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Tricky shit Flashcards

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1
Q

requirements for compulsory counterclaims to have jurisdiction

A
  • arise from same transaction/occurrance–> court already has supplemental jurisdiction

Do NOT have to meet amt in controversy requirement.

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2
Q

what do permissive counterclaims need

A

they do NOT arise from same transaction as P’s claim,so they must have separate basis for SMJ- ie. diversity and amt in controversy. MUST NOT DESTROY diversity

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3
Q

if replacement of parties b/c wrong party was named in complaint, does new named party need to meet diversity

A

YES

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4
Q

elements of false pretenses

A

1- obtaining title to property
2- through reliance of that person on false info
3- with intent to defraud

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5
Q

in a criminal case, when can D introduce evidence of his good character

A

anytime as being inconsistent with type of crime being charaged

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6
Q

if adding a party through joinder will destroy diversity, can you still add them

A

NO

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7
Q

for claim preclusion

A

both parties must occupy same role in both actions

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8
Q

how can the credibility of witnesses be attacked

A

R & O testimony or specific instances including crimes of dishonesty or a FELONY

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9
Q

attempt of any crime requires what

A

Specific INTENT to do that crime, even for statutory crimes

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10
Q

notice of removal must be made when

A

w/I 30 days of receipt of complaint

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11
Q

when will motion to remand be denied

A

If the fed ct has SMJ

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12
Q

When can a court hear other claims under Supplemental jurisdiction

A

if the other claims are part of the same case or controversy

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13
Q

how does impleader work

A

allows a defendant in diversity in fed ct to IMPLEAD a 3rd party who may be liable to the original D for all or party of P’s claim, can be joined even if NOT diverse or amt is <75k as long as common nucleus of operative fact

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14
Q

For time place manner restriction on speech

A

interest must be IMPORTANT NOT compelling and narrowly tailored

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15
Q

powers of congress

A

foreign affairs, coining money, nec and proper, delegating power, commerce clause, spending, tax, war, aliens/non citizens

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16
Q

two types of assault

A
  1. attempted battery
  2. intentionally placing another in fear of imminent bodily harm
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17
Q

Amending pleadings

A

Can amend once as a matter of right within 21 days but court should freely give leave to amend pleading when justice requires

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18
Q

restitution

A

Benefit conferred on defendant must be returned to P

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19
Q

When can a court sitting in diversity exercise supplemental jurisdiction

A

Only if the additional claims come from common nucleus of operative fact and DO NOT DESTROY DIVERSITY

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20
Q

When can a court sitting in fed question exercise supplemental jurisdction

A

only requirement is that the claims come from common nucleus of operative fact

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21
Q

What is the standard for a new trial

A

Whether the verdict is against the weight of the evidence

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22
Q

What is the standard for judgment as a matter of law or renewed jmol

A

whether there is substantial evidence in the record to support the verdict, resolving all disputed issues in the non-moving party’s favor.

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23
Q

For MPT- what to write for intro

A

one sentence reiterating task memo, - below please find my analysis regarding 1 , 2 , 3

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24
Q

Rule proof

A

In case name, the court held, (HOLDING) because facts and reasoning.

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25
Q

After Rule Proof…

A

Just as D in other case did 1, 2 3 so too did D in our case.

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26
Q

conclusion for MPT

A

Thank you for allowing me to conduct this analysis for you. if there is anything I can do to be of further assistance, please LMK

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27
Q

areas of substantive law

A

elements of a claim

Statute of limitations

Burden of proof

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28
Q

for conflict of state and fed law- determining which to apply

A
  1. is there a valid federal statute or fed rule that covers the disputed issue. If so, the district court must apply fed law rather than state law

–> IF THERE IS NO FED LAW ON POINT< FED ct must apply substantive law of the state in which it sits

if it is a federal rule (not fed statute- is there rule valid- does it change, modify any substantive right? if not, apply the fed rule)

  1. will failure to apply state law lead to a diff outcome in state v fed court? if no- apply fed law, if yes, apply state law.
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29
Q

statement by party opponent vs statement against interests

A

Statement by party opponent (non-hearsay)=made by opposing party or their agent… now used against them.

Statement against interests=ONLY APPLIES IF DECLARANT IS UNAVAILABLE!!!

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30
Q

two provisions of dormant commerce clause and a caveat

A
  1. IF STATE LAW IS DISCRIMINATORY ON ITS FACE AGAINST OUT OF STATE
    if a state law is discriminatory against out of state… then it must show the law is necessary for a COMPELLING state interest and there are NO reasonable alternative means (law usually fails)
  2. If STATE LAW IS NOT DISCRIMNATORY ON ITS FACE- then just check that there is important govt interest and it does not unduly burden interstate commerce.

Caveat, state can discriminate if the state is the market participant-i.e the one buying the goods

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31
Q

standard of review for law
standard of review for factual issues

A

for law- de novo
for factual issues- clear error

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32
Q

standard of review for discretionary rulings by judge

A

ABuse of discretion
- i.e admissibility of evidence, testimony s/ be excludied

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33
Q

accomplice liability

A

aids or encourages principale BEFORE or DURING CRIME WITH INTENT that the principal commit the crime

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34
Q

article 4 privileges and immunities clause

A

can protect in state resources like RECREATIONAL ISSUES- charging out of state people more for recreational license BUT NOT for commercial things.

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35
Q

for specific intent crimes, mistakes of fact can be what?

A

Reasonable OR UNREASONABLE.

Can be unreasonable mistake as long as it is HONEST

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36
Q

Attempted x crime = what type of crime

A

specific intent- so reasonable Or HONEST but unreasonable mistake of fact is a defense

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37
Q

only situations in civil actions when you can introduce character evidence and then which types of character evidence can you use

A

only those cases can you admit character evidence through R, O and SPECIFIC ACTS!!!!

Defamation, NEGLIGENT HIRING, Negligent entrustment, child custody

38
Q

anything that is NOT hearsay can be used how

A

as substantive evidence and to impeach

39
Q

If statement is taken in violation of Miranda- i.e in a custodial interrogation but without Miranda warnings given, can the statement be used at trial?

Can derivative evidence from the statement be used at trial

A

The statement in violation of Miranda can NOT be used at trial but can be used to impeach

The derivative evidence CAN be used at trial- as long as the statement was not coerced

40
Q

What is the fed interpleader ACT vs fed interpleader RULE

A

Fed interpleader ACT= >75K, complete diversity
Fed interpleader Statute= >$500, only 2 parties need to be diverse, nationwide jurisdition

41
Q

When does negligent misrepresentation apply and when is it just fraud?

A

If it is a SELLER, in a business capacity using false statements to sell an item–> Negligent misrepresentation

42
Q

When can a written contract for the sale of goods be modified orally

A

If the goods have been paid for or received

43
Q

The right to a jury trial applies to …

A

Crime with a criminal sentences over 6 mo.

44
Q

what is permissive joinder of parties

A

Multiple P or multiple D’s coming together if their claims come from single transaction and common question of law.

45
Q

For anti lapse statute to apply, what is a critical condition of the beneficiary of a will?

A

Must be a relative of the testator

46
Q

If the beneficiary does not survive the testator by 120 hours, then wheat happens to the gift to the beneficiary in the testator’s will?

A

It lapses… unless it says otherwise in the will or there is an anti lapse statute

47
Q

Are Congressional Laws discriminating against non citizens valid? What about state laws discriminating against non citizens

A

Congressional laws discriminating against non citizens are valid- congress has plenary power over non citizens.

State laws discriminating against non citizens are subject to strict scrutiny. BUT states can prohibit non citizens from voting, serving on jury, being hired as public schools teachers, police officers

48
Q

Under MPC, if statute says knowingly sell, distribute blah blah to kids under 18. What does knowingly apply to

A

EVERY word after it. Knowingly sell, knowingly distribute, knowingly that kids were under 18

49
Q

for modified comparative negligence, recovery by P is barred when

A

P’s negligence EXCEEDS 50%

50
Q

ACCOMplice liability

A

aids or encourages principle with INTENT that principal commit the crime

51
Q

does exclusionary rule apply to civil proceedings like wrongful death

A

No

52
Q

if person has contract to paint house and gets halfway done but then house burns down to no fault of homeowner or painter, how can painter recover

A

duties of homeowner and painter are discharged but painter can recover in quasi contract for costs and expected profits

53
Q

For a co tentant to acquire sole ownership of co owned property thru adverse possession what must the cotenant do

A

OUST the other co tenants and prevent them from getting on property

54
Q

can a statement by party opponent be used for the truth of the matter

A

Yes, because hearsay exception

55
Q

discriminating against out of staters by charging them more for recreational hunting/fishing license

A

Privileges and Immunities clause article 4

56
Q

if state law conflicts with a treaty

A

treaty is considered fed law so state law would be invalid

57
Q

taking away welfare benefits requires

A

Pre termination hearing b/c property interest

58
Q

is voluntary intoxication a defense to recklessness crimes

A

No

59
Q

Pullman doctrine

A

Leave unsettled issue of state law to the states

60
Q

Younger abstention

A

court will not enjoin pending state criminal case

61
Q

standard for JMOL

A

substantial evidence in the record to support the verdict.. resolving all disputed issues in non moving party’s favor

62
Q

2 parts of dormant commerce clause

A

1) if it is discriminatory on its face to out of state –> law is only ok if COMPELLING state interest and NO REASONABLE ALTERNATIVE MEANS

2) if it is not facially discriminatory BUT burdens interstate commerce–> law must serve IMPORTANT state interest and not UNREASONABLY BURDEN IC

63
Q

O’Brien test for expressive conduct

A

Regulation must
1) further an IMPORTANT GOVT INTERST
2) NOT be related to SUPPRESSION OF IDEAS
3) burden on speech is no greater than necessary

64
Q

covenant of quiet enjoyment vs implied warranty of habitability

A

Covenant of quiet enjoyment- in ALL leases. Breached by constructive eviction. T must move out

Implied w of habitability- only in RESIDENTIAL leases, can repair and deduct, or not pay rent. Don’t have to move out

65
Q

What is NOT hearsay

A

Verbal acts
effect on listener
state of mind
Prior statements of trial witness
Party admission

66
Q

reasons to pierce the veil

A

to get to shareholder’s assets when there is evidence of:
1) alter ego- treating corp as self, no formalities
2) undercapitalization
3) fraud

67
Q

types of common law murder

A

intent to kill
intent to GBH
depraved heart- reckless disregard for human life
felony murder

68
Q

Hearsay EXCEPTIONS only for use if Declarant is unavailable

A

dying declaration
statement against interest
former testimony under oath

69
Q

for joint tenancy, a mortage or lien severs the JT in what type of jurisdiction

A

Title. B/c Liens are lenient

70
Q

time place manner restrictions on speech

A

1) content neutral
2) narrowly tailored to significant govt interest
3) leaves open alternative channels for communication of ideas

71
Q

for private nuisance- what is the standard

A

causes substantial and unreasonable interference with the NORMAL use of the person’s property. Can be just economic loss

72
Q

for conviction of manslaughter, do you still need to prove but for and proximate causation

A

YES

73
Q

for BREACH OF WARRANTY suit, the person suing must be…

A

in privity with the manufacturer. I.e the consumer who bought the good and not a third party that was harmed by defected car, etc.. can be family member or member of the household though

74
Q

do identical cross offers for sale of goods form acceptance

A

NO

75
Q

for IIED against public figures you need what

A

Actual malice- knowing the statement is false or reckless disregard as to whether it is true or false

76
Q

if a mortgage goes into default, can either tenant avoid foreclosure by …

A

exercising their EQUITABLE right of redemption by paying off whatever. A cotenant could pay off entire amount and then get reimbursement from other covenants for their share

77
Q

can a profit be transferred? I.e. if landowner gives you permission to fish from lake on their property can you transfer that permission to someone else

A

YEs UNLESS The profit is personal or a transfer would be against the INTENT of the parties who created the profit

78
Q

is a 4th amendment violation (improper seizure or search) ground to dismiss an indictment

A

NO

79
Q

where can a minor or incompetent be served with process

A

ONLY following the service rules in the state where service occurs

80
Q

if the state’s highest court has never ruled on something, where do the federal courts look to

A

rulings from state’s lower courts

81
Q

if congress is adjourned in the 10 day period the president has to veto or accept a bill, what happens

A

If the President does NOTHING, then the bill automatically gets rejected b/c congress is adjourned

82
Q

if school officials search a kid’s backpack what do they need

A

Reasonable suspicion

83
Q

If school officials search a kid’s backpack AT THE DIRECTION OF POLICE

A

they need a warrant based on probable cause or an exception to the warrant requirement

84
Q

initial aggressor usually can’t use self defense justification EXCEPT WHEN

A

initial aggressor’s use of non deadly force is met with deadly force OR
initial aggressor has completely withdrawn from altercation and communicated that to the victim

85
Q

will intention to commit trespass against one party transfer to another

A

yes

86
Q

if in suit one, a sues b for breach of contract from transaction x and then in suit 2 a sues b for negligence from the same transaction, does claim preclusion apply

A

yes because…claims are identical if they arise from the same transaction or occurrence and could have been raised in the first action- even if the claims are labelled differently.

87
Q

treaties- fall within…what jurisdiction of the supreme ct?

A

federal question

88
Q

jury instructions must be given

A

BEFORE closing arguments- with a chance for parties to object on the record then outside the presence of the jury

89
Q

If a case is being REMOVED to federal court, what MUST You check for in the fact pattern

A

See if it is the plaintiff removing it- remember ONLY DEFENDANTS CAN REMOVE TO FED CT

90
Q

If a woman filed suit based on xyzzy and the state did not recognize xyzzy claims at the time of her initial lawsuit… but new state supreme ct ruling now recognizes xyzzy, will appellate court consider her suit

A

YES

91
Q

voluntary vs involuntary dismissal of a case

A

voluntary- by plaintiff
involuntary- By Defendant

Bar Exam (19 decks)

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