Review

Question 1

Content Neutral Regulations

Question 2

Designated Public Forum

Question 3

Rights to Lateral Support

Question 4

Rights to Subjacent Support

Question 5

Prosecutorial Duties

Answer 5

May only bring charges based on probable cause.

Must disclose all exculpatory evidence or all material evidence that has a tendency to make guilt more or less probable

Question 6

Duty of Fairness

Answer 6

May not hide, conceal, or destroy evidence
May not

Question 7

Pereira

Question 8

Van Camp

Question 9

Reverse Pereira

Question 10

Reverse Van Camp

Question 11

Overbreadth and Vagueness

Answer 11

Always mention for 1st amendment analysis

Question 12

Free Exercise Clause

Answer 12

Protects freedom to believe and freedom to act in accordance to sincerely held religious beliefs

Question 13

Establishment clause

Answer 13

The Establishment Clause compels government neutrality towards religion. Challenges under this law are evaluated under the “historical practices and understanding test” under which longstanding practices and symbols which are integral to the historical tradition of the nation are deemed constitutional.

But if law directly impacts religion, courts often apply strict scrutiny

Question 14

Unreasonable search

Answer 14

Unreasonable search occurs when the government invades a place protected by a reasonable expectation of privacy OR physically intrudes upon a constitutionally protected area (papers, persons, houses, or effects)

Question 15

Warrantless search of automobile incident to arrest

Answer 15

The 4th amendment requires that law enforcement demonstrate EITHER that (1) the arrestee is within reach of passenger compartment at time of search and may pose a threat to officer’s safety or tamper with evidence, OR (2) it is reasonable evidence may be found in vehicle

Question 16

Terry Stop and Frisk of a car

Question 17

Terry Stop

Answer 17

A stop is a limited seizure of an individual in which the restraint of freedom does not rise to the level of a full custodial arrest

A frisk is a limited search. An officer may conduct a frisk after a Terry stop if the stop was based on reasonable suspicion with articulable facts, and the officer reasonably believes the frisk is necessary for the safety of the officer or of others. Under the PLAIN FEEL exception, an officer may search inside pockets ONLY if the plain feel of the object makes its contraband nature immediately obvious. In such cases, the officer may seize that evidence.

When a police officer holds a suspect beyond the amount of time necessary to effectuate the purpose of a Terry stop, the seizure becomes an arrest and must be supported by probable cause

Question 18

Final judgment rule

Answer 18

The federal court of appeals has jurisdiction over appeals from final judgments. A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.

A notice of appeal must generally be filed within 30 days after the judgment or order is entered.

Always talk about 2 exceptions: Interlocutory appeals and Collateral orders

Question 19

Interlocutory Order

Answer 19

An interlocutory order is a court order or ruling that is made before a final judgment. Interlocutory orders are generally not appealable except in limited circumstances, including for the grant or denial of injunctions, or certifications of a class in class actions.

In these limited circumstances, a party may appeal by right

Question 20

Collateral Order doctrine

Answer 20

The collateral order doctrine allows for the appeal of an interlocutory order when such order (1) concerns an issue completely separate from the merits of the action, and (2) would be pointless to appeal after a final judgment. Collateral orders include, for example, orders related to the existence of immunity.

Question 21

Permanent Separation

Answer 21

Always talk about permanent separation in CP essay when applicable

permanent separation is evidenced by intent to end marital relationship + conduct in accordance with that intent

Question 22

Conspiracy

Answer 22

An agreement between two or more people to accomplish an unlawful purpose with the specific intent to accomplish that purpose + overt act (modern/MPC)

Withdrawal -
common law - could not withdraw after agreement because crime was already completed by that point

majority - can withdraw before overt act by notifying other co-conspirators or police

after overt act, can withdraw but would still be liable for conspiracy. Would not be liable for subsequent acts

Question 23

Co-conspirator liability

Answer 23

A co-conspirator can be charged for the planned offense as well as other offenses committed by conspirators in furtherance of the conspiracy

Question 24

Impermissibly suggestive misidentification

Answer 24

(1) D must show that lineup was impermissibly suggestive
(2) D must show that such lineup produced a substantial likelihood of misidentification

Factors

Question 25

Administrative searches

Answer 25

Police may not use administrative searches to look for criminal activity. But evidence discovered during a valid administrative search may be admissible.

Question 26

Opposing lawyers related - PR

Answer 26

Under the ABA MR, a lawyer that is related to another lawyer may not represent a client in any matter in which the other lawyer is counsel for the opposing party

Under the CA rules, a lawyer may not represent a client in any manner for which the lawyer KNOWS the opposing counsel (1) is related to the lawyer, (2) lived with the lawyer, (3) is a client of the lawyer, or (4) has an intimate personal relationship with the lawyer unless informed written consent is obtained from the client.

Question 27

Waiver of 6th amendment right to counsel

Answer 27

Waiver of 6th amendment right to counsel is only effective if such waiver was knowingly, intelligently, and voluntarily. When a D waives his or her right to counsel, the court must ensure that the D is aware of the charges, the potential range of punishment, and the risks and consequences of self-representation. Further, the court must ensure that the D is not being forced to choose between self-representation and ineffective counsel

Question 28

Refreshing recollection

Answer 28

Any item may be used to refresh a witness’s memory regardless of admissibility if (1) witness once knew but is now unable to recall fact or event, and (2) item will help witness recall that information

Question 29

Recorded recollection

Answer 29

Record is admissible hearsay if it:
(1) contains information re: which witness once had personal knowledge
(2) witness created or adopted record shortly after event occurred, while event was still fresh in mind
(3) witness cannot remember events even after looking at record
(4) accurately reflects witness’s knowledge at time record was made

Question 30

Intervening-Superseding cause

Question 31

Strict liability - Elements

Answer 31

Absolute duty
Breach
Causation
Damages
Defenses

Question 32

Corporations - Shareholder Derivative Action

Answer 32

Describe derivative action (brought on behalf of corporation for any harms suffered by the corporation as a whole)

Standing - SH must have been a SH (owned shares) at the time of harm and at the time of filing, SH must continue to own shares through the entirety of litigation, and SH must be able to fairly and adequately represent corporation

Demand -
Must make demand on board at least 90 days prior to commencement of suit (unless futile)

Question 33

Corporations - duty of care + BJR

Answer 33

Officers/Directors (O/Ds) owe a duty of care to the corporation. Per this duty of care, failure to act as a reasonably prudent person under the same or similar circumstances constitutes a breach. However, the BJR is a rebuttable presumption that a business decision made by an O/D was made in good-faith. When the BJR applies, the O/D may be shielded from liability for a given business decision so long as such decision was not fraudulent, illegal, or one made for the purposes of self-dealing. The presumption of BJR may be overcome by showing that the decision was made in bad faith, breach of due care, negligence, etc.

Question 34

Corporation - duty of loyalty

Answer 34

Must act in best interests of corporation, must avoid conflicts of interests, and must not engage in self-dealing.

Check to see if any decisions were self-dealing

Then apply safe-harbor provision. The safe-harbor rule provides that a self-dealing transaction may still be permissible so long as the transaction was disclosed to and ratified by a majority of disinterested board members or shareholders, or alternatively, that the transaction was fair

When applying safe harbor rule - make sure there was a disclosure of all material facts

Question 35

Corporations - sale of assets

Answer 35

The sale of all or substantially all assets constitutes a fundamental corporate change. For such a sale of assets, approval must be obtained from the BOD and shareholders. Shareholders who object to the sale may force the corporation to buy his or her stock at fair value based on an appraisal

Question 36

Corporation - duty of loyalty/usurping corporate opportunity

Answer 36

Must first present opportunity to corporation and give it opportunity to accept or decline before personally availing of opportunity. 2 tests

interest or expectancy - if corporation is actively seeking such opportunities, must disclose

Line of business test
- must disclose opportunities in corporation’s line of business

Question 37

PR - business with client

Answer 37

A lawyer must not into a business transaction with a client unless: (1) the terms are fully disclosed in writing, (2) the terms are fair and reasonable, (3) the client understands them (4) the client has an opportunity to seek independent counsel, and (5) informed consent in writing

Question 38

Indispensable Party

Answer 38

Factors
1. extent to which judgment would prejudice parties
2. extent to which harm can be reduced or avoided by protective provisions
3. Whether a judgment rendered would be adequate
4. Whether the plaintiff would have an adequate remedy if action were dismissed for nonjoinder

Question 39

Initial disclosures

Answer 39

Must disclose names and addresses of people who may likely have discoverable information (except people used solely for impeachment)

Copy or description of all documents disclosing party has in its possession, custody, or control, that is relevant

Computation of each category of damages claimed by disclosing party

Summary -
Names and, if available, contact information of witnesses who likely have discoverable information (except witnesses used solely for impeachment)

Copy or description of documents to be discovered

Question 40

Withholding discovery requested documents on basis of privilege

Answer 40

must expressly state claim of privilege and materials/communications not produced so other party can reasonably assess the appropriateness of that privilege