Prep Questions Flashcards
Business man owns land– farmer takes over part of the land for 30 years and then gives part of land to son (deed to son not good). Businessman then tries to give land to friend.
Who has possession?
Farmer
Adverse possession= Actual + exclusive + open and notorious + hostile + continuous
• Actual= must occupy the land
• Exclusive= not sharing with the true owner
• Open & Notorious= same kind of use that the owner would have
• Hostile= possession must be adverse
Continuous= must be continuous throughout the entire statutory period
Woman borrows 100K from the bank (promissory note). Woman’s brother gave the bank a mortgage on his land as security for Woman’s loan. Woman defaults– can bank take brother’s land?
Yes.
Mortgage is the transfer of interest in land and is a secures a promise to repay a loan.
Debtor and mortgagor can be different people.
Company sells land to buyer– buyer doesn’t record deed. Company gets judgment entered against them by man. Buyer tries to sell land to developer. Developer does not complete contract.
Who will court rule for?
Court will rule for developer to complete contract bc buyer received the deed before the man filed judgment.
Judgment will only attach to land the defendant owns and previously sold land (recorded or not) is not included.
1960: owner gave company an easement to install, inspet, repair, maintain and replace pipes. Company recorded deed.
2006: owner sells home to buyer. Company tells buyer of plans to replace pipes. Buyer says no.
What does the attorney tell buyer?
Attorney tells buyer they will not win because company is within their rights.
Owner can only sue for injunctive relief when acting outside of the easement.
Express easement– involves one plot of land and holder of the easement is allowed to reasonable use of the land so long as it is within the scope of the easement.
Man took his deed to his farm to his attorney and told him to the give the deed to his nephew when he died but if he asked for it back, then the attorney needs to give him the deed back.
Nephew dies and leaves everything in his will to his daughter
Man dies and leaves everything to his son
Does the attorney give the deed to the nephew’s daughter?
No bc the man never placed the deed beyond his control
Rule:
Death escrow= grantor can give deed to an agent to give to grantee when they die
Effect if (1) only condition is the grantor’s death + (2) the grantor does not retain the legal right to take the deed back out of escrow
They are gifts in place of wills
Owner of left building wants to make it taller but owner of right building sues because it blocks the sunlight coming into their building (right building).
Should the Court grant the injunction?
No because owner of right building has no legal right to have sunshine.
landowners have rights to things above and below it but have NO RIGHTS to sunlight, fresh air or view.
Map of 10 lot subdivision also included a unnumbered lot. Developer wanted to sell unnumbered lot.
Can developer sell lot?
No. Title is not marketable because the map leaves it uncertain if it is subject to the building restrictions.
Warranty of marketable title is implied in all land sales contracts
- Seller must provide marketable title to the buyer on closing date
Title is marketable if free of encumbrances
- Mortgages - Restrictions - Covenants - Easements
Owner conveys land “to church for the purpose of erecting a church building”. Owner dies and leaves son as heir; owner’s will leaves everything to his friend. Church conveys land to developer.
Who owns land?
Developer owns the land
Owner created a fee simple with church in the land.
Student rents from landlord. Student subleases to friend. Landlord says sublease is okay. Friend stops paying rent and landlord goes after student for remaining rent.
Why would the landlord lose?
If landlord loses that’s because there was a novation
Novation is an agreement that serves to substitute a new party for an original party to the contract.
Completely releases the substituted party but requires assent from all parties.
Attornment is when a landlord is being substituted by someone new.
Man’s son hits woman and woman is in hospital. Father tells woman and doctor that he will pay for her expenses. Doctor stops treatment. Woman sues Doctor
What is doctor’s best defense?
Best defense: Man stopped paying.
If contract is materially breached– nonbreaching party can (1) treat the contract as if its no longer in effect (2) will have immediate right to the remedies
Third party is someone who has legal right to enforce a contract and this depends on the intent of the parties involved.
Innkeeper and laundry service enter into a contract for $500 for “daily service”. Laundry service new that Innkeeper wanted service on Sunday but they refused– industry standard showed that Sunday was not included.
Who wins?
Innkeeper
When parties to a contract disagree about the meaning of. term, extrinsic evidence may be used to interpret the term.
BUT if one party knows that the other party has a different meaning then the innocent party’s definition stands.
Landowner and builder enter into 1 contract for 3 separate pieces of land. Building completes job 1 but says will not complete job 2 and 3. Landowner refused to pay.
Builder will win because the contract is divisible, but the landowner will be able to deduct any recoverable damages caused by the builder’s failure to complete the contract.
If a party performs part of the contract they are able to recover for the part they completed but they will still be subject to liability for part-performance.
Landowner: “to church so long as used for religious reasons”. landowner dies with 1 heir; church demolished. Heir and attorney general sue for possession.
Who gets possession?
Heir
Fee simple determinable with possibility of reverter
once church stopped using the land the heir inherited the possibility of reverter.
Cigarette smoker on the right side of the restaurant; non-smoker on the left. Non-smoker has reaction to smoke and sues smoker.
What question would not be asked by the Court?
“Was smoker’s conduct unreasonable?”
Conduct being reasonable for battery claim is IRRELEVANT
Need intent to cause harmful or offensive contact.
Circus buys add on city owned bus; Animal rights org wants to buy ad space; Bus denies org ad. Org sues for violation of 1st amend.
Who wins?
Org wins because a public official can not refuse message in public forum on basis of content UNLESS serving compelling government interest.
Denial based on content is strict scrutiny.
Denial must serve compelling government interest.
Landowner told photographer can not take photos on land.
Photographer climbed barbed wired fence.
Photographer sues- who wins?
Photographer does not win because the danger of the barbed wire was apparent.
Landowner did not conceal barbed wire and photographer took the risk.
Plaintiff denies recovery if assumed the risk.
Defendant is arrested for bank robbery.
Defendant was not read Miranda rights but put in line up and told to say “give me all your money”.
Defendant says was in violation of privilege of self-incrimination.
how should the judge rule?
Not rule in favor of the Defendant because not testimonial.
Privilege against self-incrimination is only testimonial.
Can be compelled to make recording of voice.
Husband and wife are die in plane crash.
Distribution of their will is based on who died first.
Witness says heard wife speak.
Is their testimony allowed?
Yes because relevant and not otherwise prohibited.
Evidence is relevant if (1) makes fact more or less probable AND (2) is of consequence in determining the action.
accident victims complain of harassing phone calls from medical providers to legislature.
Legislature creates new law that medical providers can not call victims within 30 days.
What would be helpful for the state?
State has substantial interest in protecting privacy of victims and law is narrowly tailored to achieve their objectives.
Regulation of commercial speech is okay if:
- does it concern a lawful activity?
- serve substantial government interest
- directly advance that interest
- narrowly tailored to serve the substantial interest
Senate released list of 3 citizens who were terrorists that were park rangers.
Congress statute says 3 people can not hold position in federal government.
What provision best challenges the statute?
the bill of attainder clause
Bill of attainder clause inflicts punishment without a judicial trial.
Congress statute says people of certain race must have more strict airport security.
Best ground to challenge constitutionality?
the due process clause of the 5th amendment
discriminatory practice by fed = violation of due process clause of the 5th amend.
discriminatory practice by state= equal protection clause of the 14th amend.
City council ordinance “any sign or visual display” must be black and white.
political party sued city council.
most useful argument for the political party?
The ordinance is not narrowly tailored to an important government interest and does not leave open alternative channels of communication.
Government can regulate speech depending on the forum
intermediate scrutiny review
- content-neutral
- narrowly tailored to serve important government interest
- leaves open alternative forms of expression.
Group of doctors want to open diagnostic center. Legislature creates law saying no. Doctors sue.
What action should the court take?
uphold the law because the legislature could rationally believe that the diagnostic center is less reliable.
Rational basis scrutiny is applied when there is no impairment of any foundational right.
Law is upheld if rationally related to legitimate government interest.
owner “to my neighbor and his heirs as long as it is used for residential purpose but if it is ever used for anything other than residential purposes, to the American Red Cross”.
Owner dies leaving all real estate to his brother by will.
Neighbor tries to sell land to buyer and buyer says no.
Prayer for Specific Performance will be…
denied because the brother has a valid interest in the land.
An executory interest that follows a defeasible fee with no limit on when to vest violates RAP and is stricken.
RAP= must vest within 21 years plus a life in being.
Woman purchased owner’s policy of title insurance for land. Title insurance company does not list county tax lien.
Woman conveys land by quitclaim deed to a friend. Friend liable for tax lien.
friend sues title insurance company.
Title insurance company will not pay claim because the friend is not a named insured on the title insurance policy.
Title insurance policy insures that good record of title of the property exists.
- can be taken by owner or lender
- if taken by lender only protects named party
- does not run with land.
Owner to Landlord- life estate
landlord leased land to tenant for 15 years.
Landlord dies and leaves everything to son. Tenant pays son rent for 11 years.
The court should hold that title in fee simple is in…
son because the the tenants occupation was attributable to the son and the landlord died 11 years ago.
Owner’s interest was transferred to landlord in life estate. Landlord died and rights go back to owner BUT son occupied land via tenant (was collecting rent) for 11 years.
Son takes possession of land in fee simple via adverse possession.
Man writes to Friend saying will sell land to him for 20K so long as he has the money within 1 month. Man signs doc saying “will sell land for 20K”
Man gets offer for land for 40K and sells to 3rd party.
Friend sues.
What points are relevant to the decision in favor of the friend?
contruction of the contract as to the time of performance, ability to perform, and parol evidence rule.
SOF requires contract have signature of the party to be charged.
Parol evidence will allow outside evidence other than the signed doc to come in
Friends ability to perform in 1 month time
Mom gives daughter quitclaim deed to the home.
Mom changes her mind and tells daughter to destroy the deed.
Daughter destroys the deed.
Who does the home belong to?
Daughter because the deed was merely evidence of there title and its destruction was insufficient to cause title to pass back to her mom.
transferring legal title in land = execution + delivery
execution= grantor signs the deed
delivery= proving intent to pass title EVEN if never physically give deed
Grantee can return the deed bye executing and delivering a new deed back to the grantor.
Civil Trial: P introduced evidence that he gave D notice at their office in the city of Capitan.
P didnt offer proof that Capitan is the capital.
What is true about possible judicial notice of Captian being the Capital?
The court may take judicial notice even if the P doesnt request it.
Civil Cases: the judge can take judicial notice of something and instruct the jury to accept the fact
BUT if the fact is not up for dispute they can take judicial notice without either party asking.
Man was charged with felony child abuse from beating woman’s daughter. Man was indicted.
Man and woman run away together. Woman comes back and is charged with accessory after the fact to child abuse.
The court should?
submit the case to the jury on an instruction to convict only if her purpose in moving was to prevent the mans conviction.
Accessory after the fact:
- assists someone who committed a crime
- after they committed the crime
- and knows they committed the crime
- with the intent to help them avoid punishment
REMEMBER: can be convicted even if the person wasnt convicted.
Man is on trial for falsifying tax returns. State uses evidence to show the Man was involved in a similar case with someone else.
Is this evidence allowed?
Yes to show absence of mistake.
Rule 404(b) evidence of other crimes are not admissible to show character but can be used to show:
- intent
- motive
- opportunity
- preparation
- plan
- knowledge
- identity
- absence of mistake
D was indicted for committing fraud. State called a witness who was involved in the criminal act.
Investor brings a civil action against D and wants to introduce witness’s testimony.
Can she?
Yes, because it is prior testimony of an unavailable declarant.
Former testimony is an exception to the hearsay rule (under oath + cross examination)
DO NOT HAVE TO PROVE CANT GET FOR DEPO.
P sues D for breach of contract. P calls expert witness. D cross examines and asks expert witness about him lying in divorce case.
Should the evidence be admitted?
Yes, because the evidence was elicited from the expert witness on cross-examination.
A witness may be interrogated during cross about any immoral or criminal act that can affect their character.
- act of misconduct is probative of truthfulness.
D robbed a bank, P wants court to take notice of bank being federally insured.
D objects.
How does the court proceed?
The court must take notice and instruct the jury that it may accept the notice as fact.
Judicial notice- judge takes as true even with no evidence to prove.
- party doesnt have to ask
- party can be heard on if the court should take judicial notice
P sues clothing store for injuries from when shopping at the store.
Store Clerk testified that P fell on their own and says they created an accident report.
Is the reported admitted?
No, because it is hearsay not within any exception.
Hearsay- out of court room statement used to prove the truth of the matter asserted.
Business exception= record of any act used in the regular course of business.
Business sued D for not paying for their deliveries. D says they never received their deliveries.
Office manager says they are the keeper of the business records that show they did deliver the goods.
Can the office manager’s testimony be admitted?
No, because the records must be produces in order to prove their contents.
Best evidence rule “OG doc rule”= prove the writing, need the writing.
- don’t have the writing must show why and can testify to it.
Witness on stand forgets who she said was in the room during the meeting.
Attorney offers their personal notes from pretrial hearing to client.
Is the court going to allow this??
Yes, because it is a proper attempt to refresh the witness’s recollection.
It is allowed that a witness can view any item (even if hearsay) to jog their memory.
Store owner lived on top of gas station. refused to sell beer to a customer. customer drove car into gas pump.
Explosion, store owner died in fire.
If customer is charged of murder and arson should he be charged?
Yes, convicted of both.
murder= unlawful killing of another with malice aforethought.
arson= malicious burning of the dwelling of another.
owner of warehouse tries to burn down his own warehouse. thinks he is committing arson.
Statute in that state says, arson= if intentionally burning someone elses’ property.
is the owner guilty of attempted arson?m
No, because even if his actions had every consequence he intended, they would not have constituted arson.
REMEMBER– READ THE QUESTION CAREFULLY!!!
P sues boss for sex discrimination. P was told by janitor that they heard the boss saying “make it hard for her”
Is P’s testimony admissible?
No, because the janitor’s statement is hearsay not within any exception.
hearsay= out of court statement used to prove the truth of the matter.
a statement made by an opposing party is NOT hearsay.
Since the janitor’s statement is hearsay– it cancels out the admission of the boss’s statement.
Witness testifies that heard the defendant’s wife the night before say “you killed him”
The witness’s testimony is:
admissible as a report of an excited utterance.
hearsay= out of court statement offered for the truth of the matter asserted.
Exception: excited utterance- when the statement related to a startling event or condition made
Babysitter tells 11yo to go to neighbor’s house and steal tv.
Neighbor catches 11yo and calls cops.
How should the babysitter be charged?
Guilty of larceny by the use of an innocent child.
when someone else is used to commit the crime of another they are an innocent agent.
innocent agent= complete the act but not have the proper mens rea.
P sued D for injuries from car accident.
D asks bystander to testify that they heard the dead witness say “that car doesnt have any lights on”.
The bystander’s testimony is:
admissible as a statement of present sense impression.
hearsay= out of court statement to prove the truth of the matter asserted.
exception: statement of present sense impression
- describing the condition as they were perceiving it.
Cops had arrest warrant for woman. woman’s home was boarded up. Cops asked neighbor’s if the woman had been home, they said no. Cops forcibly entered and found illegal gun.
Woman wants to suppress the gun.
Court should suppress because the officers had no reason to believe that the woman was in the house.
Forced entry into a home with a valid search warrant IS ALLOWED IF BELIEVED that the person is inside.
D was charged with robbery– teller and witness both died.
what kind of evidence may be admitted against D because does not vioalte the confrontation clause?
computerized records.
confrontation clause= hearsay not admitted when offererd against the accused, declarant is unavailable and the statement is testimonial. and the defendant had no chance to cross examine.
Woman refuses to give Man the engagement ring back.
Man enters Woman’s home in the middle of the night to get the ring back.
Man charged with Burglary.
What is Man’s best defense?
He incorrectly and unreasonably believed that he was legally entitled to the ring.
Burglary= breaking and entering of the dwelling have been done at night with the intent to commit an underlying felony.
Boss and employee get into fight– employee stabs boss. Employee charged with both assault and attempted murder.
employee wants to admit into evidence that he was intoxicated.
the evidence should:
be admitted without limitation
Common law: voluntary intoxication can be the basis for a defense to a specific intent crime if the intoxication negated the mens rea of the offense.
Assault: intent to commit a battery or the intent to create a reasonable apprehension of imminent bodily harm.
attempted murder: intent to kill another and took substantial steps toward the commission of the offense.
Actor sues Company for breach of contract.
Company files MSJ along with affidavits and contract. Actor files opposing brief with allegations based on complaint.
Should the court grant MSJ?
Yes, because there is no genuine dispute as to any material fact and the company is entitled to judgment as a matter of law.
MSJ- the court may consider evidence beyond the pleadings to determine whether there is genuine dispute as to any material fact.
Actor did not refute the company’s facts stated in the MSJ.
business man filed lawsuit against landscaper.
count 1: landscaper lied about their business and business man relied on their lies.
count 2: landscaper didnt lie but they do owe businessman money.
will court find business man’s complaint plead in good faith?
No, bc has inconsistent statements as to whether or not he relied on their statements and he must know which allegation is true.
pleadings:
- give notice
- when file pleadings- it is best to your knowledge
- not plead for improper purpose.
Buyer contracts to buy car for 15K on a certain date. Contract states that time is of the essence.
Seller sells car to someone else for 18K before specified date.
if the buyer sues the seller will he win?
Yes, because the seller anticipatorily repudiated the contract when he sold the car to the 3rd party.
Anticipatorily repudiate: when a party makes it clear before performance that they do not intend on performing.
- can be express or implied
farmer leases land from owner for 5 years with an option to purchase 5 acres of the land for 10K cash.
Farmer decides at 5th year that he wants to buy the 5 acres. Owner says no.
What is the owner’s best defense against the farmer?
the description of the property to be sold in the parties written agreement is to indefinite to permit the remedy sought.
a proposed agreement that has terms too vague form a contract is said to be void for indefiniteness.
student (state a) filed a law suit against landlord (state b) in state a.
landlord said signature on the contract was not his.
case goes to trial.
what can the judge do?
depending on what other evidence there is, judge could grant a motion for judgment as a matter of law on behalf of the student.
JML= directed verdict
- takes the case away from the jury
- determines the outcome of the law
REMEMBER: PRIOR TO FILING AN ANSWER, THE D CAN FILE A MOTION TO RAISE THE DEFENSE OF LACK OF PERSONAL JURISDICTION.
Man owns Blackacre, signs contract with neighbor to sell land.
Man allows neighbor to park on land.
Neighbor wants to get out of contract and tells man doesnt want to move forward with agreement.
Man sues neighbor for specific performance. If man wins its because…
general contract rules regarding consideration apply to real estate contracts.
the exchange of two promises is valid consideration to create an enforceable contract.
renowned architect signed a contract to design and supervise the building of. sculptors home.
Architect signs over job to a new architect. Sculptor sues Architect to complete performance.
Will the sculptor win?
No, because the architect-sculptor contract is one for personal services by the renowned architect.
Specific performance is not available remedy in a dispute involving a contract for personal services bc court must be able to enforce a remedy.
- can be enforced on things
- violation of the 13th amendment.
Woman buys land from owner
deed says that the land is only to be used to build homes and the 10 acre tract of land is for a school to be built.
owner sells 10 acre tract and most of land to developer who wants to build mcdonalds.
if woman wins it will be because
the woman has an equitable servitude concerning the use of the tract.
equitable servitude= only enforceable in a deed if:
- intent for it to be enforced
- subsequent grantee had notice
AND
- restriction touches and concerns the land
Fisherman brought action against company.
Company files JMOL after Fisherman’s case in chief. Court denies JMOL.
Companies files Renewed JMOL and motion for a new trial. Court grants JMOL and conditionally granted a new trial to take effect after the court appeqls reverses the JMOL.
What may the court of appeals do?
reverse the court’s judgment as a matter of law and allow a new trial to proceed.
JMOL- if a party has been fully heard on an issue during a jury trial and the court finds that a jury would not have a sufficient basis to find for a party, the court may grant JMOL
- judge can also reserve JMOL and submit the case to the jury.
THEN the movant must file a RJMOL
owner enters into contract with painter for $1k to complete job by end of the weekend.
Painter completes 1/2 of the job and the building burns down.
what is the outcome?
both contractual duties are discharged, but the painter can recover in quasi-contract from the owner.
if the existence of one thing is needed for the performance of a contractual obligation, the destruction of that thing discharges both parties
- any benefit under contract prior to the event can be recovered i restitution.
owner conveyed blackacre “to my brother for life and remainder to my sister”
Bank had unpaid balance of 1k annual payment and 6% interest.
how should the burden of the unpaid balance be paid?
the sister must pay the principal balance and the brother must pay the interest.
life tenant: duty to not commit voluntary or permissive waste relevant to the property during life tenancy.
permissive waste= failure to pay taxes, pay interest, pay taxes
Mechanic agreed in writing to repair a landscaper’s truck for $12k.
Mechanic refuses to deliver truck unless landscaper pays another $2K.
Landscaper needed truck bc had contracts to complete– says yes.
Can the mechanic enforce the landscaper’s promise to pay?
No, because the landscaper had no reasonable alternative but to yield to the mechanic’s wrongful threat.
if contract is unconscionable at the time created, court will refuse to enforce.
invalid contract if: in-equal bargaining power and terms are unfavorable to one party
REMEMBER: undue influence is based on the relationship between the parties- one exerts unfair pressure over the other.
zookeeper filed a breach of contract suit against a seller in federal court, State A seeking 80K in damages.
Seller filed an answer and did not show up for trial.
zookeeper had evidence that showed damages in 200K
the court should enter a judgment for…
a judgment for the zookeeper for 200K
defendant can not fall into default if they responded to the pleading filed.
city offered to pay 10k for anyone who figured out who was guilty of burning down the store the year before. they announced this via tv ad.
the store hired a detective.
city made their revocation of the contract known by radio.
detective went to collect earnings from city.
revocation could be effectively accomplished only by…
in the same manner as made or by a comparable medium and frequency of publicity.
buyer and seller agree to sell land.
buyer agrees to pay 25K of seller’s debt and pay remaining amount to seller.
Before creditor becomes aware of the agreement, buyer and seller decide not to pay any amount to the creditor.
Creditor sues buyer for $25K. Best defense for the buyer
the seller agreed with the buyer not to pay any part of the purchase price to the creditor.
3rd party has standing to enforce a promise only if that party is an intended beneficiary.
- contracting parties have the power to modify or discharge
Car owner sued manufacturer and the car dealer.
sued the manufacturer for negligent design of the exhaust system
sued the dealer for failure to fix ignition.
manufacturer and dealer move for dismissal or severance on the ground of misjoinder.
how should the court rule?
deny the motion to dismiss, sever the claims and determine if the court has subject matter jurisdiction over the severed suits.
joinder= can include multiple defendants if
- their claims arise from a single transaction/occurance
AND
- question of law or fact common to all defendants.
City ordinance had a 3 member zoning board. Minister was appointed to the board to rep local churches.
The board denied the opening of a night club.
night club sued the city
is the night club going to win?
Yes, because the requirement that the zoning board include a representative of the local council of churches violates the first and 14th amendments.
violation of Establishment clause to allow important, discretionary government powers, to be shared with religious institutions.
Establishment clause= government to pursue a course of neutrality toward religion.
OKAY ONLY IF:
- secular purpose
- primary effect doesnt advance religion
- no excessive government entanglement with regilion.
REMEMBER: Rational basis test!!!
state provides medical funds to its residents but if you have lived there less than a year they do not provide funding.
woman moves to state 2 months ago and is denied state funding.
will the woman win?
Yes because the law burdens the woman’s fundamental right to travel.
fundamental right to travel from state to state
- to leave and enter another state
- to be treated equally and enjoy the same privileges if become residents.
APPLY STRICT SCRUTINY
- tailored to promote a compelling interest.
state: “can not park out of country made cars in any parking lots only side street”
what is the strongest argument to challenge the constitutionality of the statue?
the statute imposes an undue burden on foreign commerce
congress has the power to regulate foreign commerce
state regulate local aspect of commerce is invalid if:
- discriminates against out of state parties to benefit local interests
- unduly burdensome on commerce
City requiring all rental properties to update property- more bathrooms, washer/dryer hookups, covered parking
owners say will affect their low-income property
who has the burden of persuasion?
the owners must demonstrate that there is no rational relationship between the ordinance and any legitimate state interest, because the ordinance regulates economic activity of a type normally presumed to be within the state regulatory authority
REMEMBER:
- strict scrutiny= suspect class + fundamental rights
- burden= state
- intermediate = gender + legitimacy
- burden= state
- rational = everything else
- burden= challenger
P sued insurance comapny for the proceeds from his policy claiming that his boat was destroyed in an accidental fire.
the company says Plaintiff hired his friend to set the fire.
Friend while dying tells wife in front of nurse that he set the fire.
can the wife’s testimony be used over Plaintiff’s objection?
yes because it is a statement against interest
statement made by a person not available to testify may be admissible if it was against their interest.
statement against interest =
- against: pecuniary, penal, proprietary interest
- only made if they believed it it be true
- they had reason to believe it was true
- was aware that the statement was against their interest
priest of a small cult killed a cat as a sacrifice for their religion.
Priest was arrested.
On appeal the conviction of the priest will probably be….
sustained on the grounds that sincere religious belief is not an adequate defense on these facts.
A statute that is neutral on religion and that is generally applied needs to only be RATIONALLY related to a legitimate government.
DOESNT MATTER IF impairs religious practice.
state constitution: “the accused shall have the right to confront all witnesses face to face”
Man on trial for child abuse; child testified behind a 1 way glass.
Man is convicted and appeals saying violated US and state constitution.
State petitions the US Supreme Court
On which ground should the US Supreme Court DENY the state’s petition?
the decision of the state’s highest court was based on an adequate and independent state ground.
The US Supreme Court may not review a judgment by the highest court if that judgment is supported entirely by state law.
Defendant on trial for burglary. During cross examination, prosecutor wants to ask about the Defendant’s earlier charge of falsifying a credit application.
why would the court refuse to to allow the examination?
The D was released from prison 12 years ago.
a prior conviction of a crime of dishonesty is proper impeachment UNLESS it is more than 10 years ago!
Federal statute authorizes federal agency to issue rules requiring that state legislatures adopt laws of limited duration to reduce water pollution.
States sue for constitutionality.
Should the court uphold the statute?
No, because the federal government may not compel a state legislature to enact into state law a federally mandated regulatory program.
10th Amend= Fed gov CAN NOT force a state to take specific legislative actions.
Congress can ENCOURAGE state to pass certain laws BUT can NOT impose limitations or attach strings
D has been charged with selling cocaine to an informant.
Coke is no longer available and informant wants to testify that it tasted like cocaine.
Informant has no formal training.
Should court allow testimony?
Yes, if the court determines that the informant has enough knowledge and experience to ID coke.
If the testimony is rationally related to the informant’s perception, helpful to determine a fact in issue and NOT based on technical knowledge but on sensory impressions.
the witness says that she received a threatening phone call from the defendant
this is most likely to be admitted against the defendant if…..
the witness had given his unlisted number only to the defendant.
Statement made during a phone call may be authenticated if they testify that the speaker has knowledge of certain facts that only they would have.
Self-identification by the CALLER is insufficient
MUST be someone calls a number that they know belongs to them and they answer the phone saying itts them.
P and D get into an accident in a contributory negligence jurisdiction.
At trial jury determines D was more at fault and had the last clear chance to avoid the accident. P was legally negligent.
Is the P likely to prevail?
Yes because the D had the last clear chance.
REMEMBER UNLESS OTHERWISE STATED COMPARATIVE NEGLIGENCE IS TESTED—MAKE SURE TELL YOU CONTRIBUTORY.
Contributory negligence— if P is 1% negligent then they will not win!!!
Doctrine of last clear chance— if D had a last clear chance they are liable for negligence
D was on trial for assault. The jury was selected and when judge was in chambers discussing an evidentiary hearing with the attorneys he got a call his mom died and ruled it was a mistrial.
Case was in front of another judge the next day. D files for motion to dismiss for double jeopardy.
Will the D prevail?
Yes bc there was no manifest necessity for a mistrial.
5th amendment— can’t be tried 2x for the same offense. Jeopardy attaches at the empaneling and swearing in of a jury.
An exception if there is manifest necessity.
Manifest necessity is if there is a mistrial for a hung jury or misconduct of the D.
Statute passes both houses of Congress and signed by the President allowing a fed org to create a monument and also pick the location.
statute: funds cant be used until both houses agree but no need for president approval.
Is this constitutional?
No, because the provision amounts to an unconstitutional legislative interference with an executive function.
Congress passes legislation to monitor federal org, this must be voted on by both houses and presented to the president for his approval.
Art 1= bicameral requirement that both houses must pass bill and presented to president
the president has ordered all offices of federal executive agencies to be open only 4 days per week.
When congress enacted the statute they assumed the agencies would be open 5 days per week.
Is the president’s order constitutional?
Yes, because the order relates to the management of the executive branch and is not prohibited by any statute.
the president can direct federal executive agencies as long:
- congress is silent
- does not interfere with other branches
Psychotherapists send mailings to people who were in car accidents saying PTSD is a possibility after their car accident.
NEW state law: psychologists can not send mailings to anyone in a car accident until 30 days after the accident.
is the law constitutional?
Yes bc the law protects the privacy of accident victims and the public regard for psychotherapy without being substantially more restrictive than necessary.
commercial speech= intermediate scrutiny
gov must show that the restriction directly advances an important government interest
Man had sign on land: “no salesman. trespassers will be prosecuted. proceed at your own risk.”
Salesman saw the sign and continued to enter the driveway. explosive buried in the driveway and salesman was injured.
Can the seller recover damages from the homeowner for his injuries?
Yes, because the homeowner was responsible for the explosive charge under the driveway.
The homeowner is liable for battery:
- committed the act by placing the explosives
- caused harm to the salesman
- contact does not need to be direct
Battery:
- an act by D that brings HARMFUL or OFFENSIVE contact
- intent to bring harmful or offensive contact
- only need to show that harmful or offensive contact
- causation
- just need to set the force in motion
D was charged with assault and battery in a state that follows the “retreat” doctrine.
Man tells D “get out o here or I will break your nose”
D said “dont come any closer or I’ll hurt you”. Man tried to punch D and D sprayed pepper spray in Man’s face.
Should the D be convicted?
No because he had no obligation to retreat before resorting to nondeadly force
retreat doctrine: a non-aggressor may use deadly force ONLY after making a proper retreat.
- no retreat if cant be done safely
- no need to retreat if dont plan on using deadly force
A patient with a broken leg extended straight in front of him was being pushed in a wheelchair by the nurse.
While the nurse was pushing the patient his leg was stuck in the door.
patient sued the hospital.
patient cant provide evident of wrongdoing by hospital- hospital moves for SJ
Should the court grant the motion?
no becasue a jury could find the hospital liable for negligence based on res ipsa loquitur.
Res ipsa loquitur:
- inference of negligence
- negligence attributable from the defendant
- P is free from negligence
14yo girl of low intelligence was driving her parents car.
she lost control of the car and hit someone crossing the street.
is the pedestrian likely to prevail?
Yes, because the girl was engaging in an adult activity.
children engaging in a dangerous activity undertaken by adults, will be held to the adult standard.
Woman bought soda with a dead snail in it. Sued the store where she bought the soda.
Parties agreed that the snail was in the bottle before it got to the store.
Will the woman win against the store?
Yes, because the consumer was injured by a defective product sold to her by the store.
seller of a product with a manufacturing defect is strictly liable for the injuries caused by the defect.
STRICT LIABILITY:
- commercial supplier
- producing or selling a defective product
- actual or proximate cause
- damages
D was charged with felony murder because of his involvement in a bank robbery.
Friend invited D to come with to rob the store. Friend asked D to drive the car and to wait outside. Friend killed store clerk.
Jurisdiction applies the death penalty to all felony murders.
the jury may convict the defendant of…
felony murder but not impose the death penalty.
Felony murder= a killing during the course of a violent felony.
if the killing is foreseeable from the illegal acts then the accomplice is convicted of felony murder.
8th amend= NO penalties that are disproportionate to the crime.
death penality can be imposed if did not kill BUT was involved in a MAJOR WAY
Pedestrian walking across the street was hit by 81yo man.
Pedestrian has a rare bone disease and because of the disease broke her leg during the accident.
Should the pedestrian’s recovery include damages for a broken leg?
Yes, even though the exteent of the injury was not a foreseeable consequence of the impact.
eggshell-plaintiff rule= D is liable for damages the victim suffered even if because of rare disease/condition.
TAKE THEM AS YOU FIND THEM.
cops got a tip that Rival weed farmer had killed and buried weed farmer in hillside 200 yards from Rivals home.
cops found weed farmer’s clothes, chased down rival weed farmer and rival weed farmer admitted to killing weed farmer.
if rival weed farmer moves to exclude the intro of the weed farmer’s clothing into evidence, the court should…..
deny the motion becasue the rival had no expectation of privacy in the fields around his house.
no reasonable expectation of privacy in objects held out to the public.
open fields doctrine= areas outside the curtilage are subject to entry and NOT protected by the 4th amendment.
cop had a hunch that the driver was a drug dealer.
saw the drug dealer driving 3mph over the speed limit and stopped drug dealer.
Cop asked drug dealer and friend to get out of the car. When they did, saw a bag of weed in the car.
Man and friend at trial say that the cop had no right to pull them over or ask them to get out of the car.
Are they correct?
No as to both the stop of the car and the officer’s order that the passenger step out of the car.
if a cop has probable case to believe that a traffic law has been violated, they can stop the car– even if their motive is to check for another crime.
when the cop lawfully stopped a car, they can ask for the occupants to step out of the car.
A man, brother and cousin are charged with conspiracy to steal from their neighbor
brother testifies that he suspected the man and cousin were going to steal so he went along with it but called the cops to alert them.
if the jury believes the brother, they should find him….
not guilty, because he did not intend to steal.
conspiracy= 2 parties enter into an agreement to commit a crime with the intent to achieve a crime.
REMEMBER: this is punishing the agreement– saying you changed your mind is not a defense.
Pedestrian was crossing the street and was hit by 81yo driver whose drivers license expired 2 years ago.
the failure of the driver to have a valid licesense has which of the following effects?
it would not furnish a basis for liability
violation of a licensing suit does not constitute negligence per se
negligence per se=
- law was broken
- defendant violated that law
- harm caused is the type of harm protected against
- P was in the class of people protected by that law
- the violation caused harm to P
D built a garage on the P’s land and didnt know he was building on her land.
P sues D for trespass.
will P prevail?
Yes because the defendant knew where the garage was located whether or not he knew where the property line was.
trespass to land=
- physical invasion
- intent to bring physical invasion
- causation
ONLY NEED TO INTEND TO ENTER THAT PIECE OF LAND
Old man let reckless teen drive car.
teen hits driver.
jury finds in favor of the driver total of 100K.
driver sues old man and teen. jury finds teen 60%, old man 30% and driver 10% liable.
what is the max that the driver can get from the old man?
90K
pure comparative negligence with joint and several liability=
- P can recover all of damages after discounting their own negligence from either of the defendants
- its D’s job to get the other D’s portion.
100K- 10%= 90K
8 yo child was pushing cart in the grocery store. Woman gets hit in the knee by the kid pushing the cart.
woman sues the store
based on negligence, what is the store’s best defense?
a supervised child pushing a cart does not pose an unreasonable risk to other customers.
there is no affirmative duty to act to protect others from harm or to control the behavior of 3rd parties.
businesses owe their customers a limited duty top protect them from harm
- harm caused by other customers.
Patient was under the care of a cardiologist for 3 years. Patient had elective surgery.
Patient had stroke, was in a coma caused by a blood clot,, entered vegetative state.
Family pulled plug.
Family sued surgeon. Family expert witness said it is common for patients with similar health history to have seen a cardiologist prior to the surgery.
in this lawsuit the family should….
not prevail, because there is no evidence that a cardiologist would have provided advice that would have changed the outcome if one had examined the patient before the operation.
medical malpractice (negligence) = P must prove the elements of:
- duty
- breach
- causation
- damages
unmarried woman who is a prominant protester for the women’s movement announced publically that she was having a baby and not marrying the father.
The local news wrote an artiicle on the woman
article talked about her mother cheating on her father and her father not being her bio dad.
if the woman asserts a claim of invasion of privacy agaisnt the paper– the woman will….
not prevail because of her announcment concerning the birth of her own child.
defamation of a public figure:
- actual malice by D
- D knew:
- statement was false
OR
- reckless disregard for the truth
defamation of a private person:
- was done by D
- was about P
- publication by D to 3rd person
- damage to P’s rep
Owner had property in fee simple.
Son executed warranty deed that said he was the proper owner to his girlfriend.
Girlfriend recorded deed.
THEN the owner gave warranty deed to son.
Then Son conveyed land to buyer. Buyer paid FMV for the land.
buyer and girlfriend contest the title. who should the judgment be for?
the girlfriend or the buyer depending on whether he girlfriend’s deed is deemed recorded in the buyer’s chain of title.
Doctrine of estoppel by deed:
- if grantor tries to give title to land they DO NOT have rights to
- giving the land to another brings into effect he benefit given to person 1
REMEMBER TO ASK IF SUBSEQUENT BONA FIDE PURCHASER
if person 1 properly recorded then he SBFP would have been put on notice.
Man tells woman he will sell his car to her for 3K and will hold the offer open until March 14.
March 12, the man calls and tells the woman he sold the car to someone else.
March 14, woman finds out the man still owns the car. man told woman dont waste your time i am not selling the car.
If the woman sues the man for breach of contract, the woman will….
not succeed because on March 12, the man told her that he sold the car.
the offeror retains power to revoke an offer at any time prior to acceptance.
option contract: offerer must manifest an intent not to revoke he offer during the time stated and the promise must be supported by consideration.
Insurance company files lawsuit against pharmacy for fraud.
Pharmacy moves to dismiss case because insurance company did not provide
- pharmacy’s state of mind
- particulars of fraudulent claims
should the court grant the motion to dismiss?
Yes, complaints of fraud must be pleaded with particularity and the insurance company has failed to meet this requirement
complaint
- short and plain statement of the court’s jurisdiction
- factual allegations
- ID of the relief sought
special matters require more– fraud
- statement of the circumstances
Jan 2: the woman and the builder enter into a contract to build the woman’s home.
home was to be completed by Oct 1.
liquidated damages clause: the builder will pay the owner $500 per day for each day they are late in building the home.
woman moves into home on Nov 1 and finds out the home was not completed until Oct 15.
If the woman sues the builder what will the court probably decide?
the woman will recover her actual damages, if any caused by the delay.
damages: put the non-breaching party in the position they would have been if the contract had been performed properly.
expectancy damages: - loss in the value PLUS - any other loss LESS - any other cost that the non-breaching party has avoided
A car manufacturer that sold a car nationwide was sued by 2 different people– one was in federal court in State A and the other was filed in state B state court.
the parties in federal court reached a settlement and dismissed the case with prejudice.
manufacturer’s attorney moved to dismiss the state court action on the basis of claim preclusion.
should the court look to federal or state law to decide he effect of the judgmentt?
federal law, because the judgment was entered in federal court.
Once a final judgment on the merits the claimant is barred by claim preclusion (res judicata).
- same parties
- final judgment
IDEA: merged into the judgment
buyer and seller go into contract for the sale of a house.
buyer gives 1K as earnest money.
buyer backs out of deal because she lost her job and asks for $1k back≥
should the buyer get the money back?
No because the seller’s actual losses exceeded the amount of the earnest money.
Liquidated damages= a reasonable amount of money (agreed on) that would be awarded to the seller if the breached.
real estate= earnest money paid before closing.
if the buyer breaches the seller may retain as liquidated damages
IF the deposit was so large then the court may deem it unreasonable.
police are given information from an undercover copy with a description of the car and the people driving the car and are told they were seen selling weed.
cops search person of the driver, glove compartment and back of truck.
if the driver moves to suppress the use of the weed and cocaine found in the car what should the court do?
deny the motion as to both the weed and the coke
automobile exception to the the warrant requirement of the 4th amendment=
police may search a car if they have probable cause to believe that it contains instruments of a crime
they may search the entire car and containers that might contain the evidence
farmer and painter contract for the painter tot paint 3 of the farmer’s barns for $2K each and the painter will be paid after all 3 barns have been painted.
the painter is demanding $4K paid after he paints the first 2 barns.
will the court rule in favor of the painter?
no because the farmer has no duty under the contract to pay anything to the painter until all 3 barns have been painted.
doctrine of constructive conditions
party’s contractual obligation is conditioned on the other party’s substantial performance.
if one party’s performance requires a period of time, that performance is due before the other party is obligated to perform unless the contract says otherwise
FBI arrested woman in Mexico without an arrest warrant for involvement in a kidnapping.
FBI arrested (without a warrant) a woman in texas who was involved in the kidnapping.
the 2 women filed a motion to dismiss the case stating that their 4th amendment rights were violated.
should the court grant the motion?
No, they should deny the motion for both women.
an unlawful arrest is not a good reason to dismiss an indictment or criminal prosecution.
PROPER remedy= not including any evidence collected as a fruit of the unlawful arrest
president wants to create a advisory committee for vaccinations that will be in charge of creating a nation wide campaign to encourage vaccination.
there is no statue that prohibits the president doig this AND congress has set aside funds for the president to use.
can the president constitutionally do this?
yes because this action is within the scope of executive authority vested in the president by the constitution and no federal statute prohibits it.
president can not make laws– he can only carry them out.
president power over US issues as the chief executive is unclear
if the president act where congress is silent, his actions will be upheld as long as long as they do not take over another branch’s power.
an expert signed a contract with a builder to replace certain air-conditioning equipment atop of the builder’s building.
the contract had:
- exculpatory clause= expert would not be liable for any physical damage
- per-diem damages= if the expert did not complete performance by a certain date
- time is of the essence
- subsequent agreement for extra work under the contract must be in writing and signed by both parties.
expert tells builder that the is giving his contract to another expert.
if the builder refuses to accept the new expert’s services, which clause will best support the builder?
the exculpatory clause
a party who wishes to perform their duties delegates them.
the obligee (builder) mustt expressly agree to accept the delegate’s (expert 2) performance instead of the delegators (expert 1).
all contractual duties may be delegated BUT the following are not:
the other prty has a substantial interest in having his original promisor perform he acts required by contract
the contract involves special judgment
the delegatee is a competitor of the obligee or there is a special trust
there is a contractual restriction
June 1: manufacturer of mens’ neckties received order “ ship 500 2 inch ties by july 1”
June 1: manufacturer shipped 500 3 inch ties
retailer responded “reject your shipment. order was for 2 inch ties”
manufacturer responded “will deliver proper ties before july 1” ties got to retailer on june 30
did the retailer properly reject ties tendered on june 30
no, because the manufacturer cured the june 1 defective delivery by his ender of conforming goods on June 30
FOCUS ON AGREED TIME!!!
if agreed time not past, if the other party acted in good faith and notified the other side of their intent can do so as long as within reasonable time!
Pharmacist files lawsuit against hospital in federal court in state A.
jury awards pharmacist $2 million.
federal law: judge can offer the plaintiff choice between motion for remittitur or new trial if damages “shock the conscience”
state law: judge can offer motion for remittitur if “excessive”
which should the court do?
the hospital should submit both a motion for a new rial and in the alternative, a motion for remittiture on the ground that the jury’s damage award “shocks the conscience”
REMEMBER: LOOK AT WHY THE CASE IS IN FEDERAL COURT!!!!
federal courts sitting in diversity must apply:
-substantive issues: state substantive law
-procedural issues–must apply federal rules
baker’s bakery was set on fire. insurance company sent an employee out to evaluate the damage.
employee took photos and drafted a memo based on their opinion what happened in preparation of litigation
baker sued roofer for not properly securing his roof prior to the fire.
roofer asks for the work product from the insurance company
by what means, does the roofer have a right to obtain access to the photos and the memo?
only by court order
work product immunity can be overcome by the opposing party showing a substantial need for the materials and their equivalents not available any other way
the court could rule in favor of opposing counsel but would consider:
- the cost of obtaining the info on their own
- finances of opposing party
- if they are looking for the transcript of witness statement and the witness’ importance
landlord (state a) sues corporation (state b) in federal court in state b.
landlord demanded a jury trial under the 7th amendment and asked for the court for a writ of ejectment
corporation argues landlord not entitled to jury.
how should the judge rule?
the landlord is entitled to a jury because the 7th amendment applies only to suits at common law and this is a lawsuit at common law.
7th amendment= suits at common law, the right to a trial by jury shall be guaranteed.
FRCP= as provided by 7th amendment
- must file demand within 14 days after service of the last pleading directed to that issue
business man rents out home to a scientist.
adds in lease agreement that the scientist can add whatever items are necessary and useful and she can remove them when she leaves.
scientist installed: new windows carpet stove and oven fridge
businessman sells home to new owner.
scientist removes all of items.
court should decide that he scientist may remove….
all of the items
a fixture is chattel that has become affixed to the land that it has ceased being personal property.
BUT
an agreement between the landlord and the tenant is controlling and can determine if the fixture can be removed
condo downtown has lots of young residents who party on the rooftop deck.
condo board imposes a strict curfew for the rooftop deck after complaints of the parties being disruptive.
what is the proper standard of review to determine the validity of the rule?
the regulation is valid if it is reasonably related to furthering a legitimate purpose of the association
PRIMARY TEST: is the regulation reasonably related to furthering a legitimate purpose of the association?
the community has the power to adopt rules to govern the use of the common and individually owned property to protect the common property
woman filed case in state a federal court against the insurance company for proceeds for her husband’s death.
husband was last seen 5 years agao and they have not found his body.
state a law: the party seeking recovery has the burden of proof.
insurance company files MSJ and woman files affidavit saying “i think my husband is dead”
how should the court decide the MSJ”?
grant the motion because the woman’s affidavit is not made with personal knowledge.
MSJ may be granted if there is no dispute of material fact.
affidavits must:
be based on personal knowledge
provides facts that would be admissible at trial
show that person signing can testify
March 31: seller and buyer entered a contract
buyer pay 1/2
seller deliver 1/2 on may 31
buyer pay 1/2 june 15
seller deliver 1/2 june 30
may 10 seller says “not sure if i can perform”
may 15: seller “yes i can perform”
may 31: buyer pays
seller does not deliver first 1/2
june 10: seller says “cant do it”
what rights does the buyer have right after receipt of the seller’s notice on may 10?
the buyer has no cause of action for breach of contract but can suspect its performance and demand assurances that the seller will perform.
repudiation may be treated as total breach
BUT
statement must be clear that will not perform– CAN NOT BE suggestion
if buyer is worried then send writing for confirmation if seller doesnt respond then breach
landowner held 500 acres in fee simple
2010 the owner platted and obtained all required governmental approvals of 2 subdivisions of 200 acres.
Royal Center was constructed according to plan to be commercial area
Royal Oaks was constructed to be a residential subdivision.
owner wants to open remaining 100 acres and wants restrictions to be similar to Royal Oaks
how can the landowner be successful in doing this?
any chance depends upon the 100 acres being considered by the courts as part of a common development scheme which also includes the 200 acres of Royal Oaks
equitable servitude: deed only enforceable when can establish-- intent notice touches and concerns the land
for an equitable servitude o bind an ENIRE subdivision, it must be found in the common building plan
- if it is then all owners are bound by the restrictions
victim hired attorney to sue driver who him them during a car accident
attorney drafted contract that they would pay for a doctor out of the victim’s damages from the lawsuit.
victim went to doctor for treatment.
victim got award and didnt pay doctor.
if doctor sues victim, the doctor’s best theory of recovery is….
the doctor had a claim based on implied-in-fact contract with the victim
implied in fact contract is a type of enforceable contract based on a tacit promise
LOOK AT CONDUCT
Federal Family Film Enhancement Act applies a 10% tax on the tickets to movies with sex scenes.
what is the strongest argument against this act?
the act imposes a tax solely on the basis of the content of speech without adequate justification and therefore it is prohibited by the Freedom of Speech Clause of the 1st amendment
REMEMBER: CONTENT BASED RESTRICTIONS MUST SATISFY STRICT SCRUTINY
Obscenity= depiction of sexual conduct that a reasonable person would
- think appeals to the excessive interest in sex
- protrays sex in an offensive way
- no serious literary, artistic political or scientific value
real estate company wrote a restriction in he deed:
ownership and occupancy restricted to people 21yrs and older, one family per lot”
man lives on his lot with his wife and 2 kids (under 21).
neighbors bring action against the man.
if judgment is entered for the man, the issue that most likely will determine the case will be whether….
enforcement of the restriction is considered a violation of the equal protection clause of the 14th amendment of the US constitution.
Equal protection clause will apply to private conduct if the government facilitates unconstitutional activity
D is on trial for obstructing justice by concealing records.
Government calls attorney to testify that D asked him how to comply with regulations regarding the transfer of records to a safe deposit box.
the testimony of the attorney is….
not privileged, whether or not the attorney knew of the concededly illegal purpose for which the advice was sought.
when a client seeks his attorney’s advice in a plan to commit a crime, the attorney-client privilege does not exist (even if the attorney knew of the crime)
state statue: state records of arrest of all people acquited of a crime are to be sealed.
paper said violated their rights to access records.
what argument is the most helpful for the state?
the fact that the statute only prohibits public access tot these official state records and does not prohibiti the pubicatiton of informaion they contain that is in the possession of private persons
there is no 1st amendment right of access to records kept by the executive branch.
psychiatrist does not diagnose patient’s suicidal state.
patient kills himself.
dad finds out and has a stroke.
dad sues psychiatrist for sever emotional distress.
will the father win?
no because the psychiatrist’s professional duty did not extend to the harms suffered by the patient’s father.
negligent infliction of emotional distress=
close relationship
there at the time of the injury
saw the injury
doctor or social worker must inform 3rd party if patient is a threat to the 3rd party.
BUT if concern of patient causing self-harm then no duty to warn a 3rd person
actress was hit by defendant.
actress’s injury caused her show to cancel and for supporting actor to lose their job.
supporting actor sued defendant to recover for his loss of income.
will the actor win?
no because he defendant’s liability does not extend to economic loss to the supporting actor that arises solely from physical harm to the lead actress.
pure economic loss may not be recovered by a 3rd party
woman was walking down the sidewalk and was hit by timber.
the man was having a repairman fix his roof.
repairman is an indepedent contractor and the law states that a homeowneer is liable to keep their sidewalks safe for passerbys
will the woman win against the man?
Yes, because the repairmans act was a breach of a nondelegable duty owed by the homeowner to the pedestrian.
vicarious liability= the act of one person can be imputed onto another because of their special relationship
EXCEPT: if there is an independent contractor engaged in dangerous activity and when there is a nondelegable duty
woman drove in drive-through lane at a fast food restaurant.
tells teller “there is a snipper across the street, give me everything in our register or hell shoot”
what crime can the woman be charged of
robbery or larceny
larceny=
the taking
without consent
intent to permanently deprive
robbery =
the wrongful taking
of another’s property
intent to permanently deprive
robbery= assault + larceny and requires force or threat
larceny is a lesser offense of robbery
a D can not be convicted of both a target crime and a lesser-included crime.
supervising manager of a mill was giving all responsibility to hire employees.
labor laws in the jurisdiction : it is illegal to hire people under 17 to work full time.
supervising manager hired 3 people who are 15-16 yo.
if the statute is interpreted to create strict liability and the supervising manage is charged with violating it he will be found…..
guilty because he hired he children.
strict liability= NO MENSREA requirement in order to be found guilty of the offense
a woman and a sister were found in the airport with coke sewed into their luggage.
the woman when arrested told the cop that she told her sister that “she knew there were too many cops in the airport”
at trial, the attorney files a motion for acquittal on the grounds of insufficient evidence.
should the court grant the motion:?
No, because the evidence shows that both the woman and her sister agreed to import cocaine.
COME BACK TO!!! NEED RULE
Entrepreneur from state A decided to sell hot sauce calling it “Best Hot Sauce”.
Company incorporated in State B and headquartered in State C sued Entrepreneur in federal court in State C.
Complaint: 50K in damages for infringement on company’s federal trademark.
Entrepreneur filed answer denying the allegations and 6 months later moved to dismiss for lack of subject matter jurisdiction.
Should the court grant the motion?
No because the company’s claim arises under federal law.
subject matter jurisdiction= the court’s ability to hear certain types of cases
the claim asserted was for federal trademark infringement and arises under federal law
Bakery offered chef a permanent full-time job as a pastry chef. chef agreed to take the position and agreed to start work in the next 2 weeks.
chef was offered a job at a hotel. chef accepted and began to work at the hotel. Chef notified the bakery that she would not be working at the bakery.
is the bakery likely to prevail against the chef?
No because a contract for permanent employment would be interpreted to mean the chef could leave at any time.
employment at will= employment may be terminated at any time for any reason by either party.
this is NOT a breach of contract
permanent position= employment at will
costumers who used a gasoline credit card filed a class action lawsuit against the company alleging they masked the wrong numbers on the card and were in violation of a federal act.
district certified its order that the controlling matter involved the proper interpretation of the federal act.
stated: issue is complex and novel not yet settled by controlling authority, immediate appellate review would advance the termination of the case.
company filed interlocutory appeal.
is the court of appeals likely to accept?
Yes, because the district court properly applied the statutory requirements for an interlocutory appeal, the court may accept the case.
interlocutory appeal=
trial judge certifies the order involves a controlling question of law
- difference of opinion
- immediate appeal may advance termination of case
AND
the court of appeals agrees
lender said that the borrower owed him 6K. the borrower denied that he did. tired of arguing over the money, the borrower promised to pay 5K in order to settle.
if the lender sues the borrower, what is the best defense for the borrower?
although the lender knew that the debt was not owed the borrower honestly was in doubt that it was owed.
unilateral modifications of contractual obligations lack consideration under the pre-existing duty rule and therefore may be unenforceable.
a landholder entered into a contract with a logger in order for the logger to have timber rights to his land.
if the logger is sued for breach of contract by the landholder’s next-door neighbor whose view of a nearby lake is obscured by the timber, the neighbor will probably…
lose, as only an incidental benefeciary, if any of the logger-landholder contract.
3rd party must have standing.
if a party is an intended beneficiary (the parties entered into the contract knowing that the 3rd party would benefit) then they would have standing.
owner of land in fee simple absolute gave land to church
” to church for the life of my son and from and after the death of my son to all of my grandchildren and their heirs and assigns in equal shares; provided the church shall use the premises for church purposes only”
2005: church gave neighbor rights to remove sand from land
grandchildren sue church seeking damages for the removal of the sand.
what is the outcome?
the church and the neighbor enjoined, and damages should be recovered but impounded for future distribution.
a life tenant has the duty to not commit waste during their life tenancy.
life tenant is held liable to the remainder men for any waste.
voluntary waste= damage to the land permissive waste= - keep property in repair - pay taxes -pay interest
blackacre is owned by a religious group. they created a building where the residents reside.
a business woman granted the religious group an easement giving the religious group access to a public way– granted by deed.
the relgious group then built a nursing home. on sundays it would get packed and visitors would then park on the easement.
the business woman put a barrier across the driveway preventing visitors.
the businesswoman sued the religious group.
what is the result?
the religious group wins, because expanded use of the easement does not terminate the easement.
if the holder of the easement misuses the easement by excessive use, the owner’s proper remedy would be an injunction against further misuse not forfeiture.
man was hit by a car while walking in the crosswalk.
Man brought federal diversity action against driver of the truck.
complaint “on Jan 15, 2016, on Broad Street in City A, State B, defendant negligently drive their car and hit plaintiff. As a result, the plaintiff was physically injured, lost wages, income, suffered physical and mental pain and incurred medical expenses of 4100K”
Driver has moved to dismiss case for failure to state a claim arguing the complaint lacks sufficient detail.
is the court going to grant the motion?
No, because the complaint alleges facts showing plausible entitlement to relief.
complaints must contain:
- sufficient facts
- to state a claim
- plausible on its face
courts must be able to do more than infer the “possibility” of recovery
REMEMBER: probable entitlement to relief= higher standard and is used in situates where preliminary injunctions are sought
woman domiciled in a foreign country sues the company she worked for, for wrongful termination. woman worked for the company’s location in the foreign country.
employer is incorporated in state A and headquartered in state b.
employer filed a motion to dismiss for insufficient service of process. employer then moved to dismiss for forum non conveniens.
is the court going to grant the employer’s motion?
Yes, because the foreign country is the more appropriate forum given that the discharge occured there and the evidence is located there.
FORUM NON CONVENIENS: a court must weigh public and private interests
LOOK AT:
where did it take place?
where would the evidence and witnesses be?
where is the most convenient?
REMEMBER: NOT A RULE 12 DEFENSE
buyer sues seller in federal court State A
court enters default judgment in favor of the buyer
one month after, seller files a motion to set aside the default judgment
seller shows that had a valid defense and the buyer would not be unfairly prejuiced
record showed that the seller was served properly and just didnt do anything.
should the court grant the seller’s motion?
No because the seller’s failure to appear plead or otherwise defend against the lawsuit does not constitute a form of excusable neglect
default judgment is set aside for good cause shown
FRCP 60- a court can relieve a party from final judgment if:
- mistake, excusable neglect
- newly discovered evidence that could not have been discovered in time
- fraud
- judgment is void
- judgment has been satisfied
- any other reason justified by the court
man owned land
took out a loan that was secured by the mortgage.
the man sold his land to a purchaser who assumed the mortgage debt. the purchaser failed to make 2 installment payments. the man paid the overdue charges.
the man sued the purchaser for reimbursement.
will the man win?
Yes, because the law of suretyship permits the man to seek reimbursement.
assumed mortgage= the buyer is agreeing to pay off the seller’s debt
subject to= the buyer is NOT agreeing to pay off the seller’s debt and the seller is still liable
suretyship= express promise by 3rd party to a creditor to be primarily responsible for the debtor’s obligation to the creditor.
buyer bought new car from dealer with a written contract that provided the price for the new car was 20K and the buyer would receive a trade in allowance of 7K for the old car.
the old car was in a rec and the seller said that the insurance compay payment for the damage to the old car was owed to the seller. buyer disagreed
the dealer sued the buyer the recover the insurance payment. dealer offered evidence that the parties agreed during negotiations that the seller is owed the insurance money.
should the court allow the evidence?
Yes, because the merger clause does not bar evidence to explain what the parties meant by “trade-in allowance”
PAROL EVIDENCE RULE: merger clause does not establish that an agreement is complete.
- can still use extrinsic evidence to further explain something that is inconclusive in a contract
Teacher (state A) sues librarian (state b) in state court of state A.
teacher is suing for 100K in state A court.
librarian files notice of removal to district court of State B. teacher files timely motion to remand.
how should the judge rule on the motion
remand because the original suit was filed in state A
removal statute ONLY allows for removal to the district where the original action is pending.
federal court must have subject matter (diversity or federal question) jurisdiction
defendant seeking to remove must file within 30 days of initial pleading
a notice of removal in the district court where the state action is pending.
father owned 2 lots (lot 1 and lot 2)
father gave lot 1 to son 5 years ago and lot 2 to his daughter 8 years ago.
son had been using a piece of land on lot 2 for 13 years as a driveway.
last week, daughter started construction and blocked driveway access of the son.
son sued
if the son losses its because…
the father owned both lot 1 and lot 2 until 8 years ago
easement appurtenant= one that benefits the dominant estate and “runs with the land”
- transfers automatically when dominate estate is transferred
REQUIRES: 2 pieces of property– dominate and servient
buyer asks seller of a car if the car has ever been in any accidents
seller says “its a fine car and it comes with a certificate of assured quality. feel free to have the car inspected”
the seller had the car repaired and repainted to cover an evidence that it was in a major accident.
if the buyer sues to rescind the contract, will the buyer win?
yes because the dealer’s statement was intentionally misleading and the dealer had concealed evidence of the accident.
when a seller induces a buyer into consenting to a contract by means of material misrepresentation the resulting contract is voidable at the election of the buyer
driver driving in a neigborhood almost hits child who ran out into the middle of the street.
driver swerves and misses the kid but almost hits the mom.
mom sues the driver for negligence but doesn’t establish a claim. will the mom still win?
no because the mom failed to show that the driver was negligent.
A claim for damages based solely on emotional distress requires at least negligence by the defendant in order to win.
negligent infliction of emotional distress
- result of the D’s negligence
- caused the P intense mental suffering as a bystander
P must show
- close relationship
- present at the time
- observed what happened
man and woman were drag racing in the street and going over the speed limit.
tire blew out on the woman’s car and hit a pedestrian.
pedestrian tries to sue the woman but she had no assets or insurance.
can the pedestrian prevail in a lawsuit against the man?
Yes because the man and the woman were acting in concert in a dangerous activity.
when 2 or more people act in concert and injure someone, then they will be jointly and severally liable for the entire injury.
anyone acting in a abnormally dangerous activity will be strictly liable for any injures resulting from that injury
REMEMBER:
- concert= together and by agreement
- P can recover full amount from the other D
owner of a meatpacking company was charged under a state criminal code prohibiting the sale of contaminated meat.
this code imposes strict ad vicarious liability.
the evidence at trial established that the owner’s company had sold the contaminated meat and made 100s of people sick. Owner was out of the country and no clue that the meat was contaminated.
jury convicted the owner.
owner challenges evidence on appeal
should the appellate court uphold the conviction?
Yes, because the evidence was sufficient to support the jury’s verdict.
REMEMBER:
STRICT LIABILITY DOES NOT REQUIRE PROOF OF MENS REA
ONLY NEED ACTUS REUS
cops stopped a car for exceeding the speed limit.
one cop walked up to the car to give the driver a warning and the other stayed in the car to run the plates and found there was an outstanding arrest warrant.
cops arrest the driver and search him and find heroine.
driver’s attorney wants to suppress heroin.
should the court rule in favor of the driver?
No, because the troopers could reasonably rely on the computer report and the search was incident to an arrest.
REMEMBER: if a search warrant is invalid for any reason the search= BAD!
fruit of the poisonous tree!!!
a search incident to a lawful arrest is valid exception to the warrant requirement.
IF NO WARRANT= restrained to the D’s wingspan and done after the arrest.
man and woman are partners.
man was embezzling money from the company. woman tells man she wants tot hire an audit company.
man hires someone to kill woman– pays him 10K.
The woman then dies in the car crash arranged by the killer.
other than embezzlement, what crimes can the man be convicted?
conspiracy and murder.
conspiracy= agreement, intent to enter into the agreement and intent to achieve the objective.
REMEMBER: solicitation MERGES with the crime it was solicited.
one member of a conspiracy is liable for the crimes of their co-conspirators if those crimes are foreseeable and committed in furtherance of the objective.
P took his ring to the pawnshop and borrowed $20 on it. He was told he needed to repay the loan within 60 days.
A week before P was to come back for the ring, D sold it.
D told P that his shop was robbed and that he was not liable for the loss.
What crime has D committed?
Embezzlement
embezzlement= the fraudulent conversion of another person’s property by someone who had lawful possession of that property.
mom takes child to hospital. mom leaves child with doctor in the room by themselves.
doctor rapes child.
2 weeks later, child tells mother what happened and mom has severe emotional reaction.
mom sues doctor for IIED, will she win?
no because she was not the direct victim of the doctor’s conduct or a witness
IIED: D's extreme conduct intended by D causation damages (severe)
D is liable to 3rd party if: P is in a close relationship with the victim AND was present AND observed it
storekeeper sold reconditioned saw with a new blade to purchaser.
purchaser’s employee used he saw and cut his arm off.
purchaser sues storekeeper for economic damages bc had to close store down.
will the purchaser prevail?
No, because economic loss from injury to an employee is not within he scope of the storekeeper’s duty.
strict liability claims for economic loss are generally prohibited unless contracted for because they are beyond the scope of a seller’s duty to a purchaser
a bike company manufactured a bike that was sold to a retail bike dealer that then sold the bike to a bicyclist.
the bicyclist was riding the bike down a crowded street and hit a woman on the side walk because their brakes failed to work.
brake failure was from a manufacturing defect that could have been discovered with an inspection.
the bike rider is asserting a claim of negligence against the bike company, will he win?
Yes because the defect could have been discovered through the exercise of reasonable care by the bike company
driver drove his car into the plaintiff and broke her leg
plaintiff while walking on crutches in a supermarket, slips on a banana peal and breaks her arm.
if P slipped on a banana peal when she was NOT on crutches she would not have lost her balance and fallen
P sues both driver and supermarket
who will P recover from?
the driver for both of her injuries.
subsequent ordinary actions that may add to the plaintiff’s injuries are FORESEEABLE of the original action and will not break the chain of causation.
why is the defendant’s mistake in the below example most likely going to constitute a defense to the crime charged?
mistaking the D for a narcotics suspect, a undercover cop attempts to arrest him. the D unaware that the person who grabbed him is a cop his him and knocks him unconscious. D is charged with assault.
D’s mistake of the identity of the person grabbing him would negate the intent for assault (no intent to place another in fear). D thought he was defending himself.
assault= D attempts to commit a battery and fails
OR
D intentionally places another in fear
REMEMBER:
mistake of law is NEVER a defense
mistake of fact = defense IF negates the required intent
woman and man are business rivals.
man asks woman if she wants to go in business with him. she says no bc he is an idiot.
a 3rd party overheard their conversation.
man sues woman for defamation.
will the man win?
No because the woman did not foresee that her statement would be overheard by another person.
defamation:
- D uses defamatory language
- Language is about P
- D publishes language to 3rd party
- damages
Publication can be intentionally or negligently.
IF D HAS NO REASON TO FORESEE publication then not defamation
computer store and customer sign a contract for the sale of a computer for $3K.
the customer was to pay for the computer and pick it up month after the agreement.
the customer never came for the computer.
the store then sold the computer to another buyer.
if the store sues the customer for breach of contract, the store will probably recover….
their anticipated profit on the sale to the customer PLUS incidental damages, if any, because the store lost that sale.
UCC:
if a buyer repudiated a contract the seller may recover the difference between the contract price and the resale price PLUS any incidental damages.
man from state A sues company for valid diversity suit in state a.
computer company’s defense is that the man suit already has a final judgment entered from a class action he was apart of from state B.
if the man’s lawsuit goes forward it is because….
he established that the class did not receive adequate representation in the class action lawsuit.
any person has the right to exclude themselves from the class if they notify the court prior.
to get relief from the ruling from the class action, they need to attack one of the 4 requirements certifying a class.
wallpaper hanger sent a message to a general contractor:
“will do all paperhanging for $14K if you accept within reasonable time after main contract awarded”
General contractor used the wallerpaper hanger’s bid in preparing and submitting bid for job BUT then used another wallpaper hanger (charging $18K) for the job.
contractor is now suing wallpaper hanger for $4K in damages.
what would be the best support for the wallpaper hanger’s defense?
before submitting her own bid, the contractor had reason to suspect that the wallpaper hanger had made a computational mistake figuring his sub-bid.
contract can be rescinded bc of unilateral mistake if:
-mistake relates to a fundamental assumption of the contract (material)
-the party asserting mistake should not bear the risk of mistake
AND
-the non-mistaken party has reason to know of the mistake
OR
-the effect of the mistake would make enforcement of the contract unconscionable
landlord and tenant agreed to a commercial tenancy for 6 months.
when the tenant arrived at the property, the previous tenant still had not vacated.
tenant sued previous tenant.
tenant then sued landlord claiming damages.
if the court finds for the landlord, what will be the most likely reason?
the landlord had delivered the legal right of possession to the tenant.
American view: the landlord only needs to provide legal right to possess.
English view: the landlord has to deliver actual possession to the tenant at the start of the lease
- lesee has the right to terminate and recover damages for breach f the lease if failed to deliver possession.
Personal assistant from State A sues actor from State B in Federal Court in State B for $125K.
The personal assistant has never been present in State B and has no other contacts with State B.
Actor filed motion to dismiss for lack of jurisdiction
Should the court grant the actor’s motion to dismiss?
No, because the personal assistant has consented to the court’s personal jurisdiction.
lack of personal jurisdiction can be waived through consent
- P filed case in State B so consented
REMEMBER: the court has general jurisdiction since the D resides there.
REMEMBER: if P files case in their home state THEN D needs contacts; if P files case in D’s home state= consent
Purchaser filed a federal diversity action against seller for breach of contract
seller answered complaint and included in his defense that the purchaser has a pattern of filing these types of claims.
what is the purchasers best response?
move to strike the separate defense as irrelevant.
A party can file a motion to strike an insufficient and irrelevant defense within 21 days of service of the pleading
a flour wholesaler contracted to deliver to a producer of fine baked goods for a one year period.
before the first delivery– he flour wholesaler sold their business to a miller.
miller tendered the first installment to the producer and the producer refused to accept the goods.
can the backed goods producer legally reject the goods?
No, requirements contracts are assignable as long as the assignee does not disproportionately alter the contemplated quantity.
COME BACK TO!!! NEED LAW!!!
manufacturer sues reporter for review of their speakers.
the court rules that manufacturer would have to prove that the reporter made a false and disparaging statement with actual malice.
the reporter moved for summary judgment and provided an affidavit stating they did not know their statements were malicious.
manufacturer did not respond.
should the court grant the reporter’s motion for summary judgment?
yes, because the reporter has shown that a reasonable jury could find for him on the issue of actual malice and the manufacturer has not shown that a jury could find in their favor.
An affidavit must contain matters the affiant
- has personal knowledge
- state only matters that would be admissible at trial
- is competent to testify.
REMEMBER: summary judgment may be granted if one party can show there is NO GENUINE DISPUTE to any material fact in the lawsuit
- party who filed the MSJ must show no dispute of fact
P sued a defendant for personal injuries arising out of an automobile accident
Judge despite the D’s request for exclusion of witnesses, allows the plaintiff’s eyewitnesses to remain in the courtroom after testifying, even though the eyewitness is expected to be recalled for further cross-examination.
was this in error?
Yes.
Yes at the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. Failure to grant such a request would result in an error.
REMEMBER: if a witness was allowed to observe testimony of other witnesses they may be able to tailor their testimony
federal law provides that all motor vehicle tires discarded must be disposed of in facilities licensed by the federal environmental protection agency.
State A has a very large fleet of cards, including trucks used to support state-owned commercial activities and police cars.
The state disposes of used tires in a state operated and owned facility that is unlicensed.
may the state continue to dispose of its used tires in this manner?
No, because a state must comply with valid federal laws that regulate matters affecting interstate commerce.
A state is treated as a person for purposes of federal law and must comply with validity enacted federal laws.
employee files a lawsuit against their employee in federal court.
during trial– the employee made a motion for a judgment as a matter of law before the case was submitted to the jury.
trial court denied the motion
jury returned a verdict for the employees for an amount less than what was asked for.
employee filed a renewed judgment as a matter of law as to the damages and in the alternative a motion for a new trial.
the employer then cross-moved for a judgment as a matter of law.
how should the court rule?
the court should deny the employee’s motion for judgment as a matter of law as to damages as also deny the employee’s alternative motion for new trial if the verdict was not against the weight of the evidence.
JML and a RJML may be granted if a reasonable jury would not have a legally sufficient basis to find for the nonmoving party.
a new trial may be granted if the verdict was against the MANIFEST WEIGHT OF THE EVIDENCE
OR
the verdict was excessive or inadequate
REMEMBER: a motion for a new trial should not be granted if the verdict was not against the weight of the evidence
State law requires any lawn mower sold in the state to meet a specific min level of fuel efficiency.
federal law requires that all power equipment be labeled with energy efficiency stickers.
what is the best argument for the state to mkae for thecontinued validy of their law?
the purpose of the law is consistent with the purpose of the federal statute, enforcement of the law would not interfere with the full execution of the statute and there is no evidence that congress intended to preclude the states from enacting supplemental laws on this subject.
REMEMBER: when state and federal gov have a law on the same subject matter, the supremacy law applies.
even if federal law does not expressly prohibit state action, state laws will be held impliedly preempted if they conflict with federal requirements
Can the senate appoint a commision to adjudicate finally a boundary dispute between 2 states?
No, that is a matter primarily handled by the USC
USC has the explicit power to resolve conflicts between 2 states.
USC handles cases arising under: constitutional questions laws of the US treaties made cases affecting ambassadors marine jurisdiction Cases where the US is a party controversies between 2 or more states state and citizens of another state different states citizens of the same state claiming land
P sued a utility company that owns a reservoir that is open to the public for recreation use.
P was injured when his boat hit an undisclosed island.
P alleges that the company was negligent in not marking the island.
P has called an engineer and qualified him as an expert in managing reservoirs.
which of the opinions by P’s expert is the most likely to admit?
the company could have marked the island in a day and at a cost of $300.
D was charged with attempted murder of a victim when he allegeldy shot the victim from a bush as the victim drove his car.
Prosecutor offers evidence that 7 years earlier D had fired a shotgun into a woman’s home and that D had once pointed a gun at another driver while driving on the street.
this evidence should be
excluded because it is improper character evidence
prior bad acts is inadmissible against a D when offered to prove that he is more likely to have committed the instant crime based on criminal propensity
cannot show accused bad character to imply criminal disposition
owner and driver are being sued by P for a car accident caused while driver was driving company car.
owner and driver go to see an attorney and while there the attorney has investigator on the phone.
owner files cross claim against driver.
P calls driver to stand and asks about meeting with attorney and investigator.
should the court allow the driver’s testimony?
No, because of the attorney-client privilege
attorney-client privigle covers confidential communications between an attorney and client made during the legal consultation and are inadmissible with 3rd party claimants.
REMEMBER: if 2 parties, does not waive attorney client privilege!!!!
P sued D for alleging he hit her in a speeding car.
P was unconconscious after the injury and was with her husband at the time of the accident.
when P and husband were at the hospital– husband told doctor that P was run over 2 hours ago by D who drove through the intersection.
P calls doctor as witness.
Is doctor’s testimony admissible?
No because it is hearsay not within any exception
hearsay is a statement offered into evidence to prove the truth of the matter asserted.
REMEMBER:
excited utterance must be made during or soon after the event– hours later will not be admissible
P sued D for an assault that occured on March 5 in Cali.
to support his defense, D wants to admit a letter that he wrote to his sister that he would be in Utah on March 5.
is the letter admissible?
Yes, within the state of mind exception to the hearsay rule
state of mind exception= to show the then existing mental condition/state of mind
a federal statute established a national lottery and created a new federal agency to administer it.
in order to sell the tickets, the agency established outlets throughout the country
the state taxes gaming operations within the state
state wants to tax the sales of the federal lottery tickets sold within the state
does the federal agency have to pay the state gross receipts?
No because a state may not impose a tax directly on the federal government or any of its agencies or instrumentalities.
states have no power to regulate the activities of the federal government unless Congress consents to the regulation
a state tax levied directly against the property or operation of the federal government without consent of congress is invalid
- discriminatory or indirect taxes are permissible if they do not unreasonably burden the federal gov
congress enacted a statute establishgin a program to protect areas in the US that are rich in bio diversity.
this program is consistent with the terms of a treaty that the president objected to and did not sign.
statute created an executive branch and authorized it to take control based on the criteria outlined.
why is this statute unconstitutional?
it authorizes a committee of congress to overturn an executive decision.
congress must pass a bill before it can become law and then it must be presented to the president for his signature.
- INCLUDES: when they monitor federal agencies
- NEED: approval from both houses AND signature of president
federal statute prohibits the sale or resale of any product intended for human consumption that contains chemicals known to cause cancer unless the product is labeled as dangerous.
the constitutionality of this federal statute may most easily be justified on the basis of the power of congress to….
regulate commerce among the states
REMEMBER: congress power to regulate commerce has been interpreted pretty broadly!!
construction company sued development company for money owed on a contract.
construction company calls a witness (general manager) to testify that its their routine practice to sent out notices as required by contract.
manager offers a photocopy of the notice that was mailed to the defendant that was taken from their regular business files.
is the copy of the notice admissible?
yes because of the routine practices of the company.
hearsay= out of court statement made used to prove the truth of the matter asserted.
Best Evidence Rule (BER)= original document rule– original must be produced, if cant then can use a secondary option and a copy is allowed
routine practice= that in the moment discussed , they followed those practices
state statute requires without exception that a woman under the age of 18 notify one of their parents at least 48 hours before having an abortion.
should the court uphold the constitutionality of the statute?
No because the state law does not provide a bypass procedure that would allow a court to authorize a minor to obtain an abortion without prior parental notification under appropriate circumstances.
parental notification requirements violate a minor’s right to an abortion unless there is a satisfactory judicial bypass procedure.
- procedure allows:
- a court to approve of an abortion for a minor without parental notification if the court finds:
- the minor is mature and informed
OR
- abortion would be in the minor’s best interest
D is charged with armed robbery of a store and denied that he did it.
P wants to introduce evidence that D had robbed 2 other stores in the past year.
the evidence is….
inadmissible because its probative value is substantially outweighed by the danger of unfair prejudice.
when a person is charged with a crime, extrinsic evidence of their other crimes or misconduct is inadmissible if that evidence is offered to show they did it.
ADMISSIBLE IF: used to show
- motive
- opportunity
- intent
- preparation
- plan
- knowledge
- identity
- ansence of mistake
- lack of accident
driver hits a pedestrian. driver was in the car with his wife and passenger. the passerby calls the cops and the cops question everyone at the accident.
at the trial, the pedestrian wants to call the sheriff to testify that the passenger told him “we were all at a party and everyone was drinking”
All of the parties involved in the accident were at court.
should the trial judge allow the testimony?
no because it is hearsay not within an exception
Hearsay is an out of court statement used to prove to the truth of the matter asserted.
REMEMBER: declaration against interest exception requires the party not be present
congressional legislation authorizing marriages and divorces as a matter of federal law on prescribed terms and conditions could most easily be upheld if….
only applied to marriages and divorces in DC
congress has the power to make all the laws for DC under the constitution
REMEMBER: the executive branch does not have the power to define basic human rights
P sued D for injuries from an accient.
A bystander (P’s witness) testified that D was wearing a green sweater.
D’s attorney called another witness that testified D’s sweater was D that day.
D’s witness testimony was…
inadmissible because it is extrinsic evidence of a collateral matter
A collateral matter is evidence solely affecting the credibility of a witness.
it precludes the cross examiner from calling other witnesses or producing evidence to contradict the witness
in a civil case– D calls an expert witness and asked him a number of questions about his education and experience in chemistry.
court stated that the witness qualified as an expert.
on cross– P asked the witness if he had failed 2 chemistry classes while doing his graduate work.
the answer should be..
admitted because it is relevant to the weight to be given to the witness’s testimony.
Either party is permitted to challenge the witness’s qualifications because the challenge is relevant to the weight of the witness’s opinion.
