoppable

Question 15

To be valid, an inventory search must be both (2)

Answer 15

RSB and conducted pursuant to establish police procedures

Question 16

Test for competency to start trial (2)

Answer 16

1. Def has sufficient present ability to rsbly consult with aty (assist in prepping defense)
2. And has a rat’l & factual understanding of proceedings against him
   *DP requirement burden on ct if issue
   *if incompetent, can’t be tried but may be reassessed if improved

Question 17

Under the Blockburger Test, two distinct crimes do not constitute as the same offense for double jeopardy purposes if….

Answer 17

Each crime requires proof of a fact which the other does not

Question 18

2 ways to authenticate physical evi

Answer 18

Witness testimony or showing an unbroken chain of custody

Question 19

The 4 hearsay EXCEPTIONS

Answer 19

1. Verbal independent legal sig
2. Statements showing the effect on a listener
3. Prior inconsistent to impeach
4. State of mind

Question 20

The use of an out-of-court statement even if hearsay exception/exemption violates the Confrontation CL when…. (3 req.’s)
+ 2 exceptions

Answer 20

The statement is TESTIMONIAL, Declarant is unavailable at trial, and Def did not have an opportunity for cross
Exceptions = dying declarations or Def’s wrongdoing

Question 21

Which element is unnecessary to enforce an equitable servitude as opposed to a covenant?

Answer 21

PRIVITY

Question 22

2 Req.’s to enforce a Reciprocal Negative Servitude (common scheme or plan)

Answer 22

1. Developer had the common scheme or plan that all parcels would be subject to the restriction AT THE TIME the parcel was sold
2. And Def had notice (inquiry, constructive or actual)

Question 23

Unless terminated, a successor of a valid easement may use as long as

Answer 23

Remains rsb
*ways to terminate include written release, abandonment, merger of the parcels, AP

Question 24

5 req.’s for a VALID Land Sale K

Answer 24

IW, description, ID P’s, price, and signed by party to be enforced against

Question 25

Zoning ________________will make the title unmarketable but zoning ________________will not

Answer 25

Zoning VIOLATIONS will make the title unmarketable but zoning RESTRICTIONS will not

Question 26

2 situations in which deed intent will not be found

Answer 26

Reserving the right to revoke or giving instructions to only deliver the deed upon grantor’s death

Question 27

An application to a variance may be accepted if (2)

Answer 27

Property owner shows hardship due to zoning ordinance and the variance will not damage/harm public welfare

Question 28

Article 9 of the UCC (primary R)

Answer 28

Article 9 governs the transactions of security interests in personal property and fixtures, as well as their priority (personal property includes the sale of certain rights to payment such as chattel paper, promissory noes, accounts, and payment intangibles). If there is any ambiguity to whether the substance of the transaction creates a SI, Art 9 will apply regardless of its form.

Question 29

2 elements of misappropriation of identity (tort) + primary defense?

Answer 29

1. Def used Ptf’s name/likeness 2. For commercial advantage Defense = newsworthiness

Question 30

A public nuisance is (2)

Answer 30

An unrsb interference with the health, safety, or property rights of the community

Question 31

A manufacturing defect requires a showing that __________ and ______________

Answer 31

The product differs from the INTENDED DESIGN and is MORE DANGEROUS than if made rsb. Misuse will not qualify if the misuse was FSB

Question 32

Evidence of a FAILURE TO WARN defect requires that

Answer 32

The ptf was not warned of the risks regarding use of the product, which are not obvious to the ordinary user, but known to the manufacture

Question 33

A DESIGN defect exists if … (3)

Answer 33

There was a way to build the product that is safer, more practical and has a similar cost

Question 34

Under the K CL, ________________ unless______________ and _____________

Answer 34

A state law that substantially impairs an existing private K will be invalid unless the impairment is RSBly narrowly tailored and aims to achieve an important state interest

Question 35

To be liable for invasion of privacy…. (3) + primary defense

Answer 35

1. Def must have intruded into the private facts of another 2. Where the ptf would have a rsb expectation of privacy 3. The intrusion is highly offensive to a rsb person *matter of public concern

Question 36

To be found liable for public disclosure of private facts… (3) + primary defense?

Answer 36

1. The Def caused widespread dissemination 2. Of truthful private info 3. That would be highly offensive to a rsb person *newsworthiness (or sometimes privilege)

Question 37

Which two situations apply to the BER?

Answer 37

When the contents of the evi are at issue or the Witness is relying on the contents for testimony

Question 38

A principal in the first degree is ———— or —————

Answer 38

the person who actually commits the crime himself or causes an innocent person to commit the crime for him.

Question 39

Define ACP

Answer 39

Communication made for the purposes of obtaining legal assistance for the client intended to be confidential ***extends to respective agents (like if an aty hired an expert/consultant)

Question 40

A novation is…. An accord is… And satisfaction is…

Answer 40

An agreement by the parties of a K that one (or both) may be replaced. An agreement to accept a different performance than what was originally due under the K. Satisfaction is the performance of the accord agreement