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62 Cards in this Set
- Front
- Back
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Does direct state payment to religious school violate Establishment Clause?
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No, if they meet the lemon test.
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What is general welfare clause?
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It's a limitation on congress's power. Not a source.
Tax and spend for general welfare |
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What is general welfare clause?
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It's a limitation on congress's power. Not a source.
Tax and spend for general welfare |
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Is the AG constitutional obligated to prosecute Mr. X pursuant to the congressional order?
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No. the decision to prosecute is exclusively w/in the discretion of the executive branch.
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Is licensing a person who deals with the general public i.e. mechanic a valid exercise of police pwr?
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Yes.
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T/F:
Congress's power to investigate is not coextensive with its power to legislate? |
False.
Congress's power to investigate is coextensive with its power to legislate. |
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What does the state violate by providing text books to segregated private schools?
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EP by giving state support to racially segregated educational process
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Does state lending text books on secular subjects to all students violate the establishment clause?
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No.
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What is the appointment clause?
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permits congress to vest appointments of inferior officers only in the president, courts, or heads of dept.
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Can congress appt members of a commission that exercises enforcement powers?
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no. enforcement is an executive act.
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T/F:
A business license is a valid property right thus procedural DP requires hearing if suspended? |
Yes
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5th amend applies to who?
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Federal gov't
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Does the 14 amend apply to fed gov't
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NO!
Only to the states. |
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What standard is used for classification for alienage for public school teachers?
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Rational Basis.
Public school teacher performs gov't function thus exclusion of aliens rationally related to state's interest in furthering educational goals. |
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What is the market participant rule?
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Exception to Commerce Clause
(state action that burden interstate commerce) |
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state green has statute providing no alien may own land or sell it.
What is the classification based upon property right? |
No. Based on alienage.
Strict scrutiny applies. |
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What is P&I clause of IV
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prohibits discrimination by states against non-residents
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Can resident requirements be considered as violated of the EP of 14th?
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Yes
Durational residency requirement can be construed as burdening fundamental right to travel interstate. Strict Scrutiny. |
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Does the P&I clauses apply to aliens?
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No.
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Is the right to enter into k's a fundamental right?
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No.
Thus rational basis. |
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Can congress limit the jxn of federal courts?
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Yes
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Is providing housing for citizens within police power?
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Yes
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Does state lending text books on secular subjects to all students, including those at religious schools, violate EP?
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No
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What is prior restraint?
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gov't action that would prevent communication from reaching the public.
Narrowly tailored to achieve some compelling/significant gov't interest. |
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Is reasonable belief (i.e. M was the right woman shoplifting) sufficient by itself to establish shopkeeper privilege?
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No.
Means of restraint must be reasonable and no deadly force is allowed. |
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In a contributorily negligent jxn, where the child was contributory negligent, can child's parent bring a derivative action?
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No. Contributory negligence is a complete defense to recover.
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What is the duty of landowner to a discovered trespasser?
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Reasonable care in his activities. i.e. becareful when shooting beer cans in your land.
Even if biker is riding drunk in that area and was not a substantial factor in causing injury (since a sober driver could have gotten hit) |
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Can Rancher be liable for medical malpractice of doctor?
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Yes, the damage resulting in the medical malpractice was a foreseeable result of R's negligence. R's liable even tho doctor contributed to R's damages.
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Can you recover under strict liability when you've suffered only an economic loss?
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No, most courts refuse to extend strict products liability to cases in which P only suffers economic loss when not accompanied by physical harm to P.
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T/F: Defamation
The fact that J knew the truth of why K really left may not diminish the damages K would be entitled to recover? |
False.
The fact that J knew the truth of why K really left may diminish the damages K would be entitled to recover As long as it is understood in its defamatory sense, an accusation need not be believed to be actionable. |
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In a suit for negligence, A must at least be able to show which fact to establish a case against M?
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Roll bar on D's car was defective and M could have discovered the defect if it had properly inspected the vehicle.
Standard of care in negligence = reasonable care. P must show D failed to exercise such care. |
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What is a good defense that D can assert in a negligent case?
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D exercised due care in the performance of a duty owing to P.
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Are rescuers always foreseeable P's?
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Yes because danger invites
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What must a rescuer show in order to recover damages for a broken leg suffered as a result of trying to rescue?
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Rescuer would have to show the X breached duty to him not to place himself in a position of danger that might invite a rescue.
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What defenses might X, the one being rescue raised in the negligence action?
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All circumstances will be considered when evaluating the conduct of the rescuer. i.e. excitement of accident, speedy response.
Including AOR |
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T/F:
If true landowner is suffering from disability at the time period of AP begins, the clock for AP starts running when? |
Does not run until TO is free of disability
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If disability was not in existence on the day AP begin-what happens?
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It will NOT keep the clock from running. Intervening disability does not toll the SOL.
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What language must be present to show Joint tenancy?
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actual words of "as JT or in JT or with the right of survivorship."
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What is easement appurtenant?
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benefits holders use and enjoyment of his tract of land.
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What is easement in gross?
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Acquired independent of the ownership and enjoyment of another tract of land. no dominant tenement.
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Does SOF preclude the mortgagee from claiming interest in property that has become an integral part of premises?
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No.
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Does the T's knowledge of the mortgage matter to enforcing the rights of mortgagee?
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No, mortgagee has the same rights as the former owner, regardless of T's knowledge of mortgage
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Chattels installed for the purposes of trade may generally be removed by the T is what?
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She pays for damages caused by removal.
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Can a guilty plea that is later withdrawn be used against D who made the plea?
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No except in special cases.
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Does an expert need to offer the reports into evidence in order to base her opinions on them?
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No. proponent of the expert opinion is not permitted to disclose the reports if they are inadmissible unless judge finds probative.
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May an expert testify in the form of an opinion without prior disclosure of the underlying facts?
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Yes, an expert witness may learn the basis of the opinion at or before the hearing
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How is this permissible?
W having difficulty remembering some of the fact, atty sought to let her review the notes she made after accident. |
Present recollection refreshed-w shown any writing that may refresh her memory of the event
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What is the doctrine of past recollection recorded?
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Refers to admissibility of the contents of a writing and proper foundation must be laid.
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What should the contents of the dying declaration be referring to?
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Must concern the immediate circumstances causing declarant's grevious injuries.
Can't be about cousin killing neighbor b/c caught stealing TV when declarant got hit in head with ice shard. |
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Are declaration of present bodily conditions hearsay exception even when not made to a doctor?
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Yes. stmts relate to symptoms ie pain.
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What is privilege for confidential martial communications?
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A person can refuse to disclose or object to another person disclosing confidential communication made during the marriage.
Can be called as a witness but cannot be directed to testify if facts were told in cofidence |
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What is spousal privilege?
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A spouse cannot be forced to testify against a spouse in crim case.
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Does confidential marital communication apply in both crim and civil cases?
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Yes
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Does the privilege of marital communication apply even if parties are divorced?
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Yes, as long as communication took place during marriage.
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If D's witness on cross was asked, "weren't you on a jury that acquitted D of another crim charge."
Why would objection be sustained? |
PV outweighed by unfair prejudice.
Not beyond scope of direct because this can go to bias. |
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If there's a stmt at the end of sentence that relates to the events, what exception applies?
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excited utterance.
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opinion of lay person admissible if?
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Based on w's perception, helpful in determining facts in issue, not based on scientific or specialized knowledge.
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Does declarant need to be available for declaration against interest?
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No. this is unavailability exception.
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What exceptions require declarant to be unavailable?
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former testimony, dying declaration, declaration against interest.
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C wants to testify that after accident J said that if C paid all her medical bills and gave her $25k she would not institute legal proceedings.
Is testimony by C of what J said admissible? |
Inadmissible, because it was an offer of compromise.
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Conspiracy:
If you do not make a legally effective withdrawal can you be liable for crimes committed in furtherance of conspiracy? |
Yes. even if your absent from the robbery scene due to an sudden illness-rather than voluntary withdrawal from conspiracy.
Crimes committed must be foreseeable consequence of conspiracy. |
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If M reached out trying to grab the leash and in doing so narrowly missed A and A flinched , raised her arms, believing she was about to be attacked, is this enuf for assault?
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No. M had no intent to create immediate apprehension in A.
M was reaching out to recapture the leash. |
