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Rules Flashcards

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1
Q

Intergovernmental immmunity

A

state and local governments cannot tax or regulate the activities of the federal government

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2
Q

Presidential pardons

A

limited to violations of federal law

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3
Q

Prior inconsistent statement

A

If sworn - admissible for its truth and to impeach
If not sworn - admissible only for impeachment + can provide extrinsic evidence (but witness must be given opp. to explain)

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4
Q

Business records exception

A

Record must be kept in regular course of business; declarant must have personal knowledge of facts stated or received info from someone with personal knowledge who shared it in ordinary course of business

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5
Q

Medical exception

A

May concern present or past condition; may not include statements of blame

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6
Q

Spousal immunity

A

Allows testifying spouse to refuse if there is an existing marriage at the time of testimony

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7
Q

Marital communications privilege

A

Applies to communications intended to be privileged b/w spouses; either spouse can prevent testimony; communication must have been made during valid marriage

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8
Q

Non-hearsay exemptions

A

Party-opponent statements; certain statements by testifying witness (prior sworn inconsistent statement, prior consistent statement, prior identification)

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9
Q

Hearsay exceptions (availability irrelevant)

A

Present sense impression; excited utterance; present state; medical exception; past recollection recorded; business record exception; public records exception

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10
Q

Hearsay exceptions (declarant unavailable)

A

Former testimony; dying declaration; declaration against interest

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11
Q

Impeachment

A

Either party may impeach a witness
Methods: reputation or opinion evidence; prior inconsistent statement; prior conviction; specific acts of misconduct; bias or motive to misrepresent; sensory deficiencies, contradictory facts

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12
Q

Impeachment based on bad acts

A

May be brought out through cross but no extrinsic evidence

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13
Q

Impeachment based on motive/bias

A

Extrinsic evidence allowed w/ court’s discretion if witness denies

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14
Q

Impeachment based on prior inconsistent statemment

A

Witness must be given opportunity to explain/deny + adverse party given opp. to examine witness about statement

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15
Q

Impeachment based on reputation or opinion evidence

A

Extrinsic evidence (e.g., character witnesses) allowed

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16
Q

Rehabilitation

A

Explanation to impeachment on redirect
Can argue good character for truthfulness (reputation or opinion testimony)
Prior consistent statement (if accused of some motive or if some different ground, show that statement has tendency to rehabilitate witness’s credibility)

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17
Q

Introducing document used to refresh witness’s testimony

A

Only adverse party can ask for document to be entered onto the record

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18
Q

Defamation of a public figure

A

Must show actual malice

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19
Q

Invasion of privacy

A

Divulging of extremely sensitive information that would be objectionable to a reasonable person
For public figures, if information is a matter of public concern, and no actual malice –> no liability

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20
Q

11th Amendment

A

Private parties and foreign governments cannot generally sue a state unless Congress authorizes, clearly acting to enforce a Civil War amendment

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21
Q

Suits against state officials

A

11A does allow suits against state officials for damages w/r/t their personal capacity or in their official capacity to enjoin them from taking action that violates the Constitution or federal law

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22
Q

Dormant Commerce Clause

A

Allows states to regulate interstate commerce where the federal government has not regulated or preempted state laws
may not discriminate against out of state commerce or unduly burden it

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23
Q

Modification of K under CL

A

Requires additional consideration (promise to perform existing legal duty not sufficient)
Modern trend allows if modification is fair, equitable, and need for modification was unforeseeable at time of entering the contract

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24
Q

Modification of K under UCC

A

Allowed if in good faith

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25
Q

Ability to revoke offer

A

Offeror allowed to revoke at any time beforoe acceptance, unless there’s an option K, merchant’s firm offer, or detrimental reliance

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26
Q

Expectation damages

A

Put π in position they would have been in if K had been fulfilled

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27
Q

Cost of restoration vs. difference in value

A

For land restoration Ks: value measure encourages breach but some courts use it
Consider: if ∆ knew intended purpose for land, only restoration will allow it to be used for original purpose, willfulness of breach

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28
Q

Consequential damages

A

Losses over and above standard expectation damages (e.g., lost profits)
Foreseeable (by reasosnable person) and reasonably ascertainable

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29
Q

Certainty rule (consequential damages)

A

Traditionally: π must prove that losses were certain, not speculative
Modern: sufficient evidence to determine with reasonable certainty

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30
Q

Reduction of consequential damamges

A

For money saved due to breach + avoidable damages (mitigation)

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31
Q

Requirements for deed

A

Written
Description of land
Signed by grantor
ID of parties by name or description
Words of intent

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32
Q

Adverse Possession elements

A

Actual and exclusive
Open and notorious
Continuous
Hostile

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33
Q

DP for unwed fathers

A

Protected if unwed father has demonstrated full commitment to the responsibilities of parenthood by participating in the rearing of his child

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34
Q

Factors for father participating in childrearing

A

Any significant responsibility w/r/t daily supervision, education, protection, or care

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35
Q

Other factors for whether father can veto adoptioni

A

whether parents lived with each other and cared for the child; whether unwed father admitted paternity or paid child support

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36
Q

Adoption requirements

A

Generally, consent from both of the biological parents. Unwed father - depends on level of involvement (DP analysis)

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37
Q

Cohabitation contract

A

Enforced if sexual relations are not the only consideration for the contract
Can be a basis for forcing a division of property

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38
Q

Common Law marriage

A

Capacity, consent, cohabitation, and holding out

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39
Q

Recognition of marriages

A

Must be recognized in other states

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40
Q

Full Faith and Credit for Child Support Orders Act

A

Must give FF&C to another court’s child support order if court had jx over the matter and the parties, and parties had reasonable notice and opp. to be heard

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41
Q

Federal Parental Kidnapping Act

A

State may not modify a custody order of another state if one of the parties continues to reside in the issuing state and that court continues to have/does not decline jx

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42
Q

Uniform Child Custody Jurisdiction and Enforcement Act

A

Court that made the initial custody determination has continuing, exclusive jurisdiction until it determines that neither the child nor the parents continue to reside there, or the child no longer has a significant connection with the state and substantial eveidence relating to the child’s care, protection, training, and personal relationships is no longer available there

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43
Q

Modification of custody order

A

Whether it is in the best interest of the child and whether there was a substantial, material change

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44
Q

Custody and visitation schedule factors

A

Wishes of the parents/child; relationship with each parent; child’s adjustment to home, school, and community; and mental and physical health of parties involved

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45
Q

Modification of child support

A

Based on substantial change of circumstances
Cannot modify retroactively

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46
Q

Marital property

A

All assets acquired during marriage unless acquired through gift, bequest, devise, or descent

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47
Q

Property acquired before marriage but paid for after with marital funds

A

Most courts apportion b/w separate and marital property in proportion to the contribution of separate and marital funds

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48
Q

Consent for divorce?

A

One spouse thinking the marriage should be saved is generally insufficient to prevent divorce judgment if other spouse disagrees and is not interested in continuing the marriage

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49
Q

No-fault divorces

A

Dissolution of a marriage w/o regard to marital fault - generally upon a showing that the marriage is irretrievably broken and that the parties have been living separate and apart for a specified period of time

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50
Q

Jurisdiction over a divorce action

A

One party must be a bona fide resident - states can set minimum durational residency requirement. π’s residence alone may be basis, no need for PJ over ∆

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51
Q

Jurisdiction for property division

A

Court cannot determine out-of-state property rights or right to support unless it has jx over both parties

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52
Q

Federal Interpleader Act

A

interpleader can be brought if any two claimants are citizens of different states and the amount in controversy is $500 or more. Complete diversity is not required.

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53
Q

Perfection by filing

A

Financing statement with debtor and secured party’s name and mailing address, description of collateral

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54
Q

Name for financing statement

A

If unexpired driver’s license –> match
If registered org –> match public organic record (seriously misleading will invalidate)

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55
Q

Automatic perfection

A

PMSI in consuer goods

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56
Q

Perfection by taking possession

A

Ok for most types of collateral (except general intangibles, deposit accounts

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57
Q

Perfection by control

A

Required for investment property, nonconsumer deposit accounts, and electronic chattel paper

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58
Q

Control of NDAs

A

Bank in which account is maintained automatically has control
Can put account in secured party’s name
Agree in authenticated record w/ debtor and the bank that bank will comply w/ secured party’s orders

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59
Q

Enactment of laws

A

Bicameralism + presentment (or override)
Congress can’t seek further control by requiring specific Congressional approvals w/o presentment

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60
Q

SCOTUS appellate jurisdiction

A

Art. III gives Congress power to make exceptions without qualification

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61
Q

Prior identification

A

Not subject to hearsay exclusion if declarant is testifying

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62
Q

Is a TRO immediately appealable?

A

No, unless extended beyond a “like period” which effectively converts it into a preliminary injunction

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63
Q

Specific instances of good conduct

A

Defendant cannot introduce unless character directly in issue

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64
Q

Affirmative defenses

A

Are waived if not in answer/ first 12(b) motion

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65
Q

Modification of contract price

A

Promise to refrain from suing on a claim may constitute consideration (even if claim is invalid, as long as they believe it is valid in good faith/reasonably)

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66
Q

Postconviction relief for ineffective assistance of counsel

A

Must show that counsel’s performance was deficient and that, but for the deficiency, the outcome would have been different (reasonable probability, not clear and convincing evidence, required)

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67
Q

Present state of mind exception to hearsay

A

E.g., motive, intent, or emotion
Availability irrelevant

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68
Q

Easement appurtenant

A

All who possess or succeed to title of the dominant tenement become entitled to the benefit of the easement

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69
Q

Performance excused by impracticability

A

Occurrence of unanticipated or extraordinary event was basic assumption of the parties in making the K and neither party assumed the risk

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70
Q

Scope of cross-examination

A

1) matters brought up on direct
2) matters concerning witness’s credibility

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71
Q

Due Process and fundamental right

A

Action is valid only if it passes strict scrutiny: necessary to serve a compelling state interest

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72
Q

Essential facts are unavailable and discovery is required

A

Excuse to defer action or deny motion for summary judgment

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73
Q

Expert testimony that goes to the ultimate issue

A

Generally allowed (except for mens rea)

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74
Q

Restrictions on use of supplemental jurisdiction

A

Applies only to plaintiffs
Look up the rest!!

75
Q

Fundamental right to travel

A

Privileges or Immunities clause, Art. 14 (double check)

76
Q

Deed not effective…

A

unless it has been delivered

77
Q

Right of possession postponed until grantor’s death

A

Deed mmay be held testamentary and therefore void

78
Q

If grantor executes deed and gives it to another with instructions to pass it upon grantor’s death

A

Gift is inter vivos and not void, but grantor must relinquish absolute and unconditional control (no strings attached to person holding the deed)

79
Q

Preclusive effect of a judgment

A

Recognizing court should not give a judgment any greater effect than the rendering state would

80
Q

Jurors drop below 6 during the trial

A

Mistrial results unless parties stipulate to fewer jurors (but must start with at least 6)

81
Q

Who can remove a case?

A

Only defendants

82
Q

Shelter rule

A

A person who takes from a BFP will prevail against any interest that the transferor-BFP would have prevailed against, even if the transferee had actual knowledge of the prior unrecorded interest

83
Q

Introduction of a treatist

A

Hearsay exception allows it to be read into evidence only when used on direct or cross of an expert witness

84
Q

Invasion of privacy

A

1) Appropriation for commercial advantage
2) Intrusion on π’s affairs or seclusion
3) False light
4) Public disclosures of private facts

85
Q

Purchase-money mortgage vs. judgment lien

A

PMM takes precedence over any other claim, including previously filed judgment lien

86
Q

Clause prohibiting assignment of the contract

A

Construed as barring only the delegation of the assignor’s duties

87
Q

Regulation of commercial speech

A

Protected by 1A but has special test: if about lawful activity and truthful/not misleading, regulation valid only if it serves a substantial government interest, directly advances that interest, and is narrowly tailored

88
Q

Assumption of risk: strict liability

A

Affirmative defense (can be complete or partial depending on jx)
E.g., ignoring warning signs and entering property

89
Q

Obscenity

A

Description/depiction of sexual conduct that, taken as a whole by the average person, applying contemporary community standards: appeals to the prurient interest in sex; portrays sex in a patently offensive way; and, using a national standard, does not have serious literary, political, or scientific value

90
Q

Valid waiver of conditioin

A

Does not require consideration and party must perform

91
Q

Transfer of venue

A

Allowed even if already proper if in the interest of justice and for the convenience of the parties and witnesses

92
Q

Commercial supplier for strict liability

A

includes manufacturer, retailer, assembler, or wholesaler

93
Q

Marketable title

A

Free from doubt or any reasonable threat of litigation
Includes: an easement that reduces the value of the property renders title unmarketable; mortgage but seller has right to satisfy the mortgage at closing with sale proceeds

94
Q

Equitable servitude

A

Does not require horizontal privity

95
Q

Restrictive covenant

A

Horizontal privity required for burden to run

96
Q

Mitigation for employment contract

A

Breaching employer must show that there was a comparable job in the same locale

97
Q

Plain error in jury instructions

A

Court may review even if not preserved by an objection if the error affects a substantial right

98
Q

Free Exercise Clause test

A

Can’t punish best on religious belief: applies only to government conduct that targets conduct specifically b/c it is religiously motivated
Generally applicable, religiously neutral regulation that incidentally burdens religion is valid

99
Q

Establishment Clause test

A

Must satisfy strict scrutiny
If facially neutral, must align with historical practices and understandings
Focus on neutrality, coercion, historical practice, and Founders perspective

100
Q

Striking insufficient defenses

A

Do so before responding to a pleading, within 21 days after service of the pleading

101
Q

Assuming a mortgage

A

Buyer promises to pay the loan, but original mortgagor becomes secondarily liable as a surety

102
Q

Sublessee relationships

A

Privity of estate b/w sublessee and tenant
Tenant remains in privity of estate w/ LL
Sublessee not in privity of estate or K with LL

103
Q

Two marital privileges under federal courts

A

1) spousal testimonial privilege
2) confidential marital communications privilege

104
Q

Additional terms under UCC

A

Effective as an acceptance (unless acceptance expressly conditional on assent to additional/different terms)
If both parties are merchants, additional terms included unless they materially alter the original terms

105
Q

IIED for harm to third person

A

π must show they were present when injury occurred, π was close relative of injured person and ∆ knew that

106
Q

IIED basic elements

A

Transcends all bounds of decency
π must suffer severe emotional distress
Actual damages required

107
Q

Solictation

A

Inciting, inducing, or advising another to commit a crime with the specific intent that they do so

108
Q

Abnormally dangerous activity

A

Activity must create a foreseeable risk of serious harm even when reasonable care exercised by all actors, and activity is not a matter of common usage inn the community

109
Q

Public use includes

A

Taking property to turn it over to a private developer if government believes it will benefit the public (e.g., economic development)

110
Q

Robbery

A

Taking of personal property from other’s person or presence by force or intimidation with the intent to permanently deprive them of it (includes force to retain possession immediately after)

111
Q

Valid treaty can…

A

nullify state and local laws that are in conflict, e.g., impeding imports b/w signatory nations of treaty

112
Q

Receipt of stolen property

A

Receiving possession and control of stolen personal property known to have been obtained in a manner constituting a criminal offense by another person with the intent to permanently deprive the owner of their interest

113
Q

Accessory after the fact

A

One who receives, comforts, or assists another, knowing they’ve committed a felony, in order to help them escape arrest, trial, or conviction

114
Q

Concurrent tortfeasors

A

are jointly and severally liable for an indivisible injury

115
Q

Jury selection

A

Critical stage of trial at which the defendant is entitled to be present

116
Q

Offer to pay medical expenses

A

Not admissible but accompanying admissions of fact are

117
Q

Victim’s character evidence

A

Generally inadmissible (for propensity purposes) but admissible to prove ∆’s state of mind at time of altercation

118
Q

Non-propensity purposes

A

MIMIC: motive, intent, mistake, identity, common plan or scheme
Must be contested to admit

119
Q

Proper foundation for past recollection recorded

A

witness has insufficient recollection; had personal knowledge of the facts; record was made by the witness, under their direction, or they adopted it; record made when matter was fresh; record accurately reflects witness’s knowledge

120
Q

Admitting record of past recollection into evidence

A

Cannot be admitted unless offered by adverse party, but can be read and heard by the jury

121
Q

Impeachment of criminal ∆ based on felony not involving dishonesty

A

Excluded if prosecution has now shown that its probative value outweighs its prejudicial effect

122
Q

Impeachment of other witnesses based on felony not involving dishonesty

A

Standard 403 balancing test

123
Q

403 balancing test

A

Exclude if probative value is substantially outweighed by prejudicial effect

124
Q

Vicarious statements by agents and employees

A

Must concern matter within scope of agency/employment and be made during the existence of the agency/employment relationship

125
Q

Statement against intierest

A

Interests: pecuniary, proprietary, and penal

126
Q

Use of dying declarationis

A

In homicide prosecution (not attempted) or any civil case only

127
Q

Residual hearsay exception

A

Sufficient guarantees of trustworthiness: consider totality of circumstances and any corroborating evidence
Must be strictly necessary (more probative than any other reasonably produced evidence)
Must give reasonable notice to adversary

128
Q

Habit evidence

A

Describes a person’s regular response to a specific set of circumstances
Admissible to prove that the conduct of a person was in conformity with the habit

129
Q

Lay witness

A

Opinions generally admissible but allowed if rationally based on perception of witness, helpful to a clear understanding of the testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge

130
Q

Insufficient process

A

Defects in the documents and their contents

131
Q

Insufficient service of process

A

Manner in which documents were delivered, presented, and/or served

132
Q

Ripeness before law or policy is enforced

A

Show: issues are fit for a judicial decision and plaintiff would suffer substantial hardship in the absence of review

133
Q

Standing to challenge congressional spending measures

A

Based on 1A Establishment Clause grounds
Must involve Congress’s spending power

134
Q

Federal Police Power

A

Congress has no general police power, but has this type of power over DC, federal lands, military bases, and Indian reservations

135
Q

Privileges and Immunities (Art. IV)

A

Prohibits discrimination by a state against nonresidents (w/r/t important commercial activities and fundamental rights only)

136
Q

State regulation that is discriminatory against out-of-state residents

A

is invalid unless it furthers an important, noneconomic state interest and there are no reasonable alternatives or the state is a market participant

137
Q

Rational basis

A

Law upheld if it is rationally related to a legitimate government interest

138
Q

Intermediate scrutiny

A

Law upheld if it is substantially related to an important government purpose

139
Q

Strict scrutiny

A

Law upheld if it is necessary (least restrictive means) to achieve a compelling government purpose

140
Q

DP for public employment

A

If tenured or termination only for cause: prior notice and opp. to respond + subsequent evidentiary hearing

141
Q

Substantive due process

A

When government denies a fundamental right to everyone

142
Q

Equal protection analysis

A

When government denies a fundamental right only to some people

143
Q

One-year residency to receive full welfare benefits

A

Invalid

144
Q

One-year residency to receive state-subsidized medical care

A

Invalid

145
Q

One-year residency to vote in state

A

Invalid

146
Q

30-day residency to vote in state

A

Valid

147
Q

One-year residency to get divorced

A

Valid

148
Q

Fundamental rights

A

Right to interstate travel, privacy, voting, and 1A rights
All other rights only get rational basis

149
Q

Public use

A

Satisfied if action is rationally related to a legitimate public purpose (health, safety, economic reasons, etc.)

150
Q

Content-based regulations

A

Strict scrutiny

151
Q

Content-neutral regulations

A

Generally subject to intermediate scrutiny: must advance important interests unrelated to suppression of speech and must not burden substantially more speech than necessary

152
Q

Traditional public forums

A

Streets, sidewalks, public parks

153
Q

Designated public forums

A

Government has thrown open for speech on permanent or limited basis by practice or policy

154
Q

Scrutiny for traditional/designated public forums

A

Content-based: strict
Content-neutral: intermediate - narrowly tailored to serve important government interest + leave open alternative channels of communication

155
Q

Scrutiny for limited public forums and nonpublic forums

A

Regulations are valid if they are viewpoint neutral and reasonably related to legit government purpose
If viewpoint based: strict

156
Q

Regulation of government employee’s speech

A

Within official duties: can be punished/regulated
Involves matter of public concern: punished/regulated only if employer’s interest in providing efficient public service outweighs employee’s interest as a citizen in commenting on a matter of public concern

157
Q

M’Naghten rule

A

Right-wrong test
1) disease of the mind
2) caused a defect of reason
3) such that ∆ lacked the ability to either know the wrongfulness of their actions or understand the nature and quality of their actions

158
Q

Irresistible impulse test

A

Self-control test
Unable to control their actions or conform their conduct to the law

159
Q

Durham test

A

Crime was the product of their mental illness (but-for)

160
Q

MPC insanity test

A

∆ had mental disease or defect and therefore lack the substantial capacity to either appreciate the criminality of their conduct or conform their conduct to the requirements of the law

161
Q

Recklessness

A

Conscious disregard of a substantial and unjustifiable risk

162
Q

Criminal negligence

A

Failure to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care (objective standard)

163
Q

Automobile exception

A

PC to believe that automobile contains contraband or fruits, instrumentalities, or evidence of crime
Can search anywhere in automobile in which items for which PC exists may be hidden

164
Q

Car search after arresting driver

A

If arrestee is unsecured or there is reason to believe vehicle may have evidence, can search anywhere in passenger compartment (not trunk!)

165
Q

Stop & Frisk standard

A

Stop: articulable and reasonable suspicion of criminal activity
Frisk: reasonably believe that suspect has a weapon

166
Q

Scope of stop & frisk

A

Patdown of outer clothing unless specific info that weapon is hidden in particular area
Plain feel for weapon or contraband

167
Q

Invoking right to remain silent

A

Must be explicit, unambiguous, and unequivocal
Police probably may re-question them about different crime after a break if give fresh warnings

168
Q

Invoking right to counsel

A

Must be unambiguous
All questioning must cease until counsel has been provided

169
Q

Separate sovereign rule

A

Separate sovereigns can try ∆ for same offense (no double jeopardy issue)

170
Q

Supplemental jx test

A

Claim must share common nucleus of operative fact
For diversity cases: still need complete diversity

171
Q

Substantive laws for Erie

A

Conflict of law rules
Elements of a claim or defense
SoL and rules for tolling statutes
Standard for granting new trial b/c jury’s damages award was excessive or inadequate

172
Q

Determining factors for whether issue is substantive for Erie

A

Outcome determinative
Balance of interests
Avoid forum shopping

173
Q

Waivable defenses

A

Must be raised in first Rule 12 response: lack of PJ, improper venue, improper process, improper service of process

174
Q

Defense that may be raised at any time

A

Lack of subject matter jx

175
Q

Defenses that may be raised any time before or at trial

A

Failure to state a claim upon which relief can be granted
Failure to join a party under Rule 19 (indispensable party)

176
Q

Claim joinder by π

A

May join any additional claim they have against that adverse party - but must still have SMJ

177
Q

Claims by multiple πs or ∆s

A

Must arise from the same T/O and raise at least one common question of law or fact

178
Q

Necessary party

A

Court cannot accord complete relief among existing parties
Absentee’s interest may be harmed
Absentee claims an interest that subjects a party to risk of multiple obligationis

179
Q

Joinder is feasible if…

A

PJ over absentee and federal SMJ over the claim by or against the absentee

180
Q

Indispensable party

A

If court decides to dismiss rather than proceed w/o the absentee

181
Q

Compulsory counterclaim

A

Against opposing party, arises from same T/O

182
Q

Class action requirements

A

Numerosity, common questions, typicality, and fair/adequate representation +
Risk of inconsistent results or injunctive or declaratory relief appropriate or common questions predominate and class action superior methhod

183
Q

Class Action Fairness Act

A

At least 100 members
Any class member is of diverse citizenship from any ∆
Aggregated claims >$5 mill

Bar exam (1 decks)

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