Themis Multiple Choice Flashcards
To recover under a theory of the public disclosure of private facts about someone, the plaintiff must show that
i) the defendant gave publicity to a matter concerning the private life of another,
AND
(ii) the matter publicized is of a kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public.
Declarant must be unavailable for hearsay in which of the following circumstances
Statement against interest
former testimony
dying declaration
pedigree/family
forfeiture by wrongdoing
Past physical or mental condition - CA only
Threat of physical harm -CA only
Younger abstention doctrine,
a court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute. Usually applies when the defendant
Pullman abstention doctrine
federal court may refrain from ruling on a federal constitutional claim that depends on resolving an unsettled issue of state law best left to the state courts
Younger abstention doctrine usually applies when the D
has been convicted of the crime for which he has been charged in state court
A statement made by a party to the current litigation and its being offered by an opposing party is
not hearsay
Compelled removal of the billboards’ message constitutes a content-based regulation of speech. The state may only regulate the content of speech if the regulation is
ecessary to achieve a compelling government interest and is narrowly tailored to meet that interest.
Content-based regulation is generally only found constitutional when the speech to be regulated falls into one of the following categories:
obscenity, subversive speech, fighting words, defamation, or commercial speech
General rule as it relates to a fixture
ownership of a fixture attached to real property passes to the buyer of the related real property
Claim Preclusion : “VSS”
Issue Preclusion : “SAFE”
Same issue
Actually Litigated
Final Judgement on the Merits
Essential to the Judgement (The Issue was essential)
Private nussiance
substantial, unreasonable interference with another individual’s use or enjoyment of his property.
what must the interference be with a private nussiance
The interference may be intentional, negligent, reckless, or the result of abnormally dangerous conduct.
when does the waste doctine apply
is available only to individuals who both hold interests in the same property, such as a life tenant and a remainderman, or joint tenants.
Constructive eviction is based upon the
landlord’s substantial interference with the tenant’s use and enjoyment of the leasehold premises by breaching a duty owed by the landlord to the tenant.
Public nussiance requires that the D to
unreasonably interfere with the health, safety, or property rights of the community.
When a statute on its face or in practice is discrimatory then the statute may be upheld if the state can establish:
(i) an important local interest is being served, and
(ii) no other nondiscriminatory means are available to achieve that purpose.
Solicitation is the
enticing, encouraging, requesting, or commanding of another person to commit a crime with the intent that the other person commits the crime.
How can you encourage someone for solicitation
The encouragement may take the form of enticement, incitement, request, or command. The crime is completed upon the encouragement.
when is the crime completed under a solicitation
The crime is completed upon the encouragement.
Does the person need to agree to the crime if there is a solicitation
no
Firefighter rule
an emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the injury if the injury results from a risk inherent in the job.
Contracts clause of Article 1 Section 10 prohibits
state legislation from retroactively impairing the obligation of contracts.
Contracts clause does not apply to
federal action or court decision
Can you use claim of right for Robbery
no
Right to lateral support
A landowner has a right to lateral support from adjoining land. If the adjoining land has been improved (i.e., is not in its natural state), the excavating landowner is strictly liable for any damage caused by the excavation only if the land would have collapsed in its natural state (regardless of the improvement)
Under Rule 23(b)(3), a class can be certified only if
questions of law or fact that are common to the class members predominate over any questions affecting only individual members.
When does the 6A right to counsel attach
formal judicial proceedings have begun, whether that be at a post-arrest initial appearance before a judicial officer, or by way of formal charge, preliminary hearing, indictment, information, or arraignment.
Generally, a contract for the commission of a tort is unenforceable as against public policy. However, if a party to the contract is unaware of the facts that make performance of the contract tortious, that party may recover under the contract if the
ther party to the contract had knowledge of such facts.
Equitable servitudes are covenants about land use that are enforced in equity by
Injunction
Consequential damages are recoverable if they were
the natural and probable consequences of breach, or if they were in the contemplation of the parties at the time the contract was made, or if they were otherwise foreseeable.
Generally, religious activities conducted in public schools violate
Establishment clause because it promotes religion
n a pure comparative negligence jurisdiction, a plaintiff’s contributory negligence is
not a bar to recovery
How do you calculate damages in a pure comparative negligence JDX
calculated by the tier of fact & refuced by the amt. can recover
Statement made by a declarant who is unavailable to testify at trial is not excluded as hearsay if
statement was against the declarant’s interest at the time it was made and would not have been made by a reasonable person unless he believed it to be true
Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on
neutral, articulable standards, and its purpose is closely related to an issue affecting automobiles.
In order to join defendants in a single action, the plaintiff’s right to relief must be asserted against
joint,severally or alternative with respect to or arising out of the same transaction or occurrence.
when there is a forum selection clause and there is a motion to transfer the venue, what should the court do?
Consider the motion, because the court should weigh all factors including the presence of a forum clause to decide whether to grant the transfer
when determining whether to do an erie analysis, the threshold question is whether there is a
controlling federal rule or federal statute
what happens during erie if there is a controlling federal rule or statute
you apply it
In the abscence of a controling federal rule or statue, the question then becomes in a erie analysis whether if it is
substantive or procedural
if the court is sitting in diversity it must apply in erie problem
state substantive law of the state in which it sits on all substantive issue in a case, including conflict of law rules
for all procedural issues, a federal court sitting in diversity must apply
federal procedural law
When a potential erie analysis arises on the MBE what is determinative if a Erie analysis is needed
if fed question or diversity jdx
when is additur allowed
only in state court
Additur violates which amendement in federal court
7A
For the purposes for Erie, is a judical standard a rule that affects federal procedure
No
Contract formation is when there is a
offer, acceptance, consideration,
What is an offer
an outward manifestation of our intent to enter into a contract.
WHat can the outward manifestation be
action or word
what do we need in addition to the manifestation of our intent
speific terms
what are example of terms to show our manifestation of our intent
the price, the quantity, the description
Are advertisment are considered an offe? If not, what r they considered
an invitation to offer; not an offer
When does an advertisment graduate to an offer
very speific terms
Once I make a valid offer to you, you have the
power of acceptance
How can you terminate the offer
death
lapse of reasonable time
Rejection
Counteroffeor
Revocation (before the oferree accepts)
Two types of revocation and explain
direct - where I tell you
indirect - you learn that I made a deal with someone else
where are 3 instances were the offer is not revocable
option contract
Firm offer
unilateral K
option contract
option contract is where I promise you I’m gonna keep the offer open for a period of time and additional consideration
For 50 bucks, I’ll keep this offer open to you for 2 weeks,” now is it valid?
yes because there is consideration and there is a promise
Firm offer
a promise to keep it open + a writting signed by the merchant
Firm offer applies to what type of contracts
Goods / UCC
If there is a firm offer but no time i stated what time is it irrevocable for
3 months
what if you pass the time for the irrevocabilit for the firm offer
it goes back to being revocable and you need to revoke it if you are not going to do it
Unilateral K
promise for the act for preformace
Bilater K
promise for a promise
For a unilateral K, when does the contract become revocable
moment you begin preformance
when is preformance due due from the offeror in a unilateral K
when the preformance has begun
Mirror image rule
applies in CL
acceptance has to mirror the offer
WHat are the usual ways you can accept a K
silence - if the offeor knows its okay with it
Preformance
Mail
Mailbox rule
acceptance is effective when sent
Exception to Mailbox rule
when you send the rejection first and then an acceptance, whatever letter gets to the offer first is effective
What does the UCC not have when there is a difference betwen overal contract information
Mirror image rule
What does the UCC not have when there is a difference betwen overal contract information
Mirror image ruleU
Under the UCC, do differnet terms and differnt methods of acceptance invalidate the K
No
At the UCC, which terms changed affect if you have a K
Terms that materially affect the contract
Objecting in a reasonable amt of time
where the offer limits the acceptance (rare)
Consideration is when there is
bargain for exchange between the parties
Will the court invalidate the consideration based on the amt
yes
Hypos that are consideration title
- Illusory promise
- Gift
- past or moral consideration
- promise to pay a debt that was barred by the SOL
- Promise to pay a debt that has been discharged by bankruptcy
- forbearance to sue
Illusory promise
is not valid consideration because the party retains control
Modern term for illusory promise
as long as there is some interpretation that the promise can be interpreted to be valid
The promise to give a gift is
invalid consideration
If I have given you the gift it is
valid consideration
past or moral consideration is
not consideration
If I promise you something and you do it
valid consideration
promise to pay a debt that was barred by the SOL or that has been discharged by bankruptcy is or is not valid consideration
is
forbearance to sue even though you have the right to sue is or is not valid consideraiton
it is valid considertion
Promissory estoppel
promise to you that induce you to rely to detriment
promissory estoppel is NOT
consideration
Accord and Satisfaction only applies to
Debt
If the debt is not disputed, are you still required to pay the remaining under accord and satisification
yes
If there’s some sort of a settlement, compromise, negotiation, or dispute, some sort of back and forth between offer and oferee and there is a compromise then can you get the remain debt under accord and satisfication
no
If the offeree believes that there is no debt, are you still required to pay the remaining for which you didnt give under accord and satisification
No
Under the UCC a K for a sale of goods of 500 dollars or more must be evidence by a writting signed by the person against whom enforcement is sought. AN exception occurs if
it is between merchants and there is a writting and the recipient fails to object to the notice of confirmation within 10 days
When can Insurance be admitted as evidence
when the D had motive
the general rule is that when a person hires an independent contractor ordinarily is not liable for injury to a 3rd party caused by the contractors negligence unless
when the person directly influences the manner in which the contractor preforms the work so as to contribute to the creation of the danger that causes the third party injury
when a claimant prevails (ie plaintiff) all related claims are
merged into the final judgement
when the defendant previals all related claims are
barred by the final judgement
If it is a defense under Rule 12 then the proper motion is an
answer
If it is a defense under Rule 12 and relies on materials outside of the pleadings the proper motion is
m2dismiss and answer
m2dismiss timing
30 days after the close of all discovery
