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Questions I got Wrong Flashcards

1
Q

Requirement for a promise to surrender legal claim to be sufficient consideration?

A

genuine belief it is a valid claim

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2
Q

Damages if too speculative?

A

Reliance damages -

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3
Q

How to modify order issued at pretrial conference?

A

Manifest injustice.

not prejudice

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4
Q

Factual impossibility + attempt

A

Intent to commit crime + substantial step
Factual impossibility = never a crime (ask if facts were as D suspected would crime be committed - if powder actually was cocaine - crime would have been committed)

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5
Q

Summary Judgment - Affidavit Requirmenets

A
  1. Based on personal knowledge
  2. facts admissible at trial
  3. affiant is capable of testifying

cannot be based on pleading allegations/ denials - SHOW SPECIFIC FACTS (ie “To my knoweldge my husband is dead” is insufficient)

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6
Q

Test to determine if there is an Equal protection violation for selective prosecution

A
  1. discriminatory effect

2. motivated by discriminatory purpose

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7
Q

Reliance on a promise (no contract)

A

Reliance makes gift enforceable if injustice can be avoided only by enforcement. (uncle & spendthrift nephew buying car)

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8
Q

What type of damages are recoverable from Negligence?

  • Primary victim
  • Third party
A

NO punitive or nominal damages for negligence
Primary victim: can recover for physical or monetary
Pure economic loss - not recoverable by 3rd party

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9
Q

What is wrong with answer “No b/c D had no reason to foresee that by injuring the lead actress he would cause harm to supporting actor.”

A
  1. it was what is reasonably foreseeable - not specifically foreseeable by the D
  2. it is foresee able that harming one individual oculd cause victim’s colleagesu to suffer loss of revenue
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10
Q

Immunity of state legislators

A

Under 10th - Fed law can’t be applied to state legislator in way that threatens state sovereignty & autonomy
When engaged in official legislatives duties: limited immunity (state must yield to federal law)

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11
Q

Speech & debate clause shields who from what?

A

members of congress

civil/crim suits relating to legislative actions & grand jury investigations relating to those actions

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12
Q

who can judiciary appoint?

recess appointment allwoed?

A 
special prosecutor (b/c "inferior officer")
Recess appointment allowed if congress says it is in recess of "sufficient duration"
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13
Q

Purpsoely
Knowingly
Recklessly
neligently

A

Purpsoely - subjective - conscious objective
knowingly - subjective - aware conduct is nature/ will cause result
recklessly - subjective - conscious disregard/ sub/unjustifiable risk
negligently - objective - failure to be aware of

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14
Q 
Evidence of negligence re: Nurse pushed down stairs:
- professional caregiver
trained dto care
patitent thought attacked by elephant
patient indigent paid by gov.
A

Professional caregiver: assumption of risk (aware of risk & voluntarily assumes risk)
Specialty training: assumption of risk & contributory negligence
Mental illness: action casued by mental illness and thus fell within risks likely assumed by nurse
Paid by gov: how judgment satisfied is irrelevant

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15
Q

B/f accepting guilty plea judge must ensure D knows:

A

Knowing & voluntary

  1. nature of charges / elements
  2. max & min
  3. no duty to plead guilty & pleading wavies right to trial
  4. right to jury trial
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16
Q 
Speedy Trial
- delya from counsel
-delay after pelading guilty (sentencing) // between acquittal and retrial 
remedy?
when attaches
A
  1. lenght of delay
  2. reason for delay
  3. whether D asserted right
  4. prejducie to D

delay from Counsel = attributed to D not state
-delay after pelading guilty (sentencing)// dismissal & retrial = no right to speedy trial
Remedy? dismissal w/ prejudice

when attaches? when arrested or charged

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17
Q

Speedy trial

  • incarcerated in 1 jurisdiciotn w/ pending charges in other
  • indefinite suspension of charges
A
  • 2nd juris must exert reasonable efforts to obtain presence for trial of pending
  • cannot indefnintely suspend// gov cannot dismiss “without prejudice” which permits reinstatement of prosecution at any time.
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18
Q

Security Deposit

A
  • 1-2 months rent
  • escrow account - earned interest belongs to tenant
    charge extra for pets
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19
Q

Good faith & fair Dealing
Reasonable Expectations
Best Efforts
Objective Theory of Contracts

A

GF & FD: rights inferred from langauge of contract
RE: inusrance law - parties not bound by terms they would not expect to find in K unless called to their attention
BE: implied to prevent K from being illusory when scope of party’s performance is ommitted/ unclear
Objective Theory of Contracts: bound by contract terms even if party is not subjectively aware of them

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20
Q

Admissibility of evidence admitted during trial?

A

Motion for new trial.

New trial

  • verdict against weight of evidence
  • jury misconduct
  • inadequate
  • mistake/ error in trial (admissibiliyt of evidence, jury instruction)
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21
Q

Purpseoly
KNowingly
Recklessly
neglgiently

A

Purposely: with the intent of bringing about that specific result

knowingly: acting with the knowledge that circumstances existed
recklessly: disregarding the substantial likely hood
negligently: failure to be aware of circumstnace

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22
Q

Explicit/ Grant Easement vs. License

A

License - permission to use land of other/ revocable/ can be oral/implied/written (no SoF)
Estoppel (expend money, property, labor) can change license into easement if foreseeable

WRITTEN - Easement is nonpossessory interest in land not just a contract right

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23
Q

False imprisonment - tort v. crime

A

Tort: intentional, bounding person + person knows/ is harmed
Crime: specific intent + without consent + unlawful confinement

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24
Q

Remedy for impracticability

A

(ie tree cutter and all the trees were burned before deliverY)
Restitution

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25
How to ensure each neighbor retains interest in 5 foot strip held as TIC?
1. Partition (both will have equal & seperate rights so neither can take over entire strip by ousting other) 2. Grant cross-easements Cross easements in undivided half-interest would not be valid b/c an easement is not a right to possess
26
EPC: Class of one
Gov. subjecting citizen to "irrational and wholly arbitrary treatment" that is different & unique compared to others.
27
One person one vote - exceptions
"At large" - no apportionment for appointed officials or where no electoral district ("at large") unless system is desigend to suppress voting power of minority Special purpose gov units (water storage units) - Can limit class who can vote if elected official will serve in capacity htat has a special impact on the enfranchised class (ie watershed director has special impact on landowning voters)
28
Review of partisan gerrymandering
political quesiton not addressed by courts
29
"did you hear he was arrested for embezzlement"
Ok on cross to impeach witness testifying about honesty b/c it is a specific bad act. Would NOT be ok to impeach person who was arrested.
30
Duty oweed to wholesaler if "if feasible, the wine woudl be dsitributed by teh winery only through a wholesale distributor of fine wines"
"IF FEASIBLE" - even if named in K, not intended bfy b/c performance/duty of wholesale distirubtor is not hinged on performance/duty to
31
Dormant Commerce Power Anlaysis vs. | Privileges & Immunities
Dormant - Facialy discriminatory (unless substantial + no narrower) - Undue burden (balance interestse v. burden) - Wholly outside State Priviegles & Immunities - Cannot discriminate against other states' ctiziens for fundamental rights (commercial acitvity, civil liberties, vote) UNLESS - improtant purpose + non-citizne caused problme + no less restrictive means
32
Privielges or Immunities
State may not deny individual rights of national citizenship (Strict scrutiny) VIPPS Vote, interestate travel, Petition to redress, public lands, seas
33
Notice Pleading Requirements
"Did X negligently" is not sufficient for notice pleading - must show plausibility by showing additional facts.
34
Casualty to identified goods vs. | Failure of presupposed conditions/ commercial impracticability
No need to find other sources if contract is for grapes grown "from my land" Casualty to identified goods: when goods identified at contracting w/out fault of either party b/f risk of loss passes to buyer, total loss: contract avoided partial loss - buyer may avoid or accept goods (can't sue for breach) Impracticability: excuses obgliation as long as makes fair & reasoanble allocation between buyers - buyer can accept or terminate contract
35
Is promise to someoen to do something you promised someone else you would do consideration?
Preexisting duty generally not sufficient consideration UNLESS other person was induced to act by your promise (ie doctor hadn't started treatment - goes in favor of indcument; had laready entered into K with woman - goes against K b/c preexisting duty)
36
Supp J & smj
Fed q: t&o | doc: t&o and cant destroy diversity
37
Discretionary considerations for supp j
raises novel issues of state law claims based on state law predominate over fed law claims based on fed law have been dismissed
38
When is presidential veto required?
ANYTIME an action alters the letal rights, duties and relations of persons. ie Congress can't limit when pres. has to move troops b/c that affects his power and he needs to be able to veto it.
39
How to show state legislation should be decided on by fed court?
1. person is engaged in conduct 2. challenged statute poses real & immediate danger 3. has been inforced/ immeidate threat
40
“The silver mine shall pass to my husband for life, then to my children, with the issue of any predeceased child taking that child’s share. All the rest, residue, and remainder of my estate I leave to my husband.” At that time the landowner had two children—a son and a daughter. The son had two children—the landowner’s grandson and granddaughter. The son was killed instantly. The landowner died a few days later. The grandson lingered for two weeks before dying. They left the following survivors: the husband, the granddaughter, the grandson’s widow and sole heir, and the daughter. The husband validly disclaims any interest he may have in the landowner’s estate. Before the estate is distributed, the daughter is killed in a car accident. The daughter left her entire estate to her boyfriend. The jurisdiction retains the common law Rule Against Perpetuities, unmodified by statute. Who has an interest in the silver mine?
The granddaughter, the grandson’s widow, and the boyfriend all have an interest in the silver mine. The landowner’s will created a life estate in her husband, with a vested remainder in her children. The will further provided that if a child predeceased her, that child’s issue would take the predeceased child’s share. When a person renounces a gift in a will, he is treated as having predeceased the testator. Thus, in this case, because the husband renounced his gift, his life estate would be stricken, leaving the gift to the landowner’s children, with the issue of any predeceased child taking in the stead of their parent. Because the gift of the silver mine was by will, it was of no effect until the landowner’s death. At the landowner’s death, the daughter was still alive and so is entitled to an interest in the silver mine. There is no requirement that she survive until the administration of the estate is completed; thus, her share will go to her estate and pass by will to her boyfriend. The son did not survive the landowner but did leave issue. Therefore, his issue will split his share. The grandson and granddaughter were both alive at the landowner’s death and so they are entitled to take the son’s share. When the grandson died, his share passed through his estate to his widow. Therefore, the interests in the silver mine are: one-half to the boyfriend (taking through the daughter), one-fourth to the granddaughter, and one-fourth to the grandson’s widow (taking through the grandson).
41
Journal is admissible over self-incrimination claim?
No it is testimonail - must offer use immunity
42
offering testimony of description heard, testimony relating to description heard and note...
admissible b/c not hearsay - to show reasonable belief. | Best evidence only applies to EVIDENCE TO PROVE MATTER ASSERTED (ie "REASONABLE BELIEF" = NOT FOR HEARSAY)
43
"BEST EFFORTS TO SELL FIZZY COLA"
show course of performance, course of dealing (past contracts) or trade usage to revise how contract is interpreted
44
standard for third party bfy
- party relied - contract intended performance to run directly to patient - overall benefit was specifically to benefit patient
45
What does claim preclusion preclude?
Relitigating same claim AND raising issues that should have been brought in the original claim.
46
Result of minor breach of K vs. major:
Minor: non-breaching must perform, uusally by paying money but they can sue for breach of K (failure to complete K in time is minor unless "time is of the essence") Major: non-breaching party is relied from performance
47
Easement by implication
Implied from prior use when land is severed 1. Apparent & continuous 2. reasonably necessary for enjoyment of dominant 3. court determines parties intended for it to continue
48
How to appeal
1. JMOL 2. RJMOL or New Trial - evidence does not supprot verdict Failure to raise RJMOL/New trial results in preclusion from appeal
49
When do gov officials (including polcie) get qualified immunity?
Not for violations of rights unless show officials vioalted "clearly established" statutory or constitutional right
50
involutnary dismissal & if final judgment on the merits for claim preclusion
Failure of P to litigate Failure to obey court order anything else all are final judgments on the merits except for dimissal for lack of jurisdiction, improper venue, failure to join a party anything court orders wil lbe iwthout prejudice
51
What is the standard for common interest development rules?
Reasonableness (not to clog up storm drain - ok; aesthetically pleasing - not reasonabel)
52
Interaction b/w EPC & private conduct & court
If court enforces a covenant that is unconstitutional that is entanglement and equal protection review of the classification is triggered
53
When is former testimony permitted?
1. sworn testimony 2. had opportunity to cross-examine previously (doctor who died but wrote affidavit is inadmissible hearsay)
54
deed to be valid
description of grantee/ land (not to all leaders of churches) signed by grantor writing indication it is a deed
55
effect of continuous illegal use
terminate lease recover dmgs/ injunction keep desposit for dmgs beyond normal wear and tear or fail to pay rent
56
Discriminating agaisnt contractor for supporting other party
violation of free expression & free association
57
Res ipsa application
1. would not have happened absent negligence 2. in exclusive control of D (constured broadly) 3. harm not caused by P (construed broadly - knee burn & hospital, broken leg & ambulance)
58
What type of crime will be impledly strict laibility?
Public welfare (ie selling bad milk)
59
Covenants & how they are enforced for bona fide purchasers
1. written 2. intend to run with land 3. touches & concerns land 4. Vertical privity (only requirement for benefit to run) For burden to run only: 5. horizontal privity 6. notice only for bona fide purchasers (heirs don't need notice)
60
How to get a jury trial (timely & otherwise)
w/in 14 days after service of last pleading directed at that issue. Court may on a motion grant untimely jury trial for other issues
61
Tort for embarassment for moving chair b/f sitting down/
Battery - harmful or offensive bodily contact + intent = can recover for embarassment
62
Claim preclusion & different events from same event
must bring all claims for singular event in one claim (that is interpretation of same claim - ) Valid final djugemtn on the merits same parties in same confirugation same cause of action
63
Intending to steal a piacasso but stealing a print is...
larceny. Fact it is not picaso is a factual impossibility which is not a defense.
64
Seller finances 15% of purchase price - promissory note Bank finances 80% of purchase price - mortgage who has priority?
Consider who provided a loan & obtained a secured interest in the property!!!
65
"as much As you order during the the year" held open for how long?
Merchant firm offer rule - open for 3 mo | After that for the next year open until revoked or lapses at the end of the year.
66
Invasion of privacy torts
Intruision upon seclusion - doesn't consider embarassment publication of private facts - would be offensive to reasonable person appropriation of image for commercia purposes
67
son i am happy to pay if you cannot
ok for sof bc signed writing, identifies parties and subject matteter

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