Test 1 Flashcards
Tenancy in common
A tenancy in which each co-tenant has a separate and possibly unequal interest in the property with NO right of surviorship
Joint tenancy
a tenancy in which each co-tenant has an undivided and equal interest in the property WITH the right of survivorship
Not devisable (by will) or Inheritable
Can be conveyed during tenant’s lifetime w/o other tenant’s consent
Tenancy by the entirety
a joint tenancy between married people
Not transferable during the tenant’s lifetime
Crossclaims
Claim for relief against a coparty
Permissive (not compulsory) and can only be asserted if they arise from the same transaction or occurence
Relevant evidence
If the evidence has any tendency to make a material fact more or less probable that it would be without that evidence
Remember, run through this first before attacking other bases of not letting evidence in
When do you have the right to a jury trial?
Applies to serious crimes (more than 6 mo of imprisonment) OR a sentence less than 6 mo if additional penalties are so severe that legislature likely intended for crime to be serious
Composition of the jury
Jury pool - fair cross section of community
Must be impartial and unbiased
Size of juries (state)
At least 6 members
Size of juries (federal)
12 members (unless parties stipulate otherwise)
Jury verdicts
must be unanimous
When can criminal trial proceedings be closed to media/public?
When court demonstrates that the closure satisfies strict scrutiny
Strict scrutiny
Least restrictive means to serve a compelling government interest
Cy Pres Doctrine
Allows the court to make changes to a conveyance to come “as close as possible” to the grantor’s actual intent without violating RAP (few jurisdictions)
“Wait and See” stance
Otherwise invalid interest is valid if it vests within 90 years of its creation
Rule Against Perpetuities
Applies to contingent futures in grantees. RAP renders these interests void if they could vest more than 21 years after the end of some life in being when the interest was created
Standing
What a plaintiff needs to be heard in federal court
P needs a personal stake in the outcome of the case. (injury in fact, causation, redressability)
Injury in fact
actual or imminent harm that is concrete and particularized
Causation
Injury is fairly traceable to D’s challenged conduct
Redressability
A favorable judicial decision will likely remedy or prevent injury
Tenancy at will
Tenancy with no fixed term that can be created by express agreement or by implication if the tenant occupies the premises rent free
Generally continues until terminated by either the LL or T
When does a tenancy at will terminate automatically?
When the LL conveys a PRESENT interest in the property to a third party
FUTURE interest - tenancy continues (future holder has NO RIGHT to terminate the tenancy)
Recorded Recollections
Allows a record to be read/played into evidence if it:
- Concerns a matter that a witness once knew but cannot recall at trial
- Was made or adopted by the witness when the matter was fresh in his/her mind, and
- Accurately reflect the witness’s personal knowledge at the time it was made
Appellate standard of review - Legal Issue
(conclusions of law)
(jury instructions)
De Novo. No deference. Reverse if reasonable belief judge misinterpreted law
Appellate standard of review: Fact Issue (Bench trial)
(credibility of witnesses)
(factual determinations/verdict)
High deference. Reverse if NO reasonable judge would have made that finding
Appellate standard of review: Fact Issue (Jury trial)
(credibility of witnesses)
(factual determinations/verdict)
High deference. Reverse if no reasonable jury would have made the finding
Appellate standard of review: Discretionary Ruling
(injunctions)
(admissibility of evidence)
(sanctions)
High deference. Reverse if decision was unreasonable/arbitrary
Intentional trespass
Intentional entry onto P’s land, without P’s consent. No harm required.
Intentional trespass: Intent to enter
Either (1) the purpose to enter P’s land or (2) the knowledge that the entry is substantially certain to occur
Reckless trespass
reckless entry onto p’s land, without P’s consent, causing harm to land or P
Negligent trespass
Negligent entry onto p’s land, without p’s consent, causing harm to land or P
Congress’s Taxing Power; Direct Taxes
Must be:
- Apportioned evenly among states, and
- Reasonably related to revenue raising
Congress’s Taxing Power: Indirect Taxes
Must be:
- Uniformly applied in every state, and
- Reasonably related to revenue raising
Congress’s Taxing power: Export taxes
Always unconstitutional
Congress’s Spending Power
Funds must be spent for general welfare.
Conditions on receipt of funds must:
- be clearly stated and unambiguous
- Be reasonably related to federal interest in funded program
- not require states to engage in unconst. activity and
- not unduly coerce states into accepting
Sanctions: Fines
Can be imposed and upheld even if P allowed to amend pleadings and it is accepted by judge. Must not be unreasonable or arbitrary, however
General Assignment of an entire contract
Construed as both an assignment of rights and a delegation of duties to a non party (can give goods and has right to receive payment from buyer)
Installment K: nonconforming shipment
buyer may reject shipment only if nonconformity:
- Substantially impairs value of that shipment to buyer AND
- Cannot be cured
Installment K: Cancelling K
Buyer may cancel K if nonconformity substantially impairs value of entire K to buyer
Common Law Burglary
(1) Unlawful breaking and entering of another’s structure or dwelling
(2) W/ specific intent to commit felony therein
Larceny
Felony
(1) when a person unlawfully takes and carries away
(2) another’s personal property
(3) with specific intent to permanently deprive owner of it
Innocent Agent
Person who lacked mens rea but was tricked into committing the crime
Defamation (libel or slander)
To establish, requires:
(1) D knowingly made false statement about P or negligently failed to determine falsity
(2) That type of statement would tend to harm P’s reputation
(3) D intentionally or negligently communicated (published) that statement to a third party
If person reasonably believed, not liable
Tenancy in common
Shared ownership of property where each co-tenant has a separate share of the property, but the right to possess and enjoy the entire property (separate but undivided interests)
What can P recieve for intentional, harmful trespass?
Compensatory damages, punitive damages, and/or injunctive relief
