Practice Exam Pt 3

Question 1

What is a writ of habeas corpus and who can issue it?

Answer 1

a court order that a person in custody be brought before the court to determine if her detention is legal when a person is in federal custody only a federal court can issue the writ.

This is because the supremacy clause seeks to promote the supremacy of federal action over state action.

Question 2

Can a reporter be sued for how it obtains information if that information is important to publish?

Ex: If a reporter offer someone’s daughter $10,000 for information and then does not pay the money and is sued for breach of contract, will the reporter win on a First Amendment defense?

Answer 2

No, the first amendment protects the right of the press to publish lawfully obtain truthful information about public significance. However, this rate is not shield the price from generally applicable laws, even if such laws affect the presses ability to gather and report news.

Question 3

Explain waiver of privilege

Answer 3

A waiver does not extend to undisclosed communications or information, unless (1) the waiver was intentional, (2) the disclosed in undisclosed communications or information concerning the same subject matter and (3) the communications or information should be considered together

Question 4

What is the federal inadvertent waiver rule?

Answer 4

This applies to communications covered by attorney, client privilege and attorney, work product doctrine.

Disclosure of such communications or information, does not waive the attorney, client privilege or work product protection in a federal or state proceeding if:
• the disclosure was made in a federal proceeding or to a federal agency
• The disclosure was inadvertent
• The privilege holders took reasonable steps to prevent disclosure, and
• The privilege told her probably took reasonable steps to rectify the error

Question 5

When can a defendant remove a case from state to federal court?

Answer 5

When there is diversity, jurisdiction or federal question jurisdiction

Question 6

What is the forum defendant rule? (a.k.a. HomeCourt advantage rule)

Answer 6

This prohibits removal, when (1) subject matter jurisdiction arises solely from diversity, jurisdiction, and (2) a defendant is a citizen of the state in which the case was filed

This rule does not apply and removal is proper when subject matter jurisdiction also rises from federal question jurisdiction

Question 7

What is the burden of proof to show an expert witness is appropriately trained?

Answer 7

The party, seeking to admit, expert testimony, must prove that the testimony is reliable by a preponderance of the evidence.

Reliability is a preliminary question for the court to determine not a question of weight for the jury.

Question 8

What are the two ways that a challenge the personal jurisdiction is waived?

Answer 8

A challenge to personal jurisdiction is waived, if not made in:
(1) the original answer; or

(2) an answer amended without the court’s permission within 21 days after the original answer was served.

Question 9

What proof does it take to prove intentional interference with a contract?

Answer 9

(1) a valid contract existed between the plaintiff and a third-party,

(2) the defendant knew of the contract

(3) the defendant intentionally and improperly interfered with the contract performance and

(4) that interference caused the plaintiff, pecuniary loss

Question 10

Explain the political question doctrine, and what it prohibits

Answer 10

Prohibits federal courts from adjudicating political questions

a case presents a non-justiciable political question when:
• the constitution has reserved decision making on an issue to the executive or legislative branch; and/or

•the matter is inherently not one that the judiciary can decide (i.e. there’s a lack of judicially, discoverable and manageable standards to resolve the issue)

Question 11

What are some examples of non-justiciable political questions?

Answer 11

Recognition of foreign governments, reception of ambassadors, nature of wars or hostilities, partisan gerrymandering, guarantee of republican form of government, recognition of native American tribes, House and Senate rules for impeachment, ratification process for constitutional amendments

Question 12

What happens if a defendant is not wave service of process?

Answer 12

The plaintiff must properly served process before the defendant must respond to the complaint.

For example, if the plaintiff mails a request to waive service along with the complaint, and the defendant, does not return the signed waiver, request answer, or otherwise plead that the plaintiff is the one at fault

Question 13

What are some ways to determine if commerce power is appropriate from congress?

Answer 13

Consider whether:
•the activity is economic, and nature (then substantial effect presumed);
•jurisdictional element limits reach to activities with direct connection to interstate commerce;
•express congressional findings that activity substantially affects, interstate, commerce; and
•strong link between activity, an effect on interstate commerce

Question 14

What are the different types of murder?

Answer 14

Unlawful killing with malice aforethought:
• intent to kill,
•intent to inflict serious bodily harm,
• reckless disregard/depraved heart
• inherently dangerous felony

** if it looks like voluntary manslaughter, but you don’t think the provocation is enough that a second-degree murder

** if you’re not guilty of first-degree murder, but you do have malice that is second degree

Question 15

Define the different types of voluntary manslaughter

Answer 15

Intentional, killing based on:
• adequate provocation (heat of passion & no time to cool off- NOT just words in most jdx)

•imperfect self defense

Question 16

Define involuntary manslaughter

Answer 16

Unintentional, killing, due to:

• criminal negligence (at times negligence too)
• unlawful non-BARRK act (misdemeanor too)

Question 17

If prior to a death, someone executes and delivers a warranty deed, conveying a home on a condition, and they die does before the condition is met, does that interest still exist?

Answer 17

Yes, for example if the grantor conveys her home to her unmarried nephew on the date of his marriage, then the title of pass to the nephew or third-party upon the occurrence of the condition so the woman holds a fee, simple subject to an executory limitation.

Since title will pass to the third-party upon the occurrence of the condition, the woman held this, and the nephew acquired a springing, executory interest when the woman dies her fee, simple subject to executory limitation, will pass to her state, but it will not impact the nephew. He still holds an executory interest that will vest as a fee, simple absolute if he marries if he dies unmarried in the woman’s state will swell into the fee simple absolute.

Question 18

Who has the authority to remove officers?

Answer 18

The president

Question 19

Is the president’s ability to remove federal officers ever limited?

Answer 19

Yes. The president has absolute authority to remove officers and less officers:

• belong to a multimember body that is balanced along partisan lines, and exercises, no executive power; or
•lack policymaking or administrative authority.

For example: even if Congress creates a federal agency, headed by a Director, appointed by the president and confirmed by the Senate congressional participation in the decision to remove a presidential appointee violates the separation of powers. Therefore, the president constitutionally remove a Director without the Senate consent (even if appointed in advice and with consent of senate)

Question 20

What is the default damages, jurisdiction for the MBE?

Answer 20

Joint and several liability

Question 21

Explain joint and several liability versus several liability

Answer 21

Joint and several
• any tort feasor can be held liable for plaintiffs total amount of damages
• tortfeasors can see each other for contribution
• default rule for MBE

Several liability
• each tort feasor is liable for a portion of damages corresponding to her proportion at fault

Question 22

What is the modified comparative fault jurisdiction

Answer 22

Recovery is reduced by the plaintiffs percentage of fault.

It is barred if
•the plaintiff’s share of fault is greater than a share of fault, for the defendant (majority rule),
• or equal to or greater than the share of the fault for the defendant (minority rule).

Question 23

What must a temporary restraining order contain?

Answer 23

It must contain
• the reasons why it was issued
• a reasonable description of the prohibited or commanded acts,
• its specific terms

the reasonable description must be made without references to the complaint or another document

Question 24

What is the taxing and spending clause generally?

Answer 24

A grants Congress extensive power to appropriate or spend federal funds

It can required at the president in federal agencies, spin funds as explicitly directed in a federal statute

Question 25

What are valid and invalid conditions on Congress spending power for the executive branch?

Answer 25

Valid: requiring funds to be spent as explicitly directed

Invalid: reducing president salary

Question 26

What is a valid and invalid congressional condition on judicial branch as a recipient of federal funds

Answer 26

Valid: requiring funds to be spent as explicitly directed

Invalid: directing outcome of cases, or reducing judges salaries

Question 27

What are some valid and invalid conditions for Congress spending power related to state and local government

Answer 27

Valid: imposing conditions on receipt of funds that are clearly stated, and unambiguous; or reasonably related to funds, purpose; do not require unconstitutional activity; and are not unduly coercive

Invalid: requiring states to either, and ask state law, or enforce federal law

Question 28

What are some valid and invalid congressional conditions on Congress is spending power for a private person or entity

Answer 28

Valid: restricting conduct related to funds purpose

Invalid: restricting, protected, conduct, unrelated to funds purpose

Question 29

What are punitive damages and when are they allowed?

Answer 29

Punitive damages are in posed to punish, editor, outrageous, malicious, or Evil Conduct.

as a result, punitive damages, may be awarded for tort in involving willful or wonton conduct not mere negligent, conduct

** supreme court has held at the ratio of punitive to compensatory damages generally cannot exceed 9 to 1

Question 30

When does an amended complaint relate back to the date of the original complaint

Answer 30

1. The same occurrences are at issue;
2. The new party receive notice of the suit with a 90 days after the original complaint was filed; &
3. The new party knew or should have known that it would have been named, but for a mistake about its identity.

Question 31

Explain the dangerous proximity test

Answer 31

Under common law and act occurs when it brings a defendant in dangerous proximity to completing the target offense

Question 32

Who is the federal officer and who appoints them?

Answer 32

A federal officer is someone who holds a continuing public office and has significant discretionary authority to administer or enforce laws. Principal federal officers are supervised solely by the president, and must be appointed by the president with the Senate advice and consent.

Question 33

What are example of principal federal officers & who appoints them?

Answer 33

Examples: ambassador, Supreme Court Justice, cabinet official

Appointment: appointed by President with senate approval

Question 34

What are examples of inferior federal officers and who appoints them?

Answer 34

Examples: independent, counsel, judicial Court, administrative law, judge

Appointment: appointed by the president with senate approval, unless Congress delegates appointment to: president, alone, federal, courts, or heads of executive departments

Question 35

How do you challenge an error in jury instructions on appeal?

Answer 35

A party generally must have objected to the air at trial if the party failed to do so, the challenged error can still be reviewed on appeal for plain error (an obvious error that affected a substantial write in the fairness of judicial proceedings)

Question 36

What’s the standard used by the court in determining whether items have been properly authenticated for evidence?

Answer 36

Whether there is sufficient evidence to support of finding that the items are what the prosecution or defense cleans them to be

(Not preponderance, not clear and convincing)

Question 37

Can states tax federal government affiliates

Answer 37

Yes. They are expected to pay and less: Congress has granted the affiliate immunity; the tax discriminate against the federal government, or the affiliate; or the tax substantially interferes with the affiliates ability to accomplish its federal purpose or duties.

Question 38

How strictly should res ipsa be regarding plaintiff fault?

Answer 38

The vast majority of comparative fault, jurisdictions only loosely apply the third requirement for RIL— that the harm not be due to the plaintiffs own actions. As a result, the plaintiffs negligent conduct will reduce their damages, but will not prohibit recovery under the doctrine.

Question 39

What is the pike balancing test?

Answer 39

A nondiscriminatory law will be upheld unless the challenger shows that the laws burden on interstate commerce clearly exceeds its local benefits

Question 40

What is promissory estoppel and what damages can be recovered from it?

Answer 40

Under the doctrine of promissory estoppel, an offer is irrevocable for a reasonable period of time, if the offer reasonably expected to induce reliance on the offer before acceptance; he offeree reasonably relied on the offer; and that reliance caused the offeree to suffer substantial detriment

Reliance damages are typically awarded when there is no valid contract

If there is a valid contract, then they can recover expectation damages

Question 41

When is extrinsic evidence allowed with impeachment of a witness

Answer 41

Introducing extrinsic evidence is allowed if the witness to be impeached can address the evidence with an opportunity to explain, or deny, and opposing party can question witness about a statement or when justice so requires

Question 42

What is modified comparative fault?

Answer 42

Modified comparative fault is an affirmative defense to negligence that reduces a plaintiffs recovery by the plaintiffs percentage of fault if the plaintiff share of the fault is less than or equal to the defendant share of fault

Assumption of the risk is such a defense, that bars, a plaintiffs recovery, if the plaintive voluntarily excepts a known risk to harm

Question 43

What is an easement APPURTENANT?

Answer 43

This mean it benefits the land

Easements are presumed to be this, unless clear facts say otherwise. “His heirs & devise” = appurtenant

This is transferred automatically with the transfer of the dominant estate (and the burden is transferred automatically with service by estate)

Question 44

What is an easement in gross

Answer 44

This is for someone personally. The burden, but not benefit, automatically transfers when land is conveyed.

Ex: Michael Phelps can swim in my pool whenever he wants, but only Michael

Question 45

When is someone privileged to use reasonable force against an individual to protect that individual from self harm

Answer 45

• the individuals, unable to understand the nature and consequences of her actions and
• the defendant reasonably believes that the individual is about to commit an act likely to cause death or serious, bodily harm to her self

Question 46

What type of impeachment evidence is allowed to impeach sensory abilities?

Answer 46

For some thing like the witnesses sensory abilities, and how they were impaired by something like a physical or mental condition, or affected by environmental factors that evidence can be impeached intrinsically or extrinsically

Question 47

Give an example of a jury instruction for assumption of risk

Answer 47

If you conclude that the owner failed to provide reasonably safe promises, but that the man knowingly involuntarily chose to encounter the risk of falling on dark and stairs you must find for the owner

Question 48

What happens if only one continent is paying for the mortgage and sues the other for contribution?

Answer 48

Cotenants have a duty to pay their fair share of necessary property related expenses like a mortgage therefore, a cotton who pays more than her fair share conceit contribution from other cotenants.

This is true, regardless of whether the cotenant talk to the other one or obtain consent before making the payments.

Question 49

What are the three non-here say statements by declarant witness

Answer 49

1. Prior statement of identification (identifies person is someone to declarant perceived earlier)
2. Prior inconsistent statement. (Inconsistent with the declarant’s current testimony, and made under penalty of perjury at former proceeding)
3. Prior consistent statement. (rebut charge of fabrication or improper influence is made before motive arose, or rehabilitate declarant’s credibility when attacked on other grounds.)

Question 50

Do restrictive covenants render a title un marketable

Answer 50

Yes

Question 51

When is an activity abnormally dangerous

Answer 51

When it is uncommon in the community and a presents, a foreseeable and highly significant risk a physical harm that cannot be mitigated by reasonable care

Question 52

When is a counter claim compulsory

Answer 52

When it arises from the same transaction or occurrence as the opposing parties claim, and does not require adding another party over whom the court cannot acquire jurisdiction

Question 53

What does a deed need to be valid?

Answer 53

• must be in writing and signed by the grantor
• unambiguously identify the grantor and a grantee
• unambiguously describe the property AND
• include words of transfer