Review Flashcards
Congressional taxing and spending power
1) May tax and spend for general welfare
2) Uphold tax/spend if any conceivable relationship to govt purpose
3) May condition such grants of money
Best constitutional justification for Congress spending money?
Best answer is always taxing and spending.
Rules for CC (federal)
Congress has power to regulate interstate commerce. This plays in 2 ways:
1) Always a winning pick when looking for a basis for a law.
2) If Congress delegates to states the power to legislate in commerce, always uphold the law.
Rules for CC (state)
State can’t place undue burden or impermissible restraint on commerce. Balance benefits of statute and burden on commerce.
1) Constit challenge on basis of CC is always a possible challenge
2) Particular types of legislation that always violate CC: state can’t protect local economic interests, can’t totally bar exports of local resources, can’t unduly restrict imports unless dangerous.
When is there preemption of state law?
If Congress passes statute and preempted field, state legislation is unconstit. Preemption when:
1) Congress says so
2) Court determines intent of Congress was to preempt the field.
* *If purpose of fed and state laws are different, conclude there was no preemption on MBE.
What is test for standing?
1) Injury or threat of injury
2) D is cause of injury
3) If P wins, injury will be resolved
What to remember w/ respect to advisory opinions?
1) fed courts can’t issue advisory opinions. no exceptions.
2) congress can’t authorize courts to write advisory opinions.
3) state courts may be able to issue advisory opinions.
4) how can you tell you’re looking at advisory opinion? fed ct decision subject to review by another branch of govt.
When may there be 3d party standing?
Seller of goods or provider of services may sue if she has suffered harm and customer’s rights are being interfered with in a way that is linked w/ seller’s harm.
Full faith and credit
judgment in state 1 must be given FFC in state 2 if:
1) state 1 had jur
2) state 1 judgment on merits
3) state 1 judgment is final
EPC applies when
state is treating 2 groups differently and all groups w/in same state.
If non-govt entity is being sued under constitutional claim
Look for substantial nexus between non-govt D and govt such that non-govt entity engages in govt action:
1) licensing or receipt of money or land is never enough to be a substantial connection to govt on MBE.
2) once you’ve concluded no govt action, answer saying constitution doesn’t apply wins.
What is the difference between EPC in federal and state contexts?
There is no EPC in 5th Am that applies to federal govt, but federal govt applies 5th Am DPC to prohibit discriminatory action by federal govt.
If EPC and 1st Am appear to be violated, what’s the rule of thumb?
Use 1st Am to ID best constitutional challenge because state is less likely to challenge successfully.
Free exercise v. establishment clause
Free exercise: law applicable to everyone that was not intended to interfere w/ religion can be applied to a person even if it requires conduct contrary to the tenets of A’s religion.
Establishment: Does govt action endorse religion? Lemon test–1) there is secular purpose for law, 2) effect of law can’t advance or inhibit a religion, AND 3) can’t have excessive govt entanglement w/ religion.
Privileges and immunities clause of 14th Am
We know this has something to do with interstate travel, but court hasn’t told us what this means. SO this can never be the right answer on the MBE.
What are the always wrong answers?
1) 14th Am privileges and immunities clause
2) Congress may not delegate to an admin agency–not a valid claim since 1930.
3) Federal stat unconstitutional because 10th Am reserves subject matter to states.
4) Congress has power to legislate for general welfare.
5) Congress has power to act under police power.
6) Federal stat unconstitutional under 14th Am.
7) P does/doesn’t prevail because she has a right not a privilege. Language is antiquated.
8) Ex post facto clause applied to non-criminal statute
9) State statute unconst because it places burden on commerce.
10) Nec & Proper w/o including other power this relates to.
11) Dismissing lawsuit as political Q
12) Invalidating legislation under contracts clause
13) Prez violates duty to see law faithfully executed.
What is the only time to pick quasi K as an answer?
1) No formal agreement between parties AND 2) unjust enrichment.
What are the battle of forms rules?
In Art. 2 Ks:
1) If offeree accepts offer and at same time makes a material alteration, terms of offer control and changes don’t apply.
2) If offeree accepts and makes non-material change, non-material change is included in K UNLESS offeror timely objects.
3) What is a material alteration? One that substantially affects economic risks, benefits, liabilities, or remedies.
What if there’s a violation of perfect tender?
In Art. 2:
1) Accept goods and pay K price
2) Buyer can timely reject goods and sue for damages
3) Buyer may accept in part and reject in part.
BUT if there’s a notice of accommodation, treat delivery as counteroffer that buyer can accept or reject but cannot sue under K.
What is the rule with surety agreements?
Must be in writing to be enforceable, but if promisor stands to benefit in answering for someone else’s debt, then it gets out of SOF. This is the main purpose exception.
K modification rules?
At CL, need new consideration.
Art. 2: only care about GF. BUT* be careful about SOF.
When do 3d party beneficiary rights vest?
3d party learns of agreement and one of the following:
1) assents
2) relies
3) sues under the K
What is the 10 day exception to SOF?
Between two merchants, if one party memorializes an oral agreement in writing, the other party has 10 days to object or the memorialization stands.
All Ks are assignable or delegable in writing or orally EXCEPT
1) long term requirements Ks OR
2) unique personal services Ks
When are liquidated damages allowed?
1) At time of entering K, damages are difficult to ascertain.
2) Provision itself is a reasonable forecast of compensatory damages not a punishment.
What is the standard seller remedy under UCC?
K price - resale price = remedy.
BUT if volume seller, remedy = lost profits.
Specific intent crimes
1) Property offenses (larceny, robbery, etc.)
2) Incohate crimes
3) First degree murder
4) Attempt no matter what the underlying offense is.
What does attempt require?
1) intent
2) overt act
* Merger applies to attempt*
What are defenses to specific intent crimes?
1) voluntary intoxication
2) any mistake of fact (even if unreasonable)
What are the malice crimes?
1) Arson
2) Murder
What are the general intent crimes?
All crimes that don’t involve malice or intent. Only reasonable mistakes of fact are a defense.
Five elements of crime
1) actus reus
2) mens rea
3) concurrence of 1 + 2
4) causation
5) harm
* Negating an element of crime is a better argument for D than arguing for a defense.*
Murder types
1) Intentional: specific intent
2) Intent to inflict serious bodily injury: murder at CL
3) Felony murder: unintentional killing during commission or attempted commission of inherently dangerous felony i.e. BARRK–burglary, arson, robbery, rape, kidnapping
4) Depraved heart/involuntary manslaughter: depraved heart = recklessness showing unjustifiably high risk to human life; involuntary manslaughter = criminal negligence. Line is blurry. If people are present or should be present, then depraved heart.
