Trouble-Trouble Flashcards
What standard must a federal appellate court apply to a judges findings?
Under Rule 52(a)(6), an appellate court cannot set aside a trial judge’s findings of fact unless the findings are clearly erroneous.
Under the default common law, what is the minimum a landlord must deliver to the tenant?
Just the legal right to possess, not necessarily actual possession.
What does the “general welfare” clause of Art. I Sec. 8 apply to?
Taxing and spending.
What gives congress the right to stop discrimination in private renting, commerce clause or general welfare?
The Commerce Clause because rentals in the aggregate have a substantial effect on interstate commerce.
What two preconditions are required for “past recollection recorded”?
Testimony that (1) the witness cannot recall and (2) the recording accurately reflects their understanding at the time of the event.
What is The ex post facto clause of Article I, Section 10?
A law cannot retroactively punish.
Does an improper out-of-court identification procedure preclude that witness from testifying in court?
An improper out-of-court identification procedure does not suppress in-court testimony of the witness if shown to be reliable under a multi-factor inquiry.
May a judge call a witness on their own?
Yes, but the parties must be able to cross-exam.
When can diversity exist under $75,000?
With the “interpleader act” any amount over $500 and the claimants are different states. Complete diversity is not required.
When are injunctions reviewable by the court of appeals?
Immediately, regardless of certification.
Can a mortgage waive the right to redemption for the borrower prior to foreclosure?
No, equity of redemption gives the borrower the right to free the land of the mortgage by paying off the amount due, plus any accrued interest, at any time prior to the foreclosure sale.
How does the best evidence rule differ for defamation?
A witness can testify to a statement even if that statement was recorded.
What duty is non-delegable for a common carrier?
The duty to provide a safe vehicle.
When can the owner of a dangerous animal escape liability?
If the animal is released by an unknown or unforeseeable party.
Can congress pass a law to appropriate funds and the n require their prior authorization without presidential approval?
No, that usurps the executive role. Once legislation is passed, it should not require further approval by Congress. It is the executive role to implement.
What can limit SCOTUS appellate jurisdiction?
Congress. Art. III § 2 “… the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
What is a “structural error”?
(1) An error that “affect[s] the framework within which the trial proceeds,” beyond “simply an error in the trial process itself.” (2) Extends beyond harmless error. (3) Renders the criminal trial void.
What are examples of “structural errors”?
Denial of counsel or extreme and outrageous incompetence of counsel.
e.g. More than failing to object, but rather not showing up at all or other egregious errors worthy of sanctions.
Are TROs immediately appealable?
Generally, no. However pursuant to 28 U.S.C. section 1292(a)(1) if it is renewed beyond a like period, e.g. 14 then 30 days.
May a defendant prove his character by specific acts?
No, only reputation or opinion.
What is required for consideration?
(1) A bargained-for exchange between parties where (2) the exchange must have either (a) benefit to the promisor or (b) detriment to the promisee.
What is the enforceability of conditional promises?
If the condition is not illusory it is enforceable, but the duty to perform does not become absolute until the condition has been met or excused.
What is an illusory promise or condition?
A promise to perform based on a personal whim or extremely unlikely event. E.g. “I promise to give you my house if I feel good after winning $2Billion in the lottery.”
What is a “structural error”?
An error that “affect[s] the framework within which the trial proceeds,” beyond “simply an error in the trial process itself.” Extends beyond harmless error.
What are examples of “structural errors”?
Denial of counsel, or if severely incompetent, ineffective counsel.
What is the standard for showing ineffective counsel?
Reasonable probability the outcome would have been different.
What is the common law rule for the effect of voluntary intoxication on murder?
It is only a defense if it prevented forming the intent, if intent was already formed it is not a defense.
E.g. Deciding to kill then getting drunk for courage v. getting drunk then killing stranger in drunken fit of rage.
