Practice Test Review

Question 1

Statutory Interpleader

Answer 1

“Remember to read carefully”

(1) Simply requires amount-in-controversy to be $500

(2) With minimal diversity: which means that at least 2 claimants of insurance are from different states

Question 2

Admissibility of accused vs. victim’s past sexual behavior/conduct

(accused is same in both civil and criminal cases. victim has a diff standard in civil vs. criminal)

Answer 2

Accused Defendant’s Sexual Conduct:
- admissible in both civil and criminal cases

Victim’s Sexual Conduct:
- (civil) only if probative value substantially outweighs prejudice
- (criminal) to show source of semen, injury, consent. Or if exclusion would violate defendant’s constitutional rights

Question 3

Voluntary intoxication as a defense

Majority vs. MPC

Answer 3

Majority:
Voluntary intoxication is a defense to specific intent crimes

MPC:
Voluntary intoxication only a defense for crimes where the mental state is purposely or knowingly

Question 4

How must judge give jury instructions on a judicially noticed fact in civil vs. criminal cases?

Answer 4

Civil –
Judge can instruct that jury must take this judicially noticed fact as true

Criminal –
Judge instructs jury: that they may, but not required to, take this judicially noticed fact as true/conclusive

Question 5

Public disclosure of private facts

Answer 5

Public disclosure of P’s private information,

which is NOT of legitimate PUBLIC concern

and would be highly OFFENSIVE to a REASONABLE person

and results in ACTUAL damages

Question 6

Publicity in false light

Answer 6

Statements made to the public about P

That are false

That would be highly offensive to a reasonable person

And results in actual damage

(if P is a celebrity, statements must be made with actual malice)

Question 7

Intrusion on seclusion

Answer 7

INTENTIONAL intrusion, on P’s seclusion or privacy, that would be highly OFFENSIVE to reasonable person

(e.g. tapping telephone wires, examining private bank account, opening personal mail)

Question 8

“Negative implication of commerce clause”

and what do key words “state owned and operated” tell you?

Answer 8

dormant commerce clause

market participant exception applies and the state is not subject to the negative implications of the commerce clause

Question 9

Discrimination against interstate commerce could be justified for a legitimate, noneconomic state concern.

What’s an example that is not a proper justification?

Answer 9

Economic interest cannot justify such discrimination

For example, the sharing of environmental costs of production with out-of-state-purchasers

Question 10

Definition of false pretenses

Answer 10

(1) When D knowingly misrepresents a past or present material fact

(2) with the intent to defraud

(3) to obtain title to someone’s property/cash

What’s not misrepresentation: puffery, sales tactics, opinions, predictions about the future (i.e I know business is going to take off)

Question 11

Who holds the privilege in marital communications vs. spousal immunity?

Answer 11

Marital communications: both spouses hold privilege

Spousal immunity: the witness-spouse that’s being asked to testify has the privilege (can refuse to testify)

Question 12

Supplemental jurisdiction over P2’s $50k claim in a diversity case where P1 has a $250k claim. P1 and P2 from same state and diverse from D

Answer 12

Diversity is maintained. Because Ps are diverse from Ds.

Question is: does P2 need to surpass the $75k threshold?

NO: P2 only needs to independently surpass $75k threshold if it’s a compulsory joinder, interpleader, impleader.

Question 13

Does signature of the easement holder make a release valid, and thereby terminate the easement?

Answer 13

No: valid release of easement requires both signatures.

But signor can be estopped from claiming easement

Question 14

Negligent intervening acts (even in a series of actions: CPR that broke ribs, nurse that did a wrong scan constituting medical malpractice, doctor’s negligence)

are these series of consequences foreseeable such that D is liable?

Answer 14

Yes

Question 15

“Any words targeting women or minorities likely to produce violence or rioting are prohibited on any public property”

Answer 15

These regulations of speech, carving out certain groups of people are unconstitutional bc gov is engaging in viewpoint discrimination

Question 16

D wants to get case removed from state court to federal court.

When D is already domiciled in the forum statue

Answer 16

Forum-defendant rule (aka D is already in its home state, not subject to bias in non-home state court), so removal is prohibited if:
- SMJ over the case is based solely on diversity jurisdiction
- and the forum state is where D is domiciled

Question 17

What’s the proper way to transfer non-negotiable promissory note vs. negotiable promissory note?

Answer 17

(1) Negotiable promissory note can be assigned by simply endorsing and delivering note to assignee

(2) Non-negotiable promissory note is different – requires a separate assignment document to transfer ownership

Question 18

Forgery

Answer 18

When a person (1) Makes (creates or alters) a false document of apparent legal significance with (2) the intent to defraud

Question 19

Facts known and opinions held by an expert not expected to testify are __?

Answer 19

Privileged and not discoverable UNLESS:

The information relates to a court-ordered physical or mental examination

OR

Exceptional circumstances make it impracticable to obtain that information by other means (e.g. party dies and cannot be evaluated)

Question 20

Defendant can be charged with burglary even though crime was not fully completed

Answer 20

Burglary is committed by unlawful entry.

Leg cleared the window sill, dog began barking, and D was defendant and ran off. She’s still charged with burglary

Question 21

“In a tavern, an intoxicated woman threatened to slash a man with the broken beer bottle in her hand.”

Answer 21

Don’t focus on the intoxication part here. Bc if the answer choices don’t mention “defense,” then don’t even think about it at all.

The man who grabbed her and locked her in the storeroom until police came was justified in doing so and used “reasonable force”

Question 22

“the option to purchase will vest if the friend, her heirs, and assigns ever use the premises for nonresidential purposes”

An option to purchase is almost always void if ___?

Answer 22

If it is not set to terminate within the perpetuities period (21 years after a relevant life)

Question 23

Recorded Recollection Hearsay Exception

Answer 23

(1) Records that concern matter that witness once knew about but cannot recall at trial

(2) Record was made when matter was fresh in his/her mind

(3) AND it accurately reflects witness’s personal knowledge at time record was made

Question 24

What hints will tell me that state is a “market participant” and thus not barred (by the commerce clause) from discriminating against out-of-state commerce?

Answer 24

(1) if we’re talking about a “State-owned / state-operated” facility

(2) When state provides contracts, grants, or funding for particular projects

Question 25

Buyer who takes property “subject to mortgage” and makes some payments

Answer 25

the action of making mortgage payments does not constitute liability for the debt

Question 26

When is conduct/statement made in settlement negotiations admissible vs. inadmissible?

Answer 26

Inadmissible:
- to prove validity of claim
- or prove validity of amount
- impeachment

Admissible for those purposes if:
- settlement negotiation for a civil dispute with government or agency

Admissible for these other purposes:
- to show bias/prejudice
- to prove intentions to obstruct justice

Question 27

judge granting directed verdict

Answer 27

judge can grant direct verdict if “judge determines that no reasonable jury could find in the other party’s favor”

Judge’s personal belief “is convinced by prosecution” or “believes the credibility of witnesses” is IRRELEVANT

Expert witness testimony need not be weighed heavier than lay

Question 28

Are covenants red flags for marketable title? If so, why and give example

Answer 28

Covenants are promises to do or not to do something to the property, so they are restrictive.

Like a zoning regulation that restricts the area only to residential. It’s a red flag bc 3rd party could enforce and bring litigation against developer

Question 29

What are exclusive legislative powers that cannot be delegated?

Answer 29

— making / repealing laws
— declaring war
— impeaching federal officers

Question 30

President has plenary power over what?

What situation would pres pardon not work?

Answer 30

President has plenary power to grant reprieves and federal pardons. Pres can also nominate judges

But not in cases of impeachment!

Question 31

Can race based plan be used to remedy discrimination?

Answer 31

A race based plan cannot be used to remedy “general past societal discrimination”

States may implement regulations if class has actually suffered “persistent and readily identifiable past discrimination”

Question 32

What are the three factors that the court looks out in determining whether a regulation constitutes of taking?

Answer 32

(1) the economic impact of the regulation on the property owner,

(2) the extent to which the regulation interferes with the owners reasonable investment-backed expectations of use of the property

(3) the character of the regulation and whether it violates any of the owners essential attributes of property ownership, such as the right to exclude others

Question 33

Exaction that doesn’t violate takings clause requires what?

Answer 33

(1) essential nexus between legitimate state interests and conditions imposed on property owner

(2) AND rough proportionality between the burden imposed by the conditions on the property owner and impact of the proposed development

Question 34

State legislation that substantially impairs an existing private contract is invalid under the contract clause, unless it meets what standard?

Answer 34

The legislation must pass intermediate scrutiny. In other words the challenge law must further an important government interest by means that are substantially related to that interest.

Question 35

The government can regulate expressive conduct such as wearing a black armband to protest war if what conditions are met?

Answer 35

(1) the government has an important interest that doesn’t have anything to do with the suppression of ideas

(2) and the incidental burden on speech is no greater than necessary to further that interest

Question 36

What is the standard of review that regulations on content-neutral speech have to meet in order to be constitutional?

Answer 36

(1) must be content-neutral, aka subject matter and viewpoint neutral

(2) narrowly tailored to meet an important gov interest that’s unrelated to suppression of speech

(3) and leaves open alternative channels of communication

Question 37

What are the standards that must be met when a government is regulating speech in a non-public forum?

Answer 37

(1) regulation must be viewpoint neutral

(2) and must be reasonably related to a legitimate government purpose

Question 38

When do you have “inciting imminent lawless action” that can be regulated?

Answer 38

Must be shown that

(1) imminent illegal conduct is likely

(2) and the speaker intended to cause it

Question 39

What’s the definition of “fighting words” that can be regulated?

Answer 39

Fighting words are personally abusive words that are likely to incite immediate physical retaliation in an average person

NOTE: SCOTUS will not tolerate statues regulating fighting words only protecting certain groups (e.g. prohibiting fighting words against women or minorities)

Question 40

How does 1st amendment treat commercial speech?

Answer 40

Generally commercial speech is afforded first amendment protection if it is truthful

However, commercial speech that proposes unlawful activity, or that is false and misleading can be restricted

Question 41

What standard must be met in order for a regulation of commercial speech to be upheld?

Answer 41

The regulation must serve an important government interest, directly advanced that interest, and is nearly tailored to serve that interest

Question 42

What is the standard of review for government restrictions on campaign contributions vs. campaign expenditures?

Answer 42

Campaign contributions: intermediate scrutiny
Campaign expenditures: strict scrutiny

Question 43

D was charged with assault, which generally carries a 5 yr max sentence. But prosecutor announced that she will seek a 10 yr sentence based on D’s alleged possession of deadly weapon. Since this sentence would heighten statute’s max sentencing range… what does due process require?

Answer 43

Requires prosecution to prove all elements of a claim beyond a reasonable doubt.

Sentencing factor that would increase statutes’ max sentencing range is considered an element of a criminal offense

Question 44

Holder of a life estate: what are their duties?

Answer 44

Duty to pay current charges on the land: property taxes, mortgage interest to the extent the property produces income (life tenant not responsible for principal)

This duty is limited only to the income that COULD be generated from the property. Therefore there is NO duty to pay these charges if the life tenant is NOT in possession and does not receive rent or other income from property (unless FMV is significant and the life tenant just chooses not to rent it out)

Life tenant is under no obligation to insure property for the benefit of remainderman

Question 45

Tag Jurisdiction: when is it not allowed?

Answer 45

When d was:
(1) fraudulently or forcefully brought into the forum state to be served with process

(2) OR present in forum state to attend an UNRELATED summons / judicial proceeding

Question 46

Theft crimes

(Difference definition common law vs. MPC)

Answer 46

(Common Law): property limited to tangible personal property

(MPC): property is broadened to include anything of value, including intangibles, services, documents

Question 47

Plaintiff has standing to sue for trespass if he/she has a possessory interest

Answer 47

(possessory interest = right to occupy or control property). Even if student doesn’t own apartment, he has possessory interest in it via a lease and thus he has standing to sue for trespass.

Question 48

“Nonconforming use” has a grandfathered right to continue use until what?

Answer 48

(1) the nonconforming us is enlarged, changed or abandoned, or

(2) if provided in the zoning law, amortization period has passed/nonconforming use has not been registered

Question 49

Procedure around sanction proceedings initiated by a party’s motion

Answer 49

Requires the party to serve motion on alleged violator but refrain from FILING it for 21 days after serving to allow any violation to be corrected (safe-harbor rule)

Question 50

Where is venue is proper after having been removed from state court?

Answer 50

Venue is proper in the federal district encompassing the state court from which the suit was removed. This is true EVEN IF the federal district court would not have venue under the general proper venue statute

Question 51

Summary Judgment motion

Movant has initial burden to show what?

Answer 51

Movant must support motion with admissible facts contained in pleadings, affidavits, declarations, discovery or other materials

Nonmovant to avoid summary judgment by either:
(1) requesting that court postpone consideration of the motion until additional discovery OR

(2) show specific disputed facts through other materials, NOT THROUGH PLEADINGS.

Question 52

SCOTUS has original jurisdiction over what?

Answer 52

Cases affecting ambassadors (often involves diplomats and representatives of other countries)

Cases in which a state is a party

Question 53

Nonjusticeable Political Questions

Answer 53

• Recognition of foreign governments
• Reception of ambassadors
• Nature of wars/hostilities
• Partisan gerrymandering
• Guarantee of republican form of government
• Recognition of Native American tribes
• House/Senate rules for impeachment
• Ratification process for constitutional amendments

Question 54

Most counterclaims that arise from same transaction or occurrence ARE compulsory

Answer 54

In contrast,

remember that most additional claims by P that arise from same transaction or occurrence are permissive (and there’d be supplemental Jx) unless that party is an absolutely necessary one

Question 55

When a senior mortgage is modified by the parties, it will RETAIN its priority against junior interests so long as

Answer 55

So long as the modification does not materially prejudice the holders of the junior interests.

Question 56

Mandatory pretrial disclosures must be made at least 30 days before trial

When do objections need to be made?

Answer 56

Any objections to the use at trial of deposition testimony, documents, or exhibits must be made within 14 days after the disclosures

Question 57

Judicial notice is when: a fact is not subject to reasonable dispute, so court can recognize it as true without a formal presentation of evidence

How is jury instruction different in civil vs criminal case?

Answer 57

In civil – judge must instruct jury to find the fact as conclusive

In criminal – judge instructs that the jury may, but is not required to, find the fact as conclusive

Question 58

Due process clause requires prosecution to prove every element of a criminal offense beyond a reasonable doubt

But what about affirmative defenses?

Answer 58

Affirmative defenses (duress, insanity, necessity, entrapment, defense) are not elements of crime, but instead provide justification or excuse for criminal conduct → so states can place any burden of proof on either party to establish or negate affirmative defense

Question 59

Elements of libel

Answer 59

(1) D knowingly made a false statement about P
Or D negligently failed to determine its falsity (failed to use reasonable care)

(2) It’s a type of statement that would tend to harm P’s reputation

(3) D intentionally or negligently communicated that statement to a third party

NOTE: person who repeats a defamatory statement is just as liable as the original defamer

Question 60

Congress’s broad taxing power (not on the states)

Think: the tax of $25 on all flights regardless of whether they were related to any of the major airport development project goals

Answer 60

Congress has broad power to impose indirect taxes.

The people/subject taxed need not have any relation to the purpose for which the tax funds will be spent.

Question 61

When can summaries/charts/visuals be used in lieu of the actual recordings or photographs

Answer 61

(1) CAN BE USED only if the originals or duplicates were made available for other parties to examine. “Made originals available for inspection before trial”

Question 62

In a notice jurisdiction, a bona fide purchaser who acquires a property interest without notice of an earlier property interest will prevail

Answer 62

This notice is not just “recorded notice”

It includes
- actual knowledge, or
- recorded on chain of title,
- OR inquiry notice (circumstances that would prompt reasonable person to investigate)

Question 63

Unless offer specifies that it can only be accepted by performance (unilateral), when is it “accepted”?

Answer 63

Can be accepted by promising OR beginning performance

Question 64

UCC Contract between merchants (battle-of-the-forms)

Answer 64

Tells you acceptance is effective even when it contains new terms
Terms become PART of the contract unless:

(1) offer expressly required offeror’s assent to new terms
(2) offeror objected within a reasonable time
Or (3) new terms materially alter the contract

Question 65

Definition of public and private nuisance

Answer 65

Private nuisance:
A substantial (offensive, annoying to reasonable person) and unreasonable (injury outweighs usefulness) interference with another individual’s use or enjoyment of his property.

Public nuisance:
Unreasonable interference with the health, safety or
property rights of the community.

Question 66

Differences between public and private nuisances

Answer 66

Unlike a private nuisance, a public nuisance does NOT require that the plaintiff have possessory rights in real property.

For private party to recover in public nuisance, must show special/different harm from rest of the community

Question 67

When part of a will lapses bc one of the beneficiaries predeceases the testator, then what happens to testator’s residence since it cannot be passed by the terms of testator’s will?

Answer 67

When beneficiary predeceases testator (unless there’s an anti-lapse statute), the testator’s residence will pass in accord with intestacy statute

Question 68

At common law, when is conspiracy complete?

Answer 68

Conspiracy is complete as soon as the parties enter into the agreement.

Question 69

Conspiracy at common law vs. conspiracy in majority of jurisdictions/MPC

Answer 69

Conspiracy @ common law: just need 2 people agreeing. Conspiracy is complete as soon as there’s agreement.

• so foreign diplomat’s immunity defense affects the woman’s liability for conspiracy

Conspiracy at MPC: just need one person to agree AND an overt act in furtherance of the conspiracy
- so even with foreign diplomat’s immunity, woman would still be liable for conspiracy

Question 70

Due process requirements for termination of welfare benefits? (same as losing tenured job)

Answer 70

Right to notice and a hearing BEFORE welfare benefits are terminated

Question 71

When one party to a contract between merchants tacks on an additional provision after K has been formed, what is enforceable and what’s not?

Answer 71

Retailer ordered 10 sofas to be delivered and paid for in 5 equal monthly installments. [THIS WAS AN ACCEPTED ORDER] With the shipment of two sofas, manufacturer then added note that retained security interest in all sofas until purchase price was fully paid.

Retailer can reject this additional term. Manufacturer can sue retailer if they try to get out of buying the remaining 8 sofas. But retailer would still be bound by the original order of 10 sofas.

Question 72

When is there an implied servitude in parcels of land?

Answer 72

The existence of a common scheme is evidenced by the developer’s advertising and the insertion of the character and size provision into the deeds for 75% of lots

Question 73

Failure to mitigate damages

Answer 73

Merely reduces the damages owed to the nonbreaching party to the extent that those damages could have been avoided without undue risk or burden

Question 74

What does “derivative-use immunity” protect?

Answer 74

Derivative-use immunity a witness from the use of the witness’s own testimony, or any evidence derived from that testimony, against the witness in a subsequent criminal prosecution

Does not protect him from its use in a civil suit

Question 75

Doctrine of Frustration of Purpose

Answer 75

(1) Applies when an unexpected event arises that destroys one party’s purpose in entering into the contract

(2) even if performance of the contract is not rendered impossible

(3) The event that arises must not be the fault of the frustrated party

(4) and its nonoccurrence must have been a basic assumption of the contract.

Question 76

When a defendant properly using force to defense himself and unintentionally harms a bystander in the meanwhile, what’s the liability?

Answer 76

the defendant is NOT subject to intentional tort liability to the bystander. Only negligence standard

“Owner’s actions did not create an unreasonable risk of harm to the youth.” = not negligent

Question 77

Who can be “sequestered” or removed from the room room by Defendant’s request so that they don’t hear and get influenced by the testimony of other witnesses?

Answer 77

• eyewitnesses to the crime
• desk officer testifying regarding chain of custody
• former co-defendant who reached plea agreement

ONLY police officer who investigated the crime cannot be removed, must stay in the courtroom

Question 78

Trespass to chattels

Answer 78

e.g. includes nails puncturing bicycle tires

Question 79

Issue of venue in a diversity jurisdiction case: substantive or procedural?

Answer 79

procedural issue governed by federal law

Question 80

Self-authenticating evidence?

Answer 80

–Trade inscriptions (e.g. a can label) to indicate ownership
–Official publications issued by public authority (e.g. pamphlet issued by state highway department)
–Printed materials purposed to be a newspaper or periodical
–Public documents with official’s signature & authorized by seal
–Certified copies of public records & records of regularly conducted activities
–Business records or documents with trade inscription
–Ancient document at least 20 years old

Not self-authenticating:
MOST pieces of evidence (contracts, photographs, handwritten letters)

Question 81

When claim preclusion stops plaintiff from bringing another case?

Answer 81

(1) final judgment on the merits
(2) same parties
(3) same cause of action.
- Anything that could be raised because of “same transaction or occurrence” must be raised otherwise precluded by claim preclusion.

“For the same breach of contract house not being sold to her, she first won on ethnicity discrimination. And then she’s now bringing another case about the same breach of contract house not being sold to her and claiming disability discrimination”

Question 82

Fundamental rights

Answer 82

• right to interstate travel
• right to vote
• right to consensual sex
• right to live with whoever you want to live with (but must be related to them)

Question 83

Implied-in-law vs. Implied-in-fact contract

Answer 83

Implied-in-law (quasi-contract)
when one party confers a benefit on another and has a reasonable expectation of compensation. AKA not compensating the giver would be unjust enrichment

Implied-in-fact
conduct of one party manifests their intent to contract

Question 84

When fundamental right of interstate travel is burdened/denied

Answer 84

Durational residency requirements (like must live in this state for 6 months before you get free healthcare)

are burdens to the right to interstate travel when they deny basic necessities of life to newcomers of the state

Question 85

When are the requirements of equitable servitude met?

Answer 85

The requirements for an equitable servitude are met:
(1) the deed contains a clear intent that the promise be enforceable against a successor-in-interest,

(2) the promise touches and concerns the land (i.e., refrain from building a fence on it),

(3) and the party against whom it is enforced has notice of it

Remember: notice can be actual knowledge, recorded notice, or inquiry notice

Question 86

Do modifications in a UCC contract that falls within and satisfies Statute of Frauds need to be in writing as well?

Answer 86

No, unless they affect the subject matter of the contract or the quantity of goods to be sold

Ex: contract to purchase a new car for $35,000 needed to be in writing. subsequent oral modification to the purchase price did not need to be in writing because it did not affect the subject matter of the contract or quantity

Question 87

Credibility of a witness may be attacked by ?

Answer 87

Reputation or opinion evidence as to the witness’s character for truthfulness or untruthfulness

Ex: Evidence that the first witness was previously in a violent altercation has NO bearing on his credibility (unless he had previously denied being in such an altercation

Question 88

When is timely disclosure of expert witness?

Answer 88

90 days before trial

Question 89

Learned Treatise hearsay exception

Answer 89

A statement contained in published treatises or periodicals admissible

(1) the treatise is established as a reliable authority by the testimony of a witness, expert, or by judicial notice, and

(2) expert witness calls the statements to attention OR relies on the treatise during their examination

If these requirements are met, the statement contained in the treatise may be read into evidence, and may be used as SUBSTANTIVE evidence and for IMPEACHMENT purposes.

The treatise itself, however, is not admitted into evidence. Statements may only be read into evidence

Question 90

When police fails to “knock and announce” themselves, but rather they just enter home

Answer 90

If they have a valid search warrant, then this is fine and valid. Can bring in evidence of drugs in plain view

Question 91

Failure to provide adequate assurances of its ability to perform within a reasonable time (when reasonable grounds for insecurity come up)

Answer 91

Constitutes anticipatory repudiation of the contract

Question 92

When can a plaintiff may dismiss an action without court approval or the agreement of the other parties?

Answer 92

Prior to the service of an answer or summary judgment motion

Question 93

Congress has power to abrogate state immunity

Answer 93

regarding Bankruptcy case

other enforce civil war amendments

Question 94

When character evidence is allowed because it’s an essential element of the claim?

Answer 94

Although character evidence is not generally admissible, it may be admitted when character is an essential element of a claim

Defamation
Negligent hiring
Entrustment

Question 95

Tortfeasors facing joint and several liability: are they permissively joined or compulsorily joined?

Answer 95

Permissive. Can be separate cases.

I have yet to see a compulsory joinder example

Question 96

Discrimination against out-of-state individuals for recreational things (e.g. deer hunting = not a fundamental right), what constitutional clause governs?

Answer 96

Article IV’s Privileges and Immunities Clause

NOT Dormant Commerce Clause (only regulates commercial)

Question 97

Presidential power under Article II is greatest when?

Answer 97

When the president acts pursuant to Congressional authorization

Question 97

Risk of Loss when there’s no contractual term on it (UCC Contracts)

Answer 97

UCC provides that a merchant seller generally retains the risk of loss in the absence of a contract term to the contrary until the buyer receives the goods

Question 98

Does Eighth Amendment prohibition on cruel and unusual punishment restrict recidivisim on non-violent crimes?

Answer 98

No, life sentences allowed for three-time repeat felony offenders, even if they are non-violent

Question 99

Doctrine of emblements

Answer 99

When a lease of uncertain duration is terminated through no fault of tenant

Then tenant has right to reenter to remove, harvest, cultivate

Question 100

Owner-occupied dwelling of 4 of fewer units is exempted from FHA, except for when ?

Answer 100

Advertisements that discriminate against protected classes
* Race
* Color
* Religion
* National Origin
* Handicap
* National Status

Question 101

There is no right to lateral support through prescription or adverse possession

Question 102

100 mile bulge rule grants a forum court PJ over an out-of-court party when:

Answer 102

• Process is served within 100 of the forum courthouse, even if it’s in a different state
• Party is joined through impleader or as a necessary party (required joinder)

Question 103

If grand jury compels documents from Pres in a criminal or civil liability case that arose prior to presidency

Answer 103

(there’s no need for other justifications)

President must comply

Question 104

Forum selection clauses

Answer 104

Forum selection clause is an “express” consent that D is subjecting themselves to PJ in that forum

Question 105

If highest state court has never ruled or noted in dicta whether this defense is valid (or any other essential element to the claim), what must a federal district court with diversity jurisdiction do?

Answer 105

Federal court must predict what the state’s highest court would do by looking at rulings issued by lower courts

Question 106

Doctrine of continuing trespass (relevant to larceny)

Answer 106

Larceny is the unlawful taking and carrying away of another’s personal property with the intent to permanently deprive the owner. This intent has to exist WHEN the taking occurs

But under doctrine of continuing trespass, person who doesn’t have the intent to permanently deprive at the time of the trespassory taking, but LATER forms such intent becomes guilty of larceny. NOTE the taking must have been trespassory to begin with!! (If person had consent to have the item, then it’s not trespassory and there’s no larceny)

Question 107

Alter/amend judgment

Answer 107

Must be within 28 after entry of final judgment

• Manifest error of law or fact is basis for judgment
• Intervening change in controlling law (e.g. appellate court issues decision that contradicts DC’s interpretation of the law)
• Newly discovered evidence

Question 108

Release of liability in UCC contract

“company sent letter to manufacturer that read: you are not responsible for replacing the damaged tiles. We will sue the carrier.”

Answer 108

A release is a writing that manifests an intent to discharge another party from an existing duty.

UCC requires that the release be signed by the releasing party, but no new consideration is required for the release to be effective

Question 109

If applicable SOL is silent about relation back, amendment would still relate back if ___? (3 things)

Answer 109

• the amendment concerned the same transaction or occurrence as the original pleading
• the new party received notice of the suit within 90 days after the original pleading was filed
• AND the new party knew or should have known the suit would have been brought against it but for a mistake concerning proper party’s identity

Question 110

When there’s both state law and federal law involved (“DPC of 14th A of US Constitution and a violation of a similar DP provision of state constitution”), what constitutes “adequate and independent state law grounds” that would prohibit SCOTUS from exercising jurisdiction to review state court decision?

Answer 110

Ruling rests on an independent state ground because “state court did not RELY on federal law in ruling on the similar state constitutional issue.”

Question 111

Nonhearsay statements by declarant-witness

Answer 111

Prior statement of ID

Prior inconsistent statement
- If the inconsistent statement was made under penalty of perjury at a former proceeding (deposition counts)

Prior consistent statement
- Only applies if it’s being offered to REBUT a charge of fabrication and the statement was made before motive to lie arose
- OR to rehabilitate declarant’s credibility when attacked

(cannot use consistent statement UNLESS it’s for rehabilitation credibility/rebutting charge of fibbing)

Question 112

Best evidence rule requires original or reliable duplicate (unless original is unavailable by destruction, loss, judicial process, no possession

Answer 112

When the original is unavailable
- Due to being lost or destroyed
- Unattained by judicial process (like a foreign agency)

Admission by party (like defendant can recite terms of contract)
- BUT ONLY if it was made by party’s testimony or deposition or written statement

Question 113

5th A privilege against self-incrimination applies to who and does not apply to who?

Answer 113

5th A privilege applies to individuals and sole proprietorship

Corporation has no 5th A privilege

Question 114

Timing of serving questions and objections for written depositions

Answer 114

Questions to be asked during cross must be served with 14 days after service of notice and direct questions

Questions to be asked during redirect must be served within 7 days after service of cross-questions

Questions to be asked during re-cross must be served within 7 days after service of re-direct questions

Question 115

When determining preliminary fact questions, court may consider what?

Answer 115

ANY relevant evidence – even evidence that is otherwise inadmissible

Question 116

If a pre-answer motion has only one of these (lack of PJ, improper venue and insufficient process/service of process), do they waive the rest? What is not waived?

Answer 116

If pre-answer motion only touches on lack of PJ for example, then improper venue and insufficient process is not allowed in any subsequent motion and defenses are waived

(1) Failure to state claim on which to grant relief,
(2) failure to state legal defense, and
(3) failure to join required party are prohibited in any subsequent pre-answer motion BUT these defenses are not waived at trial

AKA these later ones can be asserted as defenses anytime UNTIL end of trial. “Asserted in man’s motion for judgment on the pleadings”

Question 117

Licenses are generally revocable. What would cause it to become irrevocable?

Answer 117

Licensor may be estopped from revoking license IF licensee expends substantial money, labor or other resources in reliance on the license.

Question 118

Nondelegable duties (whereby owner would be liable even if they contracted with an independent contractor)

Answer 118

• Maintain safe conditions on premises open to the public (e.g. slippery floor at the entryway of a shopping mall)
• Safely perform activities that are: abnormally highly dangerous, infringe on a private property right, regulated by law, or conducted in a public place

Question 119

Deprivation of due process rights under 5th A

Answer 119

Deprivation of life:
– execution

Deprivation of liberty:
–incarceration,
– commitment to mental institution,
– loss of parental rights

Deprivation of property:
– Suspension from public school (unless it’s an academic suspension)
– termination of welfare benefits
–termination of public employment (not at will)

Question 120

Methods of evidence of specific instances of conduct for impeaching witness’s character for truthfulness

Answer 120

Conviction for felony or dishonesty
–can be introduced with extrinsically (from a source other than the witness’s own testimony) or intrinsically (through witness’s own testimony)
- But it must be a conviction for a felony OR conviction of crime involving dishonesty

Other bad acts
- Only intrinsically (witness’s own testimony)

Arrest for embezzlement is not a conviction
Conviction of disorderly conduct is a misdemeanor, so not a felony.

Question 121

Exculpatory clause releases a party from liability for damages caused during execution of contract

(how it interacts with assignments/delegations)

Answer 121

General principal is that a delegating party (promisor) is NOT released from liability for damages caused by a delegatee unless the promisee expressly agrees to a release. So exculpatory clause allows promisee to content that the duties were not delegable and originaly promisor cannot be released without promisee’s consent

Question 122

14A privileges or immunities

Answer 122

Rights of national citizenship
- Interstate travel
- Assemble peacefully
- Vote for national offices
- Enter public lands
- Petition Congress for redress

Question 123

Delivery of the deed to the grantee generally constitutes the transfer of ownership. What if the owner asks the recipient to destroy the deed and the recipient lies? What if recipient records only after owner dies?

Answer 123

Doesn’t matter, deed was delivered

Question 124

How to calculate AIC when complaint seeks declaratory judgment/injunction as opposed to monetary relief?

Answer 124

(1) cost to D if forced to comply with the requested equitable relief (e.g. lost sales) OR

(2) worth to the plaintiff if requested equitable relief is granted (increased profits)

Question 125

Tenancy in Common

Answer 125

Concurrent ownership interest in land where each co-tenant has a separate share of the property but an equal right to possess the whole

Question 126

Provision of congressional statute prevents agency from expending appropriated funds until Congress adopts a concurrent resolution approving agency’s plans. What does this “concurrent resolution” requirement amount to?

Answer 126

The resolution will not be presented to the president so it amounts to an unconstitutional legislative interference with an executive function.

Question 127

14A ensures each citizen is given equal voting power by requiring state legislative districts to have largely equal populations. 5A ensures right to vote is not abridged on account of race.

When would state action in redrawing district lines NOT be unconstitutional?

Answer 127

Race is NOT the predominant factor behind redistricting if the board draws these boundaries to “comply with state constitutional requirements that district be compact and follow political subdivision boundaries.”

Question 128

Interrogations conducted by undercover government agents. How does D object to this testimony?

Answer 128

6A right to counsel automatically attaches once judicial proceedings commence. Presence of counsel required for all critical stages of prosecution – including interrogations conducted by undercover government agents

Question 129

When is a jury-instruction error preserved for appeal?

Answer 129

(1) When party raises the issue at the CLOSE of evidence by filing a written request for the proposed instruction and obtaining a definitive court ruling “your request is denied”

(2) OR before court instructs the jury by clearly identifying, stating the grounds for the objection on the record

Question 130

Suing seller for breaching covenant of title contained within warranty deed

Vs.

Suing seller for breach of contract failure to convey marketable title

Answer 130

Buyer can prevail specifically on the breach of covenant of title in warranty deed.

BUT NOT IN BREACH OF CONTRACT. Because the seller’s contract obligations merged with the deed (“doctrine of merger” provides that all obligations in land-sale contract merge with deed. Can only be enforced if those terms are incorporated into the deed”

Question 131

With a verdict form that instructs jury to determine which party should prevail and to answer specific questions related to each factual issue, when the answers are inconsistent with each other and the verdict, what must the judge do?

Answer 131

Judge must
(1) order a new trial
(2) OR direct jury to further consider its answers and verdict

Question 132

In a criminal case, statements in “efforts to settle or negotiate plea bargain” do not count when it’s made to investigator or government agency. When do they count?

Answer 132

Only counts if they are statements made to prosecutor and if BOTH PARTIES intend to enter such negotiations

Question 133

Traditional approach to landowners duties to:

Invitees
Licenses (social guests)
Known/anticipated trespassers
Unknown trespassers

Answer 133

Anticipated trespassers:
– must warn trespassor about hidden, man-made dangers that land possessor KNOWS about
– use reasonable care while conduct activities on their land

Question 134

Extrinsic evidence of prior oral or written agreement to modify a final agreement is ALWAYS admissible when what?

Answer 134

When trying to establish grounds for void contract formation or for denying/granting remedy like reformation

Question 135

Unilateral mistake only serves as basis for reforming contract if mistake stemmed from fraudulent misrepresentation, which occurs when what?

Answer 135

(1) One party “intentionally misrepresents the content or legal effect” of the contract to induce the other party to enter
(2) AND the other party justifiably relies on that misrepresentation

Ex: employer prepared an unsigned release. Employee carefully prepared, signed, and sent to employer a release that was IDENTICAL except that it excluded from the release any age discrimination claims.
^ fraudulent misrepresentation

Question 136

When acting in self-defense, D may be liable to a bystander only if what?

Answer 136

Only if D intentionally sued force against bystander.

So bystander gets hurt when guard tries to defend himself from robber. Guard did not “INTEND TO HIT bystander” and thus guard cannot be liable to the bystander for battery or any injury claim.

If the bystander claims NEGLIGENCE, then the correct answer would be that guard used reasonable care.

(Focus on the claim bc that will tell you what the correct answer choice must contain in order for either bystander or guard to prevail)

Question 137

Strict products liability claim elements

Answer 137

(1) D were commercial sellers: manufacturer, retailer

(2) Product was defective at the time it left D’s control

(3) Defect caused plaintiff physical harm. Property harm or property damage.
- purely economic loss ARE NOT allowed

Question 138

But if criminal charge is dismissed before D is put on trial (prosecution failed to establish probable cause), does double jeopardy kick in?

Answer 138

Double jeopardy does not attache because D was never put on trial and never in jeopardy of conviction.

Prosecution can therefore later prosecute the offense

Question 139

“Double jeopardy protection does not come into play until there’s been a conviction or acquittal.” True or false?

When DO double jeopardy protections kick in?

Answer 139

FALSE,

Double jeopardy protections are triggered AS SOON AS as D is put on trial (jury is impaneled or judge begins to hear evidence).

Question 140

D who is a private citizen and not a police officer is privileged to confine or arrest a plaintiff when what?

Answer 140

(1) felony has been committed
(2) AND defendant reasonable suspects that P committed the felony

Question 141

D who is a private citizen and not a police officer is privileged to confine or arrest a plaintiff when what?

Answer 141

(1) felony has been committed
(2) AND defendant reasonable suspects that P committed the felony

Question 142

What are cases where person’s character is directly in issue (essential element of a charge) and that’s why character evidence is admissible?

Answer 142

Defamation (slander or liable)
- Injuring P’s reputation with spoken or written false statement
- Plaintiff’s character is at issue and evidence about character can be admitted to prove that the statement made was not statement

Negligent entrustment
- Injuring P by negligently entrusting dangerous article to reckless or incompetent person
- The driver (who was entrusted)’s character is at issue and evidence about their recklessness or incompetence can be brought up

Child Custody
- Character of parent

Entrapment
- Criminal defense alleging government inducement & defendant’s lack of predisposition to commit crime

Negligent hiring
- Injuring P by negligently hiring person of dangerous or untrustworthy character

Question 143

Elements of strict products liability

Answer 143

(1) D was a commercial seller

(2) Product was defective at the time it left D’s control

(3) Defect caused plaintiff physical harm: must be BODILY harm or PROPERTY damages. Only economic losses do not count

Question 144

Agency theory of felony murder

Answer 144

D is responsible for deaths caused by him/herself or co-felons during the commission or attempt of inherently dangerous felony.

But they’re not responsible for death caused by others (security guard, customer who entered the store)

Question 145

Property is no longer considered stolen and D would not be guilty of receiving stolen property if what?

Answer 145

Receiving stolen property: (1) D took possession or exercised control over stolen personal property, (2) D knew that the property was stolen, and (3) D specifically intended to permanently deprive owner of property

But property is no longer considered stolen once police recover the property (had been caught by police, reported to the police, cooperating with the police)

Question 146

Courts have the discretion to (demand that answers must be filed before the federal rule deadline of 21 days after service of process) and what else?

Answer 146

Courts can also set an earlier reasonable deadline (e.g. by start of trial) for each party to request specific jury instructions. Thus if the parties do not request it by the court’s deadline, their later requests would be denied.

Question 147

What constitutes misrepresentation that would make a contract voidable/rescindable by adversely affected party?

Answer 147

Misrepresentation can be through:
–affirmative statement (“car has never been in an accident”)
– concealment (hiding the scratches of accident)
– nondisclosure (“not answer the question about whether car had been in an accident. Never mentioning it and talking about other stuff instead”)

Question 148

Business records hearsay exception

Answer 148

Admissible if:

(1) made at or near time of recorded event

(2) made by or based on info from someone with personal knowledge

– NOTE this does not mean that doctor with the personal knowledge must have been the one who recorded it. COULD be an intern or resident who did not have personal knowledge of the event but gets the info for what to note down from the doctor with personal knowledge

(3) made and kept as regular practice in course of business

Question 149

When is burden on right to freely exercise sincerely held religions beliefs/free exercise of religion as guaranteed by 1A an 14A unconstitutional vs constitutional?

Answer 149

Direct burden
– Where the statute intentionally targets religion, the burden is presumptive invalid and state must prove that burden is necessary to achieve compelling state interest (strict scrutiny)

Incidental burden (generally applies to all)
– Burden just incidentally affects these people who have these religious beliefs. Burden is presumptively valid and challenger must prove that burden is not rationally related to a legitimate state interest

Question 150

Bursting bubble = opposing party in a civil suit can overcome rebuttable presumption by producing sufficient evidence to contradict presumed fact

(E.g. P says notice was mailed and properly stamped. D testifies that she never received the notice)

Answer 150

Burden does NOT shift to D to persuade jury of nonreceipt.

Jury must weigh the evidence to decision the issue. Jury could still find that notice was received.

Question 151

Valid vs. void deeds

Answer 151

– signed by grantor (if it’s only signed by grantee, then VOID)

– identifies grantor and grantee (if it’s ambiguous or nonexistent grantee, VOID)

Question 152

Unwritten / Oral modifications of Contracts

Answer 152

If contract is silent about modification
– Written or oral modification (unless SOF applies) valid

Written Modification Requirement (aka no-oral-modification clause)
(Common Law): unenforceable
(UCC): enforceable IF the clause requiring written modification is separately signed by non-merchant.
– also waived if parties intended to allow the modification OR one party materially changed position in reliance of it

Question 153

Doctrine of lapse

Answer 153

Devise fails if beneficiary dies before testator (beneficiary predeceases testator)

Question 154

Ademption

Answer 154

Device fails by either:

(1) Extinction: the devised property is no longer owned by testator at T’s death

(2) Satisfaction: beneficiary received devised property during T’s life

Question 155

Abatement

Answer 155

Pays testator’s debts by reducing the assets going to devises

(1) Residuary devises abated first
(2) Then general
(3) then specific

Question 156

A contract to employ someone for an indefinite or permanent duration creates what type of employment relationship?

Answer 156

At-will relationship that allows either party to terminate the employment contract at any time and for any reason unless termination violates public policy

Question 157

What counts as “proving perpetrator’s identity” so admissible for MIMIC and not for D’s propensity?

Answer 157

– prior incidents of same exact killing and leaving a mark that says “V for vendetta’ in spray paint
– but an incident of strangling to death someone at a campsite vs. someone at a bar and then claiming self-defense is too dissimilar
– Witness testifies that “D had taped witness’s hands and tried to strangle her in same location two days before homicide but that she escaped.” This is identity!

Question 158

When do exigent circumstances apply such that police can search home without warrant?

Answer 158

– Evanescent evidence: where there’s imminent threat that relevant evidence will be destroyed
– Emergency situation: there’s an immediate threat of harm to polic and/or public
– Hot pursuit: suspect is fleeing after felony

During these emergency situations, police can make warrantless protective sweep of premises and seize illegal items within plain view.

But once emergency ends, police cannot continue search without warrant

Question 159

Lack of access to a public road is NOT a breach of warranty, quiet enjoyment, or any other title covenant. Why?

Answer 159

Because lack of access does not detract from buyer’s ownership rights in the land, nor does it create a superior claim to the land by a third party.

Deed only protects marketable title/reasonably free from doubt and under no threat of litigation. There’s no threat form a 3rd party when the land has no access to public right-of-way

Question 160

Mutual mistake
Grounds for voiding a contract?

Answer 160

Both parties knew about the misunderstanding (niece knew she was trying to trick aunt) and (aunt knew that niece was playing a trick with “newest” car) = no contract was formed.

If only ONE knew about the misunderstanding (like either niece was innocent in the wording OR aunt believed there’s no way “newest” car could’ve meant the more expensive one), then contract would have been formed

NO, not grounds for voiding a contract.
It’s just a VOID contract because contract was never formed.

Question 161

The court will look to the court that entered the first judgment to determine which issue-preclusion rule applies to the second action

Answer 161

Judgment entered by federal court = federal preclusion law applies

Judgment entered by state court = state’s preclusion law applies

Ex: When the state that entered first judgment does not permit nonmutual issue preclusion, then it doesn’t matter that the issue was actually litigated and decided. Issue preclusion not allowed

Question 162

Vicarious liability is no defense to worker’s criminal liability

Answer 162

Corporation may be vicariously liable for murder. Could mean that they have to pay damages.
But it’s not a DEFENSE to the worker’s own criminal liability

Question 163

Partition in judicial sale where creditor IS a party to the action vs. not a party to the action. Different treatment of creditor’s lien on interest

Answer 163

If creditor NOT party to action, any lien on the tenant’s property interest will stay attached to the interest.
“Creditor’s judgment will be lien on one-half interest in the house”

If creditor IS a party to the action, then the lien will attach to the sale proceeds attributable to that interest
“Creditor’s judgment will be a lien only on the portion of proceeds of sale due to the youngest son”

Question 164

Joint tenant can transfer interests when? Joint tenant cannot devise interest when?

Answer 164

Joint tenant can transfer/convey interests and that’ll convert the JT to TIC

But joint tenant can NEVER devise / convey through WILL. Because the property interest would just go to the other joint tenant under right of survivorship.

Look for terms like “executed a will” or “devised interest” versus “transferred or conveyed”

Question 165

When does a party need to response to a request for production?

Answer 165

When served after initial planning conference (“more typical”), must serve response within 30 days of service

When request is delivered before initial planning conference (“early request”), response is not due until 30 days after conference

Question 166

Standard of proof for preliminary questions of fact (admissibility of evidence) vs. weigh given to it (relevance)

Answer 166

Preliminary questions of fact (relating to admissibility of evidence, or whether a privilege exists, or whether a witness is qualified) are subject to preponderance-of-the-evidence standard of proof

Questions of relevance asks if a reasonable jury could find the fact

Question 167

Standard of proof for preliminary questions of fact (admissibility of evidence) vs. weigh given to it (relevance)

Answer 167

Preliminary questions of fact (relating to admissibility of evidence, or whether a privilege exists, or whether a witness is qualified) are subject to preponderance-of-the-evidence standard of proof

Questions of relevance asks if a reasonable jury could find the fact

Question 168

What are preliminary questions of fact (and examples)?

How are they decided (whether it needs to be outside jury’s presence)?

Answer 168

The court/judge must decide preliminary questions about:
– Whether evidence is admissible
– Whether witness is qualified
– Whether a privilege applies

But hearing must be conducted outside of jury’s presence if:
(1) if involves admissibility of a confession
(2) D in a criminal case is a witness and requests that the hearing is done outside of jury’s presence
(3) Or justice so requires

Question 169

D’s ownership of property in the forum state only establishes minimum contacts if the action is RELATED to that property. When does it not establish minimum contact?

Answer 169

When the property is unrelated to the plaintiff’s claim (e.g. company is just seeking to attach the property to satisfy any judgment in case investor-defendant could not pay)

Question 170

In a due process claim, who has the initial burden of showing that they have a protected life, liberty or property interest at stake?

Answer 170

Challenger has initial burden of showing they have a protected life, liberty or property interest at stake.

Ex: former secretary must demonstrate that state law created a constitutionally protected interest in her employment or procedures by which she was terminated

Question 171

Be careful about double jeopardy clause occurring within the same state, versus the second prosecution arising in second state (like two states involved)

Answer 171

5A double jeopardy applies to state sthrough 14A and protects criminal defendant from:
– multiple punishments of the same offense
– second prosecution for the same offense after a conviction OR an acquittal

BUT EXCEPTIONS:
Under dual sovereignty doctrine, different states can prosecute a defendant for the SAME criminal act without violating the double jeopardy clause
– even if the different states have “identical criminal statutes,” they are considered distinct offenses bc each state derives its power from its own constitution.

Question 172

Exceptions to spousal immunity and marital-communications privilege

Answer 172

Neither privilege applies when one spouse is charged with a crim
– against the other spouse
– or against a child of EITHER spouse (this includes stepchildren)

Ex: D here is accused of committing crime against his own child (images of child engaged in sexual conduct)

Question 173

Class member’s objection to proposed settlement: ability to appeal vs. ability to file a separate lawsuit

Answer 173

Objection from a class member allows the class member to appeal if court approves the settlement proposal but does not allow them to file an individual suit.

Class member can only file a separate lawsuit if they “opted out” of the class action. Otherwise, they’re bound by court-approved settlement or compromise

Question 174

Federal appellate court only has jurisdiction to hear appeal when what?

Answer 174

When district court has entered final judgment. Which means the judgment fully resolves a dispute on the merits.

“Partial summary judgment” is NOT a final judgment. Federal appellate court would lack jursidiction

Question 175

When Miranda rights are not unambiguously invoked, then there may be express or implied waive of their Miranda rights

Answer 175

Miranda rights clearly invoked
–Police must honor request. No D statements can be used

Express or implied waiver
– Police may interrogate suspect and use statements at trial

Question 176

Failure to make required disclosure to patients results in negligence liability only when what 2 elements are met?

Answer 176

(1) Failure to disclose caused the patient to consent to treatment
– ex: patient would not have undergone the surgery if they had known about the risk

(2) AND the undisclosed risk materialized and caused P physical harm

AKA failure for physician to disclose would NOT lead to any liability if P’s surgery went fine and suffered no harm

Question 177

When CAN physician withhold information about risks associated with operation (e.g. a 2% risk of death)?

Answer 177

When physician reasonable believes that disclosure would threaten patient’s well-being.

But this belief has to be based on physician’s sound medical judgment, NOT the physician’s “personal judgment”

Also - physician won’t be liable at the end of the day if P isn’t ultimate injured from the treatment.

Question 178

Not knowing and then not taking steps to confirm whether a statement is true before “spewing gossip” = grounds for defamation liability

What question provided an example of this

Answer 178

Disgruntled science teacher was recently fired. She told parent that principal was having an affair with married assistant principal.

There was nothing to base this allegation on – turns out it was false. The “disgruntled” likely tells you that the teacher wanted to harm the principal’s reputation. Also the principal did not take ANY steps to confirm whether this statement was true or not before telling parent.

Parent is also LIABLE to principal for defamatory bc she repeated the defamatory statement. Doesn’t matter that the parent said “I’m not sure if this is true or not”

Question 179

Can a legislator, who voted against legislation that passes, try to sue federal officials in district court that a statute is unconstitutional because it violates requirements of federal legislative process?

Answer 179

Not if the harm is abstract and shared equally by other members of Congress

In order for legislators to have standing to sue, they must have a personal stake in the dispute and concrete injury to challenge the constitutionality of the government action

Question 180

What kinds of cases does SCOTUS have exclusive jurisdiction over?

Answer 180

SCOTUS exclusive jurisdiction:
– Cases in which a STATE is a party (e.g. controversies between two states boundary disputes or water rights, controversies between state and citizen of another)

Original jurisdiction but not exclusive:
– Cases affecting ambassadors or other public ministers and consuls
– Cases between US and a state

Question 181

Regardless of the applicable mortgage theory, the mortgagee is entitled to take possession of the mortgaged property if what?

After mortgagee takes possession, how is their liability to invitees to the property premises incurred?

Answer 181

If the mortgagor abandons the property, mortgagee is always generally entitled to take possession of the property.

If they do, however, mortgagee would be in possession, and would incur liability AS IF he/she was the owner = tort liability to anyone injured on the property

Question 182

Deadlines to file a notice of appeal

(General rule and rule for federal gov/agency)

Answer 182

General rule: party must file notice of appeal with district court clerk within 30 days after entry of final judgment

If one of the parties is (1) the US, (2) a federal agency, or (3) federal officer or employee sued for conduct relating to government duties
– THEN time to file a notice of appeal is extended to 60 days

Question 183

Dead man’s statute

Answer 183

Statute that applies in civil cases and bars use of testimony from an interested party against the dead party

Question 184

Doctrine of equitable conversion.

What does buyer and seller get in the executory period (in between contract formation and before closing)

Answer 184

Doctrine of equitable conversion controls the ownership and risk of property loss during executory period.

Buyer receives equitable title (real property interest) ONCE the parties enter land-sales contract. Seller retains legal title and acquires equitable right to receive the sales proceeds (personal property interest) upon closing

Question 185

Void vs. voidable contracts

Answer 185

VOID:
– forgery
– illegality
– fraud in the factum
– duress by physical compulsion

VOIDABLE:
– lack of capacity
– mistake
– misrepresentation
– duress by threat
– undue influence
– fraud in the inducement

Question 186

Landowner must permit a trespass caused by necessity. What is trespass by necessity?

And would be liable for damages caused by force against the trespassing person/property.

Answer 186

When instrusion is or reasonably appears to be necessary (e.g. flooding to protect car from water damage) to:

(1) protect onself, third parties, or property from serious harm
(2) OR avert an imminent public disaster

Question 187

Court will grant a motion for a new trial based on newly discovered evidence if what elements are met?

Answer 187

(1) evidence was unknown to the movant at trial

(2) due diligence was used to discover evidence before the trial ended
– if the movant COULD HAVE discovered this evidence but just did not try hard enough during the trial, they don’t get a second chance at a new trial

(3) evidence is material

(4) And new trial with evidence will likely result in difference outcome

Question 188

Can police lawfully enter a suspect’s home if they have a valid arrest warrant? Or must they need a search warrant?

Answer 188

A valid arrest warrant (no search warrant) authorizes police to enter man’s home. Police were allowed to surreptitiously enter the man’s house with guns drawn at 6 A.M.

Question 189

Man’s best argument for granting motion to suppress the use of his statement that he committed a particular robbery to the police

Answer 189

Statements made without providing Miranda warnings can be suppressed.

Officers must give Miranda warnings before interrogating suspect in custody. Custody could be when he’s places under formal arrest OR when police have restrained his freedom (cornering him in the bedroom)

Challenging Miranda is better argument than “challenging voluntariness of a statement” bc voluntariness requires more factors to consider for totality of circumstances including: level of police coercion, length of interrogation, etc.

Question 190

What does court do when the deposing party fails to attend an oral deposition? When nonparty deponent fails to attend? When the party to be deposed fails to attend?

Answer 190

Deposing party fails to attend:
– court will require deposing party to pay other parties’ reasonable expenses of attendance

Nonparty deponent fails to attend:
– turns on whether they were served with a subpoena or not.
– served with subpoena: hold nonparty in contempt of court
– not served with subpoena; require nonparty to pay other parties’ reasonable expenses

Party deponent fails to attend:
– impose sanctions on party deponent

Question 191

What is a witness’s prior inconsistent statement admissible for?

Answer 191

Witness has to be testifying at trial and available for cross

Prior inconsistent statement always available to impeach wintess

But only admissible to prove TRUTH asserted (substantive evidence) if it was a prior inconsistent statement made under oath at a trial, hearing, or other proceeding

Question 192

Article III’s case-or-controversy requiremnet prohibits federal courts form issuing declaratory judgments when what?

Example of not a case-or-controversy

Answer 192

There’s no real and immediate danger to a party’s interest = judgment would amount to impermissible advisory opinion

(E.g. woman alleged that police would not have killed her friend if the use of deadly force had not been authorized by statute)

Question 193

General contract provision that prohibits assignment of the contract (e.g. “this contract may not be assigned, and any violation of this prohibition voids the contract”) will be construed as what??

Answer 193

General no-assignment clause will be construed as
(1) allowing the assignments of RIGHTS
(2) but barring the delegation of duties

Duties may not be delegated. So if promisor delegates, the promisee will not be bound to contract

Other situations:
– if the clause specifically prohibits assignment of rights AND delegation of duties, then assignment and delegation barred
– if clause prohibits specifically only assignment of rights, then this means that delegation is allowed

Question 194

Attacking witness’s character for truthfulness through
– reputation or opinion testimony
– SIC (felony conviction OR dishonesty crime)
–SIC (other bad acts: cheated in a community raffle to win a new car)

Answer 194

Reputation or opinion testimony
Can be introduced by anyone, like a different witness

Felony conviction or dishonest crime
Can be introduced by questioning the witness themselves about their record OR by a different witness

Other bad acts
Can ONLY introduced by the witness itself. Witness’s OWN testimony about those bad acts

Question 195

Knock-out Rule (this is when the merchants follow UCC gap-filling VS. the acceptance of new terms/automatic inclusion with UCC battle of the forms)

Answer 195

When both parties to the contract are merchants, and they have differing contract terms:
(Ex: product’s form quotation shows SOL period of 1 year vs. manufacturer’s order form shows SOL of 3 years)

These conflicting terms are canceled by the knockout rule. UCC replaces them.

Question 196

Tenants in Common ability to transfer/mortgage their interest

Answer 196

Tenants in Common MAY transfer/mortgage their own interest without the other co-tenant’s consent.

However, a co-tenant CANNOT transfer their other co-tenant’s interests OR bind other co-tenants under a contract affecting the property (e.g. boundary-line agreement)

In tenancy by entirety, neither spouse can mortgage property without other spouse’s consent

Question 197

When will court grant a protective order?

(Protective orders issued to protect parties from annoyance, embarrassment, oppression, undue burden, or undue expense)

Answer 197

(1) Movant shows good cause for the order

(2) AND certifies that she/he conferred or attempted to confer in good faith with party seeking discovery to resolve the matter without court action

Question 198

General Pleading Requirements

Vs. Complaint alleging Mistake/Fraud/Mental

Answer 198

General complaint must contain a short and plain statement of the claim showing that the plaintiff is entitled to relief.

But higher pleading requirements for complaint alleging mistake or fraud:
(1) may allege generally the defendant’s malice, intent, knowledge or other mental condition
(2) BUT must state with particularity the circumstances giving rise to the alleged fraud

Question 199

Intervention

(When a nonparty can join a case to protect his/her interest)

Answer 199

Intervention as of right
– Court MUST permit intervention when (1) nonparty’s interest is inadequately represented by the existing parties and (2) deciding the case may impair the nonparty’s ability to protect that interest

Permissive intervension
– When the nonparty’s claim or defense shares a common question of law or fact with the main action

Question 200

Deposition

Answer 200

• Written or oral examination of a party or witness under oath
• 10 per party
• Time-consuming and expensive, so it’s NEVER “most efficient method to identify potential witnesses”

Question 201

Request for production

Answer 201

• Used to make another party produce and allow inspection of documents, electronically stored info, tangible things
• No limit on how many
• Written response due within 30 days of service

Question 202

Interrogatories

Answer 202

• Written questions served by one party on another party that may inquire about any matter within scope of discovery
• Simple and inexpensive method to identify facts that might lead to other evidence including “identity of potential witnesses”

Question 203

Intentional Infliction of Emotional Distress

Answer 203

(1) D engaged in extreme and outrageous conduct
- this includes exploiting known & special vulnerability
- abusing authority
- repeated harassment

(2) D intended to cause P sever emotional distress OR recklessly disregarded the risk of causing such distress

(3) AND D caused P severe emotional distress
- must be SEVERE fright that is intense/prolonged etc.

Question 204

Exceptions to Best Evidence Rule

(where party can use testimony to prove contents, even without original or copy)

Answer 204

When the party against whom the original copy would be offered:
(1) had control of the original
(2) was put on notice that the original would be subject of proof at trial
(3) AND failed to produce the original at trial

Question 205

Exceptions to Best Evidence Rule

(where party can use testimony to prove contents, even without original or copy)

Answer 205

When the party against whom the original copy would be offered:
(1) had control of the original
(2) was put on notice that the original would be subject of proof at trial
(3) AND failed to produce the original at trial

Question 206

Can police officer properly order driver and passenger out of the car while officer is writing speeding ticket?

Answer 206

Yes, the intrusion is minimal and helps ensure officer safety.

If there’s marijuana found under the driver/passengers’ butts and on the seat, CAN be admitted to trial

Question 207

Default rule for most jurisdictions:
Merger doctrine does not apply to mortgages (unless they say that it does)

Answer 207

So when merger doctrine does NOT apply:
- A mortgagee that receives a deed in lieu of foreclosure is treated as having impliedly retained the right to foreclose on its mortgage. Unless it had actual knowledge of a junior lien
- If mortgagee that receives a deed in lieu of foreclosure HAD actual knowledge of a junior lien, they would NOT be able to foreclose on its mortgage to eliminate that junior lien

When merger doctrine applies:
- Deed in lieu of foreclosure would automatically eliminate credit union’s first mortgage, not the second mortgage

Question 208

Manufacturing defect would impose strict liability on manufacturer and other commercial sellers of the nail gun

But what about liability on someone who used nail gun to provide a service?

Answer 208

Strict liability would NOT be imposed on someone who merely used the defective nail gun to provide a service (e.g. reshingle a roof)

Question 209

Evidence about defendant’s character

• in cases where D’s character is an essential element of the claim
• in criminal cases
• in all other situations

Answer 209

When D’s character is an essential element:
- D can call witness to (1) present reputation, opinion testimony AND (2) specific instances of conduct
- P can rebut with the same

Criminal case and D’s witness will speak to evidence of a pertinent character trait
- Only reputation, opinion testimony allowed
- NO specific instances of good conduct allowed for criminal case (e.g D turned down opportunities for black-marketeering)
- P can rebut with reputation testimony AND SIC

Question 210

Company in State A filed lawsuit against distributor in State B. Company’s claim asserted breach of contract claim for $60,000 and negligence claim for $30,000. The claims arose from different facts. May fed court hear these claims in a single suit?

Answer 210

Yes because the claims were properly joined/aggregated and fed court has diversity jurisdiction.

One P v. One D (different claims from different facts) = aggregation allowed

One P v. Multiple D’s (negligence against D1 for 40k, battery against D2 for 60k) = aggregation is not allowed unless D’s are jointly liable

Multiple P’s v. Multiple D’s (P1 asserts negligence 40k and P1 asserts breach of contract, P2 asserts battery) = aggregation allowed for P1’s claims. Aggregation not allowed for P2’s claims

Question 211

Double jeopardy does not prohibit a second prosecution for the same offense when what 3 elements are met?

(Delivery man first pleaded guilty to a misdemeanor, reckless driving where he was sentenced to 30 days in jail and fine of $1,000. BUt then pedestrian died a year later as a result of the injuries suffered from the accident)

Answer 211

(1) D was convicted of a lesser offense at the first trial

(2) second proseuction involves a greater offense and

(3) facts necessary to prove the offense did not exist during the first trial

Question 212

Construction adverse possession awards title of the entire property when what?

Answer 212

(1) Adverse possessor enters the property under color of title
– a facially valid deed that describes the entire property

(2) AND actually possesses a reasonable portion of the property for the statutory period

Question 213

Who has the power to remove a state from state to federal court when the case falls within the federal court’s original SMJ?

Answer 213

Only the defendant

Plaintiff who later gets counterclaimed does not get to remove the case to federal court just bc they got counterclaimed. Only original defendant can

Question 214

What are examples of abnormally dangerous activities for which defendant would be strictly liable for plaintiff’s harm?

Answer 214

— Blasting/use of explosives
— use, storage, transportation of highly toxic or hazardous chemicals
— large quantities of flammable liquids or gases
— wild or exotic animals that pose risk to people (lions, tigers, venomous snakes. NOT porcupines)

Question 215

Insurer is only responsible for title defects that:

Answer 215

(1) are not disclosed in the insurance policy

(2) AND affect the named insured

Question 216

Administrative searches of most commercial establishments do require a warrant. (e.g. health inspection of restaurant)

But what’s the exception?

Answer 216

No warrant is required for administrative searches of highly regulated industries

Question 217

The Supreme Court has held that zoning ordinances for adult entertainment, businesses, target the secondary effects these businesses have on the surrounding community

Answer 217

Fuss they are considered content-neutral restrictions (subject to intermediate scrutiny) since they’re focused on the effects and not on the acceptability of their content

Question 218

Speech is obscene if it meets what 3 criteria

Answer 218

(1) appeals to prurient interests, like shameful or morbid interests
(2) depicts sexual conduct in patently offensive way
(3) AND lacks serious literary, artistic, political or scientific value

Question 219

Prosecution burden to prove every element of criminal offense INCLUDES defense that negates an element of a crime (e.g. alibi defense)

Answer 219

Prosecution bears burden of proof when D asserts a defense that negates an element of the crime

But prosecution is not required to disprove an affirmative defense (e.g. self-defense, duress) since it justifies or excuses D’s criminal conduct but does not negate an element of the crime

Question 220

When is appeal allowed even when court has not yet entered final judgment?

Answer 220

• injunction
• certification by district court
• class action
• appointment of receiver
• admiralty cases
• collateral order doctrine
• bankruptcy
• mandamus
• patent infringement order

Question 221

When is writ of mandamus appropriate?

Answer 221

(1) when district court clearly exercises unlawful jurisdiction

(2) when district court clearly usurps another branches power and threatens separation of powers

(3) to protect a party’s seventh amendment right to jury trial

Question 222

A wrongful birth claim allows parents to recover for birth of an unhealthy child if they can prove that….

Answer 222

(1) the doctor negligently failed to inform them of substantial risk that their future child may have a birth defect

(2) and had the parents known about the risk, the child would not have been conceived or born

Question 223

Wrongful life actions can only be brought by or on behalf of unhealthy child

Not permitted in most states

Answer 223

States that do permit wrongful life actions limit child’s recovery to expenses attributable to disability, not all life expenses

Question 224

When could court instruct jury on voluntary manslaughter?

Answer 224

If reasonable jury could find that D intentionally killed another under mitigating circumstance.

When does voluntary manslaughter arise?
(1) When D killed victim in a heat of passion generated by adequate provocation
(2) OR when D acted in imperfect self-defense
–honestly but unreasonably believed that deadly force was necessary
– started the altercation that led to necessary use of deadly force

Question 225

When could court instruct jury on voluntary manslaughter?

Answer 225

If reasonable jury could find that D intentionally killed another under mitigating circumstance.

When does voluntary manslaughter arise?
(1) When D killed victim in a heat of passion generated by adequate provocation
(2) OR when D acted in imperfect self-defense
–honestly but unreasonably believed that deadly force was necessary
– started the altercation that led to necessary use of deadly force

Question 226

When does imperfect self-defense occur?

Answer 226

When D either:
(1) honestly but unreaosnably believed that deadly force was necessary to prevent serious bodily injury or death
(2) OR started the altercation that led to the necessary use of deadly force

Question 227

PJ through specific jurisdiction vs. general jurisdiction

Answer 227

Specific Jurisdiction
– When P’s claims arise from or is closely related to D’s minimum contacts with the forum state such that asserting personal jurisdiction does not violate the notions of fair play and substantial justice

General Jurisdiction
– when D has continuous and systematic contacts with the forum state that are so substantial that D is essentially “at home” (D’s domicile)

Question 228

Foreign corporations CAN be subject to personal jurisdiction in the United States. How?

Answer 228

Through consent or minimum contacts

Question 229

When is confrontation clause met / what is guaranteed by it?

Answer 229

Even if victim has no memory or cannot remember details, SCOTUS will find that confrontation clause is met because it only guarantees defendant AN OPPORTUNITY for effective cross-examination

Guarantee is met when D can challenge witnesses’ credibility

Question 230

When does Best Evidence Rule NOT apply?

(Good way to this about this: is speaking relying on the document to testify? Does speaker “need” the thing to testify? Or can the speaker testify based on his/her own memory and personal knowledge)

Answer 230

Agent is seeking to testify based on his own personal knowledge.

Doesn’t matter that the conversation was also audiotaped.

Agent’s testimony is ADMISSIBLE regardless of whether the audiotape is produced or not because agent is not speaking BASED on what he heard from the audiotape. It’s based on his own presence overhearing the actual conversation

Question 231

What does Congress have the power to limit in terms of SCOTUS review?

Answer 231

Congress has power to limit SCOTUS’s appellate jurisdiction but Congress cannot alter SCOTUS’s original jurisdiction.

If Congress’s statute purports to expand SCOTUS’s original jurisdiction (cases involving foreign ambassadors or cases in which state is a party), beyond categories of cases specified in Article III, then the status is unconstitutional !

Question 232

Classifications based on citizenship (aka law discriminations against resident noncitizens/permanent residents) are subject to what under 5th Amendment (federal) versus 14th Amendment (state law)?

Answer 232

Federal law (5A) that discriminates against resident noncitizens is subject ONLY to rational basis.
– Challenger must sho that: law is not rationally related to a legitimate government interest

State law (14A) that discriminates against resident noncitizens is subject to strict scrutiny.
– State government must show that the law is necessary to achieve a compelling state interest
– Political-function exception (when the law excludes the noncitizen from a government function like participating in jury – review of broad public policy), THEN the law discriminating against resident noncitizen is subject to RATIONAL BASIS

Question 233

When will negligence per se (D’s violation of an applicable statute/ordinance) be excused?

Answer 233

If D presents rebuttal evidence that he/she was using reasonable car or was incapacitated while attempt to comply:
– used reasonable care of incapacity (e.g. decedent suffered a fatal heart attack for which he had no reason to foresee)
– need to avoid greater risk of harm

Question 234

What is never a defense to tort liability? Least helpful to D’s argument?

Answer 234

– Inability to pay (D is indigent)
– Ignorance of the law
– Following someone’s orders?

Question 235

Surety is a promise to pay someone’s debt!

Must be in writing, but who can bring claim against whom?

Answer 235

The debtor can bring claim against the guarantor who promised to pay debts.

Dad promised to pay “anyone from whom the son buys a minivan.” Dealership cannot bring claim against Dad under surety. Only son can bring it.

Question 236

Intended vs. Incidental Beneficiary

Answer 236

Intended: receive DIRECT benefit because the contracting parites intended to benefit them SPECIFICALLY
(Ex: X promises to paint Y’s house if Y promises to pay $500 to X)
(Ex: Dad promises to let girlfriend manage restaurant if Son pays off the mortgage of the restaurant)
(Ex: Dad promises to “pay anyone” from whom Son purchases a minivan. Dealership is intended beneficiary)

Incidental: receive indirect benefit
(Ex: Hospital promises to pay Janitor for cleaning services. Patients are incidental beneficiaries from the cleanliness)

Question 237

Promissory estoppel

Answer 237

Allows enforcement of promise when NO valid contract exists if:
(1) Promisor reasonably expected to induce reliance on promise
(2) Promisee reasonably relied on the promise to their detriment
(3) Injustice can be avoided only by enforcing promise

(Gifts can fall under this category if the promisee detrimentally relies on it)

Question 238

Two-dismissal rule applies when?

Answer 238

(1) P voluntarily dismissed first action in federal or state court without a court order

(2) AND P voluntarily dismissed the second action based on the same claim by filing a notice of dismissal

When this is met, second dismissal operated as an adjudication on the merits. Court would likely grant D’s motion to dismiss the third action

Question 239

Political-function exception

(Where discrimination against permanent residents/noncitizens would usually be subject to strict scrutiny. But lowered to rational basis scrutiny)

Answer 239

Exception exists for STATE laws that restrict a noncitizen’s participation in government functions:
–serving on a jury (which is an integral part of the process of self-government)
–voting,
–employment as police officer or public school teacher

Such laws need only satisfy rational basis review

Question 240

Because Congress has the power to regulate immigration, federal laws that discriminate based on citizenship are subject to what??

Answer 240

(This is like the federal corollary to “political-function exception)

Federal laws that discriminate based on citizenship are subject to rational basis review under the EPC of the 5th A

Question 241

Exigent circumstances where warrantless search is okay!

Answer 241

When police “reasonably believe” that a warrantless entry or search is needed to:
(1) Prevent imminent destruction of relevant evidence - evanescent evidence
(2) Protect police and public from immediate physical harm - this is emergency situation
(3) pursue fleeing suspect after a felony occurs - hot pursuit

Question 242

A sublessee’s privity of contract and estate?

Answer 242

Subleasee has privity of contract with tenant but not landlord
Subleasee also does not have privity of estate with the L bc their possession is derived from OT

In a sublease:
- S has privity of contract and estate with OT
- OT has privity of contract and estate with L
- S has no privity of contract and estate with L

Question 243

Assignment’s privity of estate and contract

Answer 243

Assignee has privity of contract with OT
Assignee has privity of estate with L

Question 244

Accessory after the fact

Answer 244

It’s an independent crime– person can be convicted after the fact even if principal has not been prosecuted or convicted for the felony

TO be accessory after the fact, (1) the person must KNOW that the principal has committed felony, (2) helps principal avoid arrest or conviction

Question 245

Ways to terminate easements

Answer 245

– Destruction: easement grantor’s (servient) land condemned or destroyed by natural forces
– Abandonment: easement holder abandons the easement
– Merger: dominant & servient estates united in common ownership
– Prescription: easement grantor prevents use for prescriptive period
– Estoppel:
– Release: express release in writing

Question 246

Timing and circumstances for: new trial, altering/amending judgment, extraordinary relief

Answer 246

New trial (within 28 days)
- Misconduct by judge, attorney, jury
- Verdict is not supported by clear weight of evidence
- Verdict based on false evidence
- Excessive/inadequate damages
- Newly discovered evidence

Alter/amend (within 28 days)
- Manifest error of law or fact is the basis of the judgment
- Newly discovered evidence
- Intervening change of law

Extraordinary Relief (within 1 year of final judgment)
- Mistake, inadvertence, surprise, excusable neglect
- Newly discovered evidence
- Fraud, misrepresentation, misconduct by opposing party

Extraordinary Relief (within a reasonable time)
- Void judgment
- Other reason

Question 247

Would court’s general jursidiction over parent corporation give it ability to exercise PJ over subsidiary?

Answer 247

Only allowed to exercise PJ over subsidiary if subsidiary was acting as parent corporation’s agent or alter ego.

If the parent business is separate from subsidiary, then no PJ over subsidiary. (Parent distributes tires vs. subsidiary manufactures tires is enough separation for PJ over parent NOT to automatically mean PJ over subsidiary)

Question 248

When does joint and several liability arise

Answer 248

If multiple defendants were negligent (each of them acted negligently) and any one of them could have caused P’s harm, joint and several liability allows P to recover from any of them even if it impossible to prove which D actually caused the harm

Acting in concert = common plan/design (means that they planned or came up with something together). Parents separately baking cookies in their own homes for bake sale does not count.

Question 249

When is a duplicate not allowed (and original document must be produced)?

Answer 249

• genuine question raised about original’s authenticity (e.g. copies of front of the checks don’t quite match copies of the back)
• or circumstances make it unfair to admit the duplicate (e.g. only part of the document is duplicated)

Question 250

14A’s enforcement clause allows Congress to pass laws (but only applicable to state action)

So when Congress is trying to also regular private entities (e.g. labeling), it would be through commerce clause

Answer 250

• 14A equal protection (discriminatory treatment of similarly situated people)
• 14A due process (substantive deprivation of life, liberty or property) (procedural deprivation without adequate process)
  -14A privileges/immunities (rights of national citizenship)

Again these apply when Congress enforcing state action

Question 251

3 Theories of Recovery for Negligent Infliction of Emotional Distress

Answer 251

Zone of Danger:
- (1) D’s negligence put P in danger of immediate bodily harm AND (2) caused P serious emotional distress

Bystander:
- (1) D negligently injured P’s close relative, (2) P personally witnessed the event, and (3) event caused P serious emotional distress

** Special Situations (I FORGET THIS ONE. This does NOT require contemporaneous perception):
- D negligently delivered erroneous announcement of death or illness
- D mishandled corpse or bodily remains…. (Even if p just learned about this, did not see it, she can recover)
- D contaminated food with repulsive foreign object…. and caused P serious emotional distress

Question 252

In a bench trial, what must judge do for judgment? Otherwise appellate court should reverse trial court’s judgment?

Answer 252

In bench trial, judge MUST provide factual findings and legal conclusions on the record after close of evidence.

Ex: after close of evidence, judge immediately announced “judgment shall be entered for the manufacturer”

Question 253

Anti-lapse statute (is relevant to with regard to Testator’s death, not the immediately preceding interest/life estate)

Answer 253

An anti-lapse statute prevents device of real property from lapsing if the devisees die before the TESTATOR and no alternate beneficiary is named.

ex: widow executed a will that devised condo to her son for life and then to her named granddaughter “if she survives.” At time of son’s death, widow’s granddaughter had been dead for 3 years. Granddaughter’s will devised estate to friend.
— NO anti-lapse statute bc widow died before granddaughter. Also friend doesn’t get anything bc Granddaughter didn’t have anything to give at the time of her death (son was still alive and had the condo)

Question 254

Kidnapping

Answer 254

(1) Victim is intentionally and unlawfully moved or confined
(2) for the purpose of holding ransom, facilitating felony, inflicting bodily injury, or interfere with performance of governmental/political function

Question 255

When can a contract be voided by an incapacitated party

Answer 255

Party had to have been too intoxicated to reasonably understand the nature or consequences of the contract !AND! The other party had reason to know that the party didn’t mean to make the contract.

If party was too intoxicated but the other party had no reason to know that they were objectively entering into a contract, it won’t be voided. Purpose of this voidability is to protect those intoxicated form those who take advantage (know the promisor is too drunk to make a contract)

Question 256

Exceptions to 11th A immunity (where private party sues state, state agency, or official)

Answer 256

• State consents to suit
• Congress enacts legislation to enforce 13/14/15A and thus removes state immunity
• State official is sued for injunctive relief for an alleged constiuttional violation
• Damages to be paid by state officer personally (and not state treasury)
• State official sued for prospective and not retroactive damages

Where there’s no immunity in general:
- State brought by US or another state vs. the state
- Bankruptcy proceedings
- Eminent domain rpoceedings
- Suits permitted by Congress pursuant to its powers over war

Question 257

Lender’s right to take possession of mortgaged property depends on the mortgage theory in that jurisdiction

Answer 257

• Lien theory: mortgagor is considered owner of the mortgaged property so lender CANNOT take possession prior to foreclosure:
• Title theory: lender is considered owner of the property until mortgage has been paid in full, so lender can take possession AT DEFAULT
• Intermediate theory: lender obtains legal title (right to ownership and possession) to property upon default

Question 258

Remember anticipatory repudiation can be express or implied

Answer 258

Can be clearly and unequivocally made through WORDS

But if seller sells car to third party. That’s an anticipatory repudiation through conduct

Question 259

Congress enacting new regulations on mining operations right before company owning a large tract of land was going to start mining is not a taking

Answer 259

A taking occurs when government SUBSTANTIALLY restricts (or destroys all economically beneficial use) of private property.

But this only entitles owner to just compensation in the amount of property’s FMV at the time of the taking. -
- Not lost profits
- Not $$ spent to buy tools (that can be sold/re-purposed in other ways)

Question 260

Congress enacting new regulations on mining operations right before company owning a large tract of land was going to start mining is not a taking

Answer 260

A taking occurs when government SUBSTANTIALLY restricts (or destroys all economically beneficial use) of private property.

But this only entitles owner to just compensation in the amount of property’s FMV at the time of the taking. -
- Not lost profits
- Not $$ spent to buy tools (that can be sold/re-purposed in other ways)

Question 261

Mortgagor obtained a release of Lot 2 executed by the bank. But mortgagor altered the instrument of release to include Lot 5 as well as Lot 2 and recorded it. Woman then sold Lot 5 to an innocent BFP

Answer 261

BFP relied on a forged or altered document. This will not establish his priority under the recording act because the recorded document was VOID (alteration of a release is ineffective/void. Thus court will rule for the court

Question 262

Deed transfers ownership of real property when what?

Answer 262

Once it is delivered. A deed is considered delivered when the grantor has an intent to presently convey ownership.

• If the deed is void, it’s undelivered and does not transfer ownership
• If the deed is not delivered, then it does not transfer ownership
  (e.g. aunt told nephew that she would give deed to him when he reached 21 and received college degree. Nephew then removed the deed and recorded it. This does NOT count bc aunt did not intend to give it to Nephew until later)

Question 263

Service of process is proper when what?

Answer 263

If it is delivered to D’s dwelling and left with a resident of suitable age and discretion. Most teenagers are of suitable age and discretion since they possess capacity necessary to comprehend the situation. So service to the 16-year-old daughter was proper

Question 264

For trial procedure, what is judge allowed to exercise discretion over vs. what MUST judge do (e.g. exclusion of witnesses)

Answer 264

Court MUST exclude witnesses upon party’s request (like eyewitnesses, lay witnesses) unless the witness is
- a party to the litigation/their designated representations
- expert witness (essential to party’s presentation of the case)
- And person whose presence is permitted by statute (e.g. witness)

Court has discretion
- To allow questions that go beyond the usual limited scope of cross-examination
- To allow or disallow leading questions on crossexamination
- Allow witness’s credibility to be cross-examined even if credibility wasn’t an issue on direct

Question 265

Involuntary vs voluntary dismissal and its effect on preclusion

Answer 265

Involuntary: motion by D. If it’s granted, then it’s considered adjudication on the merits (but not if it’s motion to dismiss for PJ, improper venue, insufficient service of process, failure to state a claim)

Voluntary: P voluntarily dismisses.

Question 266

Contingent remainder

Answer 266

Is subject to a condition precedent (to son for life, then to daughter but only if she survives son)

OR held by unknown/unborn person

Question 267

Party can attack the other party’s witness credibility through what and not through what?

Answer 267

Reputation and opinion testimony
Felony conviction
Crime of dishonesty
Sensory competence
Bias

NOT specific instances of conduct (once cheated in community raffle)

Question 268

Deed containing language in the grantee section: “to the woman, her heirs and assigns, provided, however that said grantee may not transfer any interest in the land for 10 years from the date of this instrument.”

Answer 268

This is a direct restraint on alienation (aka prohibition on transfer).

These are valid ONLY if deemed reasonable. Total restraints of fee simple estates like this one is always unreasonable

Question 269

P introduced evidence that bystander made an excited utterance that D ran a red light. D called witness to testify later that bystander, now deceased, told witness D went through a yellow light.

Security guard testifies that brother rushed up saying sister is robbing bank. Then sister brings witness testifying brother said I was mistaken.

Answer 269

ALWAYS admissible for impeachment purposes

Don’t pick the answer that’s like: no bc bystander is not available to explain or deny the inconsistency

Question 270

UCC parol evidence rule:

Following evidence can ALWAYS be used to explain or supplement terms

Answer 270

• course of performance: sequence of conduct relevant to understanding this particular agreement
• course of dealing: previous transactions between the parties that establishes common basis of understanding
• trade usage: any practice or method of dealing in parties’ business or industry

Question 271

Merger clause = completely / fully integrated

Answer 271

This means that party cannot bring in additional terms (from previous or contemporaneous oral agreements) that are consistent with the writing

Has no bearing on: looking at trade usage / course of dealing to explain or supplement terms

Question 272

SOF requirement for surety (what meets the requirement for writing. It’s okay that the guarantor’s initial promise to the creditor is oral so long as there’s some writing either with debtor or creditor showing that guarantor knows)

Answer 272

Some writing evidence (receipt, check, email) containing a reasonable basis that a contract was formed. AKA the guarantor knows that they guaranteeing the debt

AND a signature or some identifying mark by the party who agrees to be the guarantor

(Mother’s letter to son saying that she’s happy to do him a favor, AND her /s/ Mother at the bottom of the letter” are enough to meet SOF)

Question 273

What causes of action permit punitive, compensatory, nominal damages?

Answer 273

Negligence is merely unreasonable conduct, so it doesn’t warrant punitive damages. Negligence requires actual proof of harm (the property or bodily harm: damages element of negligence) so does not warrant nominal damages.

Intentional Torts & Reckless Torts, you have them all (compensatory, nominal, punitive)

Question 274

What causes of action permit punitive, compensatory, nominal damages?

Answer 274

Negligence is merely unreasonable conduct, so it doesn’t warrant punitive damages. Negligence requires actual proof of harm (the property or bodily harm: damages element of negligence) so does not warrant nominal damages.

Intentional Torts & Reckless Torts, you have them all (compensatory, nominal, punitive)

Question 275

What causes of action permit punitive, compensatory, nominal damages?

Answer 275

Negligence is merely unreasonable conduct, so it doesn’t warrant punitive damages. Negligence requires actual proof of harm (the property or bodily harm: damages element of negligence) so does not warrant nominal damages.

Intentional Torts & Reckless Torts, you have them all (compensatory, nominal, punitive)

Question 276

A contract is excepted from the UCC statute of frauds when what?

Answer 276

When some amount of payment was made and accepted.

A partial payment for separable goods renders the contract enforceable only up to the quantity paid for in full, but partial payment for an indivisible good renders the entire contract enforceable

Question 277

Article 1, Section 6 speech and debate clause (including any speech made on House/Senate floor regardless of whether speech relates to pending legislative business)

Answer 277

Gives members of Congress absolute immunity from criminal and civil liability for official legislative activities.

Question 278

Landlord’s duty to deliver possession

Answer 278

Majority rule: landlord must deliver ACTUAL possession (e.g. remove holdover tenant)

Minority rule: landlord just needs to deliver “LEGAL” possession (no third party has right to possess property)

Question 279

Condition precedent vs. subsequent

Answer 279

Precedent:
“If B graduates college, A promises to hire B”
If the future event occurs, that creates an obligation in the other party to perform.

Subsequent:
“B agrees to work for C until B moves out of the country”
If the future event occurs, it excuses performance.
FSSCS: “conveys lands to school so long as it’s used for primary school education”

Question 280

Can party-opponent prove document’s contents through testimony, despotiion, or written statement without accounting for original document’s absence?

Answer 280

Yes, if the statement was made in testimony/deposition. If the statement was made outside of context of proceedings, then this exception would not apply

Question 281

Examples of private actors qualifying state action under the state-action doctrine?

Examples of not state action, purely private?

Answer 281

Private actors = state action
- running primary elections
- governing a company town
- peremptory challenges by private litigants (selection of jurors is traditional state function)

Private actors ≠ state action
- Nursing facility, residential elderly care is not in the realm of traditional and exclusive government function.
- Merely providing a product or service that government “could” offer is not sufficient to make provider a state actor

Question 282

Due process for seizing real vs personal property

Answer 282

Seizure served the city’s significant interest in preventing car from being used for illegal activity. CAN be seized before hearing:
(1) when seizure serves a significant government interest
(2) Interest would be frustrated by advanced notice of the seizure
(3) AND seizure is performed byt he government

Question 283

Assault

Answer 283

Intentional act by D causing P’s reasonable apprehension/fear of immediate harmful and offensive contact

Question 284

Intentional infliction of emotional distress

Answer 284

Extreme and outrageous conduct (exploiting vulnerability, abuse authority, repeated harassment) that causes P sever emotional harm

Question 285

Trespass to Land

Answer 285

D intends (doesn’t have to know it’s P’s land) to make physical entry onto P’s land. Themselves or propel an item onto it

Question 286

Burden shifting test in torts

Answer 286

Used if multiple D’s act (usually simultaneously, like shooters hunting in the forest, not sure which bullet it is)

Only ONE causes injury, but it is unclear which D caused the injury

Question 287

Fee simple determinable

Answer 287

“To A for so long as he practices law”
Durational language: for so long as, while, during, etc.

Grantor retains right of reverter. Automatically reverts back to grantor

Question 288

Fee simple subject to condition subsequent

Answer 288

“To A, but if he wins the lottery, grantor reserves right to reenter and retake”

Difference from fee simple determination: must carve out right of reentry for grantor

Grantor retains power to terminate grantee’s interest. Right of re-entry.

Question 289

Fee simple subject to condition subsequent

Answer 289

Grantor retains power to terminate grantee’s interest. Right of re-entry.

Question 290

Most common areas of exclusive federal jurisdiction

Answer 290

(1) Bankruptcy
(2) Patent, copyright, infringment
(3) Federal antitrust claims
(4) Postal Matters

Question 291

A principal is directly liable to a third person harmed by an agent’s conduct when what?

Answer 291

When the principal is negligent in selecting, supervising, or controlling the agent

Question 292

Insanity to acquit a criminal defendant

Answer 292

M’Naghten Rule:
- D can be acquitted if he did not know or understand the wrongfulness of the unlawful act

Irresistable Impulse:
- D lacked capacity of self-control and free choice. Lacked capacity to conform his conduct with requirements of the law

MPC
- D could not appreciate the wrongfulness of the unlawful act

Durham Test
- If unlawful act would not have been committed but for D’s mental illness

Question 293

A valid mortgage does not require the person helping the mortgagor secure repayment of the loan to sign the promissory note

Answer 293

Without the brother’s signature, just means that the debt belongs to someone (the sister) other than the mortgagor and so the brother is not personally liable for repaying the debt

Question 294

Conspiracy can exist even among individuals who don’t know each other if when?

Answer 294

If there’s a community of interest in achieving the objective of the conspiracy.

Also agreement need not be specifically articulated— can be inferred from concerted actions