Mbe Refresher

Front 1

CONSTITUTIONAL LAW:

federal judicial review, case or controversy requirement: a real live controversy must

Back 1

exist at all stages of review, not merely when the complaint is filed

Front 2

if controversy no longer exists

Back 2

court will dismiss for mootness

Front 3

a case becomes moot when

Back 3

a party can no longer be affected by the statute they are challenging

Front 4

case and controversy questions often have

Back 4

wrong choices going to the merits of the dispute

Front 5

standing: two prong test:

Back 5

1. a concrete injury in fact not suffered by all persons

2. injury must be capable of being remedied by a decision in petitioner's favor (redressibility)

Front 6

taxation power: Congress has the ________ power to tax

Back 6

plenary

Front 7

standing: SCOTUS said members of Congress lack standing (Rains v. Bird)

Back 7

to challenge a law authorizing the President to exercise a line item veto

Front 8

Separation of Powers: appointments clause: permits congress to vest appointments of inferior officers only in the

Back 8

president, the courts, or the heads of departments

Front 9

Congress cannot appoint members of a commission that have______________ powers

Back 9

enforcement. this is an executive power

Front 10

Commerce clause: state taxation of commerce: states may impose

Back 10

doing business taxes, such as a gross receipts tax on companies engaged in interstate commerce so long as it does not discriminate against or unfairly burden interstate commerce

Front 11

a tax will impose an unfair burden UNLESS

Back 11

1. the activity taxed has a substantial nexus to the taxing state

2. the tax is fairly apportioned; AND

3. the tax fairly relates to services provided by the state

Front 12

preemption / supremacy clause: did Congress intend to

Back 12

occupy the entire field with its regulation thus precluding any state or local regulation

Front 13

preemption can be either

Back 13

express or implied:

express = stated in statute

implied = inferred through statutes structure and purpose

Front 14

federal regulation of advertising for health and safety has

Back 14

nothing to do with state's regulatory interest in preventing fraudulent advertising (Altria v. )

Front 15

fundamental right to travel: an individual as this right to

Back 15

travel from state to state and a state law that is designed to deter person from moving into that state is likely to violate the Equal protection clause of 14th Amendment

Front 16

when a state uses a durational residency requirement for dispensing benefits

Back 16

that requirement normally should subject to strict scrutiny (and will likely not survive)

Front 17

P&I of Article IV: protects against

Back 17

discrimination by a state in favor of its own citizens when it involves a fundamental right e.g., the pursuit of livelihood

any statute that discriminates in that manner, violates the clause unless it shows it has substantial justification for the discrimination - no less restrictive means to solve the problem

Front 18

government speech: the government is generally

Back 18

free to choose which messages it will and will not convey absent some other constitutional subscription

a permanent display on a gov't building = gov't speech

Front 19

over breadth and first amendment: if a regulation of speech punishes a substantial amount of protected speech judged in relation to the regulation's plainly legitimate sweep...

Back 19

the regulation is facially invalid and cannot be enforced against anyone

Front 20

even if there is speech that incites violence

Back 20

speech is still protected if the regulation is overbroad

Front 21

first amendment and prior restraint: prior restraint is the government preventing

Back 21

dissemination of speech before it is made

most cases hold that prior restraints will not be tolerated unless the restraint is narrowly tailored to serve a compelling government interest (strict scrutiny)

Front 22

First amendment and free exercise clause: free exercise clause restricts government

Back 22

interference with the exercise of religion. This clause strongly protects religious beliefs. Gov't may not punish religious beliefs unless it is necessary to achieve a compelling interest (strict scrutiny).

Front 23

first amendment and establishment clause: prohibits the government establishment of religion applicable to the states via

Back 23

the due process clause of 14th amendment

Front 24

first amendment and establishment clause: government action involving religion it must pass the 3 part lemon test:

Back 24

1.

fairly subjective test

long history of prayer will not fail the test

Front 25

CIVIL PROCEDURE: subject matter jurisdiction: diversity: each plaintiff must be

Back 25

citizen of a different state than every D and amount in controversy must exceed $75,000

Front 26

when dealing with limited partnerships, citizenship

Back 26

where every partner (general or limited) is a citizen

Front 27

federal courts do not hear...

Back 27

alimony or divorce cases, among others.

Front 28

1. usually every claim brought in federal courts must __________, but ____________ can be used.

2. A P may aggregate

Back 28

1. have a basis for SMJ.......aggregation where SMJ would not otherwise exist.

2. all of the claims he or she has against D and as long as diversity exists and the aggregate amount exceeds amount in controversy, the federal court will hear the case

Front 29

if a claim is dismissed for lack of personal jurisdiction,

Back 29

not on the merits, and can file in a different court that has PJ as long as SOL has not expired

Front 30

Venue: is proper when

Back 30

1. any district where a D resides if all Ds reside in the same state OR

2. in the district where a substantial part of the events giving rise to the cause of action occurred.

If there is no district under 1. or 2., then the action may be brought in any district in which ANY D is subject to personal jurisdiction

Front 31

impleader and supplemental jurisdiction: indemnity a fever court may hear (impleader) indemnity claim if

Back 31

seeking recovery for all or part of liability and under supplemental jurisdiction as long as that claim arises under a common nucleus of operative facts

Front 32

as long as impleader claim is valid, the federal will allow, under the rules of joinder, permit the joining further claims as long as

Back 32

the rules of SMJ are satisfied

Front 33

removal = a one way street = only the _____ can remove from state to federal court

Back 33

defendant

Front 34

pre trial motions: 12(b) motions: 12(b)(6) may be asserted

Back 34

not only in any pre answer motion, but also in any later motion, pleading for judgment on the pleadings, or at trial

Front 35

discovery: in support of a claim, a party must provide to the other party

Back 35

copies or descriptions of ESI that is in the disclosing parties possession or control OR that the disclosing party maybe using to support its claims or defenses

Front 36

discovery: witnesses: a party must disclose the

Back 36

identities of individuals likely to have discoverable information that the disclosing might be using in its claims or defenses

even if defense decides not to use the witness, the disclosing party must still disclose if P properly requests, because discovery may be had of any non privileged matter that is relevant to any parties claim or defense including individuals with knowledge of any discoverable matter

Front 37

P is given ______ opportunity to make a voluntary dismissal of an action

Back 37

one. for any reason. if a second one is made then that is an adjudication on the merits. prior to a defendant answering a claim or filing motion for summary judgment, P may dismiss case by filing a notice of dismissal (ONCE).

Front 38

default judgments and when they can be set aside: a default judgment may be set aside for:

Back 38

1. if evidence of mistake, surprise, or excusable neglect

2. newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial

3. evidence of fraud, or misrepresentation committed by an adverse party

4. judgment is void

5. if judgment has been released, satisfied, or discharged

6. any other reason justifying the relief from the operation of the judgment

Front 39

when is a judgment enforceable?

Back 39

during the pendency of post-trial motions unless the court otherwise orders for the sake of the (financial) security of the adverse party

Front 40

issue preclusion: arises when

Back 40

in a previous lawsuit between P and D, any judgments that occurred binds them in subsequent actions on different causes of action as to issues actually litigated and essential to the judgment of the first action

mutuality rules have been relaxed here... can be new parties, don't have to be the same parties

Front 41

TORTS:

battery:

what will negate an element of battery?

Back 41

1. intends to cause harmful offensive contact and such contact occurs

lack of intent

Front 42

Trespass to land: an interference with

Back 42

the right of possession of the land. an action for trespass can be brought by anyone in actual or constructive possession of the land even without title or legal right

all about possession!

Front 43

D is not liable for otherwise tortious act if P has

Back 43

consented

implied by law when action is necessary to save an important interest in person or property, e.g. emergency situation - where P is not a position to consent, but a reasonable person would conclude that P would have consented, the it will be implied by law.

Front 44

defamation and consent: consent is a complete

Back 44

defense to a defamation action. Apparent consent may be implied where a reasonable person would infer consent from P's actions.

malice is irrelevant to a consent defense

reasonable mistake as to whether there was consent is not a defense

Front 45

invasion of privacy: public disclosure of private facts: requires two prong test

Back 45

1. publication by D of private information about P; AND

2. matter made public is such that a reasonable person would object to having it made public

publication may be privileged if a matter of legitimate public interest as long as it is made without malice

Front 46

what is the fall back to defamation?

Back 46

invasion of privacy: false light or public disclosure of private facts

Front 47

negligence: duty of care: a physician prescribing a course of treatment or surgical procedure has

Back 47

a duty to provide the patient with enough information about its risks to enable the patient to make an informed consent

Front 48

negligence and landowner duties of care: a general rule, landowner's owe no duty to those off the premises for natural causes, but

Back 48

may be liable for unreasonably dangerous artificial conditions or structures abutting adjacent land

e.g. ice collecting on roof while customer walking on sidewalk - potentially a duty there.

Front 49

traditionally, if contributory negligence rules apply (they have to tell you) and the P is at all negligent?

Back 49

no recovery

Front 50

negligence: rescuers: a rescuer is a

Back 50

foreseeable plaintiff under the theory that danger invites rescue

Front 51

at common law, an owner of an automobile is ____________ for the conduct (torts) of drivers.

Back 51

not liable

Front 52

Strict liability: 3 types

Back 52

wild animals

abnormally dangerous activities

strict products liablity

Front 53

owner of trespassing animals are strictly liable for the damage they cause as long as

Back 53

it was reasonably foreseeable

Front 54

strict products liability applies

Back 54

when a defective product unreasonably dangerous to the user or consumer is placed into the stream of commerce

everyone in the supply chain is liable

**design defects = P must usually show a reasonable alternative design, a less dangerous alternative was economically feasible.

Front 55

to prove breach of a duty in a products liability case based on negligence...

Back 55

P must show 2 things:

1. negligent conduct by D leading to

2. supplying of defective product by D

defective food product = manufacturing defect

Front 56

To show negligence in a manufacturing defect case (products liability)

Back 56

P may invoke res ipsa loquitur

in order to rely on this, P must show that the injury is the type that would not normally occur ABSENT negligence, and usually occurs because of negligence on the part of the manufacturer

res ipsa is an inference of negligence - not conclusive

Front 57

private nuisance =

Back 57

a substantial unreasonable interference with a person's use and enjoyment of the property

to be substantial it must be offensive, inconvenient, annoying to an average person in the community

not substantial if merely the result of P's hyper sensitivity

Front 58

landowner owes a duty to those adjacent to the premises to

Back 58

take due precautions to protect them from dangerous conditions and owes invitees on the premises the two fold duty: 1. duty to inspect and 2. duty to make safe.

duties cannot be delegated to an independent contractor

Front 59

contributory negligence: in a wrongful death action, recovery is allowed

Back 59

only to the extent the deceased could have

Front 60

P's conduct in negligence case is never characterized as

Back 60

an intervening force, but instead as contributory negligence that will bar recovery following traditional rules

Front 61

CRIMINAL LAW & PROCEDURE:

felony murder: majority rule for death of felon - the killing of a felon by a police officer to prevent the felon's crime or escape ___________ be the basis for felony murder

**red line view = majority view

Back 61

cannot

Front 62

if a police or victim shoots a bystander, and the jurisdiction follows the agency theory of liability for felony murder....

Back 62

the felon will not be liable because the killing was not done by his agent or accomplice

Front 63

self defense: generally one who begins a fight has

Back 63

no right to use force in self-defense. Unless a victim of an initial aggression escalates the fight with deadly force and doesn't give the initial aggressor the opportunity to withdraw, then the initial aggressor can use force

Front 64

larceny: elements

Back 64

1. trespassers taking (no consent)

2. carrying away of

3. personal property

4. of another with

5. intent to permanently deprive

** the intent to permanently deprive can be found when the D intends to use the property as to create a substantial risk of loss

**mistake of law is no defense, even if reasonable

Front 65

continuing trespass (exception to concurrence requirement) =

Back 65

where one wrongly takes property without intent to permanently deprive but later decides to keep it and the intent is at the moment they decide to keep it

Front 66

burglary and larceny: larceny is a crime against possession?

Back 66

yes, even if unlawful

Front 67

for someone to act purposely they must have

Back 67

conscious intent

Front 68

for someone to act knowingly it means

Back 68

D has knowledge to a substantial certainty as to the harmful result

Front 69

attempted (specific intent) murder: the mens rea needed is

Back 69

intent to kill

Front 70

search incident to lawful arrest (exception to lawful arrest) = after arresting the occupant of a vehicle the police may search

Back 70

the interior of the vehicle if:

1. the arrestee is unsecured and may still gain access to the vehicle

2. OR the police reasonable believe that evidence of the offense for which the person was arrested may be found in the vehicle

Front 71

valid arrest =

Back 71

1. probable cause

and 2. warrant

Front 72

in order to challenge or object to search on 4th amendment you need

Back 72

standing = a person must have a reasonable expectation of privacy in the place to be searched or item seized. A person's own expectation must be violated

**one may not challenge a search and seizure on 4th amendment grounds by claiming another person's rights have been violated

Front 73

Miranda Rights = once a defendant is custody, the arrestee is entitled

Back 73

to remain silent and request an attorney

once a D requests a lawyer all questioning must cease, and one doing so (exercising 5th rights) cannot be used against them at trial.

Front 74

Miranda v. messiah (5th and 6th amendments):

1. Miranda (5th) is applied when there is

2. Messiah (6th) applies when

Back 74

1. custodial interrogation - prior to being charged

right to counsel is not offense specific and can be asked about other crimes

2. when D has been formerly charged and the right to counsel is offense specific = any interrogation about that crime must take place in presence of counsel unless D has made a knowing and intelligent waiver of that right

Front 75

Miranda = custodial interrogation: when is D in custody?

Back 75

when one's freedom is restrained in a significant way, reasonably believe not free to leave

**privilege against self incrimination bars government from procuring compelled testimony

Front 76

4th amendment = a D's guilty plea

Back 76

neither admits the legality of the incriminating search NOR waives 4th amendment claims in a subsequent civil damages action challenging the constitutionality of the incriminating search

Front 77

double jeopardy: prohibits

Back 77

retrying a D whose conviction has been reversed on appeal for any offense more serious of that which she was convicted at the first trial

violated by retrial for a more serious offense even if at the second trial the D is only convicted of an offense no more serious than that which she was convicted at the first trial

Front 78

double jeopardy means that

Back 78

one may not be twice tried for the same offense

blockburger test is that a crime will not be the same offense: if each crime requires proof of an additional element that the other crime does not require even if some of the same facts are necessary to prove both of the crimes

Crime 1 = A, B, C

Crime 2 = A, B, X

C and X make it NOT a violate of double jeopardy under blockburger test.

Crime 1 = A, B, C

Crime 2 = A, B, C, D

This is a violation because only one of the crimes has an element that the other crime does not require

Front 79

CONTRACTS:

in UCC (gap filler) if the contract fails to state a delivery date then,

Back 79

it must be delivered within a reasonable time

Front 80

Generally, shipment of non-conforming goods is an accepting creating

Back 80

bilateral contract and a breach of contract, however, the result is different if the seller seasonably notifies the buyer that the non-conforming goods are offered as an accommodation to the buyer. Then, the shipment is a counteroffer which the buyer is free to accept or reject.

Front 81

a purchase order can be accepted by either

Back 81

promise or shipment, thus a bilateral contract.

but note the accommodation exception.

Front 82

option K is a distinct contract in which the offeree gives consideration to

Back 82

not revoke an outstanding offer (underlying offer)

not even revocable even by an attempted rejection unless the offeror relied on the rejection.

Front 83

ordinarily, an offer is terminated if either of the parties dies prior to acceptance....

Back 83

an offer that was irrevocable for a period of time because of an option contract, the offer survives the offeror's death and may be accepted anytime within the option period

Front 84

in a requirements K a buyer promises to buy from a certain seller...

Back 84

all of the goods it requires and the seller agrees to sell that amount to a buyer

Front 85

generally, a promise to pay a legal obligation barred by law is

Back 85

enforceable. But if a past obligation (debt) would be enforceable except for the fact that a technical defense stands in the way of enforcement (SOL), courts will enforce a new promise if it is writing or where there has been part performance.

Front 86

latent ambiguity =

Back 86

where the expression of the parties agreement appears to be clear at the time of formation, but is later interpreted differently

where one party is aware of ambiguity and the other is not, the contract will be enforced as to the party that did not know of the ambiguity

ambiguity alone does not void a contract

Front 87

parol evidence: if there is uncertainty or ambiguity in a written agreement's terms or a dispute as to the meaning of those terms

Back 87

parol evidence can be used to aid the fact finder in reaching a correct determination or interpretation of the ambiguous terms

Front 88

accord and satisfaction

1. accord =

2. Satisfaction =

Back 88

1. executory agreement (duties have not yet been performed) to discharge an existing contractual duty. In order to make an accord valid you need consideration. may be of lesser value of the original contract as long as different. The accord merely suspends the performance of the original agreement.

2. performance of the accord agreement. discharges the original contract and the accord agreement.

Front 89

UCC Remedies:

1. when a buyer breaches the contract by refusing to accept the goods, the seller's basic damages are either

Back 89

1. (i) the difference between the market price and contract price OR (ii) the difference between contract price and the resale price plus any incidental damages

Front 90

UCC Remedies / Lost volume seller: Use the lost profits measure of damages =

Back 90

lost profits + incidental damages

facts will tell you if dealing with volume seller = ex. manufacturer could make as many as needed and/or has ample inventory

Front 91

Specific Performance Remedy:

if the subject matter of the contract has already been sold to another who purchased for value and in good faith (BFP) the right to

Back 91

specific performance is cut off

**otherwise, SP is generally available at equity when legal damages (money) will not be an adequate remedy and subject matter is unique

Front 92

Under the UCC, a seller must deliver goods to an insolvent buyer if

Back 92

the buyer tenders cash for the payment

Front 93

3rd Party Beneficiaries: only intended 3rd party Bs have rights, not incidentals. But they cannot enforce rights under the contract until

Back 93

the rights VEST (1 of 3 ways):

1. detrimental reliance

2.

3.

Front 94

assignments and privity: all contracts are assignable except

Back 94

long term requirements Ks and personal service Ks. Except, when waived.

Front 95

EVIDENCE:

5 ways to impeach a witness:

Back 95

1. prior inconsistent statement: (i) not under oath, only impeachment; (ii) under oath, both substantive evidence and impeachment

2. bias or motive to misrepresent: always admissible, extrinsic evidence allowed if witness denies

3. prior convictions: (i) if to prove dishonesty or false statement, always admissible; (ii) if for serious crime punishable by more than one year, use probative value vs. unfair prejudice test. The conviction cannot be too remote: if greater than 10 years from release from confinement

4. Prior bad acts: specific bad acts, truthfulness or untruthfulness, no convictions, it witness denies - no extrinsic evidence

5. Bad reputation in community for truth or veracity: may be proven with extrinsic evidence

Front 96

A witness can always be questioned about

Back 96

misconduct probative of truthfulness

Front 97

Former testimony exception: If a now unavailable witness, former testimony is admissible if there is

Back 97

sufficient similarities of parties and there was an opportunity at prior hearing to meaningfully cross examine

Front 98

Statements by hearsay declarant can be _________ at any time.

Back 98

impeached

Front 99

Jurors are incompetent as witnesses, but only for

Back 99

the case in which they are currently sitting or to impeach a prior verdict they participated in

Front 100

Character evidence in a criminal case: where D opens this door this means

Back 100

D offers evidence of good character by reputation or opinion (NO SPECIFIC ACTS) offered to prove innocence, but the evidence needs to be relevant. Only then, prosecution may introduce evidence of reputation or opinion to rebut D's evidence.

Front 101

marital communication privilege does not apply in

Back 101

actions between spouses

Front 102

Party admission =

Back 102

a statement or act done that amounts to prior acknowledgment by one of the parties of one of the relevant facts

Front 103

attorney client privilege does not apply when you have

Back 103

2 parties being represented by the same attorney in the same action

Front 104

True/False: Party admissions are non-hearsay.

Back 104

True

Front 105

best evidence rule =

Back 105

when contents of a writing are in issue, the original writing is needed EXCEPT if unavailable or lost or destroyed through no fault of the parties. Secondary evidence will then be allowed.

Front 106

For unavailability of the witness, it is not enough that the

Back 106

witness is out of state. Still need to make an attempt to serve on the witness.

Front 107

Public record exception to hearsay is in an effort to avoid

Back 107

public agents to leave jobs to testify. The report produced will be sufficient.

Front 108

Confrontation Clause: criminal D has the right to

Back 108

confront and cross-examine witnesses against him.

affidavits summarizing forensic analysis are testimonial in nature and cannot be offered against D unless the preparer was unavailable and D had opportunity to cross examine

the clause can bar a statement even if it falls within a hearsay exception

Front 109

REAL PROPERTY:

if a future interest can be transferred voluntarily, it can also be

Back 109

involuntarily transferred and it can be reached by owner's creditors

Front 110

fee simple subject to condition subsequent =

Back 110

when a grantor retains power to terminate the estate of a grantee upon the happening of a stated event = conditional language

upon the happening of the event the grantee's estate continues until the power to terminate is exercised

Front 111

For joint tenancies you need

Back 111

"with right of survivorship"

does not descend to heirs

severed by inter vivid conveyances and the 3rd person becomes an "in common" holder

Front 112

Periodic tenancy is not terminated until

Back 112

proper notice is given

less than a year = full period notice in advance: (i) year-to-year - 6 months, (ii) month-to-month - 30 days.

Front 113

Generally, options to purchase land are subject to

Back 113

Rule Against Perpetuities, however RAP does not apply to OPTIONS connected to LEASEHOLDS

Front 114

the covenant of quiet enjoyment is implied in

Back 114

every lease that neither landlord nor someone with paramount title will interfere with tenants quiet enjoyment and possession

may be breached by actual eviction

foreclosure will terminate junior interest to the mortgage that is foreclosing

Front 115

Abandonment of servitudes: if a benefited party acquiesces in violation of the servitude by one burdened party, he may

Back 115

have abandoned the servitude as to other burdened parties

Front 116

partial restraint on alienation is

Back 116

one that purports to restrict the power to transfer to specific persons via specific method or until a specific time.

such restraints if for a reasonable purpose are likely to be upheld

Front 117

marketable title: in every contract for the sale of land, there is

Back 117

an implied warranty that at closing the seller will provide the buyer with marketable title

an inability to establish a record chain of title will generally render the title unmarketable

Front 118

If a servient parcel (the parcel burdened by the easement) is transferred, its new owner

Back 118

takes it subject to the burden of the easement unless a BFP without notice of easement

Notice can be: actual, constructive (record), inquiry

Front 119

a deed is voidable fi

Back 119

its executed by a minor or incapacitated person OR obtained through (i) fraud in the inducement, (ii) duress, (iii) undue influence, (iv) mistake, (v) breach of fiduciary duty

a voidable deed will be set aside ONLY IF the property has not passed to a BFP

Front 120

anti-lapse statute: at common law if a will beneficiary dies before the testator,

Back 120

the gift to the beneficiary was void.

Front 121

when a grantor purports to convey property that he does not own, his subsequent acquisition of title to that property...

Back 121

vests in the grantee under the doctrine of estoppel by deed

Front 122

priority of a mortgage is generally determined

Back 122

at the time it is placed on the property. This may change based on: the recording acts, rules with purchase money mortgages, or execution of a subordination agreement

subordination agreements are generally enforced if they are specific

subordination agreement is where you have a first mortgagee that may enter into an agreement with a junior to subordinate its priority to the junior mortgagee