REVIEW

Question 1

Under the UCC, how can seller accept an offer to buy goods?

Answer 1

By shipping OR promising to ship. Acceptance by shipment is effective immediately and creates a contract with terms identical to those of the offer

Question 2

Forum defendant rule

Answer 2

Prohibits removal when (1) SMJ arises solely from diversity jurisdiction; and (2) a defendant is a citizen of the state in which the case was filed.

HOWEVER – this rule does NOT apply and removal is proper when SMJ also arises from federal question jx.

Question 3

Liability for independent contractors committing torts

Answer 3

A principal is generally not vicariously liable for torts committed by his/her independent contractor.

However, a principal who retains control over any part of the IC’s work is directly liable for any failure to use reasonable care in exercising that control.

Question 4

EX: D files answer denying all allegations. One week later, D files an amended answer, denying all allegations and including the defense of lack of PJ. Did the D waive PJ?

Answer 4

No. A challenge to PJ is waived if not made in (1) the original answer or (2) an answer amended without the court’s permission within 21 days after the original answer was served.

Here, the D filed an amended answer w/in 7 days.

Question 5

100-mile bulge rule

Answer 5

Federal court acquires personal jurisdiction over parties (1) added to the suit through impleader or required joinder and (2) served with process within 100 miles of that court.

Question 6

Best Evidence Rule

Answer 6

Applies when a witness relies on a document’s contents while testifying or when the contents of a document are at issue (i.e. letter from employer making false statements – defamation suit). The rule generally requires that an original or reliable duplicate of a recording, writing, or photograph (referred to as “document”) be produced to prove its contents.

EXCEPTION: party can use other evidence (eg, testimony) to prove the contents of a document if (1) all originals are lost or destroyed and (2) the loss or destruction of the originals was not a product of the party’s bad faith.

Question 7

Tortious interference with contract

Answer 7

A claim for intentional (tortious) interference with a contract requires evidence that:
1) a valid K existed between the pary;
2) the D knew of that contractual relationship;
3) the D intentionally and improperly interfered with the contract’s performance, and
4) that interference cause the P pecuniary (ie, monetary) loss.

Question 8

Embezzlement

Answer 8

The fraudulent conversion of the property of another by a person who is in lawful possession of that property. The amount of embezzlement is measured by the value of the property at the time of the conversion.

Question 9

Commerce Clause

Answer 9

Grants congress broad power to regulate interstate commerce – including in-state activities that, singly or in the aggregate, substantially affect interstate commerce. When determining if activities have a substantial effect on interstate commerce that warrants regulation by Congress, courts consider whether:
1) activities are economic (ie, commercial) in nature;
2) regulation has a jurisdictional element that limits its reach to activities with a direct connection to or effect on interstate;
3) there are express congressional findings concerning the activities’ effect on interstate commerce, and
4) there is a strong link between the regulated activities and the effect on interstate commerce.

Question 10

Trespass to chattels v. conversion

Answer 10

Trespass to chattels - minor intentional interference with plaintiff’s right to control chattel. Liable for actual damages, eg, cost of repairs, loss of use

Conversion- substantial interference with plaintiff’s right to control chattel. Liable for fair market value of chattel at time of conversion.

NOTE- a mistaken belief that the defendant legally possessed the plaintiff’s chattel does not absolve the defendant from liability for the conversion.

Question 11

Forfeiture of hearsay & confrontation objections

Answer 11

Objection to use of unavailable declarant’s hearsay statement is forfeited if party: (1) wrongfully cause, or acquiesced in causing, declarants unavailability and (2) did so intending that result.

Standard of proof: party attempting to prove forfeiture must do so by preponderance of the evidence – i.e, greater weight of evidence (more than 50%) supports argument.

Question 12

When should a court instruct the jury on a lesser included offense?

Answer 12

If, based on the evidence presented at trial, a rational jury could acquit the defendant of the charged offense but convict the defendant of the lesser offense.

Question 13

POTUS’ removal power

Answer 13

Potus has absolute authority to remove an officer unless offer: (1) belongs to multimember body that is balanced along partisan lines & exercises no executive power OR (2) lacks policymaking or administrative authority.

Congress cannot play a direct role in removal of federal officers – except by exercising its power of impeachment– as this would violate the separation of powers.

Question 14

Equitable mortgage

Answer 14

Created when an absolute deed– ie, a deed that is free of encumbrances and transfers unrestricted title to property– is given with the intent to secure a debt.

Question 15

Temporary restraining order

Answer 15

Court order that commands a party to do or stop doing a specified action for 14 days or until a preliminary injunction hearing can take place, whichever occurs first.

Question 16

What must be included in a temporary restraining order?

Answer 16

1) reasons why it was granted, 2) a reasonable description of the prohibited or commanded acts, which must be made without reference to the complaint or another document, and 3) the specific terms (eg, persons bound, penalties for noncompliance)

Question 17

Taxing and spending clause

Answer 17

Grants Congress extensive power to appropriate federal funds. Congress can then require that hte President and federal agencies spend the funds as explciitly directed in a federal statute.

Article II obligates POTUS to faithfully execute the laws, so, POTSU cannot unilaterally alter how the appropriated funds will be spent or suspend the distribution of those funds

Question 18

Solicitation

Answer 18

Inducing or encouraging another to commit crime with specific intent that the crime be committed, but solicited party need not agree.

Merges with solicited crime if completed

Question 19

When does an amended complaint that changes or adds party “relate back”

Answer 19

(1) If the SOL allows OR
(2) when (a) the amendment concerns the same transaction or occurrence as the original complaint, (b) the new party received notice of the suit within 90 days after the original complaint was filed and (c) the new party knew or should have known that the suit would have been brought against it but for a mistake concerning the proper party’s identity

Question 20

Ways to avoid foreclosure

Answer 20

1) Equitable redemption – mortgagor pays full amount of outstanding debt (as increased by acceleration clause) plus any accrued interest

2) Deed in lieu of foreclosure – mortgagor conveys all interest in mortgaged property to mortgagee

3) Renegotiating debt–parties renegotiate terms of promissory note & mortgage

Question 21

Conspiracy

Answer 21

Agreement between two or more people with the specific intent to commit a crime. The common-law bilateral theory of conspiracy requires proof of at least two guilty minds – the defendant and one other conspirator. Therefore, a defendant cannot be convicted when the only other conspirator feigns agreement

No merger

Question 22

Attempt

Answer 22

Specific intent to commit crime & overt act committed in furtherance of target crime

Merges with intended crime if completed

Question 23

Appointment of federal officers

Answer 23

Principal federal officers – supervised solely by POTUS and must be appointed by POTUS with Senate’s advice and consent.

Inferior federal officers – supervised by principal federal officers, and Congress may delegate their appointment to the President alone, the heads of executive-branch agencies, or the federal courts.

Question 24

Authenticating physical objects

Answer 24

Before a physical object can be admitted at trial, it must be authenticated through a prima facie showing that the object is what the proponent claims it to be. This is commonly done by testimony based on personal knowledge of the object.

Question 25

When can the court consider an objection to jury instructions that have already been given to the jury?

Answer 25

If an objection to a jury instruction is made after the court instructs the jury, the court can consider the objection only if the instruction constituted plain error. A plain error is an obvious error that affects a substantial right and the fairness of judicial proceedings—eg, a jury instruction that misstates the law.

Question 26

Acceptance of non-conforming goods

Answer 26

Under the UCC, a seller can accept an offer to buy goods for prompt or immediate shipment by promising to ship or actually shipping conforming goods. However, shipping nonconforming goods serves as both a rejection and counteroffer if the seller notifies the buyer that the shipment was merely an accomodation.

Question 27

Contract for permanent employment

Answer 27

Creates an at-will employment relationship that entitles either party to terminate the contract at any time and for any reason, without the termination being considered a breach.

Question 28

Joint representation exception to attorney-client privilege

Answer 28

An attorney may disclose communications with jointly represented clients in subsequent litigation between those clients

Question 29

Can a party file jury instruction request after close of evidence?

Answer 29

Yes, if the request relates to issues that the parties could not have reasonably anticipated by deadline; OR court permits late submission related to any issue.

Question 30

Solicitation

Answer 30

Inducing or encouraging another to commit a crime with the specific intent that the crime be committed.

NOTE: A defendant that is convicted of murder cannot be convicted of solicitation as well because it meres with the solicited crime once completed.

HOWEVER – can still be convicted of conspiracy since it remains a separate offense.

Question 31

Intentional misrepresentation

Answer 31

To establish a prima facie case of intentional misrepresentation (ie, fraud or deceit), the plaintiff must show that: (1) the defendant knowingly or recklessly misrepresented a material fact with the intent to induce the plaintiff’s reliance and (2) the plaintiff reasonably relied on the misrepresentation and suffered pecuniary loss (i.e. monetary loss) as a result.