Random Things That Trip Me Up

Question 1

What damages can a buyer of defective goods recover?

Answer 1

Any “loss resulting in the normal course of events from the breach,” which includes the difference between the value of the goods accepted and the value they would have had if they had been as warranted, plus incidental and consequential damages.

Question 2

What are the necessary elements of an Answer to a Complaint?

Answer 2

It must be signed by a lawyer, include all affirmative defenses, and be filed within 21 days of service. Any claims in the complaint that the answer does not explicitly deny are effectively admitted to.

Question 3

What are the necessary elements of a Complaint?

Answer 3

A Complaint must contain (1) short and plain statement with grounds for jurisdiction; (2) statement of the claim / basic summary of the facts; and (3) demand for relief. It must be served to all opposing parties within 90 days of filing.

Question 4

If a seller of goods accepts an offer from a buyer but includes additional terms in their acceptance, is that considered a rejection and counteroffer or is it a valid acceptance?

Answer 4

Under the UCC, an acceptance with additional terms does not constitute a rejection and counteroffer, but rather is an effective acceptance unless made expressly conditional on the assent to the additional terms. If both parties are merchants,
the additional terms become part of the contract unless they materially alter the terms of the offer, the offer expressly limited the acceptance to its terms, or they are objected to within a reasonable time.

Question 5

When is a prior identification considered nonhearsay?

Answer 5

A prior identification is considered nonhearsay only if the declarant testifies at the trial and is subject to cross-examination.

Question 6

When may a witness be impeached with extrinsic evidence?

Answer 6

A witness may always be impeached by extrinsic evidence of bias, provided a proper foundation is laid.

Question 7

If an offeree rejects an offer for an option contract, when does the offer terminate?

Answer 7

An offer for an option contract cannot be revoked or rejected by either the offeror or offeree. The option will remain open until the close of the option period or until it is accepted, whichever is sooner.

Question 8

What is the difference between claim preclusion and issue preclusion?

Answer 8

Claim preclusion (res judicata) bars relitigating all issues of a claim in a previous lawsuit. Issue preclusion (collateral estoppel) bars relitigating only the issues within the claim that are actually litigated. For claim preclusion to apply, BOTH plaintiff and defendant of lawsuit #2 need to have been in lawsuit #1 (at least substantially identical). For issue preclusion to apply, only the party against whom preclusion applies needs to have been in lawsuit #1 (non-mutuality, because one party might not have been in lawsuit #1).

Question 9

If a manufacturer sells a product with optional safety features, and a buyer purchases the product without the safety features, can the buyer recover damages if they get injured in a way that the optional safety features could have prevented?

Answer 9

A product is defective if it fails to include a feasible safety device that would prevent injuries foreseeably incurred in ordinary use. Offering the safety device as an alternative is not adequate; in fact, it indicates that the company had reason to foresee that the product, if used without a safety device, would pose a significant risk to those who operated it.

Question 10

If a question asks whether a court should uphold a law or strike it down as unconstitutional, what’s the first question you need to ask yourself?

Answer 10

What level of scrutiny the court should apply. Does the law affect a suspect or quasi suspect class? Does it affect a fundamental right?

Question 11

If parties to a contract have fully performed under the terms of an oral contract that would otherwise have fallen under the Statute of Frauds, can either party claim the contract is invalid due to the SoF?

Answer 11

No. If the parties have both fully performed under an oral contract, the relationship is the same as if the parties had fully complied with the statute initially.

Question 12

What kind of lawsuits does the Eleventh Amendment bar?

Answer 12

1. any suit for damages against a state by a private plaintiff without that state’s consent, including suits by that state’s own citizens.
2. sovereign immunity also generally bars private plaintiff suits against a state in a state’s own courts for violations of federal law.
3. States may voluntarily waive their immunity through their statutes or constitutions if the waiver is express and unequivocal.
4. The Eleventh Amendment does not bar suits against state officials in their official capacities, seeking declaratory or injunctive relief (as opposed to money damages) for violations of federal law.

Question 13

What elements are necessary to establish an easement by prescription under adverse possession?

Answer 13

The use needs to be open and notorious as well as actual and without significant interruption. It does not need to be exclusive.

Question 14

What standard must courts apply when determining whether a public school violates a student’s 1A rights by restricting certain types of protected speech?

Answer 14

The government sometimes has greater latitude to restrict speech in specific government settings than it does more generally. Public schools generally may prohibit speech that substantially interferes with or disrupts the educational environment, or interferes with the rights of other students. In addition, the schools may regulate speech in school-sponsored activities based on legitimate pedagogical concerns. Under these principles, schools may prohibit speech at school that might be protected outside the school context.

Question 15

Can a defendant’s arrest without a conviction be used to impeach the credibility of a character witness testifying to their opinions of the defendant’s good character?

Answer 15

Yes. The prior conduct must be something that the character witness should have known about (for a character witness’s opinion testimony) or the community should have known about (for a character witness’s reputation testimony).

Question 16

What factors will courts consider when deciding whether a case involves the political question doctrine?

Answer 16

The political-question doctrine prevents federal courts from deciding matters committed to the executive or legislative branches by the United States Constitution or those lacking judicially manageable standards, with six factors indicating a political question: (1) a textually demonstrable commitment of the question to another branch by the Constitution, (2) a lack of judicially discoverable and manageable standards for decision-making, (3) the impossibility of reaching a decision without making a policy determination of a kind reserved to another branch, (4) the impossibility of independently reaching a decision without disrespecting another branch, (5) an unusual need to adhere to a political decision that has already been made, and (6) the potential for national embarrassment if multiple branches decide the same question in different ways.

Question 17

When does a defendant’s 6A right to counsel apply?

Answer 17

The Sixth Amendment guarantees the right to effective assistance of counsel at every critical stage of prosecution, including any pretrial judicial proceeding that might affect the accused’s substantial rights or impair their defense on the merits.

A bail or bond hearing is generally not considered a critical stage because it does not influence the trial’s outcome.

Question 18

If an innocent BFP acquires title to a property from a seller without title, what is the status of the property’s ownership?

Answer 18

Most courts hold that a BFP in this situation acquires no interest in the property, because the grantee had no interest to convey to the BFP.

Question 19

Can a defendant appeal a court’s grant of a preliminary injunction while the case is pending?

Answer 19

Yes. Orders granting, continuing, modifying, refusing, or dissolving injunctions are immediately appealable by statute. 28 U.S.C. § 1292(a)

Question 20

What type of interlocutory orders can be appealed?

Answer 20

Interlocutory orders are generally not subject to appeal EXCEPT
1. Injunctions
2. Certifying or denying class actions

Question 21

Under what circumstances are issues of fact subject to appeal?

Answer 21

Whether the court’s ruling was clearly erroneous (very infrequently held - appellate courts generally defer to trial courts interpretation of facts)

Question 22

When can a TRO be granted without notice to the restrained party?

Answer 22

If irreparable injury will occur if the order is not granted. (A TRO expires at the time stated in the order but not longer than the 14 days.)

Question 23

What must a moving party show to be granted a preliminary injunction?

Answer 23

• Irreparable harm to the moving party if not granted
• Moving party is likely to succeed on merits of the case
• Harm to the moving party from not granting injunction outweighs the other party’s harm

Question 24

When may the government use evidence it collected in violation of a defendant’s constitutional rights?

Answer 24

The government may use unconstitutionally obtained evidence, regardless of the application of an exception to the exclusionary rule, other than in its case in chief. (this is so messed up)

Question 25

For sale of goods, what price would the UCC set if the price term in a contract is omitted?

Answer 25

The price is a reasonable price at the time the goods are delivered.

Question 26

When does title of real property pass from a grantor to a grantee if the grantor executes a conditional delivery of a deed to a third party?

Answer 26

Conditional delivery of a deed to a third party, or delivery in escrow, occurs when a grantor gives the deed to an escrow agent with instructions to deliver it upon a future event, and title passes automatically to the grantee when that condition is met, regardless of any breach of duty by the escrow agent.

Question 27

When is a court not authorized to exclude witnesses from a courtroom at the request of a party?

Answer 27

A court may not exclude
(1) a party who is a natural person;
(2) one officer or employee of a party that is not a natural person, if that officer or employee has been designated as the party’s representative by its attorney;
(3) any person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(4) a person authorized by statute to be present.
(Fed Rules of Evidence 615)

Question 28

When can a court reform a contract to provide a mistakenly omitted term?

Answer 28

A court may reform a contract to provide a mistakenly omitted term so that the contract reflects the parties’ mutual intent, so long as no rights of third parties will be unfairly affected.

Question 29

When is judicial notice binding on a jury?

Answer 29

In civil cases, judicial notice is always binding on the jury.
In criminal cases, judicial notice satisfies the prosecutor’s burden of proof as to that particular fact but is not binding on the jury.

Question 30

When is a lay opinion admissible?

Answer 30

A lay opinion is admissible if it is (1) rationally based on the witness’s perception; (2) helpful in understanding the witness’s testimony; and (3) not based on any scientific, technical, or other specialized knowledge that would make it expert testimony.

Question 31

When can parties ask witnesses leading questions, and when can they not?

Answer 31

Parties cannot ask leading questions on direct examination except to develop witness’s testimony.
Parties may ask leading questions on cross, during testimony of hostile witnesses, adverse party, or witness affiliated with adverse party.

Question 32

In a criminal case, how should a court instruct the jury about a judicially noticed fact?

Answer 32

Federal Rule of Evidence 201(f) states that in a criminal case, “the court must instruct the jury that it may or may not accept the noticed fact as conclusive.” Thus, a judicially noticed fact in a criminal case allows the court to instruct on a permissible inference, but nothing more.

Question 33

If a defendant has been convicted of a crime similar to the one they are currently charged with, may the prosecution offer evidence of the prior convictions to either impeach the defendant, prove the defendant committed the current crime, neither, or both?

Answer 33

Both. Prior bad acts can be admitted to prove the defendant’s conduct if offered for some purpose other than to show that the defendant is a bad person. In this case, the bad acts are very similar to the acts in dispute and may be admitted for other purposes such as proving intent, knowledge, lack of accident, and modus operandi (i.e., that the defendant has a tendency to engage in particularized activity that sets her apart from others).

Question 34

What is the difference between simple assault and aggravated assault under the MPC?

Answer 34

A simple assault charge may be elevated to aggravated assault if a deadly weapon such as a firearm was used during the incident. Also, if an assault occurred during the commission of another crime such as rape, robbery or attempted murder, then, it will be considered as an aggravated assault.

Question 35

When can a witness’s prior criminal conviction be used for impeachment purposes?

Answer 35

A court MAY (not must) permit evidence of a witness’s criminal conviction for impeachment. The conviction must be for a crime (1) punishable by death or more than a year in prison, or (2) involving a dishonest act or false statement.

Question 36

When are settlement offers or acceptances made during settlement negotiations admissible to prove or disprove the validity or amount of a disputed claim?

Answer 36

Settlement offers or acceptances, and any conduct or statements made during related negotiations, are not admissible to prove or disprove the validity or amount of a disputed claim. Rule 408’s bar of the admissibility of settlement-related conduct and statements only applies if there is a dispute about the validity or amount of a claim, regardless of whether a complaint has been filed yet.

Question 37

When are settlement offers or acceptances made during settlement negotiations inadmissible to establish liability?

Answer 37

Federal Rule of Evidence 409 bars the admission of evidence of paying, or promising or offering to pay, medical, hospital, or similar expenses resulting from an injury to prove liability for the injury.

Question 38

When is testimony of an unavailable declarant admissible?

Answer 38

Former testimony of an unavailable declarant is admissible if (1) the former testimony was given at a trial, hearing, or lawful deposition and (2) it is offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by examination.

Question 39

When and how can a witness’s credibility be bolstered with evidence of good character?

Answer 39

A party may bolster a witness’s credibility only after it has been attacked and only with opinion and reputation evidence.

Question 40

When is lay (not expert) opinion testimony admissible?

Answer 40

Lay opinion testimony is proper if it is rationally based on the witness’s perception; helpful in understanding the witness’s testimony; and not based on any scientific, technical, or other specialized knowledge (and therefore not within the scope of expert testimony).

To lay the foundation for testimony from a lay witness (i.e., a nonexpert witness), a party must show that the witness has personal knowledge of a matter to testify about it. A lay witness has personal knowledge if she perceived the matter firsthand, through physical senses. A lay witness also has personal knowledge if she is testifying about opinions rationally based on personal observation or experience.

Question 41

When might parole evidence be admissible in a contracts dispute where the contract is fully integrated / contains a merger clause?

Answer 41

The written terms of an agreement intended by the parties as a final expression of their agreement may be explained or supplemented by course-of-dealing evidence, trade-usage evidence, or course-of-performance evidence.

Question 42

How are expectation damages calculated in a breach of contract dispute?

Answer 42

A nonbreaching party’s expectation damages are measured by (1) the value of the performance that the breaching party should have rendered, plus (2) any incidental damages or, if recoverable, consequential damages, minus (3) any losses or costs that the nonbreaching party saved, or could have saved with reasonable effort, by not having to perform the contract himself.

Question 43

When does a federal court have subject matter jurisdiction over a class action suit based on state law?

Answer 43

A federal district court can exercise diversity jurisdiction over a class action if (i) “the matter in controversy exceeds the sum or value of $5,000,000” and (ii) “any member of a class of plaintiffs is a citizen of a State different from any defendant” (i.e., “minimal diversity”).

Question 44

What must a plaintiff in a tortious interference claim prove to succeed?

Answer 44

That the defendant used unlawful or independently actionable means to interfere with its business.

Question 45

If a party files a Rule 12 motion for lack of SMJ and the motion is denied, can they submit a subsequent Rule 12 motion?

Answer 45

Yes. If a party files a motion under Rule 12, the following arguments need not be combined in a single motion: lack of subject-matter jurisdiction, failure to state a claim upon which relief may be granted, and failure to join a party required under Rule 19(b). Fed. R. Civ. P. 12(h)(2). Rather, these issues may be raised by separate motion. See id.

In contrast, if a party moves under Rule 12, certain other issues must be raised in a single motion, including lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process. (so any motions about the PARTY must be done together, anything about the SUBJECT MATTER can be done separately)

Question 46

What are the fundamental rights the Supreme Court has established for equal protection purposes?

Answer 46

The rights to vote; access the ballot as a political candidate; travel to another state; marry, procreate, and live as a family unit; and access the courts to obtain justice.

Question 47

When may a court exclude relevant evidence?

Answer 47

If its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, wasting time, or needlessly presenting cumulative evidence.

Question 48

When will an amendment to add a claim or defense relate back to the date of the original pleading?

Answer 48

An amendment to add a claim or defense to a pleading can relate back to the date of the original pleading for statute of limitations purposes if it arose out of the same conduct, transaction, or occurrence of the original pleading.

Question 49

When will an amendment to change a party relate back to the date of the original pleading?

Answer 49

An amendment to change a party will relate back to the original date if it (1) arose out of the same conduct, transaction, or occurrence of the original pleading; (2) is filed within 90 days of the original complaint and the party to be brought in received enough notice so they would not be prejudiced; and (3) if the new party knew or should have known the action would be brought in but for a mistake in the party’s ID.

Question 50

What must a cross claim contain?

Answer 50

A claim for relief, either by a plaintiff against a coplaintiff
or a defendant against a codefendant. Therefore, a party may not use a crossclaim to attempt defensively to shift liability away from the crossclaiming party to someone else.

Question 51

What does it mean to identify an item to a contract?

Answer 51

That the seller picks the goods to be sold out of the mass of inventory so that they can be delivered or held for the buyer.

Question 52

If a federal court hearing a case with related federal and state law claims and SMJ is based on diversity jurisdiction, does the court retain SMJ if it dismisses the federal claim?

Answer 52

The court may hear the state-law claim if it is so related to the federal claim that they form part of the same case or controversy.

Question 53

When is an action removable?

Answer 53

An action is removable if it could have been originally filed in federal court.

Removal is barred by the forum-defendant rule when diversity is the only basis for federal jurisdiction.

Question 54

What standard will a federal court apply when considering a transfer to a different federal court?

Answer 54

Transfers to a different federal court are granted in the interest of justice and for the convenience of the parties and witnesses.

Question 55

In cases governed by Erie, what substantive law will the court apply?

Answer 55

The court is to apply whatever law would be applied by the courts of the state in which the district court is sitting.

NOTE: this is different from the forum state, which is where the case was filed.

Question 56

What is the difference between a compulsory counterclaim and a permissive counterclaim?

Answer 56

A compulsory counterclaim arises from the same transaction or occurrence as the original claim. These claims must be asserted in an answer or they are forfeited.

A permissive counterclaim asserts claims unrelated to the original claim.

See FRCP 13(a)-(b)

Question 57

How can you tell if people on a federal commission are inferior officers?

Answer 57

If the commission falls under another federal agency, they are inferior officers. If not, they must be appointed by POTUS with advice and consent of the Senate.

Question 58

Who can issue a writ of habeas corpus (habeas writ) for individuals in federal custody?

Answer 58

Only federal courts. Nobody else.

Question 59

Is a nondiscriminatory state law constitutional if the burden on interstate commerce clearly outweighs the state’s interest in regulation?

Answer 59

Yes. The only requirement is that such a law not be a clearly excessive burden on interstate commerce.

Question 60

When are private entities considered state actors for purposes of equal protection questions?

Answer 60

Private entities performing a public function are state actors only if the function is an exclusively governmental service or one that involves inherently governmental powers such as incarceration.

Question 61

Is a race-neutral law that has a disparate impact on racial minorities subject to strict scrutiny?

Answer 61

A race-neutral law would trigger strict scrutiny only if the legislature had intended that the requirement benefit or harm individuals because of their race. The disparate impact on members of a racial minority group by itself is insufficient to demonstrate race discrimination.

Question 62

When are expectation vs. reliance damages the most appropriate remedy from a breach of contract?

Answer 62

Expectation damages are typically awarded when the non-breaching party seeks to be placed in the position they would have been in had the contract been fully performed.

Reliance damages are usually awarded when the non-breaching party seeks compensation for expenses or losses incurred in reasonable reliance on the contract.

Question 63

When does a party bear the risk of mistake in a contract?

Answer 63

When the party is aware that they have only limited knowledge with respect to the facts but treat their limited knowledge as sufficient.

Question 64

When is nondisclosure of a fact sufficient to rescind a contract?

Answer 64

Nondisclosure of a fact is the equivalent of a misrepresentation when a person knows that disclosure of the fact is necessary to prevent some previous assertion from being a misrepresentation.

Question 65

When does a defendant forfeit a hearsay or confrontation clause objection (hint: the same standard applies)

Answer 65

In order to forfeit either a hearsay objection under FRE 804(b)(6) or a confrontation clause objection, a defendant must have engaged in wrongful conduct for the purpose of preventing the declarant from testifying.

Question 66

If one tenant in a property owned by tenants in common pays more than their pro rata share of payments such as mortgage payments on the property, may they recover from the other tenant(s)?

Answer 66

Yes. Each tenant in common is required to make his or her pro rata share of payments such as mortgage payments, which if not paid could result in foreclosure on the property. Consent is not required before making the payments.

Question 67

Does a restrictive covenant such as one that prohibits using the land for commercial purposes make a title unmarketable if it is not listed in the contract?

Answer 67

Yes. A seller is required to convey a marketable title to a buyer in the absence of a contrary provision in the contract. A restrictive covenant makes title unmarketable unless the covenant is excepted in the contract.

Question 68

If someone reasonably believes a piece of property is theirs and takes it, are they liable for conversion?

Answer 68

Yes. Conversion occurs when an actor intentionally interacts with an item that is the personal property of another so as to permanently deprive the other of possession. This is true regardless of whether the actor knows that the item is in another’s possession.

Question 69

If a person sees a someone who is about to harm themself, is the first person privileged to use reasonable force to prevent them from injuring themself?

Answer 69

Yes. A person is privileged to use reasonable force to protect another against imminent harm, including self-inflicted harm. This same action would defeat a claim of false imprisonment.

Question 70

Is a person who hires an independent contractor liable for injury to a third party caused by the contractor’s negligence?

Answer 70

Not usually. A person who hires an independent contractor ordinarily is not liable for injury to a third party caused by the contractor’s negligence.

However, there is an exception to this rule when the person directly influences the manner in which the contractor performs the work so as to contribute to the creation of the danger that causes the third party’s injury.

Question 71

Does a dismissal with prejudice operate as a judgment on the merits?

Answer 71

Yes, so such a dismissal will carry res judicata effect.

Question 72

Describe mutual issue preclusion.

Answer 72

A party is only able to assert issue preclusion only if both the moving party and the party against whom preclusion was sought were parties to the first case.

Preclusion asserted by or against someone who was not a party to the first case was called nonmutual preclusion.

Today, the federal courts and most state courts no longer require mutuality for issue preclusion.

Question 73

When determining preclusive effects, what law should a court apply - the law of the current court or the law the original court applied?

Answer 73

The original court. So if the instant case is in federal court sitting in State A, but the previous judgment was entered in state court in State B, the current court needs to apply the state law from State B to determine any preclusive effects.

Question 74

Can a party appeal a denial of summary judgment?

Answer 74

No. Appellate courts have jurisdiction only over the final decisions of the district courts. See 28 U.S.C. § 1291. The denial of summary judgment is not a final decision, because the action will proceed in the district court. The denial is also not an appealable interlocutory decision.

Question 75

If parties bound by a contract have a good faith dispute as to the amount owed, and the parties agree on a compromise for less than the contractual amount, can one party go back and try to recover the remainder of the contractual amount?

Answer 75

No. In a compromise of a claim disputed in good faith, each party surrenders its respective claim as to how much is owed.

Question 76

In a contract where goods are identified at contract formation (e.g., a specific car), and the goods are destroyed before the risk of loss has passed to the buyer and without the fault of either party, what is the status of the contract?

Answer 76

UCC § 2-613 provides that where goods identified at the time the contract was made are totally destroyed before the risk of their loss has passed to the buyer and without the fault of either party, the contract is avoided and each party is relieved of its respective obligation to perform.

Question 77

What tests will courts use to decide whether to admit evidence of convictions for impeachment purposes?

Answer 77

1. a court may exclude relevant evidence of a felony if its probative value is substantially outweighed by other factors.
2. a conviction that is more than 10 years old, or where more than 10 years has passed since the witness’s release from confinement (whichever is later), should not be admitted unless “its probative value, supported by specific facts and circumstances, substantially outweighs is prejudicial effect.”

Question 78

Several commuters were waiting at a bus shelter when a car spun out of control toward the bus shelter. A college student pushed a woman out of the path of the oncoming car. The woman, who had a genetic condition that resulted in brittle bones, fell to the ground and shattered her hip.

Is a court likely to conclude that the college student is liable for battery?

Answer 78

No, because the push was necessary to spare the woman from being hit by the car.
In general, a tortfeasor is liable for the full extent of the harm caused by the tort. The so-called eggshell plaintiff rule renders a tortfeasor liable even if the severity of a victim’s injury is due to the victim’s innate condition or vulnerability, of which the tortfeasor could not possibly have been aware. See, e.g., White v. Muniz, 999 P.2d 814 (Colo. 2000). The fact that the woman’s brittle bones caused the severity of her injury does not prevent the college student from being liable.

Question 79

What five factors will a courts consider when determining if a loan is actually an equitable mortgage?

Answer 79

• Whether the debtor keeps possession of the property;
• Whether the debtor acutely needs money at the time of the transaction;
• Whether the transaction allows the debtor to reclaim or repurchase the property after making some payments;
• The relationship between the amounts paid to and repaid by the debtor; or
• Whether the debtor sells the property for less than its fair market value.

Question 80

How long does a defendant in federal court have to respond to a complaint whether they do or do not waive service of process?

Answer 80

If a defendant does not waive formal service of process, his time for answering the complaint is the general rule stated in Rule 12: within 21 days of being formally serviced with process. Fed. R. Civ. P. 12(a)(1)(A). In contrast, if a defendant agrees to waive service, he receives extra time to answer the complaint: 60 days from the date of the plaintiff’s waiver request if inside the United States, and 90 days for defendants receiving the waiver request outside the United States.

Question 81

What two types of laws does the Dormant Commerce Clause prohibit?

Answer 81

In general, the Dormant Commerce Clause prohibits two types of state laws.
First, the states may not enact laws that discriminate against interstate commerce.

Second, the states may not enact laws that unjustifiably burden interstate commerce.

Discriminatory laws and burdensome laws are analyzed differently. A statute is discriminatory if it favors in-state interests over out-of-state interests or if it blocks interstate commerce at the state’s border. Laws of this type are said to be protectionist, isolating the state from the national economy and improperly pursuing the state’s interests at the expense of the nation as a whole.

A state law that discriminates against interstate commerce will almost always be invalidated. More formally, discriminatory laws are subject to a demanding standard of review called strict scrutiny. Under this standard, a discriminatory law will be struck down unless the state can prove that the law serves a legitimate state purpose that cannot be served by any nondiscriminatory alternative. The mere desire to protect in-state economic interests is not a legitimate objective under this test.

Question 82

When may a party move for summary judgment?

Answer 82

A party may move for summary judgment at any time until 30 days after the close of discovery.

Question 83

If a man obtains a mortgage on a house, and secures the debt with a different building that his mom owns, what can the bank do if the man defaults?

Answer 83

Foreclosure on the building and obtaining a deficiency judgment from the man if the proceeds from the foreclosure sale are inadequate to satisfy the remaining debt.

A mortgage is a lien against real property, given to secure a debt. Restatement (Third) of Property (Mortgages) § 1.1. A mortgage is legally distinct from the debt that it secures. The mortgage attaches to the property that secures the debt, while the debt attaches to the borrower personally. Id.; 54A Am. Jur. 2d Mortgages § 452.

Here, the man’s mother is the mortgagor, because she pledged her building as security for the man’s loan. If the bank chooses to foreclose, it must foreclose on the woman’s building, which secured the debt, not the man’s house, which was purchased with the loan but did not secure the loan. However, if a deficiency remains after the foreclosure sale, the bank may still obtain a deficiency judgment against the man, because he is personally liable on the loan. The bank may not obtain a deficiency judgment against the mother, because she is not a party to the loan. Her liability is limited to foreclosure on the building.

Question 84

When determining actual causation, what is the difference between the substantial factor test and the alternative cause test?

Answer 84

(tip to remember: “a” for alternative = actor. “f” for factor = forces)

The alternative-causes doctrine applies if (1) multiple actors were negligent, (2) at least one of the actors caused the victim’s harm, and (3) it is impossible to tell which actor’s negligence caused the harm.

The substantial-factor test applies if (1) multiple forces combined simultaneously to cause the victim’s harm, (2) any one of these forces would have been sufficient by itself to cause the harm, and (3) it is impossible to tell which force caused which portion of the harm.

Question 85

Who are restitution and expectation damages awarded to?

Answer 85

Restitution damages are awarded to the breaching party, but only to the extent that the benefit they conferred on the nonbreaching party exceeds the losses from the breaching party’s breach.

Expectation damages are awarded to the nonbreaching party to put them in the position they would have been in had the other party not breached.

Question 86

Under what circumstances does a federal law preempt a conflicting state law?

Answer 86

Under the doctrine of preemption, valid federal law will always displace or supersede state law if one of three conditions exists: (1) if the federal law states that it has preemptive effect (express preemption); (2) if the federal law and the state law conflict (conflict or obstacle preemption); or (3) if the federal law has occupied the entire field of regulation, leaving no room for states to act (field preemption). Conflict and field preemption are sometimes referred to as implied preemption because they are not based on an express declaration of preemption.

Question 87

What information does the deliberative-process privilege protect from disclosure?

Answer 87

The deliberative-process privilege protects the disclosure of documents created in furtherance of the formation of governmental policy.

In particular, the privilege typically protects predecisional documents that would reveal internal recommendations, deliberations, or advisory opinions. In other words, the privilege protects documents that reveal an agency’s preliminary thinking about a problem as opposed to an agency’s final decision about a problem.

The purpose of the privilege is to allow the government to make sound decisions by giving officials the freedom to deliberate various policy approaches privately and candidly. The privilege does not apply to documents that embody an agency’s final decision, because once a decision has been made, deliberations are done. Thus, the privilege distinguishes between predecisional, deliberative documents (which are protected) and documents reflecting a final agency decision and the reasons supporting it (which are not protected).

Question 88

If a plaintiff’s injury is caused by multiple tortfeasors acting independently, how will a court apportion liability?

Answer 88

If a plaintiff’s injury is caused by separate tortfeasors acting independently of one another, a court will apportion responsibility using (1) causal apportionment if the injury is divisible or (2) fault allocation if the injury is indivisible. A divisible injury occurs if (1) multiple tortfeasors contribute to the plaintiff’s harm and (2) it is possible to discern which tortfeasor caused what portion of the harm. An indivisible injury occurs if multiple tortfeasors contribute to the plaintiff’s harm and the fact-finder cannot discern which tortfeasor’s actions caused what portion of the harm. In these cases, responsibility is apportioned based on the fact-finder’s percentage allocation of fault to each party, not on causation.

Question 89

What is the difference between conflict preemption and field preemption?

Answer 89

Congress may preempt state law by occupying an entire substantive field of regulation. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383-84 (1992). Unlike conflict preemption, field preemption precludes all state regulation in an entire area, including state regulation consistent with the goals of the federal regulation. See Rowe v. New Hampshire Motor Transport Ass’n, 552 U.S. 364, 368 (2008).

Question 90

Under what conditions is an untrue assertion grounds to avoid a contract?

Answer 90

An untrue assertion must be fraudulent or material in order for a contract to be voidable for fraud or misrepresentation.

In contrast, whether a misstatement goes to a basic assumption underlying the contract is relevant to whether the contract is voidable for mistake, not for fraud or misrepresentation.

Question 91

What must a party demonstrate to authenticate a piece of evidence (that is, “to show that the evidence is what they claim it to be”)?

Answer 91

Authentication has a fairly low threshold, because a party need only make a prima facie showing of genuineness. Once that showing is made, it is up to the jury to finally decide the authenticity and probative value of the evidence.

Question 92

How should you apply “prima facie” in hypos?

Answer 92

Based on the first impression; accepted as correct until proved otherwise.

Question 93

When can contractual duties be delegated or discharged?

Answer 93

In general, any contractual duty may be delegated. However, a duty is not delegable if (1) the contract clearly states that a specific person must perform, (2) performance requires substantial skill and discretion, or (3) there are other circumstances in which it is clear that the identity of the person rendering performance is a material part of the obligee’s bargained-for exchange.

An obligor is discharged by the substitution of a new obligor, for example, in a delegation, only if the contract so provides or if the obligee makes a binding manifestation of assent, forming a novation. Otherwise, the obligee retains his original right against the obligor, even though the obligor manifests an intent to substitute a new obligor in his place and the new obligor purports to assume the duty. The obligee may also have rights against the new obligor as an intended beneficiary of the new obligor’s promise to assume the old obligor’s contractual duty.

Question 94

Is a merchant’s implied warranty of merchantability ever unenforceable?

Answer 94

The implied warranty of merchantability may be disclaimed by language explicitly mentioning merchantability. A written disclaimer must be conspicuous, for example, by prominently setting apart disclaimer text, including the text in a location the buyer is likely to see, or using larger or bolder font than the surrounding text.

Question 95

What does the forum-defendant rule state?

Answer 95

The forum-defendant rule states that a civil action otherwise removable solely on the basis of diversity jurisdiction may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the state in which such action is brought.

Question 96

What are the requirements for forfeiting a hearsay objection and a confrontation clause objection? (they are the same requirements)

Answer 96

In order to forfeit either a hearsay objection under FRE 804(b)(6) or a confrontation clause objection, a defendant must have engaged in wrongful conduct for the purpose of preventing the declarant from testifying.

Question 97

When is nondisclosure of a fact equivalent to misrepresentation?

Answer 97

Nondisclosure of a fact is the equivalent of a misrepresentation when a person knows that disclosure of the fact is necessary to prevent some previous assertion from being a misrepresentation.

Question 98

What protection does restitution promise?

Answer 98

The protection of the restitutionary interest restores to a party any benefit conferred to the other party. Under UCC § 2-711(3), on a rightful rejection, a buyer is entitled to a return of any payments made on the goods.

Question 99

What is significant about the second time a plaintiff voluntarily dismisses a claim?

Answer 99

Rule 41(a)(1)(B) provides that a second voluntary dismissal of the same claim(s) operates as an adjudication on the merits. Therefore, the plaintiff cannot refile the same claim(s).

Question 100

What does the doctrine of continuing trespass state?

Answer 100

If a defendant takes property without permission but also does not intend to keep it forever, but later changes their mind and does keep it, the defendant is guilty of larceny under the doctrine of continuing trespass.

Question 101

What duties of care are owed to discovered trespassers and undiscovered trespassers in a premises liability claim?

Answer 101

For undiscovered trespassers, the property owner has no duty to warn or make safe any conditions at all.

For discovered trespassers, the property owner has a duty to use reasonable care to warn of “manmade deathtraps.”

Question 102

What duties of care are owed to licensees and invitees?

Answer 102

For licensees, the landowner has a duty to use reasonable care to warn or make safe concealed dangerous conditions known to the landowner.

For invitees, the landowner has a duty to use reasonable care to inspect for dangerous conditions.

Question 103

What’s the difference between a shifting executory interest and a springing executory interest?

Answer 103

A shifting executory interest is a future interest that divests or cuts short another interest in favor of a third party. It typically follows a defeasible fee and takes effect upon the occurrence of a specified event that divests the current interest holder. For example, if property is granted to A, but if a certain event occurs, then to B, B holds a shifting executory interest because B’s interest will divest A’s interest upon the occurrence of the event.

In contrast, a springing executory interest is a future interest that divests the grantor’s interest or springs into effect after a gap in time. It does not cut short another interest but rather takes effect after a period during which no other interest is in possession. For instance, if property is granted to A starting five years from now, A holds a springing executory interest because A’s interest will spring into effect after the five-year period, during which the grantor retains possession

Question 104

What’s the difference between a remainder and an executory interest?

Answer 104

Remainders follow life estates and do not prematurely terminate the previous estate.
When a property owner conveys a future interest out of a fee simple absolute estate, making it subject to conditional language, the grantee has an executory interest.

Question 105

What does it mean for a federal court to “certify” a question for a state court?

Answer 105

Certification enables the highest court in a state to decide a legal question for a federal court in the same state sitting in diversity. Diversity proceedings in the federal district court may be stayed pending resolution of the certified question.
Certification is authorized by the Uniform Certification of Questions of Law Act.

Question 106

Describe how reversion works.

Answer 106

A grantor who conveys property to a life tenant without also granting a remainder retains a reversion. Thus, when the life tenant dies, the property reverts, or returns, to the grantor.

Question 107

How does a plaintiff prove causation under the doctrine of alternative liability (aka alternative causes)?

Answer 107

This test applies if (1) multiple actors were negligent, often jointly; (2) at least one of the actors caused the victim’s harm; and (3) it is impossible to tell which actor’s negligence caused the harm.

Question 108

What type of damages can a plaintiff seek for a claim under strict products liability?

Answer 108

Only personal injury and damages to other property. Damages to the product itself or economic losses may be recoverable under contract law, but not products liability.

Question 109

What does the learned intermediary doctrine insulate drug manufacturers from?

Answer 109

The learned intermediary doctrine insulates manufacturers of prescription drugs from liability if they provide adequate warnings to prescribing physicians. It does NOT offer protection for over the counter drugs.

Question 110

How will a court apportion damages under the traditional common law rule of assumption of risk if a plaintiff suffers damages in an activity for which they are aware of the risk?

Answer 110

Under the traditional common law rule of assumption of risk, even if an actor causes injury to a victim, the victim is barred from recovering ANY damages if the injury results from the victim’s having knowingly and voluntarily chosen to encounter the risk of injury posed by the actor’s conduct.

Question 111

When is a landowner liable for private nuisance?

Answer 111

A landowner is liable for nuisance only when his invasion of another’s use and enjoyment is both substantial and unreasonable. An unusually sensitive neighbor will not be permitted to block another owner’s use of his own land.

Question 112

What requirements must be met for a federal court to have supplemental jurisdiction over a claim?

Answer 112

The federal court must have original jurisdiction over one or more of the plaintiff’s claims. If it does, the court may exercise supplemental jurisdiction over any other claims (including crossclaims or counterclaims) in the action that “form part of the same case or controversy under Article III.” (or “common nucleus of operative facts.”)

Question 113

Which spouse holds the privilege under spousal testimonial privilege?

Answer 113

Under federal common law, the spousal testimonial privilege is held by the witness, not by the defendant. If a spouse wants to testify, the defendant cannot prevent the spouse from doing so. This privilege only applies in criminal cases and not civil cases.

Question 114

Which spouse holds the privilege under the marital communications doctrine?

Answer 114

If the witness and defendant are married at the time of trial, the witness cannot be placed in contempt for refusing to testify against the defendant.

Question 115

What does the last clear chance doctrine state?

Answer 115

The last-clear-chance doctrine holds that in contributory-negligence jurisdictions, a plaintiff’s own negligence does not bar recovery if the defendant had the last clear chance to prevent the plaintiff’s injury.

Question 116

What must a defendant show to raise the equitable defense of laches?

Answer 116

A defendant must show the plaintiff unreasonably delayed seeking relief that prejudices the defendant due to significant time or resources already expended.

Question 117

What are a trial court’s options if a jury’s written answers are consistent with each other but at least one answer is inconsistent with the general verdict?

Answer 117

(1) disregard the general verdict and enter judgment according to the answers, (2) direct the jury to reconsider its answers and verdict, or (3) order a new trial. FRCP 49(b)(3)

Question 118

When might a federal court sitting in diversity apply federal substantive law?

Answer 118

If a case implicates uniquely federal interests, federal common law applies if there is a significant conflict between an identifiable federal policy and the operation of state law, or the application of state law would frustrate specific objectives of federal legislation.

Question 119

What are the rules for whether contract rights are or are not assignable?

Answer 119

Contract rights are generally assignable. A contract is not assignable if the assignment (1) would materially change the duty of the obligor; (2) would materially increase the burden or risk on the obligor; (3) would materially impair the obligor’s chance of obtaining return performance or materially reduce the value of that return performance to the obligor; (4) is forbidden by statute or precluded by public policy; or (5) is validly precluded by contract.
All that is necessary for an effective assignment is (1) that the assignor manifest their intent to transfer the right to the assignee; and (2) that the assignee manifest assent to the assignment.

Question 120

How does the Uniform Trust Code implement the equitable deviation doctrine?

Answer 120

Under the UTC, an administrative provision of a trust may be modified if “because of circumstance not anticipated by the settlor, modification or termination will further the purposes of the trust.” An administrative provision of a trust is one relating to the management of trust property instead of the allocation of benefits among trust beneficiaries.

Question 121

What must an aggrieved party do before filing a motion for Rule 11 sanctions against an offending party?

Answer 121

The aggrieved party must serve the motion on the offending party, without filing the motion with the court. If the offending party withdraws or corrects the challenged material within 21 days after service, then the aggrieved party may not file the motion with the court.

Question 122

What standard of review will an appellate court apply to decide whether to uphold a trial court’s factual findings?

Answer 122

An appellate court will uphold a trial court’s factual findings unless they are clearly erroneous.

Question 123

What standard of review will an appellate court apply to decide whether to uphold a trial court jury’s factual findings?

Answer 123

The appellate court will uphold the jury’s findings so long as it is supported by substantial evidence.

Question 124

What standard of review will an appellate court apply to decide whether to uphold a district court’s evidentiary and procedural rulings?

Answer 124

The appellate court will uphold the ruling unless it is an abuse of discretion.

Question 125

To authenticate a recording’s content so as to introduce it into evidence, what must the government show?

Answer 125

(1) the recording is a correct rendition of the occurrence; (2) no changes, additions, or deletions have been made to the recording; (3) the speakers on the recording are identified; and (4) the recording was not impermissibly induced.

The government is not required to show an unbroken chain of custody of the recorded media since its creation.

Question 126

What is the difference between buying a property “subject to a mortgage” and “assuming the mortgage?”

Answer 126

If a buyer takes the property subject to the mortgage, the mortgage remains attached to the property, but the buyer is not personally liable on the underlying debt. The mortgagee’s (usually the bank) rights are limited to foreclosure on the property and suing the original mortgagor.

When a buyer assumes the mortgage, the buyer becomes personally liable for the debt.

Question 127

How long does a TRO last, and how much notice does an aggrieved party need to give to a party who obtained a TRO without notice?

Answer 127

A TRO lasts 14 days, and can be extended once for an additional 14 days. A court can hear a motion to dissolve a TRO that was obtained without notice on two days notice to the party that obtained the order, or shorter notice set by the court.

Question 128

Does the mootness doctrine only apply at the trial level or does it also apply at appeal?

Answer 128

Mootness applies to both trial courts and appeals, so it is possible for an appeal to be dismissed as moot.

Question 129

What must the government show to justify a conditional regulatory taking?

Answer 129

A conditional regulatory taking is a law that conditions a government benefit, such as a permit or a variance, on the owner’s surrender of property rights. Under the unconstitutional-conditions doctrine, this type of taking is prohibited unless the government can demonstrate that (1) there is an essential nexus between the condition and the state interest at issue and (2) the extent of the condition is roughly proportional to the impact of the proposed development.

Question 130

What must a plaintiff provide for a defendant in their request to waive formal service of process?

Answer 130

(1) identify the court where the complaint is filed; (2) inform the recipient of the consequences of waiving or not waiving service; and (3) provide the recipient a reasonable amount of time to respond to the request for waiver, at least 30 days for requests sent within the United States and 60 days for requests sent outside the United States.

The plaintiff must attach to the request a copy of the complaint, two copies of the Rule 4 waiver form, and a prepaid method for returning the form.