practice MBE 2 law nuances concepts Flashcards
The 5th A privilege against self incrimination extends only to ________ communications. So even if the act provides incriminating evidence (eg. a suspect in a line-up forced to repeat words of the robber for the witness to identify him) a criminal suspect may be compelled to make a recording of his own voice
testimonial communications
Is space on city buses used for posting placards considered a public forum for speech?
If yes and there is content based discrimination what level of scrutiny is applicable?
Yes
strict scrutiny is triggered
In a battery action, is the question of whether the D’s conduct was reasonable under the circumstances relevant if the D intended to make harmful or offensive contact with P?
For what tort would whether D’s conduct was reasonable under the circumstances would be relevant?
No, it is not relevant for the intended harmful offensive contact element required for battery
negligence
In a fee simple determinable, once a land stops being used for the purpose designated by the grantor and the grantor dies, what happens to the future interest?
the future interest retained by the grantor (possibility of reverter) automatically goes to the land owner’s successor (eg. Heirs)
General rule: performance that is subject to an express condition cant become due unless the condition occurs or its nonoccurrence is excused.
explain the doctrine of prevention
The doctrine of prevention excuses a condition that has not occurred if a party doesn’t refrain from conduct that prevents or hinders the occurrence of a condition.
T or F a hearing on the admissibility of a confession can be in the jury’s presence
False, it must be outside the jury’s presence
Under the Federal Tort Claims Act negligence is covered, what tort is not covered?
strict liability
Under the UCC a contract that requires the seller to ship goods to the buyer by a 3rd party is a _________ or ___________ contract.
Where the contract is otherwise silent, a _________ contract contract is presumed where the K requires shipment by a 3rd party carrier.
shipment or destination contract
shipment K presumed
Under a shipment K, at what point does the risk of loss would pass from seller to buyer when?
the risk of loss would pass from the seller to the buyer when the seller duly delivered the goods to the 3rd party carrier to be shipped to the buyer.
Generally, the 1st A invalidates regulating commercial speech unless the government interest is?
the government interest is narrowly tailored to serve a substantial government interest.
Generally, the 1st A invalidates regulating commercial speech unless the government interest is narrowly tailored to serve a substantial government interest.
Give an example of a recent SCOTUS ruling on this standard
SCOTUS held that a law baring solicitation of accident victims within a limited period of time following an accident was narrowly tailored to serve the state’s substantial interest in protecting the privacy of victims.
General rule: the pre-existing duty rule provides that part of a payment of a liquidated debt is invalid for lack of consideration.
But the rule does not apply when?
The existing duty rule doesn’t apply where there is a compromise of a claim disputed in good faith. (adequate consideration)
note: the exception to the existing duty rule applies even if it becomes apparent that the reason for disputing the claim was invalid.
Hypothetical: A D is charged with arson after her house was destroyed by fire. The prosecutor wants to introduce evidence that the D fully insured the house and all its contents. Can it be admissible? why or why not?
Yes it can be admissible to show the D’s motive
Generally evidence that D had insurance is not admissible to prove that the D acted negligently or wrongfully. But it can be used for?
any other purpose. (eg. Motive)
Generally, employers are not liable for the torts of independent contractors. Explain why an employer can still be liable for an independent contractor’s work if work is done in public places.
work in public places often gives rise to a non-delegable duty of the landowner (employer)
Under the UCC goods identified at time of the K was made are totally destroyed before the risk of loss has passed to the buyer and without the fault of either party, how do the parties’ obligations change?
The contract is avoided and each party is relieved of its obligation to perform under the K.
T or F, the 4th A exclusionary rule does not apply to federal grand juries and is not a basis upon which a federal indictment can be dismissed.
True
What is the general expectation damages formula?
general expectation damages = (loss in value) + (other loss) - (cost avoided) - (loss avoided)
Note: See great example in OPE 2 question #26.
Hypo: A D is charged with battery, testimony of a D’s neighbor described the D’s reputation for peacefulness and truthfulness. Are both admissible? If no, which one is not and why?
The witness’s testimony about the D’s reputation truthfulness is not admissible because it is not relevant to battery. Whereas the witness’s reputation for peacefulness is admissible as it is relevant to battery.
What is the legal effect of the Statutory Right of redemption?
when does it arise
The statutory right of redemption sets out an additional time period after the foreclosure sale which the prior mortgagor may pay a certain sum of money and redeem title of property.
Right arises by statute and only after a foreclosure on the mortgage.
where an offer provides acceptance by performance, when does the offer become irrevocable by the offeror?
the offerree’s beginning of performance, the offeror can no longer revoke the offer. ( creates an option k)
Under what circumstances does a 10th A violation occur?
When does a 10th A violation not occur?
when the gov’t commandeers the city to regulate the conduct of others pursuant to congressional direction.
no violation of 10th A if regulating the city’s conduct on the same terms as other entities engaged in the same conduct (permissible under the 10th A)
What is the difference between Article IV privileges and Immunities Clause and the 14th A privileges and immunities clause?
The Article IV privileges and immunities clause prevents discrimination against non state residents whereas the 14th A privileges and immunities clause gives freedom of travel.
How do the equal protection principles of the 14 A apply to the actions of the federal government?
equal protection principles of the 14th A apply to action of federal gov’t through the due process clause of the 5th A.
Section 5 of the 14th A gives congress the power to enforce the provisions of the 14th A by appropriate legislation. However, congressional legislation to enforce the provisions of the 14th A is only appropriate if?
legislation appropriate only if:
- it seeks to prevent or remedy actions by state or local governments that violate the 14th A; AND
- its requirements are congruent and proportionate to the 14th A provisions it addresses.
Title doesnt have to be marketable until?
the closing date when all payments have been received.
Congress does have the power to spend for the general welfare but it doesnt have power under the US Const. to?
doesnt have the power to enact statutes that promote general welfare
What grants congress authority to enact statutes authorizing states to impose burdens on interstate commerce that would otherwise be prohibited?
Article I section 8
What is required for settlement to be enforceable? Explain
Consideration is required for a settlement to be enforceable. Under the pre existing duty rule, consideration is not adequate when someone promises to do something that they are already required to do generally.
T or F, larceny only requires the taking away of property to be a small distance to satisfy the taking away element
True
Explain the condition exception to the parol evidence rule
The condition exception to the parol evidence rule permits the admission of extrinsic evidence to establish the parties’ performance of the written contract was subject to an oral condition.
Note: It only applies when the written agreement is not completely integrated
freedom of contract is not a fundamental right and therefore not subject to strict scrutiny. What standard of review is it subject to?
rational basis review: rationally related to a legitimate gov’t objective
What two important elements are required to show gender discrimination?
It must show
- discriminatory intent and
- discriminatory impact `
Where the contract is silent on the quality of title, the court will imply?
a marketable title
Does an easement affect marketable title?
yes
Even though the seller has a duty to deliver marketable title for the benefit of the buyer, can the buyer waive that right?
Yes a buyer can waive the right to have marketable title
which party has the decision to revoke the contract for the title not being marketable?
the buyer only
Explain conspiracy under the Common Law
Conspiracy under the common law requires plurality of agreement and does not criminalize unilateral conspiracy where one person actually agreed to commit the crime and the other only feigned agreement (undercover cop)
If an ordinance or regulation on speech based on content is subject to strict scrutiny, the lease restrictive means available for promoting a compelling gov’t interest must be used. But if an ordinance or regulation is content neutral, what standard of scrutiny must it satisfy?
intermediate scrutiny
Explain conspiracy under the Model Penal Code (MPC) and how its different from conspiracy under the common law concerning unilateral approach
Under the MPC, conspiracy establishes a unilateral approach which allows a D to be convicted of conspiracy even if all other co-conspirators were acquitted. Focus on single defendant instead of all conspirators.
Unlike the CL, which does not take a unilateral approach and if the other conspirators were acquitted they all would be under the CL.
The interests in a tenancy in common need not be equal. However, a partition by sale is allowed only when:
a fair and equitable division of the property is not possible.
What kind of partition is preferable to courts? (partition by sale or partition in kind)
partition in kind is only preferred if physical division is fair and equitable.
Where one party’s performance requires a period of time, when must the other party complete their performance?
where one party’s performance requires a period of time, they must complete their performance before the other party is required to perform unless the language specifies otherwise.
If a party destroys evidence is it proper for the jury to infer that it the evidence was adverse to that party?
Yes
T or F it is proper for a jury to show an inference in a civil case from a party’s assertion of the privilege against self-incrimination.
True
Congress has the power to tax in order to raise revenue. Can they tax newspapers or does it violate the freedom of the press? explain
Yes they can tax newspapers and it does not violate the freedom of the press because the tax is generally applicable and in no way targets press operations.
Lack of access to a public street may make the title unmarketable under the sale of contract. However, in order to challenge the unmarketable title, when must the challenger challenge the title?
The challenger must challenge the marketability of the deed before the acceptance of the deed because once the deed is accepted, the sales contract is no longer able to be challenged because the contract and the deed merges together.
Explain the privilege of self-defense in general
the privilege of self defense permits the use of force reasonably necessary believed to be necessary given the threat posed by the P.
T or F a sale by use of an installment K is a transfer of the land which can trigger the due one sale clause
True
T or F expressions of doubt by a party as to its willingness or ability to perform amount to the affirmative manifestation of intent required to constitute anticipatory repudiation.
false, expressions of doubt do not manifest the adequate intent to constitute anticipatory repudiation.
But, an expression of doubt may give the other party the right to demand adequate assurance.
T or F if a witness is declared hostile, the examining party may go beyond the scope of direct examination questioning with its leading questions
False, even if the witness is considered hostile, the examiner may not go beyond the scope of direct examination.
What are the limitations to cross-examination in general?
cross exam is limited to the subject matter of the direct examination and matters affecting witness credibility.
Explain what disables congress from requiring states to enact laws or to requires them to administer federal law.
SCOTUS held that the concept of federalism embedded in the 10th A disables Congress from requiring states to enact laws or to administer federal law.
Lay opinion testimony is admissible when it is?
rationally based on perception of the witness and it is helpful to the jury
In General, the parties who make a contract for an intended beneficiary have the right to modify duties in the K by a subsequent contract. However, when can this power to modify among the parties terminate?
the power for the parties to modify terminates when the intended beneficiary materially changes his position in reliance on the promise.
Assuming other requirements are met, an aggrieved party is only entitled to recover consequential damages only if?
they were reasonably foreseeable to the breaching party.
T or F, under the UCC a seller can treat the buyer’s failure to specify as a breach by failure to accept the contracted for goods only if the buyer’s failure to specify the goods materially impacts the seller’s performance
True
Under the Common Law the right of first refusal is struck ab initio (from the beginning). In other words, the right of first refusal is triggered by the decision to sell the land. Does this violate the rule against perpetuities? If so why?
Yes it violates the rule against perpetuities under the common law because the decision to sell the land could occur at any time such as more than a life in being plus 21 years.
note: the right of first refusal may not violate the RAP if the RAP statute is modified such as in the “wait 90 years and see approach”
T or F, a permanent physical occupation by the government is sufficient by itself to constitute a taking. It would be irrelevant whether the portion of the owner’s tract to be occupied by the government is unused/small
True
A landlord owes a duty to act reasonably to those who are foreseeably on his land including guests of tenants. Why? give an example of the duty to act reasonably
A landlord owes a duty to act reasonably to guests of tenants because they are considered business invitees. A landlord must act reasonably if made aware of a dangerous condition and take precautions. (eg. vicious dog on property)
When may a suspect’s privilege against self-incrimination may be overcome?
suspect’s privilege against self-incrimination may be overcome if a suspect is granted use and derivative use immunity.
What level of granted immunity is necessary to overcome a suspect’s privilege against self-incrimination? What level of granted of immunity is not necessary?
necessary: use and derivative use immunity
not necessary: transactional immunity
T or F the 5th A also protects acts of production that would have testimonial significance by authenticating documents such as production of a diary if use and derivative immunity is granted.
True
Generally, an employer is not vicariously liable for the torts committed by an independent contractor. However, they may be vicariously liable for torts if the activity is
inherently dangerous
T or F negligence alone is not enough to make a defendant liable for an intervening criminal act.
True
The rule is that for negligent infliction of emotional distress, the plaintiff must demonstrate that she was in the zone of physical danger that was created by the defendant’s negligent conduct.
Outside of this zone of danger, a plaintiff can only recover for negligent infliction of emotional distress if:
(1) plaintiff was present at the scene,
(2) plaintiff observed or perceived the injury and
(3) plaintiff and injured party are closed related.
