Practice Exam3 Flashcards
d has right to assistance of counsel
- A defendant has the right to the assistance of counsel at any trial that results in a sentence of incarceration, even when that sentence is suspended
- assistance of counsel is not required for a crime that is punishable by imprisonment as long as that punishment is not imposed.
- the fact that the sentence was suspended does not eliminate the requirement that defense counsel be provided
liquidated damages
Liquidated damages are damages stipulated by the parties in the contract as a reasonable estimation of actual damages to be recovered in the event of a breach without proof of actual loss. When the contract contains a liquidated-damages clause, the party seeking to repudiate that clause must show that the agreed-to damage is so exorbitant as to be in the nature of a penalt
words- clear and present danger
Although governmental regulation of speech based on its content is generally prohibited, among the limited exceptions permitting such regulation is speech that represents a clear and present danger of imminent lawless action. Moreover, while a prior restraint on speech or the press is typically presumed to be unconstitutional, and has been rejected even where national security was at issue, it is possible that in the face of an immediate threat of grave and irreparable harm, such as a terrorist attack that would be triggered by messages in the newspapers, a prior restraint on their publication would be upheld.
false pretenses
The crime of false pretenses occurs when an individual:
(i) obtains title to property
(ii) of another person
(iii) through the reliance of that person
(iv) on a known false representation of a material past or present fact
(v) and the representation is made with the intent to defraud.
P only suffers economic loss
A plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action.
13th Amend
- the Thirteenth Amendment does not require state action.
- Rather, it abolishes slavery and its “badges and incidents,” including racial discrimination in private transactions like contracts.
- Moreover, Section 2 of the Thirteenth Amendment authorizes Congress to enact legislation to implement its guarantees
raise doct of part perform
the doctrine of part performance may be asserted by either party to a land sales contract in order compel specific performance of the contract
invol mans
A defendant can be convicted of involuntary manslaughter when he acts with criminal negligence—reckless action that puts another person at a significant risk of injury or death. It requires more than the ordinary negligence required for tort liability but something less than the extremely negligent conduct required for depraved heart murder.
veto agency regulations
Congress cannot authorize a legislative committee to “veto” agency regulations. The Constitution requires that legislative power be exercised in accord with the bicameralism (i.e., passed by both Houses of Congress) and Presentment Clauses of Article I (i.e., the requirement that, in order for a bill to become law it must be presented to the president for approval or return).
negate SI for rape
While rape is a general intent crime, attempted rape is a specific intent crime, and thus the man’s belief that the woman had consented negated the specific intent
courts and non-competes
Courts rarely grant specific enforcement of contracts for personal services, but will restrain breaching parties from working for another when the contract contains a non-compete clause
impeach witness/extrinsic
specific instance of conduct, if used to impeach the credibility of a testifying witness, may not be proved by the introduction of extrinsic evidence. The adverse party may cross-examine the witness about the conduct, but must take his answer as he gives it.
elimination of mortgages
The general rule is that the purchase of property at a foreclosure sale eliminates not only the mortgage being foreclosed but also all junior mortgages on the property. This rule applies even when the purchaser is one of the junior mortgagees
disclaim liability
- In general, parties can contract to disclaim liability for negligence.
- An exculpatory provision in a contract acts as a bar to recovery for harms arising from the negligence of the party protected by the contract.
- This bar applies even where the state has adopted a comparative negligence statute.
Class Action Fairness Act of 2005
Class Action Fairness Act of 2005, the total amount in controversy must exceed $5 million. Here, the damages sought do not meet this amount. Answer choice A is incorrect because, under the Class Action Fairness Act of 2005, only minimal diversity between the parties is required.
