Practice tests Flashcards
When a defamatory statement involves a matter of public concern, damages are ______________ absent a showing of knowledge of falsity/reckless disregard of truth.
NOT PRESUMED. Plaintiff must provide competent evidence of actual injury.
Can learned treatises be used as IMPEACHMENT ONLY, as SUBSTANTIVE EVIDENCE, or BOTH?
BOTH. But they can only be read in rather than actually introduced into evidence (different in MA).
Which P&I clause, if either, applies to the federal government?
NEITHER!
14th A P&I Clause bars states from denying citizens the privileges and immunities of national citizenship. Art. IV bars states from denying citizens of other states the privileges and immunities of STATE citizenship.
A misdemeanor committed outside the presence of an officer DOES/DOES NOT serve as grounds for arrest
DOES violate state law in practically all states. (Thus, a SIA performed pursuant to the arrest is invalid.)
Does prior jury service in a case involving a party to current case make a witness incompetent in the current case?
NO. Virtually all witnesses with personal knowledge are competent to testify under the FRE.
A decision to compromise with a breaching party in a K DOES/DOES NOT provide adequate consideration for modification of the K?
It DOES provide adequate consideration. Giving up the right to sue qualifies as valid consideration.
Can contracts for services be orally modified despite the existence of a clause in the K saying “no oral modifications”?
YES, as long as there’s consideration for the modification.
What kinds of third-party beneficiaries to a K can sue the promisor to enforce the K?
When she is an INTENDED third-party beneficiary.
Creditor vs. donee third-party beneficiaries: why does this difference matter?
Because only a creditor beneficiary may sue the promisee (i.e. Epstein) for non-performance of the promisor (though only for the amount of the preexisting debt).
A tenant’s transfer of his leasehold interest that’s on the same terms as the original leasehold except that the transferring tenant reserves a right of reentry for breach of terms of original lease – is this a sublease or an assignment?
ASSIGNMENT
At common law, a tenant’s duty to pay rent is considered an obligation INDEPENDENT/NOT INDEPENDENT of the landlord’s performance of his obligations?
INDEPENDENT. This means that T must pay rent even if L breaches some other part of the lease, like that T will be the exclusive vendor in the building.
Where D doesn’t take the stand, 10-year limit on convictions DOES/DOES NOT apply.
Why?
It does NOT apply. Where D doesn’t take the stand, he cannot be impeached – 10 year limit applies only to convictions introduced to impeach a witness. Convictions introduced for MIMIC purposes may be introduced regardless of their age.
Will devises: “to my trustee to pay educational expenses of my children, but if any of them do not graduate by age 30, then to the state university’s scholarship fund.”
Valid charitable trust created?
YES, despite the initial bequest to the children.
Double jeopardy clause prohibits retrial for a ______ offense once jeopardy has attached for a _____ offense.
GREATER; LESSER INCLUDED.
D who pleads guilty to a lesser included offense MAY/MAY NOT still be prosecuted for a greater charged offense.
MAY. D doesn’t get to use Double Jeopardy Clause as a “sword” to prevent prosecution from continuing to pursue greater charge.
Buyer places order for 50 cases of X good. Seller ships 50 cases of Y good. K formed?
YES, K is formed by seller’s act of shipping the goods. But buyer has no obligation to accept the nonconforming goods – can accept all, accept some, or reject all. If she keeps, can sue for damages, but only if she notifies seller of nonconformity within a reasonable time after she discovers or should discover breach.
If the K is found to be a complete agreement, does the parol evidence rule bar statements made before the K when cause of action is for misrepresentation?
NO. When the challenge attacks the validity of the agreement, parol evidence may be introduced – whether or not the agreement is complete.
In what contexts are statements made as part of a judicial proceeding privileged, such that they cannot be used as the basis for a future lawsuit?
In all instances of potential civil liability – most often defamation, but also in IIED or another tort. Can’t use what someone says in court (e.g. as witness) as basis for a tort suit later.
A commercial manufacturer of a product owes duty of care to _______.
ANY FORESEEABLE PLAINTIFF.
A retailer’s negligence WILL/WILL NOT excuse a manufacturer from negligence-based liability.
Why?
WILL NOT; because an intermediary’s negligent failure to discover a defect is foreseeable negligence and so not a superseding cause.
A contract for the sale of land is not enforceable unless it is evidenced by a writing signed by ________.
THE PARTY SOUGHT TO BE BOUND (i.e. sued).
A public nuisance exists when _____________________.
A property owner is using his property in such a manner that it creates an unreasonable risk to the public in general.
True or false: one must be violating a specific statute or acting without a required ordinance to be causing a public nuisance.
FALSE.
Prior consistent statements are admissible only _______________.
TO REBUT A CHARGE THAT THE WITNESS IS LYING OR EXAGGERATING BECAUSE OF SOME MOTIVE.
i.e. only as rehabilitation evidence
True/false: A criminal D’s prior consistent statements are always admissible.
FALSE. If they are hearsay, they are inadmissible. And they are hearsay if they’re introduced for any reason other than to rebut a charge of recent fabrication.
Character evidence in civil cases is inadmissible _________________ and is admissible _______________.
Inadmissible TO SHOW THAT PARTY PROBABLY ACTED IN CONFORMITY WITH CHARACTER; admissible WHERE CHARACTER OF PERSON IS AT ISSUE IN CIVIL CASE.
e.g. reputation is relevant in defamation; character as a safe driver is relevant in negligent entrustment case.
The court MAY/MUST impose sanctions on a party that does not respond to request for inspection in discovery, provided that the moving party has made a good faith effort to obtain a response.
MUST impose sanctions – must require the party that failed to respond to discovery (or the party’s attorney, or both) to pay movant’s reasonable expenses caused by their failure to respond. Court MAY choose to add other sanctions too.
Testator executes a deed to give his house to relative, and tells third party: “Give this deed to my brother when I die.” When does title pass to relative?
Title passes automatically on T’s death and “relates back” to the date of delivery to the third party (escrow) – UNLESS T retained a right to revoke the escrow.
Double jeopardy DOES/DOES NOT bar imposing cumulative sentences for 2 or more statutorily defined offenses specifically intended by the legislature to carry separate punishments.
DOES NOT, even if the 2 constitute the same crime by the “Blockburger” test (i.e. each offense does NOT require proof of some additional fact that the other doesn’t).
Generally, it’s presumed that multiple punishments are not intended for offenses constituting the same crime absent a clear intention, but where it’s clear Congress intended certain offenses to have separate punishments, double jeopardy is OK.
Statements affecting an interest in property ARE/ARE NOT inadmissible hearsay.
ARE NOT inadmissible hearsay – i.e. are admissible.
What’s an action for an accounting?
FIGURE THIS OUT.
What qualifies as “taking and carrying away” in larceny? i.e. how far do you have to carry away?
Any moving that you do without express or implied permission qualifies.
While ordinarily contract duties may be delegated to a third person, contract duties involving __________ may not be delegated.
PERSONAL JUDGMENT AND SKILL.
True/False: If a contractor delegates his duties to complete a paving job under a contract to a third party, and the third party fails to perform, can the person whose driveway is being paid sue the contractor?
YES. Delegator remains personally liable on a K even though the delegatee is performing the K.
Does a delegator remain personally liable on a K after delegating to a third party to perform?
YES.
Where there’s a survey made on the land and a plat filed with the recorder of deeds, and the two conflict, which governs?
The survey made on the land governs. The plat is like a certified copy of an instrument; the original controls where there’s conflict. So a buyer has a right to rely on the stakes on the land as establishing the boundaries of his lot.
Where does proper venue lay where the D is a corporation?
Venue in federal actions is proper in: district where any D resides, if all are residents of the state where the district is located, OR district where a substantial part of events/omissions giving rise to the claim occurred.
Corporate D is deemed to reside in each district with which it has sufficient contacts to justify PJ with respect to the action!
There IS/IS NOT a duty to retreat before using nondeadly force.
IS NOT.
Do you need intent to injure to be liable of battery?
NO. Battery is a general-intent crime.
May a state impose sales tax on federal government subdivisions within the state?
NO, not unless Congress has consented to the tax.
True/false: Frustration of purpose can be grounds to terminate a lease between landlord and tenant.
FALSE. Landlord/tenant law traditionally refuses to recognize frustration of purpose as grounds to terminate a lease.
True/false: Tenant is no longer obligated to pay rent after a partial condemnation of the land.
FALSE. Partial condemnation does not end the landlord-tenant relationship or the tenant’s obligation to pay the entire rent for the remaining lease term.
Joint tortfeasors DO/DO NOT have right to indemnity, and DO/DO NOT have right to contribution.
DO NOT have right to indemnity, because they are both actively negligent in causing P’s injuries; DO have right to contribution.
True/false: States may not impair contractual obligations that STATE ITSELF CREATED except in narrow circumstances.
TRUE. Even when state sets up the contract in the first place (e.g. pension benefits for public employees), state is barred from impairing those obligations by the federal Constitution.
A court will not enforce a K whose ______________ or ______________ is illegal.
SUBJECT MATTER; CONSIDERATION.
Court will leave the parties as it finds them in such a case.
Parent-child tort immunity is _____________.
a doctrine that bars children from recovering from their parents in tort; it mostly doesn’t exist anymore, except negligence suits are still barred in some states.
Which 12(b) defenses are waived if not raised in pre-answer motion or in answer?
- -PJ
- -venue
- -process
- -service of process
An assignee of a K’s benefits usually IS/IS NOT subject to the same defenses that the obligor has against the assignor.
IS! If the obligor can defend against paying the assignor for any reason (i.e. the assignor did a bad job), then obligor can use this same defense against paying assignee.
True/false: A party is not required to hand over previous statements made by the other party during discovery.
FALSE. A party may obtain a statement previously made by that party without a court order.
When are police who arrest the wrong person NOT liable for false imprisonment?
When they acted under a VALID ARREST WARRANT.
What happens when goods identified when the K is made suffer casualty without fault of either party, before the risk of loss passes to buyer?
K may be avoided. If the loss is partial, buyer may treat K as avoided or accept goods with allowance from price for the deficiency. Buyer CAN’T sue seller for breach.
Crop failure resulting from an unexpected cause: is farmer still obligated to deliver full amount? And how does he distribute what he has among buyers?
NOT obligated to deliver the full amount. Must make a fair and reasonable allocation among his buyers, and buyers may accept this proposed modification or terminate the K.
What kinds of harms can P recover for on a strict products liability theory?
Personal injury; property damage (same as in negligence actions). Generally NOT pure economic losses (must bring breach of warranty action for that).
What kinds of damages are recoverable in negligence actions?
Personal injury; property damage.
Unauthorized use of property that results in damages equaling almost half the chattel’s original cost – is this trespass to chattels or conversion?
CONVERSION.
information obtainable from court records IS/IS NOT subject to judicial notice.
IS subject to judicial notice because court records of state or federal court are easily verifiable.
When is continued public employment a protected property interest sufficient to trigger an employee to get a hearing and have the reason for her termination disclosed?
When there’s a clear practice or mutual understanding that employee can be terminated only “for cause.”
May a state retroactively alter a contract to which it is a party?
NO, generally not (will be strictly scrutinized).
When is a private citizen privileged in using force to effectuate an arrest at a police officer’s direction?
When (a) it’s a felony; (b) officer had reasonable grounds to believe felony had been committed; and (c) by the person arrested.
Force reasonable necessary to make the arrest is permitted.
Scope of a car search incident to arrest
The entire passenger compartment, IF arrestee may still access the vehicle OR if there’s reason to believe vehicle contains evidence of crime for which the arrest was made.
Scope of a car search upon probable cause
Search of entire car can be made WITHOUT A WARRANT, including containers, anywhere in car that the contraband is likely to be.
Scope of a car searched on grounds of “inventory”
Search of entire car can be made, including closed containers, as long as pursuant to administrative procedure.
But note that the car must first have been impounded, which will happen only if there’s administrative reason to do so – e.g. getting car off the highway. If passenger can drive it home and hasn’t been impounded, no inventory search can be done.
What happens if person contracts to sell something but isn’t the sole owner, and turns out the other co-owner won’t agree?
Failure to perform is breach of K. If the K was unconditional promise to sell, then the person took on obligation to get consent of the co-owner. If she doesn’t, she has breached. (Damages may be only remedy, however, if you can’t get co-owner to give up her share in the property.)
A state MAY/MAY NOT tax a subdivision of the federal government within the state.
MAY NOT, if the tax is direct. May, however, tax the income of federal employees in the state (this is not considered direct tax).
