Questions missed on Babri Flashcards
1
Q
impeachment of a hearsay declarant
A
-can impeach their credibility by any impeachment means necessary regardless of whether they are available to testify at trial
-doesn’t need chance to explain or deny
-can be rehabilitated if attacked
2
Q
when is a prior inconsistent statement allowed in for the truth of the matter asserted
A
when previously made under oath
3
Q
Establishment clause exception to taxpayer standing
A
-allowed but only when CONGRESSIONAL SPENDING (taxing and spending powers). Not exec spending or exec actions.
4
Q
what are the negative implications of the commerce clause
A
generally a federal power but NOT EXCLUSIVELY federal.
states can sometimes do if not INTENTIONALLY protectionist and meets 1 of 3 exceptions.
5
Q
dormant commerce clause test
A
- whether intentionally discriminatory
- whether even if neutral passes balancing test (burden test)
6
Q
can a judge consider (in like a 403 analysis) whether the evidence makes it more or less likely that the case will be win or lost
A
NOOO
7
Q
what happens in a criminal case when a judge takes judicial notice of prosecutorial evidence
A
prosecution has met their burden, but it is not conclusive
8
Q
does the mailbox rule apply to options kx
A
no
9
Q
preexisting duty rule
A
does not apply under UCC!!! good faith modifications ok
10
Q
conditional acceptances and battle of the forms
A
a reply adding in a conditional acceptance does not constitute an acceptance but instead a rejection and a counteroffer.
11
Q
11th am
A
sovereign immunity
12
Q
structural/implicit waiver in 11th Am
A
when they joined union, implicitly agreed to yield to certain fed powers like eminent domain and certain military powers
-federal power is complete in itself AND
-the states implicitly consented to the fed gov exercising that power as part of the Const.
13
Q
suits against state officers
A
can sue official (1) for damages personally or (2) to enjoin the official from future conduct that violates the Const or fed law (so, includes unconstitutional state law), even if this will require prospective payment from the state
but cannot sue for retroactive damages
14
Q
dormant commerce clauses
A
state/local regulations that discriminate against interstate commerce to protect local economic interests are invalid
15
Q
dormant CC balancing test
A
if does not discriminate, valid unless burden outweighs promotion of legit local interests
16
Q
can the gov require you to take an oath for gov employment not to overthrow the gov?
A
yes
17
Q
can the gov require you to “promise to respect the flag?” as an oath
A
no.
18
Q
effect of judge taking judicial notice in crim case
A
Pros has met burden.
Judge should instruct the jury that it may, but is not required to, accept the noticed fact as conclusively proven.
19
Q
is thermal imaging a search
A
yes.
20
Q
when can the government probably NOTdrug test
A
21
Q
when looking at diversity citizenship for an unincorporated Assoc, do you look at partners only or partners and officers?
A
partners only [could be general and limited tho]
22
Q
must a federal court have SMJ over a counter claim?
A
yes girly
23
Q
complete diversity
A
Diversity of citizenship refers to when there is no common state citizenship between the plaintiffs and defendants in a suit. In other words, all parties on one side of the controversy are citizens of different states from all parties on the opposing side.
24
Q
what is the limitation on diversity cases?
A
in diversity claims, plaintiffs generally cannot invoke supplementary jdx.
HOWEVER, there is an exception. applies when there are MULTIPLE plaintiffs and one of them does not meet the amount in controversy requirement. [here, plaintiff can use]
25
dealing w mortgage modifications
generally first in time, first in right. but if senior mortgage modifies the mortgage, it becomes junior to any junior mortgages that were in existence at the time.
Thus, if the first mortgage debt is larger bc of a modification, the second mortgage gains priority over the increase in debt.
26
must a junior mortgagee be named as a party to a senior mortgagee's foreclosure action?
YES. Bc it has a right to pay off the sr mortgage to avoid being wiped out by foreclosure.
Failure to join the junior mortgagee results in the preservation of its interest despite the foreclosure and sale.
More senior interests need not be named bc their interests are not affected by foreclosure.
27
statutory redemption
right of a mortgagor to recover the land AFTER foreclosure sale has occurred, usually by paying the FORECLOSURE SALE PRICE.
28
equitable redemption
right of a mortgagor to recover the land by paying the amount OVERDUE on the mortgage, plus any interest, at any time PRIOR to the sale.
If the mortgage contained an acceleration clause, then the FULL BALANCE of the mortgage must be paid to redeem in equity.
29
priority for allocating mortgage foreclosure sale proceeds
-any costs incurred by foreclosure
-sr interests like foreclosing party
-any jr lien holders in order of priority
-mortgagor
30
does a disability of a successor toll the SoL for AP purposes
no
31
Fifty-one years ago, an owner conveyed land to a taker for "so long as the land is used solely for residential purposes; otherwise, the interest in land shall revert to the owner and his heirs." The taker used the land as her personal residence for 20 years, but 31 years ago, she began operating a children's day camp on the land. The owner knew of this operation, but he took no action. Two years ago, the aged taker decided to get out of the camp business. She closed her business and once
again began to use the land solely as her personal residence. Also two years ago, the owner died, survived by his son and only heir. Now the son is laying claim to the conveyed land. The jurisdiction in which the land is located has a seven-year adverse possession statute and another statute that bars enforcement of possibilities of reverter 55 years after their creation.
May the son validly claim title to the land?
No, because the adverse possession period began 31 years ago, and the taker has held the property for more than the requisite seven years.
On the happening of the prohibited event (using the land for other than residential purposes), the taker's fee simple determinable automatically came to an end, and the owner was entitled to present possession. Not having claimed possession within the applicable seven-year period, and with the taker's possession being open, notorious, continuous, and adverse, any action by the owner or his heirs is now barred by adverse possession.
32
does use of a quitclaim deed charge a purchaser w inquiry notice
majority of states say no even tho a quitclaim deed has no covenants for title
33
"Any conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded."
Notice statute
34
O conveys Blackacre to A on Monday. O conveys Blackacre to B on Tuesday. A records on Wednesday. B records on Thursday.
If both parties paid valuable consideration for the land, and neither knew of the other's deed, who owns Blackacre?
B, under a notice statute
35
notice statute
PROTECTS A SUBSEQUENT BFP WITH NO NOTICE OF PRIOR CONVEYANCE [CONSTRUCTIVE OR ACTUAL]
36
race statute
first to record wins, regardless of BFP
37
race-notice statute
a subsequent BFP prevails over a prior grantee only if she records before the grantee
38
On February 10, an owner took out a $10,000 mortgage on her land with a bank. On February 15, the owner conveyed the land for $50,000 to a buyer who was not aware of the mortgage. On February 17, the bank recorded its mortgage interest in the land. On February 21, the buyer recorded his deed to the land. Does the buyer hold the land subject to the bank's mortgage?
Yes, in race or race-notice jdx
39
when does the best evidence rule not apply
when specific content not at issue or can't be found
40
prior identification rule for hearsay
D must be testifying and subject to cross [could include sketches]
41
dying declaration
witness must be unavailable
42
public employee for cause DP
notice, pretermination opportunity to respond, and subsequent evidentiary hearing
43
3 types of implied easements
-necessity
-implied by subdivision plan
-intended easement based on use when dominant and servant parcels severed
44
does the mere existence of a zoning RESTRICTION, not violation, render title unmarketable
no
45
estoppel by deed
if someone conveys land they dont have, they can't deny the validity of the conveyance if they later acquire title
46
easement appurtenant transfer
runs with the land. so record in original deed. but dont need to record in later deeds.
47
easement appurtenant transfer
runs with the land. so record in original deed. but dont need to record in later deeds.
48
springing v shifting exec interest
shifting - cuts short 3d party
springing - cuts short grantor
49
lateral rights
SL if natural state
L if neg
SL if non-natural state but would've been damaged anyways in natural
50
what is "To my son, but if he ever tries to sell it, take it away and give it to X"
This is a direct restraint on alienation which is void. Therefore, it is just a fee simple.
51
must a life tenant pay taxes on the property
yes
52
ameliorative waste exception
DOCTRINE OF CHANGED CONDITIONS.
Generally, a life tenant cannot tear down improvements simply because the life tenant wants to make a more profitable use of the land. But an exception exists when changed conditions have made the destruction of the improvement reasonably necessary. Such as tearing down a house not used on the property that is in unsuitable condition for living.
53
class closing info for vested remainders
To A for life, then to B's children
Once A dies, class CLOSES. So let's say at the time A dies, B has TWO children, but has one more a year later. Only the TWO alive at A's death are part of the class. Other child gets boxed out.
54
when is a landlord liable for latent defects
A landlord will be liable only if, in the general situation, the landlord knew or had reason to know of the defect or, in the exception, the landlord rents FURNISHED property for a short term.
55
holdover tenant
evict or institute new rental situation, generally month to month if residential; reflects terms of previous lease if commercial! [but can't exceed 1 yr due to SoF]
generally can't require raised rent UNLESS gave notice of raised rent PRIOR to expiration of old lease
56
merger of easement
For there to be a merger which will extinguish an easement, the duration of the servient estate must be equal to or longer than the duration of the dominant estate (and therefore the easement).
E.g., if dominant estate is FSA, servient estate must be FSA.
57
is non-use sufficient for easement abandonment
no. and neither is building another driveway apparently
58
difference between prescriptive easement and AP
AP requires exclusivity. prescriptive easement does not.
59
doctrine of changed neighborhood conditions
For common development scheme
Covenants remain enforceable unless changes inside the neighbhorhood subject to the covenants have made it impossible for them to achieve their original purposes and that enforcement would be inequitable.
ALL LOTS WOULD HAVE TO BE AFFECTED. every single one!!
60
preferred remedy when property damaged after kx signed but prior to closing
specific performance on part of the buyer
61
does the seller have an implied right to use the proceeds from the sale to clear title
yep. has some time after closing that can do unless time of essence?
62
fixture (residential)
so affixed to the land that it becomes part of the realty
two ways become a fixture
1. so incorporated into the realty that they lose their identity
2. removal would cause considerable damage to the prop
63
fixtures for trade purposes
Applies to COMMERCIAL TENANTS
Tenant can remove ALL trade fixtures if it is not an integral part of the premises (balcony, deck, I-beam) and the tenant pays for any damages caused by the removal.
Absent an agreement to the contrary, these annexations are removable because it was not the intention of the tenant to make them a permanent part of the premises
64
shelter rule
a person who takes from a BFP will prevail against any interest that the transferor-BFP would have prevailed against.
65
fee simple determinable
"for so long as", "until," "only while," "during"
66
ARE POSSIBILITIES OF REVERTER ALIENABLE
YES
67
sever joint tenancy
-one person in two dies
-partition
-unilateral transfer
-in title theory if one JT mortgages their interest
68
general rule for landlords w latent defects
no duty to warn unless knew or should have known
69
do you have to give notice to evict a licensee?
no can be revoked at any time even if u pay value
70
actual easement abandonment example
RR co rips out RR tracks
71
if seller fails to deliver marketable title, does buyer have to go thru w sale
no
72
notice jdx
words "record first" or "first to record" will NOT be in the statute
73
AP and conveyance
just bc u acquire a property by AP doesnt mean you can convey it. have to first sue to quiet title.
74
deed requirements
written
signed by grantor
unambiguous description of the land
identification of both parties
words of transfer like "grant"
75
does a void deed render possession HOSTILE for AP purposes?
yes
76
what amendment is double jeopardy under
5th. attaches when jury empaneled and sworn in
77
A sells Blackacre to B, who fails to record. A sells to C an easement on Blackacre, who promptly records. What result?
A owns Blackacre subject to C's easement.
78
do recording statutes apply to short term leases
no. generally less than one year. doesn't apply to interests implied at law either bc cant record
79
O owns Blackacre. X acquires title to Blackacre through adverse possession (i.e., X entered onto the property and exclusively, openly and continuously possessed it for the statutory period without having O’s permission). O sells Blackacre to A.
Even if A is a BFP, X prevails because X acquired title by operation of law, so A is not protected by a recording statute.
80
When does a preliminary hearing on the evidence need to occur outside the presence of the jury?
If:
Hearing involves the admissibility of a confession;
D in a criminal case is a witness and so requests; or
Justice so requires
81
once court takes judicial notice, what can be said of the other party
they cannot intro any evidence to contradict
82
what kind of liability does 5th am protect against
crim, not civil
83
does the former testimony hearsay exception include depos
yes.
84
minimum contacts analysis
Did D purposefully avail himself of the forum (such that it was foreseeable litigation could occur)?
Did the injuries arise out of that purposeful availment; and
Would exercise of PJ violate notions of fair play and substantial justice?
85
when the original venue is improper, is dismissal or transfer preferred?
Transfer. Done in the interest of justice. Dismissal only done in extraordinary circumstances.
86
what law do u apply when the transfer is merely for convenience
transferor court
87
for diversity citizenship class action cases, which plaintiffs are considered for diversity
only named plaintiffs
88
can federal courts handle divorce cases?
no, no jdx over domestic relations cases
89
when is federal venue proper
Federal venue is proper in (i) the district in which any defendant resides if all defendants reside in the same state; and (ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred.
90
in which district can u sue a non-Us resident
any district
91
If a case filed in state court contains a claim that would arise under federal law, and it is joined with state law claims that do not invoke diversity or supplemental jurisdiction, what portion of the case (if any) can be removed to federal court?
f a case filed in state court contains a claim that would arise under federal law, and it is joined with state law claims that do not invoke diversity or supplemental jurisdiction, the entire case can be removed to federal court. The federal court, however, must then sever and remand the state law claims to state court.
92
PJ steps
1. must first fall within state statute (long arm statute)
2. Constitutional analysis
---- Does D have such minimum contacts w the forum so jdx does not offend traditional notions of fair play and substantial justice? (Contacts, relatedness, fairness)
Contacts: Purposeful availment and foreseeability
Relatedness: Does P's claim arise from or relate to D's contact w the forum state? [If yes, specific PJ. If no, must meet general PJ]
Fairness: consider factors
93
general PJ
D's contacts w forum state are so systematic and continuous as to render him at home in that state [domiciled]
OR when served with process in that state
94
fairness factors
-burden on D and witnesses
-state's interest
-P's interest
95
general reqs for notice
-must be reasonably calculated under all circumstances, to apprise interest parties of the action
-must serve w summons and copy of the complaint (process)
96
welfare benefits residency reqs touch on which clause of the Const
EP 14th Am (right to travel)
97
may a hate crime statute limit fighting words to those that seek to insult based on race or gender?
no that is viewpoint-based
