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).
May a state require a federal contractor to pay sales or use taxes on materials for federal government project?
NO, not if the contractor is acting as a “purchasing agent” for the government. If he is working on a “cost-plus” basis, then taxing him is not seen as direct.
May a state tax the income of federal employees in the state?
YES, as long as the tax imposed is no higher than that imposed on state or local government employees.
May a state require a federal employee to get a state driver’s license when he is driving within the scope of his employment?
NO.
May a state require a contractor to get a state license to build facilities on federal property within the state?
NO.
The Art. IV P & I Clause bars _____________________ from denying ___________________ the privileges and immunities of __________________ citizenship.
STATES; NONRESIDENTS OF THE STATE; STATE.
What kinds of rights does the Art. IV P&I Clause apply to?
“Fundamental” rights of state citizenship – i.e. rights relating to important commercial activities (pursuit of livelihood) or rights related to civil liberties.
True/false: The Art IV P & I Clause applies only to laws that are intentionally protectionist.
TRUE.
A state law that charges commercial fishermen significantly more for a license if they are out-of-state than in-state violates the _______________________.
P & I Clause of Art. IV
Rule requiring lawyer to be a resident of the state to practice law in-state violates the ______________________.
P & I Clause of Art. IV
State income tax only on nonresidents who earn money within the state violates the
P & I Clause of Art. IV
Name three ways that a state law that discriminates against nonresidents can nevertheless be valid.
- If it is not intentionally protectionist.
- The discrimination does not pertain to “fundamental rights” of state citizenship – i.e. right to earn a livelihood; civil liberties.
- The discrimination is substantially justified because nonresidents cause/are part of the problem the state is trying to solve, AND there are no less restrictive alternatives.
The P & I Clause of Art. IV bars _____________________________.
STATES from discriminating against NONRESIDENTS w/r/t certain FUNDAMENTAL RIGHTS OF STATE CITIZENSHIP, such as pursuing a livelihood or civil liberties, UNLESS there is a SUBSTANTIAL JUSTIFICATION that cannot be addressed by LESS RESTRICTIVE ALTERNATIVES.
Are corporations protected under (a) the P&I Clause of Art. IV; (b) the P&I Clause of the 14th A; or (c) the DCC?
(a) NO. (b) NO. (c) YES.
The P & I Clause of the 14th A bars _____________________________.
STATES from denying their citizens the P&Is of NATIONAL CITIZENSHIP, such as petitioning Congress for redress of grievances, the right to vote for federal officers, the right to enter public lands, and the right to interstate travel.
Which P & I Clause bars DISCRIMINATION against out-of-state residents?
Art. IV
Four examples of privileges & immunities of national citizenship are
- Right to interstate travel
- Right to enter public lands
- Right to petition Congress for grievances
- Right to vote in federal elections.
The 14th A P&I Clause requires states to provide newly arrived citizens with the _____________________ as are enjoyed by other citizens of the state.
same privileges & immunities
State statute limiting welfare benefits of first-year residents of the state is
unconstitutional under the 14th A P&I Clause.
True/false: The power to regulate foreign commerce is shared between Congress and the executive branch.
FALSE. It is exclusively Congress’ power.
True/false: Congress may permit states to adopt regulations that would otherwise violate the Commerce Clause.
True. If a state imposes additional burdens/taxes of out of state companies that would otherwise violate the DCC, but does so pursuant to Congress’ directive that states may regulate insurance in any manner not conflicting with federal regulation, the burden is OK.
A state or local government may regulate local aspects of interstate commerce if the regulation ______________ and __________________.
DOES NOT DISCRIMINATE AGAINST OUT-OF-STATE COMPETITION to benefit local interests; and
IS NOT UNDULY BURDENSOME (i.e. burden on interstate commerce does not outweigh the legitimate local benefits).
A state or local law that discriminates against out-of-state competition may be valid if it
is necessary to an important state interest and there are NO REASONABLE ALTERNATIVES available.
A regulation barring importation of live baitfish, where the baitfish might bring parasites into the state, is __________.
A regulation barring exportation of baitfish to out-of-state purchasers is __________________.
- Valid, if there are no reasonable alternatives to avoid importing parasites.
- Invalid, because there’s no justification other than favoring local purchasers and protecting them from out-of-state competition.
The market participant exception applies to the _________ Clause and allows states to _______________.
Dormant Commerce Clause; allows states to prefer its own citizens when it is acting as a market participant (e.g. buying or selling products, hiring labor, or giving subsidies).
A city regulation requiring all construction projects funded by the city to be performed by at least 50% residents of the city is _______________ under the DCC and ________________ under the P&I Clause of Art. IV and ____________ under the P&I Clause of the 14th A.
- VALID under DCC (market participant exception)
- POSSIBLY INVALID under P&I Clause of Art. IV, if no substantial justification (no market participant exception applies)
- UNRELATED to the P&I Clause of the 14th A, which deals only with the privileges of NATIONAL citizenship, not with discrimination against out-of-staters.
A state MAY/MAY NOT require buyers of state-owned timber to be purchased by in-state residents; and it MAY/MAY NOT attach further conditions upon sale that the buyer process the timber in-state before selling it elsewhere.
- MAY (market participant exception)
2. MAY NOT (the state is no longer a market participant at this point)
A nondiscriminatory state or local law regulating commerce may still violate the DCC by __________________.
Imposing a burden on interstate commerce that outweighs the promotion of legitimate local interests.
When do the rights of a third-party beneficiary to a contract vest?
- When beneficiary mutually assents to the promise in a manner invited or requested by the parties;
- When beneficiary brings suit to enforce the promise; or
- When beneficiary materially changes position in justifiable reliance on the promise.
What happens after a third-party beneficiary’s rights vest?
The promisee and promisor are no longer free to change the K without consulting the third party.
When do an incidental beneficiary’s contract rights vest?
NEVER, because an incidental beneficiary can NEVER SUE on a K.
Who can an intended beneficiary of a third-party K sue when performance does not occur as agreed?
EVERYONE (promisee and beneficiary) can sue the promisor: the person who makes the promise more directly benefiting the beneficiary (e.g. insurance company in an insurance hypo).
Beneficiary can ONLY sue promisee if she’s a creditor beneficiary, and then ONLY on the amount of the pre-existing debt.
Is a car owner vicariously liable for the tortious conduct of someone driving the owner’s automobile?
Generally, no – absent a statute to the contrary.
[Or unless the “Family Car” Doctrine applies]
Is an employee who uses a company car to conduct personal errands (as is allowed by company policy) while off the job (e.g. on weekend) within the scope of her employment?
NO. This is a wholly personal errand.
Where a landlord accepts a rent check from a holdover T, but tells her that he is not going to renew her lease or allow her to stay, has a new periodic tenancy been created?
When can the landlord evict the tenant?
NO. Landlord has option to hold her over to a new tenancy or to evict her. By telling her he’s not holding her over, he’s shown he’s not keeping her and thus hasn’t created a new periodic tenancy. He gets to keep the rent because he’s entitled to rent for the time a holdover tenant remains.
At the end of the month for which she has paid rent.
What can a trial judge do when the jury returns a general verdict with special interrogatories that shows conflicting or illogical responses?
Either set aside the verdict and ask jury to reconsider, or order a new trial.
Which statements at trial cannot be proven by extrinsic evidence?
- Prior bad acts (for which there’s no conviction)
2. Impeachment on collateral matters
Must a person know that a third party is present to be liable to that third party for IIED?
Ordinarily, yes. Recovery is usually limited to plaintiffs who are present at the time and known to be present, so that the mental distress is likely to have been anticipated by the D.
When a landlord assigns rents/reversion to a third party be selling the property, the assignee is liable to the tenants for _________________________. The original landlord is liable to tenants for _______________________.
- all covenants made by the original landlord in the lease that touch & concern the land – these run with the estate and become burdens of the new landlord via privity of estate.
- all covenants that he made in the lease (via privity of K).
This likely means that the new assignee landlord AND original landlord are both liable for performance of any covenants made by the initial landlord to tenants, as long as they touch and concern the land.
A certification or testimony from a custodian of public records that she has diligently searched and failed to find a record is
admissible to prove that a matter was not recorded (or, inferentially, that it did not occur). (Hearsay exception)
The sale of specially manufactured goods, not suitable for resale in the ordinary course of the seller’s business…
DOES NOT REQUIRE a writing when the seller has made a substantial beginning of their manufacture or commitments for their purchase.
True/false: A criminal D may suppress evidence seized from a third party’s house, after he was arrested in that third party’s house WITH probable cause but WITHOUT a search warrant.
FALSE. The third party has standing to challenge the search, but the D does not, because it’s not his house.
A criminal D’s confession, made after he was arrested in his home without a proper arrest warrant (but with PC) and after Miranda warnings were given, is…
admissible. Theory is that if there was probable cause, police could have arrested him the moment he stepped outside the house, so the confession is not the product of the unlawful arrest.
Federal courts ______________ grant partial summary judgment.
CAN.
Where personal services provided in a K are unique or difficult to assess, the court _________ order specific performance.
WILL NOT; Ks for personal services aren’t subject to specific performance. At most, you might get an injunction preventing the person from working for someone else.
A deed to a person who, unbeknownst to the third party rightfully acting on the person’s behalf, is dead at the time the deed is delivered is
VOID and conveys no title.
When a witness’s credibility has not been attacked, a prior consistent statement is _____________ if it also falls into another hearsay exception.
ADMISSIBLE. Not admissible, however, if PCS is the only hearsay exception available – this can only be used to rehabilitate after a charge of recent fabrication.
For purposes of tort liability, an officer is privileged to arrest someone without a warrant for ____________ or _____________, but not for ____________________.
FELONY or BREACH OF PEACE COMMITTED IN HER PRESENCE; not for MISDEMEANOR NOT INVOLVING BREACH OF PEACE.
If an arrest is privileged, what level of force may an officer use?
Only that level of force necessary to effect the arrest, but never deadly force.
A deposition of an adverse party may be used at trial for
ANY PURPOSE
A deposition of a nonparty may be used at trial for
- TOMA if the deponent is unavailable to testify live, or
2. Impeachment if the deponent does testify live.
Anticipatory repudiation of a K occurs when
- a party unequivocally notifies the other he will not perform when duty is due, and
- K is still executory on both sides (neither has performed)
The most important factor in determining whether an employee is on a “frolic” or still within his scope of employment is
the foreseeability of the detour.
Usually, when an employee is on his way home from work, he is
no longer within the scope of his employment, UNLESS, e.g., the company requires him to drive the company van home so he can be “on call.”
A judgment rendered without SMJ is
VOID.
A dealer who buys from a reputable manufacturer with no reason to anticipate that the product is dangerous needs to do what to avoid negligence liability for manufacturing defects?
Make a cursory inspection of the goods.
Can a plaintiff aggregate her claims against multiple defendants to satisfy the amount-in-controversy requirement for diversity jx?
NO. She may aggregate her claims against ONE defendant to satisfy AIC, but not multiple.
Can a plaintiff aggregate her claims against a single defendant to satisfy the amount-in-controversy requirement for diversity jx?
YES.
What must be true for multiple plaintiffs to consolidate their claims into one action, or for multiple defendants to be sued in one action?
Only that at least one of the claims arise out of a transaction in which all were involved.
Are judgments of past convictions admissible to prove facts essential to the judgment in a current case? If so, what kinds of convictions?
YES (in current civil OR criminal case). Felony convictions only (those in which potential punishment is more than a year).
A felony conviction is one that
has a POTENTIAL punishment of more than a year in prison, even if the punishment could also be less than that.
Must an expert disclose the data for his opinion when testifying?
NO. Examining counsel may ask expert for an opinion and then allow opposing counsel to cross-examine, without disclosing the data underlying the opinion – unless the court orders advance disclosure.
The media MAY/MAY NOT be punished for publishing a true fact lawfully obtained from public records.
MAY NOT, even if a statute makes it illegal to publish the information.
If no district in the US meets the usual test for venue, an action may be brought in a judicial district in which
any defendant is subject to the court’s personal jx w/r/t the action.
In a contributory negligence jx, what happens when the P is more negligent than the D?
Nothing. Doesn’t matter – if P was negligent at all, she won’t recover, unless D had the last clear chance to avoid injuring P, or unless D was willful and wanton.
May a state require that those enrolled to vote be bona fide residents of the community?
YES, b/c state has compelling interest in integrity of voting process – but it must enact only narrowly tailored restrictions to further this goal.
Can certain statements be admitted as invited by the cross-examiner, even if they’d otherwise be inadmissible?
YES.
In contributory negligence jurisdictions, does ordinary contributory negligence bar recovery in strict products liability cases?
NO; not where P fails to discover defect or take steps to guard against its existence.
A statute that doesn’t provide for a level of mens rea, but closely resembles a traditional CL offense, is usually
interpreted to require the mens rea of the common law crime.
Can an observation made 10 minutes after an event be a present sense impression?
Probably not.
Is a third party mentioned in a K always an intended beneficiary?
NO, not if there’s no sign the validity of the K depends on that third party’s involvement.
A covenant touches and concerns land when it
makes the land itself more useful or valuable to the benefited party.
Privity of estate is __________________ for enforcement of an equitable servitude.
NOT REQUIRED
When subject matter of a K becomes illegal after an offer is made but before it’s accepted, what happens?
The offer is deemed revoked.
Revocation of a merchant’s firm offer is
NOT VALID (until time that the firm offer expires)
Who can make a firm offer?
Merchants only.
When is reformation of a K available?
When a writing incorrectly reflects a valid antecedent agreement, such as where a mistake is made transcribing an agreement. When the terms are properly written down, but the parties disagree over their meaning, reformation is NOT an option.
When the terms of a K are properly written down, but the parties disagree over their meaning:
(1) is parol evidence admissible to establish the meaning?
(2) is reformation of the K available?
(1) YES, because there’s a dispute about the meaning of the agreement’s terms.
(2) NO, because reformation is available only when the writing does NOT reflect the agreement. If the writing is correct but there’s dispute over the meaning of it, reformation is not an option.
When a party who notices a deposition fails to serve a subpoena on a nonparty D, who then doesn’t show, what are the other party’s remedies?
Party can recover reasonable expenses for attending the no-show deposition, including attorney’s fees.
Where summary judgment is issued as to a claim, but not a counterclaim, in a case, has there been a final judgment?
NO. a VFJOTM disposes of the whole case, by rendering judgment as to all parties and all causes of action.
Can a court enter final judgment as to fewer than all of the claims or parties in an action?
Yes, but only with an express finding that there is “no just reason for delay.”
Arson, at CL, was
the malicious burning of a dwelling of another.
Failure to put out a fire you negligently caused is
sufficiently malicious to qualify as arson.
An implied-in-fact contract is one formed by
manifestations of assent by conduct.
Where an offeree silently takes benefit of offered services with reasonable opportunity to reject AND reason to know they were offered with expectation of compensation, the offeree’s inaction
may be an acceptance under an implied-in-fact contract theory.
Could a response to an offer that accepts in part, but does not explicitly reject the rest, be interpreted as rejecting the other part?
Possibly, yes.
Seclusion is
an invasion of privacy in which someone intrudes on your private domain – e.g. wiretapping a hotel room, home, etc.
Must a person be aware of his confinement for the confinor to be liable for false imprisonment?
Generally, yes. But if the confined person is actually harmed by the confinement, most courts will say no.
The president HAS/DOES NOT HAVE power to refuse to spend appropriated funds when Congress has expressly mandated they be spent.
DOES NOT HAVE
Is a “junior claimant” the person who RECORDS first or who GETS A DEED first?
GETS A DEED
A joint tortfeasor may generally recover indemnification from a joint tortfeasor when
there is a considerable difference in fault.
Where a buyer at arm’s length fails to notice something about the land, what’s his remedy?
NONE, as long as he had ample opportunity to inspect – he thus had the ability to discover the problem. As long as there was no affirmative misrepresentation or bad-faith nondisclosure, or fiduciary relationship, the landowner has no duty to disclose.
A modification in a K for goods is
enforceable without consideration, as long as made in good faith.
State laws based on alienage are
subject to strict scrutiny, UNLESS they discriminate against alien participation in the self-governance process.
The use of a checkpoint is constitutional if _______________ but not if ________________.
cars are stopped on the basis of a neutral, articulable standard, and the stops are designed to serve a purpose clearly related to a particular problem related to cars and their mobility
NOT if stop is to detect evidence of ordinary criminal wrongdoing unrelated to cars and their mobility (i.e. drugs, burglaries).
True/false: A plaintiff may aggregate all of her claims against a single defendant to reach the amount-in-controversy threshold only if those claims are related.
FALSE. She may aggregate all claims against a single defendant, whether or not they are related.
Can a plaintiff file a supplemental pleading that relates to matters occurring after the date of the original pleading?
YES, without time limit.
Discharge of K duties by impossibility must be OBJECTIVE/SUBJECTIVE.
OBJECTIVE, i.e. the duties must not be able to be performed by anyone. If someone could perform them, just not the person who was supposed to (e.g. because of disability), the duties are delegable and failure to deliver is not excused.
Where an unlawful search of a third party’s home provides PC to get a warrant to search D’s home, can D challenge the introduction of evidence from his home?
NO. There was a warrant, and D has no standing to challenge the improper search of the third party’s home that gave rise to the warrant.
