Random Things That Trip Me Up Flashcards
Review rules and doctrines I struggle with
What damages can a buyer of defective goods recover?
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.
What are the necessary elements of an Answer to a Complaint?
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.
What are the necessary elements of a Complaint?
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.
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?
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.
When is a prior identification considered nonhearsay?
A prior identification is considered nonhearsay only if the declarant testifies at the trial and is subject to cross-examination.
When may a witness be impeached with extrinsic evidence?
A witness may always be impeached by extrinsic evidence of bias, provided a proper foundation is laid.
If an offeree rejects an offer for an option contract, when does the offer terminate?
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.
What is the difference between claim preclusion and issue preclusion?
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).
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?
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.
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?
What level of scrutiny the court should apply. Does the law affect a suspect or quasi suspect class? Does it affect a fundamental right?
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?
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.
What kind of lawsuits does the Eleventh Amendment bar?
- any suit for damages against a state by a private plaintiff without that state’s consent, including suits by that state’s own citizens.
- sovereign immunity also generally bars private plaintiff suits against a state in a state’s own courts for violations of federal law.
- States may voluntarily waive their immunity through their statutes or constitutions if the waiver is express and unequivocal.
- 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.
What elements are necessary to establish an easement by prescription under adverse possession?
The use needs to be open and notorious as well as actual and without significant interruption. It does not need to be exclusive.
What standard must courts apply when determining whether a public school violates a student’s 1A rights by restricting certain types of protected speech?
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.
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?
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).
What factors will courts consider when deciding whether a case involves the political question doctrine?
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.
When does a defendant’s 6A right to counsel apply?
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.
If an innocent BFP acquires title to a property from a seller without title, what is the status of the property’s ownership?
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.
Can a defendant appeal a court’s grant of a preliminary injunction while the case is pending?
Yes. Orders granting, continuing, modifying, refusing, or dissolving injunctions are immediately appealable by statute. 28 U.S.C. § 1292(a)
What type of interlocutory orders can be appealed?
Interlocutory orders are generally not subject to appeal EXCEPT
1. Injunctions
2. Certifying or denying class actions
Under what circumstances are issues of fact subject to appeal?
Whether the court’s ruling was clearly erroneous (very infrequently held - appellate courts generally defer to trial courts interpretation of facts)
When can a TRO be granted without notice to the restrained party?
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.)
What must a moving party show to be granted a preliminary injunction?
- 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
When may the government use evidence it collected in violation of a defendant’s constitutional rights?
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)