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.
Under the UCC even though a final written agreement cannot be contradicted by any prior agreement under parol evidence rule, it can be supplemented by?
When trade usage is inconsistent with course of dealing which controls?
can be supplemented by “course of dealing”, “usage of trade”, or “by course of performance.”
A course of dealing controls when inconsistent with trade usage
when a person goes out in public it is presumed that they consent to the reasonable and consistent contacts with ordinary social norms privileging such contacts. (eg. tapping on someone’s shoulder to get their attention) To not consent the person must
to not consent the person must indicate that she does not consent otherwise
As a general rule, the president does not have the authority to direct the actions of persons outside of the executive branch (eg. executive entities) unless
the president’s direction is authorized by congress
Although a marketable title will be implied in a K for sale of land, the doctrine of merger provides that one can no longer sue on title matters contained the K of the sale after what point?
after the deed is received, cant sue on contract terms because contract merges with deed. The Remedies for relief could only be based on the deed received and not the original contract terms.
What is the standard for admissibility for relevance?
admissibility asks whether the evidence has the tendency to make the fact more or less probable than without the evidence.
Failure to take steps to mitigate damages only defeats a claim for what kind of damages. Explain
only defeats a claim for consequential damages. It does not deprive the victims the opportunity to claim damages between the contract price and the market price.
Congress may use its commerce power to permit states to discriminate against interstate commerce. give an example
a federal statute that authorizes states to enact state of origin labeling requirements on imported citrus fruit is constitutional
T or F a state may not grant broader rights under its own constitution than are granted by the federal constitution
False they can grant more rights under their state constitution
Evidence “in issue” such as character in issue in a slander case can be proved by evidence of ?
reputation, opinion, or specific acts
courts will look beyond the words of a condition if it is clear that the intent of the condition was to?
how will the courts interpret the language?
benefit or protect one of the parties.
the courts will interpret the language of the condition as if that intent had been clearly expressed in the K terms.
T or F SCOTUS has held that a threat communicated with the intent to intimidate the recipient is NOT protected free speech under the first amendment
True
when parties attach significantly different meanings to the same material term of a contract, the meaning that controls is that “attached by one of them if at the time the agreement was made . . that party did not know of any different meaning attached by the other and?
the other knew the meaning attached by the first party.
An expert witness can rely on hearsay in reaching its conclusion as long as what requirements are met?
as long as other experts in the field would reasonably rely on such info. AND
the probative value of the hearsay in illustrating the basis of the expert’s opinion must substantially outweigh the risks of prejudice and confusion that will occur when the jury is told about the hearsay evidence
