Themis Multiple Choice Flashcards

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1
Q

To recover under a theory of the public disclosure of private facts about someone, the plaintiff must show that

A

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.

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2
Q

Declarant must be unavailable for hearsay in which of the following circumstances

A

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

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3
Q

Younger abstention doctrine,

A

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

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4
Q

Pullman abstention doctrine

A

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

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5
Q

Younger abstention doctrine usually applies when the D

A

has been convicted of the crime for which he has been charged in state court

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6
Q

A statement made by a party to the current litigation and its being offered by an opposing party is

A

not hearsay

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7
Q

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

A

ecessary to achieve a compelling government interest and is narrowly tailored to meet that interest.

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8
Q

Content-based regulation is generally only found constitutional when the speech to be regulated falls into one of the following categories:

A

obscenity, subversive speech, fighting words, defamation, or commercial speech

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9
Q

General rule as it relates to a fixture

A

ownership of a fixture attached to real property passes to the buyer of the related real property

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10
Q

Claim Preclusion : “VSS”

A
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11
Q

Issue Preclusion : “SAFE”

A

Same issue

Actually Litigated

Final Judgement on the Merits

Essential to the Judgement (The Issue was essential)

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12
Q

Private nussiance

A

substantial, unreasonable interference with another individual’s use or enjoyment of his property.

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13
Q

what must the interference be with a private nussiance

A

The interference may be intentional, negligent, reckless, or the result of abnormally dangerous conduct.

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14
Q

when does the waste doctine apply

A

is available only to individuals who both hold interests in the same property, such as a life tenant and a remainderman, or joint tenants.

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15
Q

Constructive eviction is based upon the

A

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.

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16
Q

Public nussiance requires that the D to

A

unreasonably interfere with the health, safety, or property rights of the community.

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17
Q

When a statute on its face or in practice is discrimatory then the statute may be upheld if the state can establish:

A

(i) an important local interest is being served, and
(ii) no other nondiscriminatory means are available to achieve that purpose.

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18
Q

Solicitation is the

A

enticing, encouraging, requesting, or commanding of another person to commit a crime with the intent that the other person commits the crime.

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19
Q

How can you encourage someone for solicitation

A

The encouragement may take the form of enticement, incitement, request, or command. The crime is completed upon the encouragement.

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20
Q

when is the crime completed under a solicitation

A

The crime is completed upon the encouragement.

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21
Q

Does the person need to agree to the crime if there is a solicitation

A

no

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22
Q

Firefighter rule

A

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.

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23
Q

Contracts clause of Article 1 Section 10 prohibits

A

state legislation from retroactively impairing the obligation of contracts.

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24
Q

Contracts clause does not apply to

A

federal action or court decision

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25
Q

Can you use claim of right for Robbery

A

no

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26
Q

Right to lateral support

A

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)

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27
Q

Under Rule 23(b)(3), a class can be certified only if

A

questions of law or fact that are common to the class members predominate over any questions affecting only individual members.

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28
Q

When does the 6A right to counsel attach

A

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.

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29
Q

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

A

ther party to the contract had knowledge of such facts.

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30
Q

Equitable servitudes are covenants about land use that are enforced in equity by

A

Injunction

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31
Q

Consequential damages are recoverable if they were

A

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.

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32
Q

Generally, religious activities conducted in public schools violate

A

Establishment clause because it promotes religion

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33
Q

n a pure comparative negligence jurisdiction, a plaintiff’s contributory negligence is

A

not a bar to recovery

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34
Q

How do you calculate damages in a pure comparative negligence JDX

A

calculated by the tier of fact & refuced by the amt. can recover

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35
Q

Statement made by a declarant who is unavailable to testify at trial is not excluded as hearsay if

A

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

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36
Q

Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on

A

neutral, articulable standards, and its purpose is closely related to an issue affecting automobiles.

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37
Q

In order to join defendants in a single action, the plaintiff’s right to relief must be asserted against

A

joint,severally or alternative with respect to or arising out of the same transaction or occurrence.

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38
Q

when there is a forum selection clause and there is a motion to transfer the venue, what should the court do?

A

Consider the motion, because the court should weigh all factors including the presence of a forum clause to decide whether to grant the transfer

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39
Q

when determining whether to do an erie analysis, the threshold question is whether there is a

A

controlling federal rule or federal statute

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40
Q

what happens during erie if there is a controlling federal rule or statute

A

you apply it

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41
Q

In the abscence of a controling federal rule or statue, the question then becomes in a erie analysis whether if it is

A

substantive or procedural

42
Q

if the court is sitting in diversity it must apply in erie problem

A

state substantive law of the state in which it sits on all substantive issue in a case, including conflict of law rules

43
Q

for all procedural issues, a federal court sitting in diversity must apply

A

federal procedural law

44
Q

When a potential erie analysis arises on the MBE what is determinative if a Erie analysis is needed

A

if fed question or diversity jdx

45
Q

when is additur allowed

A

only in state court

46
Q

Additur violates which amendement in federal court

A

7A

47
Q

For the purposes for Erie, is a judical standard a rule that affects federal procedure

A

No

48
Q

Contract formation is when there is a

A

offer, acceptance, consideration,

49
Q

What is an offer

A

an outward manifestation of our intent to enter into a contract.

50
Q

WHat can the outward manifestation be

A

action or word

51
Q

what do we need in addition to the manifestation of our intent

A

speific terms

52
Q

what are example of terms to show our manifestation of our intent

A

the price, the quantity, the description

53
Q

Are advertisment are considered an offe? If not, what r they considered

A

an invitation to offer; not an offer

54
Q

When does an advertisment graduate to an offer

A

very speific terms

55
Q

Once I make a valid offer to you, you have the

A

power of acceptance

56
Q

How can you terminate the offer

A

death
lapse of reasonable time
Rejection
Counteroffeor
Revocation (before the oferree accepts)

57
Q

Two types of revocation and explain

A

direct - where I tell you
indirect - you learn that I made a deal with someone else

58
Q

where are 3 instances were the offer is not revocable

A

option contract
Firm offer
unilateral K

59
Q

option contract

A

option contract is where I promise you I’m gonna keep the offer open for a period of time and additional consideration

60
Q

For 50 bucks, I’ll keep this offer open to you for 2 weeks,” now is it valid?

A

yes because there is consideration and there is a promise

61
Q

Firm offer

A

a promise to keep it open + a writting signed by the merchant

62
Q

Firm offer applies to what type of contracts

A

Goods / UCC

63
Q

If there is a firm offer but no time i stated what time is it irrevocable for

A

3 months

64
Q

what if you pass the time for the irrevocabilit for the firm offer

A

it goes back to being revocable and you need to revoke it if you are not going to do it

65
Q

Unilateral K

A

promise for the act for preformace

66
Q

Bilater K

A

promise for a promise

67
Q

For a unilateral K, when does the contract become revocable

A

moment you begin preformance

68
Q

when is preformance due due from the offeror in a unilateral K

A

when the preformance has begun

69
Q

Mirror image rule

A

applies in CL
acceptance has to mirror the offer

70
Q

WHat are the usual ways you can accept a K

A

silence - if the offeor knows its okay with it
Preformance
Mail

71
Q

Mailbox rule

A

acceptance is effective when sent

72
Q

Exception to Mailbox rule

A

when you send the rejection first and then an acceptance, whatever letter gets to the offer first is effective

73
Q

What does the UCC not have when there is a difference betwen overal contract information

A

Mirror image rule

74
Q

What does the UCC not have when there is a difference betwen overal contract information

A

Mirror image ruleU

75
Q

Under the UCC, do differnet terms and differnt methods of acceptance invalidate the K

A

No

76
Q

At the UCC, which terms changed affect if you have a K

A

Terms that materially affect the contract

Objecting in a reasonable amt of time

where the offer limits the acceptance (rare)

77
Q

Consideration is when there is

A

bargain for exchange between the parties

78
Q

Will the court invalidate the consideration based on the amt

A

yes

79
Q

Hypos that are consideration title

A
  • 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
80
Q

Illusory promise

A

is not valid consideration because the party retains control

81
Q

Modern term for illusory promise

A

as long as there is some interpretation that the promise can be interpreted to be valid

82
Q

The promise to give a gift is

A

invalid consideration

83
Q

If I have given you the gift it is

A

valid consideration

84
Q

past or moral consideration is

A

not consideration

85
Q

If I promise you something and you do it

A

valid consideration

86
Q

promise to pay a debt that was barred by the SOL or that has been discharged by bankruptcy is or is not valid consideration

A

is

87
Q

forbearance to sue even though you have the right to sue is or is not valid consideraiton

A

it is valid considertion

88
Q

Promissory estoppel

A

promise to you that induce you to rely to detriment

89
Q

promissory estoppel is NOT

A

consideration

90
Q

Accord and Satisfaction only applies to

A

Debt

91
Q

If the debt is not disputed, are you still required to pay the remaining under accord and satisification

A

yes

92
Q

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

A

no

93
Q

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

A

No

94
Q

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

A

it is between merchants and there is a writting and the recipient fails to object to the notice of confirmation within 10 days

95
Q

When can Insurance be admitted as evidence

A

when the D had motive

96
Q

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

A

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

97
Q

when a claimant prevails (ie plaintiff) all related claims are

A

merged into the final judgement

98
Q

when the defendant previals all related claims are

A

barred by the final judgement

99
Q

If it is a defense under Rule 12 then the proper motion is an

A

answer

100
Q

If it is a defense under Rule 12 and relies on materials outside of the pleadings the proper motion is

A

m2dismiss and answer

101
Q

m2dismiss timing

A

30 days after the close of all discovery