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UBE Priority > The Hard Ones > Flashcards

The Hard Ones Flashcards

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1
Q

Special venue rules:
1. FTCA
2. Foreign Resident
3. Foreign Govt
4. Fed officer in capacity
5. Mass torts

A
  1. FTCA- act/omm OR Ptf resides
  2. Foreign citizen- ANY dist
  3. Foreign Govt- act/omm/prop OR DC
  4. Fed officer in capacity- act/omm/prop OR Ptf resides
  5. Mass torts- act or where ANY Def resides
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2
Q

TRO vs Prelim Inj

A

TRO- max 14D (unless good cause/consent) and notice unnec if - under oath- Aty shows irreparable harm will result and certifies efforts for notice + reasons why notice unnec

Prelim Inj- preserves status quo pending an outcome of an action until injunctive hearing. must show LIKELY TO SUCCEED ON MERITS, IRREPARABLE HARM in absence of inj (NOT just $$$ damages), equities are balanced, inj is in the BIOTPublic and movant posts BOND (in case nonmovent is harmed)

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3
Q

The full Erie analysis

A
  1. Conflict btwn sub & pro law?
  2. If yes, does the fed law directly address?
  3. If yes, ask if it’s arguably pro & avoids mod a sub right (if no- use state)
  4. If the fed law does not directly address, ask if the state law is outcome determinative and there is no countervailing fed policy.
    *avoid forum shopping
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4
Q

3 situations that allows suing a foreign state

A
  1. Tort
  2. Property seized in violation of international law
  3. Commercial activity here
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5
Q

A party may voluntarily dismiss a claim w/o a court order if ____________ or_________________

A

Stipulation (by all parties who have appeared) OR NODismissal BEFORE RESPONSIVE PL served (if none, then before evidence is introduced)

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6
Q

(Crim) False Pretenses occurs when… (3)

A
  1. Def obtained title of property (trans)
  2. By knowingly misrepresenting a past/present material fact THAT THE VICTIM RELIED ON
  3. W/ the specific intent to defraud
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7
Q

Demanding a jury trial (3 procedural requirements)

A
  1. AIC over $20
  2. Demand served within 14D of last PL directed to the issue served
  3. Filed with the CT within RSB time
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8
Q

Attractive nuisance elements (4)

A
  1. The artificial condition exists where the land possessor K/SHN children likely to trespass
  2. The land possessor K/SHN that the condition poses an unrsb risk of serious bodily harm or death to children
  3. Children of the trespassers agre cannot rsbly discover or appreciate the risk and
  4. The risk outweighs the condition’s utility and the burden of eliminating the risk
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9
Q

When should the court enter judgment on the pleadings

A

there is no genuine issue of material fact and the movant is entitled to JAMOL

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10
Q

Content neutral regulations - what standard? + define
1. On traditional public forum
2. Designated public forum
3. Nonpublic forum

A
  1. Intermediate- restriction must be narrowly tailored to important govt int & leave open alt channels
  2. Same ^^^ (if used for designated purpose)
  3. Rat’l- rsnbly related to a leg govt int
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11
Q

Voluntary manslaughter vs 2nd degree murder

A

Vol- intentional killing based on ADEQUATE PROVOCATION / heat of passion (or imperfect self defense)

2nd- intent to kill OR inflict serious bodily harm OR reckless conduct KNOWING high risk of death

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12
Q

Test for ineffective assistance of counsel (2 elements plus definitions)

A
  1. Deficient performance (that fell below an objective RSB professional standard)
  2. And Prejudice (RSB probability that but for deficiency, outcome would have differed)
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13
Q

Public figure IIED in publication must show (2)

A

False statement made with actual malice

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14
Q

Difference btwn malicious prosecution and abuse of process

A

Malicious P- intentional and malicious legal action w/o PC for an improper purpose where the action was dismissed in the movant’s favor (includes civil)
Abuse of process- proper/legal procedure w/ perverted ulterior motives (and then damages)

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15
Q

Conspiracy CL vs MPC

A

CL- an agreement 2 or more to commit a crime with the intent
MPC- ^^ only one OK but NEED OVERT ACT (unless 1st or 2ndD felony)

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16
Q

Elements of fraud (3)

A
  1. D knowingly or recklessly misrepresented a material fact with the intent to induce P’s reliance
  2. P rsbly relies on the misrep
  3. And suffers pecuniary loss
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17
Q

State law may impair a private K when… (2)

A
  1. The impairment is RSB/narrowly tailored
  2. And aims to achieve an important state interest
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18
Q

Standard for campaign speech vs expenditures

A

Int S

SS

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19
Q

Standard and 2 requirements for commercial speech

A

Int S & must be lawful activity that is neither false nor misleading (ex can’t prohibit tobacco ads 1000 fr of a school - too broad)

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20
Q

Art IV Privileges and Immunity’s Clause protects…

A

State discrimination of citizens from other states for the exercise of fundamental rights (such as business vs recreation)

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21
Q

3 requirements for incorporation by reference

A
  1. Writing existed at the time of will execution
  2. Intended to be incorporated
  3. And is described in the will with sufficient certainty to permit ID
22
Q

General ROL (no merchant vs merchant)

A

Merchant retains risk until buyer RECEIVES goods (unless buyer breach)
No merchant- ROL passes to buyer upon TENDER

23
Q

5th A self incrim covers TESTIMONIAL STATEMENTS… which are..?

A

Statements in which an objective witness would RSBly conclude would be made available for a LATER TRIAL (custodial, affidavit, criminal ID)

*NOT statements to PO in emergency, statements to other public officials like teachers, very young child

24
Q

Shelly’s R vs Worthier Title + what happens to both if inapplicable?

A

Shelly’s- prevents a contingent remainder in Grantee’s heirs to give FSA. If inapplicable, heirs keep FI

WT- voids FI in GRANTOR’S HEIRS (& leaves a reversion). If inapplicable, Grantor’s heirs keep remainder

25
Q

Landowner liability to a licensee

A

LL must warn/make safe all hidden known dangers

26
Q

2 Req.’s for PRIOR RESTRAINT

A

special societal harm and procedural safeguards

27
Q

To set aside a default judgment, the court will consider… (3)

A

D’s failure to act = willful?
Any merit to D’s claim?
Any prejudice to P?

28
Q

A Party May voluntarily dismiss w/o court approval or stipulation in these two instances

A

Prior service of answer or MSJ

29
Q

JAAMOL must be motioned before…

A

The jury renders the verdict

30
Q

Which civil rights amendment may regulate wholly private conduct?

A

13

31
Q

General enf R:
3 ways an intended B’s rights VESTS

A

An INTENDED B May only enforce rights under a K if vested. (Through Detrimental/material RELIANCE
Manifests assent through notice by a P, Files lawsuit)

32
Q

the right against 5th A self incrimination may be invoked upon….
Which can be defined as…

A

Upon TESTIMONIAL STATEMENTS- If the testimony can be used against him in a later criminal matter

33
Q

Upon partition of a TIC, account for ___________ but not __________

A

Necessary repairs but not business income

34
Q

SL wild animal exception even if they caused

A

Trespasser on LL’s property

35
Q

Negligent entrustment causes_______(def + 1 requirement)

A

OWNER to be held liable for negligence acts of another entrusted with her property IF K/SHN of a dangerous propensity

36
Q

Accomplice liability vs accessory after the fact

A

Accomplice- aids/abets a principal prior or during the commission of a crime with the specific intent that the principal commit the crime

Accessory after the fact- knowing principal committed felony and then helps principal avoid arrest/conviction (independent crime)

37
Q

Deadline for initial discovery conference vs deadline to submit discovery plan

A

Initial conference = at least 21D before scheduling order due

Disc plan due within 14D of initial conference thereafter

38
Q

Claim preclusion (simplified)

A

A VFJOTM precludes parties (or parties in privity) from re-litigating an identical claim
*regardless of state/fed ct

39
Q

Consequential damages are _________ and will be available if ______________.
Incidental damages are________
Reliance damages are _________

A

Consequential damages are for loss arising from a FSB costs that Will be available if Def KNEW/SHK about special circumstance.
Any commercially rsb costs incurred resulting from the breach.
Reliance damages put the non breaching P in the position as if the K had never been made (pair this with restitution unjust enrichment)

40
Q

Implied in law K (3 part test)

A
  1. P confers measurable benefit on D
  2. P acted without gratuitous intent
  3. And it would be unfair to let D retain benefit w/o compensating P
41
Q

Duress vs undue influence

A

Duress- improper threat with no RSB alt
Undue influence- unfair/excessive persuasion from someone in pwr/ special relationship

42
Q

The Equal Protection Clause of the 14th A prohibits….

A

State actors from treating similarly situated people in a dissimilar manner without adequate justification

43
Q

14th A enabling clause permits

A

permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the amendment, but not to expand those rights or create new ones.

44
Q

In ruling on a RMJAMOL, a ct may enter these three remedies (3)
+deadline

A
  1. Allow judgment on the verdict
  2. Order a new trial
  3. Direct entry of JMOL
    RJMOL must be filed w/in 28D of judgment entry
45
Q

Slander requires a showing of ______________ damages unless ________

A

Special/actual unless slander per se

46
Q

Defamation Ptf public figure vs private figure matter of public concern
*exception?

A

Private - false statement + actual malice (reckless or knowledge of falsity)
Private public concern- false statement + neg
Exception = privilege

47
Q

Wth is scienter?

A

Making a statement knowing it’s false

48
Q

What type of trusts will find RAP inapplicable?

A

Charitable trusts

49
Q

Fraud in the inducement vs fraud in the execution

A

Inducement- when a person deceives Ptf regarding facts related to the instrument
Execution- when a person deceived a Ptf regarding the nature of the doc being signed

50
Q

The comity CL provides…

A

That citizens of each state are entitled to the priv & imm of all states

51
Q

A power of appointment is

A

Authority granted to a person (donee) enabling the donee to designate a new owner of property and how they take it (usually arises with wills that create trusts)
Ex. T’s will leaves “my property to C to give to anyone that C chooses”

52
Q

Juveniles may NOT have these two types of sentences:
(Hint- one is non-homicide the other is homicide)

A
  1. No life w/o parole for non-homicide
  2. No mandatory life w/o parole for homicide

UBE Priority (10 decks)

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