Consolidated Flashcard Set For Bar Exam

Front 1

Corporations: Duty of Care

Back 1

Director must:
1. Act in good faith
2. Exercise ordinary care and prudence

Must do what a prudent person would do in similar circumstances

Includes Business Judgment Rule

Burden on Plaintiff to show violation

Front 2

Corporations: Business Judgment Rule

Back 2

Court will not second guess a business decision if it was made in good faith, was informed, and had a rational basis

Front 3

Corporations: Duty of Loyalty

Back 3

Burden is on the defendant

Duty to avoid implicating their personal interests

Must disclose material facts and deal must be approved by majority of disinterested directors or shareholders

Front 4

Corporations: Requirements to Bring Derivative Suit

Back 4

1. Standing: stock ownership when claim arose or receive stock from someone who did by operation of law (divorce/inheritance)

2. Must fairly and adequately represent the corporation's interests

3. Must make written demand on directors that corporation bring the suit

Front 5

Partnership

Back 5

1. The association
2. Of two of more persons
3. To carry on as co-owners
4. A business for profit

Sharing of Profits is prima facie evidence that person is a partner in the business

Front 6

Partnership: Tort Liability for Partnership/Partners

Back 6

Liable for act/omission of a partner acting:

1. In the "ordinary course of the business of the partnership"

OR

2. With the authority of the co-partners

Front 7

Partnership: Contract Liability for Partnership/Partners

Back 7

Liable if act is made in "the usual way the business of the partnership is conducted"

UNLESS:
1. He had no authority to do it
AND
2. Person with whom he dealt had:
---Knowledge of lack of authority (UPA)
---Knowledge or Notice (effect on delivery) of lack of authority (RUPA)

Front 8

Constitutional Law: Test for Obscenity

Back 8

1. Appeals to the prurient interest in sex (community standard)

2. Is patently offensive and an affront to contemporary standards (community standard) &

3. Lacks serious value (national reasonable person standard)

Front 9

Constitutional Law: Test for Content-Based Regulation of Speech

Back 9

1. Necessary
2. To serve a COMPELLING state interest
3. Narrowly drawn to achieve that end

Front 10

Constitutional Law: Test for Content-Neutral Regulation of Speech

Back 10

1. Advance and IMPORTANT interest unrelated to suppression of speech; and

2. Do not burden SUBSTANTIALLY MORE SPEECH THAN NECESSARY to further those interests

Front 11

Time, Place and Manner Restrictions (Regulation of Conduct) in Public Forums and Designated Public Forums

Back 11

Must be:
1. Content neutral
2. Be narrowly tailored to serve and important governmental interest; and
3. Leave open alternative channels of communication

Front 12

3 Characteristics of a Speech-Regulation that are Unreasonable

Back 12

1. Overbroad
2. Void for vagueness
3. Gives official unfettered discretion

Front 13

Limitations on Speech in Limited Public Forum or Nonpublic Forum

Back 13

Government can regulate speech in such a forum to reserve the forum for its intended use.

Regulations will be upheld if they are:
1. Viewpoint neutral; and
2. Reasonably related to a legitimate governmental purpose

Front 14

If government action does not involve a sect preference, what is the Establishment Clause standard?

Back 14

Lemon Test

1. Has a secular purpose
2. Has the primary effect of neither advancing nor inhibiting religion, &
3. Does not produce excessive government entanglement with religion

Front 15

Nonhearsay: Admission of Party-Opponent

Back 15

1. ANY statement made by party; and

2.Offered by a party opponent

--Personal knowledge not required

Includes Adoptive Admissions and Vicarious Admissions

Front 16

Nonhearsay: Adoptive Admissions

Back 16

1. Heard and understood
2. Physically and mentally capable of denying the statement; and
Reasonable person would have denied accusation

Front 17

Nonhearsay: Vicarious Admissions

Back 17

1. Authorized spokesmen
2. Principal-Agent (employment relationship)
3. Partners within scope of partnership business
4. Co-Conspirators: made to 3rd party in furtherance of conspiracy to commit a crime or civil wrong, at time when declarant was participating in conspiracy (Testimonial admissions admissible against co-conspirator only if there was opportunity to cross-examine)

Preliminary Determination: When making determination of:
1. Declarant's authority to make the statement
2. Existence and scope of agency relationship, or
3. Existence of a conspiracy and participation by declarant and party;
THE COURT MUST CONSIDER THE CONTENTS OF THE STATEMENT, but statement along not sufficient to establish relationship

Front 18

Hearsay Exception: Former Testimony

Back 18

1. Declarant unavailable
2. Under Oath
3. Opportunity to develop testimony at prior hearing (or predecessor in civil cases)
4. Had a similar motive and opportunity to question the witness (identity of subject matter)

Front 19

Hearsay Exception: Statements Against Interest

Back 19

1. Unavailable
2. Statement was against declarant's pecuniary, proprietary, or personal interest when made
3. Personal Knowledge of the facts
4. Must have known it was against interest when made
5. In criminal case, statements to exculpate the accused needs corroborating evidence of trustworthiness

MA: Corroborating circumstances needed whether offered to exculpate or implicate

Front 20

Hearsay Exception: Dying Declaration

Back 20

1. Unavailable
2. Statement made in fear of impending death
3. Relating to the cause or circumstances leading to impending death

Only admissible in Civil and Homicide cases

MA: only admissible in homicide cases

Front 21

Hearsay Exception: Present State of Mind

Back 21

Unavailability irrelevant

Statement of:
1. Then existing state of mind or physical condition is

2. Admissible to prove intent, motive, mental or physical condition (or to show subsequent acts of declarant) but

3. Not memory or belief of a fact remembered

Front 22

Hearsay Exception: Excited Utterance

Back 22

Unavailability irrelevant

Statement made while under stress of excitement or startling event

Front 23

Hearsay Exception: Present Sense Impression

Back 23

Unavailability Irrelevant

Statement made concurrently with perception (or immediately thereafter) of event described

MA does NOT recognize this!

Front 24

Hearsay Exception: Medical Diagnosis or Treatment

Back 24

Unavailability irrelevant

Statement:
1. Made to a person providing medical services
2. For purposes of medical diagnosis or treatment
3. Describing medical symptoms or cause of the condition

Front 25

Hearsay Exception: Recorded Recollection

Back 25

Unavailability irrelevant

Writing by witness who cannot now remember the facts, made while the facts were fresh in her mind

Front 26

Hearsay Exception: Business Records of Absence Thereof

Back 26

Unavailability irrelevant

Writing made:
1. In the regular course of business
2. Consisting of matters within the personal knowledge
3. Of one with a business duty to transmit.

Lack of such writing may be used to show nonoccurrence of event

Front 27

Hearsay Exception: Public Records

Back 27

Unavailability irrelevant

Records of a public office or agency setting forth:
1. Activities of the office or agency, or
2. Matters observed pursuant to a duty imposed by law; or
3. Findings of fact or opinion resulting from an investigation authorized by law (OSHA report)
--MA does not permit this third type

Front 28

Massachusetts Hearsay Exception for Statements Made by Decedents in Civil Actions

Back 28

In ANY civil proceedings, any statement of a deceased person is admissible if the statement:

1. Was made in good faith; and

2. Based on Decedent's personal knowledge

Front 29

Massachusetts Hearsay Exception: Sworn Medical Report of a Medical Examination of an Injured Person

Back 29

1. Physician's written report or hospital report

2. Describing a medical examination of an injured person

3. Admissible to prove a diagnosis, prognosis, or opinion as to proximate cause of the condition

4. Or opinion as to disability or incapacity, if any, proximately resulting from the condition

5. Provided report is signed and sworn to by physician or hospital

If offered against physician in medical malpractice, must give them a copy 10 days before trial

Front 30

Massachusetts Hearsay Exception for Child Victim of Sexual Acts

Back 30

In a criminal case, the statement of a child under the age of 10, describing a sexual act performed upon or with the child or identifying the perpetrator of such sexual act is admissible if (all 4 must be met):

1. The child is unavailable for any reason

2. The statement has adequate reliability

3. The statement is corroborated by other admissible evidence, and

4. The person who heard the child make the statement testifies at trial

Note: even if requirements are met this may raise a Confrontation Clause issue if the statement was testimonial in nature (statement to police during interrogation) and defendant had no opportunity to cross-examine

Front 31

Contracts: When can a Third Party Beneficiary Enforce a Contract

Back 31

A third-party beneficiary may only enforce a contract if he is the intended beneficiary

Key: Ask yourself "To whom is performance to be rendered?" If performance is to the third party, she is a protected beneficiary and thus entitled to sue. But if the promised performance is to be rendered to the promisee, the contract is for the benefit alone of the parties thereto, and any third party is an incidental beneficiary.

Front 32

Torts: Duty of Care Owed to Discovered/Anticipated Trespasser/Constant Trespasser

Back 32

Occupier has duty to wanr:
1. Artificial condition
2. Highly Dangerous
3. Concealed from Trespasser
4. Occupier has knowledge

EX: Hiding barbed wire

Front 33

Torts: Duty of Care Owed to Licensees

Back 33

Duty to warn of:
1. Known
2. Dangerous
3. Artificial and Natural conditions
4. Licensee unlikely to discover

Firefighters and Police Officers may not recover under "Firefighter's Rule"
3.

Front 34

Torts: Duty of Care Owed to Invitees

Back 34

Owed a duty to warn of (or make safe):
1. Reasonably discoverable (Duty to make reasonable inspections) (beyond known)
2. Dangerous
3. Artificial and Natural conditions
4. That invitees unlikely to discover

Front 35

To claim Attractive Nuisance, infant trespassers must show (4):

Back 35

1. Dangerous condition on the land that landowner knows or should've known of

2. Owner knows or should know children frequent the vicinity

3. Condition likely to cause injury (because of child's inability to appreciate the risk), and

4. The expense of remedying the situation is slight compared with the magnitude of the risk