practice MBE 1 law concepts Flashcards
The firefighters rule only bars claims for injuries that result from risks that are ______ or ________ to the inherently dangerous work.
unique or special
A state law that discriminates against out of state commerce at the expense of out of state interests is protectionist unless it?
what is the level of scrutiny required?
serves a legitimate local interest that cannot be served by non-discriminatory legislation.
scrutiny standard: it is necessary to achieve an important non-economic state interest.
T or F a landowner handing a deed to a grantee creates a rebuttable presumption of delivery and recording is not required. why or why not?
True because a landowner handing a deed over stating “this is yours” shows the necessary intent for the landowner to strip himself of dominion and control over the deed and to immediately transfer title.
In most situations, a medical professional’s duty of care only extends to his patient. an exception is if the patient posed a threat to others. However, when a patient only poses a risk of harm to himself what duty does the medical professional have?
will only have a duty to his patient and not a third party. (eg. family member cannot sue the doctor for their injuries sustained from hearing that the doctor’s patient committed suicide)
The best evidence rule applies when trying to prove the contents of a document itself what does it not prove?
It does not prove what a party says.
eg. stenographic transcript used to refresh a witness’s recollection would not be applicable to the best evidence rule
prior inconsistent statement not made under oath is only admissible to?
impeach
The Supreme Court does not have appellate jurisdiction over a decision by the highest court of a state when the decision is supported by state law grounds that are
(1) independent of federal law and (2) adequate to sustain the result in the case.
T or F The Supreme Court may not review a judgment by the highest court of a state if that judgment is supported entirely by state law and is wholly independent of the interpretation and application of federal law.
True
Assault in TORT requires that the P have ?
that the P actually have apprehension of imminent bodily contact.
Who holds the spousal testimonial privilege? explain
The witness holds the spousal testimonial privilege not the D. So if the spouse wants to testify, the D cannot prevent the spouse from doing so.
Testimonial privileges apply to federal criminal cases so if a question is ever a criminal case or mentions the FRE apply which privilege? Explain
The spousal testimonial privilege. In contrast, inter spousal communications privilege protects confidential communications made during the marriage.
Is an assignee bound by the contract terms and contract modifications made by the original contracting parties? explain
Yes an assignee succeeds to a K as the K stands at the time of the assignment. So an assignee would be bound to valid K modifications made by the parties before the assignment. Remember, however modifications under the common law requires agreement of the parties and additional consideration.
When does jeopardy attach? when does it not attach?
Jeopardy attaches when the jury is sworn in and in a bench trial when the court begins to hear evidence.
Jeopardy does NOT attach at a preliminary hearing or a grand jury proceeding.
The executive branch does not have inherent rule making authority over public lands. But, congress does have the power to?
What are the executive rule making authority limits?
congress does have the power to provide for the regulation of activity on such lands.
The executive’s rule making authority is limited, however, to authority provided by congress.
In what type of cases is a dying declaration admissible in?
a dying declaration is only admissible in homicide prosecutions and civil cases.
Recovery for negligent misrepresentation is usually limited to what type of harm?
limited to pecuniary harm unless it involves a risk of physical harm.
T or F a promise to pay a debt after the running of the statute of limitations is enforceable without consideration.
true
A statement made by a party cannot be excluded as hearsay when offered
against him by the opponent
The doctrine of merger (contract and deed) relates to what issues? what does it not relate to?
doctrine of merger relates to title issues having to do with real property and not the physical condition of the property.
T or F the covenants of a warranty deed relate to the title of the property and not the physical condition of the property.
True
Is a service provider an appropriate defendant in a suit for strict products liability?
No, a service provider is not an appropriate defendant in a suit for strict products liability even if he uses the defective product in the ordinary course of business.
Does a Defendant’s intoxication preclude the mental state required for second degree murder?
No, does not preclude mental state for second degree murder. It is generally held that intoxication cannot further reduce murder to manslaughter
statements of fact and or conduct made in compromise negotiations are ___________ when in dispute. What is the purpose
inadmissible when in dispute
purpose to allow effective settlement negotiations
To be continually enforceable when must a restrictive covenant be placed on the property?
must be placed on the property at the time of conveyance. The restrictive covenant cannot attach at a later time if it was never there originally.