Mbe

Front 1

Implied warranty of merchantability

Back 1

Fitness for ordinary purpose

Front 2

Implied warranty of fitness

Back 2

Seller knows a particular purpose and buyer relies on seller skills and judgment

Front 3

Shipment contract

Back 3

Risk of loss passes to buyer unless buyer has right to reject for some reason such as imperfect tender

Front 4

Detrimental reliance

Back 4

Usually used for unilateral contract and bids by subcontractors

Front 5

Merchants firm offer

Back 5

If on form supplied by offeree, must be signed by offeror

Front 6

Defamation of public figure

Back 6

Requires actual malice

Front 7

Standing-actual controversy

Back 7

The injury cannot be hypothetical such as might or thinking about type of injury. Requires actual live injury

Front 8

What parties may or may not sue a state

Back 8

A state government may sue another state government. The state may not be sued by a private citizen or foreign government. Native American is treated as a private party and may not sue a state.

Front 9

Adequate and independent state grounds

Back 9

The Supreme Court cannot hear a controversy appealed from a state when the issue has been resolved on adequate and independent state grounds even if there are federal issues involved

Front 10

Non-spending legislation or regulations

Back 10

Congressional power to legislate for the general welfare includes taxing and spending but may not an act non-spending legislation or regulations

Front 11

Commerce clause trigger

Back 11

Involvement of commerce alone doesn’t trigger the commerce clause. There must be a substantial impact on interstate commerce

Front 12

Executive powers, voiding a treaty

Back 12

While the consent of the senate is needed to enter a treaty, it is not needed to void a treaty

Front 13

Field preemption

Back 13

A state statute will be valid if it does not conflict with federal legislation or violate the commerce clause. The states may regulate local aspects of interstate commerce as long as Congress Has not adopted regulations concerning the subject matter or presenting the entire area of regulation.

Front 14

Incidental burden/effect on protected class

Back 14

Incidental burden or effect of a protected class not classified in a statute doesn’t trigger different scrutiny but an intent to discriminate may be shown through application

Front 15

Minimum residency requirements

Back 15

14th amendment privilege or immunities clause prohibits states From denying their citizens the privileges or immunities of national citizenship, including the right to interstate travel which also includes the right of newly arrived citizens of the state to enjoy the same privileges and immunities as are enjoyed by other citizens of the state.

Front 16

Takings

Back 16

if a government regulation denies a land owner all economic use of his land, will generally constitute a taking requiring the payment of just compensation under the fifth amendment. However, merely decreasing the value of the property doesn’t result in a taking as long as there is still an economically viable use.

Front 17

Due process clause of fifth amendment

Back 17

A person has a liberty interest in the exercise of specific rights provided by the constitution, including the freedom of speech, which may not be infringed upon by the fed gov

Front 18

Freedom of speech

Back 18

A government employee may not be fired for expressing views regarding public issues but can be fired for speech that disrupts the employers policies or undermines the employers authority

Front 19

Discriminatory effect of statute

Back 19

Alone, not sufficient to trigger strict scrutiny. Strict scrutiny is triggered by facial discrimination, Discriminatory application, or discriminatory motive.

Front 20

Equal protection clause

Back 20

The test to determine discriminatory intent of a seemingly neutral law is whether a citizen is treated differently than a similarly situated citizen because of the application of the law

Front 21

strict scrutiny

Back 21

Narrowly tailored a.k.a. necessary to achieve a compelling government interest.

Includes fundamental rights, race and ethnicity, and alienage passed by state unless the public function doctrine applies

Front 22

Intermediate scrutiny

Back 22

Substantially related to an important government interest.

Includes gender and illegitimacy

Front 23

Rational Basis

Back 23

Rationally related to achieving a legitimate government interest.

Includes poverty and wealth, age, and education

Front 24

Speech- Content Neutral

Back 24

If regulating manner in which speech is flavored, use time, place, manner framework

Front 25

Time, place, manner, framework- public forum

Back 25

Time place manner

Public forum- If the use of a public forum is regulated, is valid if Content neutral, narrowly tailored to serve an important government interest, and alternative channels of communication or left open

Front 26

Time, place, manner restrictions for non-public forums

Back 26

Valid if viewpoint neutral, and reasonably related to legitimate government interest

Front 27

Standing-class actions

Back 27

A member of a class action may pursue even if own controversy has ended if other claims are still viable

Front 28

Commercial speech regulations

Back 28

Valid if substantial government interest, advances interest, and is narrowly tailored.

A complete ban on ads for lawful activity isn’t narrow.

Front 29

Speech- discretion

Back 29

Restriction that gives officials broad discretion is void on its face

Front 30

Regulation that targets religious practice

Back 30

Invalid unless necessary to achieve a compelling government interest

Front 31

Establishment Clause

Back 31

Now a valuated by neutrality, historical practice, and the founding fathers would have considered acceptable.

No longer a valuated by secular purpose, neither advances nor prohibits, or doesn’t promote entanglement

Front 32

Final order when fraud has occurred

Back 32

May be asserted In reasonable time, up to one year.

Front 33

Who may read in a recorded recollection?

Back 33

Either party if the document doesn’t help witness remember

Front 34

May a judge use non-privileged, relevant evidence in order to make a preliminary fact determination on admissibility of evidence?

Back 34

Yes!

Front 35

If the government requires a group to fund messages by using funds acquired from taxation, is it considered compelled speech?

Back 35

No.

Front 36

When may the use of a condition precedent be waived?

Back 36

Where the party having the benefit of the condition indicates by words or conduct that she will not insist upon it. If the waiver of the condition is detrimentally relied upon, The court will hold it to be a bonding estoppel waiver. However, A promise to waive may be retracted at any time before reliance has occurred.

Front 37

Rights of assignee to K

Back 37

Generally, whatever writes the assign or what have against the obligor. The Assignee is subject to any contractor related defenses the obligor has against assignor.

Front 38

Seller Options after buyer rejected goods after acceptance

Back 38

The seller may cure within the original time for performance by giving reasonable notice of its intention to do so and the buyer must accept.

Front 39

Does congress have a general welfare power?

Back 39

No.

However it may spend for the general welfare

Front 40

When may a fed ct issue a declaratory judgment?

Back 40

Actual controversy- when a complainant can show that he had engaged or wishes to engage in specific conduct that the challenged gov action poses and a real and immediate danger to his interests.

Front 41

EPC- voting

Back 41

The EPC of the 14th AM prohibits state dilution of the right to vote by malapportionment of electoral districts. This rule applies to electoral districts for local governmental bodies as well as for the state legislature. When a local government establishes voting districts for the election of representatives, it must establish districts that do not have an "unjustifiably large" variance (e.g., over 30%) in the number of persons in each district.

Front 42

Will the fed court enjoin a pending state proceeding?

Back 42

The federal courts generally will abstain from enjoining pending state criminal proceedings, even if they have jurisdiction over the case. For purposes of this rule, a case is deemed to be pending as soon as it is filed. Thus, the federal court would ordinarily not hear the D’s claim until after the state prosecution has ended. However, there is an exception to the general rule-a federal court will hear an action to enjoin a pending state court prosecution if it is being conducted in bad faith; e.g., merely to harass the defendant.

Front 43

What is the most likely method the U.S. could use to impose a uniform law on all states?

Back 43

The most likely method the United States could use to impose a uniform law on all the states is through the taxing and spending power, making an allocation of funds available to each state that adopts the uniform law.

Front 44

May a statute force a group to adopt a message that significantly affects their expressive viewpoint?

Back 44

The Supreme Court has held that the forced inclusion of an unwanted person in a group may violate the First Amendment freedom of association where inclusion would significantly affect the group's ability to express its intended viewpoints

Front 45

May the gov display religious symbols?

Back 45

The Establishment Clause prohibits government action respecting the establishment of religion.

A government-maintained Christmas holiday display does not violate the Establishment Clause if it (i) has a secular purpose (based on the history of government recognition of holidays), (li) has a primary nonreligious effect (it does not endorse religion), and (ili) does not create excessive entanglement between government and religion. If a government's holiday display includes religious symbols (a nativity scene or a menorah) as well as other holiday decorations (a Christmas tree or a Santa Claus figure), the courts will allow the display. If the display includes only symbols of a particular faith, it will violate the Establishment Clause because it has a religious effect (it "endorses" religion).

Front 46

May congress appoint officers to agencies with enforcement powers?

Back 46

No. The Appointment Clause of the Constitution permits Congress to vest appointments of inferior officers only in the President, the courts, or the heads of departments. Enforcement is an executive act; therefore, Congress cannot appoint its own members to a commission to exercise enforcement powers.

Front 47

May congress form investigative committees?

Back 47

Yes.

Congress may establish legislative and investigative commissions. If a commission is not exercising any enforcement powers but rather is merely investigating and making recommendations, and all of its members are appointed by Congress; the Constitution is not violated.

Front 48

Physical appropriations of property

Back 48

The Fifth Amendment to the United States Constitution, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, provides that private property shall not be taken for public use without just compensation. Where there is a physical appropriation of property, there is a per se taking.

Front 49

What is the “supreme law of the land”?

Back 49

For the United States of America, the supreme law of the land is its constitution, federal laws, and all the treaties, unless they are in direct conflict with the constitution itself.

Front 50

May a state statute place obstacles in the way of a right established by treaty?

Back 50

No.

A treaty is the supreme law of the land and any state statute or law that conflicts with the treaty is invalid.

Front 51

What is intergovernmental immunity?

Back 51

State and local governments cannot tax or regulate the activities of the federal government. This principle is often termed "intergovernmental immunity."

The arrest and prosecution of a federal employee who was on the job violates this principle, which is based on the supremacy of the federal government and federal law.

Front 52

May the government exercise eminent domain to acquire land from a private owner and give it to another private owner?

Back 52

Yes.

The Supreme Court has held that the governmental taking of property from one private owner to give to another, in furtherance of economic development, constitutes a permissible "public use."

Front 53

Are licensing requirements constitutional?

Back 53

Yes.

The state may "within the proper purpose of the exercise of its police powers" require licensing of anyone who deals with the public in general, and the Supreme Court has been particularly liberal when the state is attempting legislation that is remedial in effect to cure a social evil that exists within the state.

Front 54

Are comments made pursuant to official duties protected by the first amendment freedom of speech provision?

Back 54

No. The Supreme Court has held that when a public employee makes statements in a capacity pursuant to his official position, he is no longer speaking as an ordinary private citizen, and his speech is not entitled to First Amendment protection.

Front 55

Eleventh Amendment

Back 55

1. The Eleventh Amendment prohibits a federal court from hearing a private party's claim against a state government. 2. A federal court may hear an action for damages against a state officer where the effect of the action will be to force the state to pay money in the future to comply with the court order. 3. The fed ct may not order retroactive damages to be paid from the state treasury.

Front 56

Wills

Effect of signing at direction of testator

Back 56

Effective but can’t also be witness to the will

Front 57

Intent to revoke by destruction

Back 57

The intent to revoke must happen concurrently with the act of destruction

Front 58

Accomplice liability for murder

Back 58

under the majority view, criminal liability for murder cannot be based on the death of a co-felon from resistance by the victim or police pursuit. Thus, given that the gunman's death resulted from an act by the clerk, the victim of the robbery, the lookout cannot be found guilty of the felony murder of the gunman, a co-felon.

Front 59

Attempt

Back 59

Any act beyond preparation is sufficient

Front 60

Deadly force to prevent a crime

Back 60

Only for inherently dangerous felonies

🔫🔪💣🗡

Front 61

Automobile exception for searches

Back 61

The automobile exception comes into play when the police have probable cause to believe that the vehicle contains evidence of a crime. Under the exception, the police may search anywhere in the vehicle in which the item for which they have cause to search may be hidden, including packages in the vehicle.

Front 62

When voluntary confession violate Miranda

Back 62

Not admissible even though voluntary

Front 63

Fed removal

Back 63

a defendant may remove an action that could have originally been brought in the federal courts. (In other words, subject matter jurisdiction based on either a federal question being presented or on diversity of citizenship would have been present had the case been filed in federal court.)

Front 64

Fed removal

Back 64

a defendant may remove an action that could have originally been brought in the federal courts. (In other words, subject matter jurisdiction based on either a federal question being presented or on diversity of citizenship would have been present had the case been filed in federal court.)

Front 65

Fed civ

Which law determines jury trial

Back 65

it is a true statement of law that a federal court with diversity jurisdiction is required to apply the substantive law of the state in which it is sitting, the requirements for a jury verdict is a procedural rule, not a substantive rule.

Front 66

Necessary parties

Back 66

an absent party should be joined when complete relief cannot otherwise be accorded among parties. Or if absentee has an interest in the subject matter of the suit such that, without his presence, his ability to protect his interest will be impaired or the existing parties will be subject to a substantial risk of incurring multiple or inconsistent

Front 67

Necessary parties

Back 67

an absent party should be joined when complete relief cannot otherwise be accorded among parties. Or if absentee has an interest in the subject matter of the suit such that, without his presence, his ability to protect his interest will be impaired or the existing parties will be subject to a substantial risk of incurring multiple or inconsistent

Front 68

Is an attorney liable for sanctions for errors on docs he signed?

Back 68

No. a signature alone is insufficient for sanctions. There must be some objective misconduct on the part of the attorney or client.

He may be liable for not making a reasonable inquiry (should have known)

Front 69

Summary judgment- pleadings

Back 69

If discovery has been done and p asserts facts for summary judgment, d must assert own and may not rely on pleadings

Front 70

Fed civ- Can a d demand a jury trial for legal and equitable claims?

Back 70

No, because, while the Seventh Amendment gives both the plaintiff and defendant the right to demand a jury trial in civil actions, when a case presents both legal and equitable claims, the right is only preserved for all legal claims, not equitable claims.

Front 71

Is a dismissal with prejudice for lack of prosecution “on the merits”?

Back 71

Yes. The ct is not required to do so but may designate as on the merits

Front 72

Fed civ-What is a collateral attack on a judgment?

Back 72

A collateral attack is the name used to describe a defendant's ability to challenge a default judgment where the defendant never appeared in the action at all. Default judgments that are either constitutionally or procedurally defective are subject to collateral attacks. Under Rule 4 of the Federal Rules of Civil Procedure, if no acknowledgment is made to a summons and complaint that was improperly served via first class mail, a defendant must be served according to the Federal Rules of Civil Procedure. If not, it is considered "procedurally defective" and is therefore subject to a collateral attack.

Front 73

FCiv

When must lack of pj be asserted?

Back 73

A defendant must file a motion to dismiss based on lack of personal jurisdiction at the time he files a motion or at the time he files his answer, whichever occurs first. If he does not, the defendant waives the defense.

Front 74

Tenant opt out of class actions

Back 74

The tenant may opt out if the court allows class members a second opportunity to opt out. In a "common question" class action, a judge may refuse to approve a settlement of a class action unless the class members are given a second opportunity to opt out.

Front 75

Objecting to venue

Back 75

Objections to venue may be raised in a defendant's answer if the defendant did not assert a Rule 12(b) pre-answer motion, as is the case here.

Front 76

Does a mortgage on a life estate encumber those with the remainder?

Back 76

No. A life tenant is entitled to all the ordinary uses and profits of the land, which includes encumbering his own interest, but he cannot lawfully do any act that would injure the interests of the remaindermen.

Front 77

Dying declaration

Back 77

the victim must actually have firsthand knowledge that the alleged was responsible. Not assume

Front 78

Rescuer assumption of risk

Back 78

A rescuer is a foreseeable plaintiff as long as the rescue is not reckless; hence, the defendant is liable if he negligently puts himself in peril and the plaintiff is injured attempting a rescue. A plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent. The emergency situation is one of the factors taken into account when evaluating the plaintiff's conduct.

Front 79

Contracts

Forbearing suit as consideration

Back 79

Modern courts would hold that a promise to forbear suit on a claim that the promisor honestly and reasonably believes to be valid is good consideration to support an agreement, even if the claim ultimately turns out not to be valid.

Front 80

Child liability for intentional torts

Back 80

At common law, parents are not vicariously liable for the torts of their child. (Statutes in most states allow for limited liability for intentional torts, but there is no indication of such a statute here.) Parents can be liable, however, for their own negligence, i.e., in not exercising due care under the circumstances. Thus, if the parents know their child may be violent, they could be negligent if they do not take precautions to prevent that behavior or injury from that behavior. However, if the parents have no reason to know their child could be violent, they have no duty to protect against such behavior.

Front 81

Informant cell use for unrelated, uncharged crimes

Back 81

5th AM does not apply where interrogation is by an informant who the defendant does not know is working for the police, because the coercive atmosphere of police-dominated interrogation is not present. [Illinois v. Perkins (1990)