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102 Cards in this Set

  • Front
  • Back

when contractual duties are delegated, does the delegating party remain liable on the K?
Yes, unless the obligee expressly consented to the delgation of duties and released the original obligee (a novation)
Constitutional Law

is a local government permitted to enact rules more stringent then the federal standards under a federal statute?
Yes, if the federal legislation does not address the issue of preemption and a problem is uniquely local

the court has made it clear that for preemption, either the federal statute must expressly preempt state measures, or its preemptive force must be clear by either "occupying the field" or posing a conflict that makes compliance with both measures impossible.
constitutional law

is the 13th amendment enabling clause limited to government action?

Under the UCC, can a buyer accept shipment sue for damages when the wrong goods are sent with an accomodation form?
Yes, under the UCC, if a valid K existed, Buyer can accept the entire shipment and sue seller for damages.

if there had been no prior K and seller had attempted to accept by shipment, shipment of the accomodation units would be a counteroffer and if buyer accepted them, she could not sue for damages
in a lost volume situation, is the seller allowed to sue for lost profits due to breach of the buyer?
Yes, generally lost profits is measured by the difference between the cost of goods and the K price, less the seller's saved expenses
does criminal negligence require the same "reasonable person standard" as applied in Torts?
No, criminal negligence requires negligence of a greater degree then the "reasonable person standard" for torts
Criminal Law

what does C/L murder require?
murder requires a killing of a human being with malice aforethought

what does based on stricy lliability for products require?
(i) strict duty owed by a commercial supplier

(ii) breach of that duty

(iii) actual and proximate cause

(iv) damages for a prima facie case

when a landlord sells his property to another landlord, is the original landlord liable for any covenants or is he free of liability once the property is sold or assigned?
the original landlord remains liable (on privity of K grounds) on all covenants he made in the lease that touch and concern the land
Constitututional Law

When can a state levy taxes against the federal government
nondiscriminatory, indirect taxes on the federal government or its property are permissible if they do not unreasonably burden the federal government

Does a property owner owe a duty of care to a trespasser?
No, a duty of care is owed only to foreseeable Ps. a trespasser is not a foreseeable P unless the landowner has discovered her presence or should reasonably know of trespassers who constantly cross over a section of his land
Constitutional Law

is an employees due process rights violated if he is fired without a hearing explaining why he was fired?
No, the due process clause requires a hearing only when a life, liberty, or property interest is at stake

to have a property interest in continued government employment, there must be a statute, regulation, contract right, or clear policy that the employee can be dismissed only for cause

absent such a right to employment, the employee is an at will employee and may be terminated without a hearing

In a sale of goods under the UCC, is the S/F violated when there is no written K for specially manufactured goods?
No, ordinally section 2-201 would require a writing, but section 2-201(3) provides that a writing is not required where the K is for specially manfufactured goods not suitable for resale in the ordinary course of the seller's business and the seller has made a substantial beginning of their manufacture or commitments for their procurement
Criminal Procedure

are a Ds rights violated when police have probable cause to arrest him, but arrest him inside the house of a 3rd person when they didn't have a warrant to enter that third party's house?
no, the warrant requirement for a third person's premises is intended to protect the third person's expectation of privacy; while the search may violate the 3rd person's 4th amendment rights, there is no violatuon if the 3rd person is not being charged with an offense

the SC has held that a person can have evidence excluded on on 4th amendment grounds only if that person's 4th amendment rights were violated; a person has no standing to raise a violation of another's 4th amendment rights
Criminal Procedure

when does a person have standing to object to the search of a place?
only if that person has an ownership or possessory interest in the place searched or is an overnight guest in the place searched
Criminal Procedure

is a D's confession at a police station after an illegal arrest at his home without a warrant excluded under the exclusionary rule?
No, the SC has held that where the police have probable cause to arrest a D and improperly arrest in his home without a warrant, a confession made by the D at the police station is admissible because it is not the fruit of the unlawful arrest (since the police could have lawfully arrested the D the second he stepped outside of the house)

If a party to a K notifies the other that he will not be able to perform his part of the bargain, can the nonrepudiating party treat the repudiation as a breach of K?
Yes, an anticipatory repudiation can be treated as an immediate and total breach of K which entitles the nonrepudiating party to sue for damages

although the repudiator can retract the repudiation, this must be done before the nonrepudiating party relies on the repudiation

what is the proper measure of damages in construction cases where the builder breaches?
The proper measure of damages is the difference between the cost of obtaining substituted performance (i.e., the cost of completion) and the K price

does the death of a party to the sale of a property become void when the buyer dies before the deed is delivered?
Yes, b/c a deed to a nonexistent person is void and conveys no title

May a police officer use force to effect a valid arrest when the offense is a misdemeanor?
Yes, but only for a breach of the peace misdemeanor, not for a misdemeanor that does not constitute a breach of the peace and the office may use whatever defree of force is necessary to effect the arrest
constitutional law

what does the general welfare clause allow congress to do?
allows congress to SPEND for the general welfare
Constitutional Law

what does the Property Clause of Article IV, section 3 allow congress to do?
contains no express limit on Congress' power to dispose of property owned by the U.S.

Does a seller have to pass perfect title when selling real estate?
No, the seller has to deliver marketable title which does not require perfec title

title is marketable if a reasonably prudent buyer would accept it in the exercise of ordinary prudence

are judgments of felony convictions admissible in criminal and civil actions?
Yes, to prove any fact essential to the judgement (that D was intoxicated)

What must be proved to prevail on a claim of Intentional Infliction of Emotional Distress?
t1. he D's must have intended to cause severe emotional distress (either acted with the goal of bringing about such distress or knew with substantial certainty that such distress would result from their conduct)

2. it is also sufficient if the Ds acted recklessly
Constitutional Law

do people have standing as taxpayers to challenge the way tax dollars are spent by the government?
No, the general rule is that people do not have standing as taxpayers to challenge the way tax dollars are spent b/c their interest is too remote

however, there is an exception to the rule if the taxpayer can establish that the challenged measure was enacted under Congress's taxing and spending power and is in violation of the Establishment Clause
Constitutional Law

What is the test the government must Satisfy under the Establishment Clause?
the government program must

(i) have a secular purpose

(ii) have a primary effect that neither advances nor inhibits religion, and

(iii) not produce excessive government entanglement with religion
Constitutional Law

are construction grants to church-operated private colleges and universities in violation of the Establishment Clause?
No, the SC applies the EC prohibitions less strictly when the benefitted institution is a religiously affiliated college or hospital rather then a grade or secondar school.

the SC will uphold a government grant of aid to such a college or hospital as long as the government program requires that aid be used only for nonreligious purposes and the recipient so agrees in good faith

what happens if the buyer in a contract for the sale of real property dies before closing?
Under the doctrine of equitable conversion, if the buyer dies, the takers of his real property can demand the conveyance of the land at the closing of the K
Criminal Procedure

May immunized testimony obtained at a grand jury hearing be used for impeachment of the D's testimony at trial?
No, testimony obtained by a promise of immunity is by definition coerced and therefore involuntary
Criminal Law

does an attempt to commit a strict liability crime require proof of criminal intent?
Yes, although a strict liability crime does not require proof of criminal intent, to attempt a strict liability crime requires proof that the D acted with malice to bring about the proscribed event
Criminal Law

Does the D had to intend to use force to be guilty of robbery?
no, the only intent required is to permanently deprive the victim

what is the measurement of damages for conversion?
the FMV of the chattel converted at the time and place of the conversion

when two or more persons take property by a single conveyance, what type of tenancy is created under modern law?
a tenancy in common is presumed.

a joint tenancy results only when an intention to create a right or survivorship is clearly expressed

in the case of third party beneficiaries, may the contracting parties determine by agreement the issue of whether a third-party beneficiary's rights vest?
Yes, this is commonly done in life insurance policies and employee benefit plans by reserving to the policy holder or the employee the power to change the beneficiary at any time

**watch for promissory estoppel problems though where the third party beneficiary is not told that the policy holder has the power to revoke
Constitutional Law

what type of scrutiny is applied to state laws that classify persons based on alienage?
Strict scrutiny unless the law is discriminating against alient participation in the functioning of the state government

in that case, the law will be upheld as long as it is rationally related to a legitimate government interest

thus, a state can validly refuse to hire aliens as teachers or police officers b/c these positions have a direct effect on the functioning of the government

on the other hand, a state law requiring citizenship for all civil service positions will be invalid

similarly, a state law requiring citizenship for notaries was held invalid b/c that position is essentially clerical
Constitutional law

in a local election that dilutes
the right of minoroties to vote
by malaportionment of electoral districts, does the Equal
Protection clause or the 14th
amendment clause protecting the
privileges and immunities of
national citizenship apply?
the 14th amendment equal
protection clause applies b/c
it has been interpreted by the SC
as prohibiting state dilution of
the right to vote by malaportionment
of electoral districts

the 14th amendment clause protecting
privileges and immunities has been
interpreted as protecting only against state infringment of rights percular
to NATIONAL citizenship, e.g., the right to vote in national elections

what effect does an inter vivos conveyance of a portion of property by all joint tenants have on the joint tenancy?
an inter vivos conveyance by all joint tenants of a portion of the property severs the joint tenancy as to the portion that is conveyed.

however, the joint tenancy is preserved as to the unconveyed portion of the property

when will the court imply a covenant in a land conveyance from a land developer to a grantee that deviates from the scheme for development?
a court will imply a covenant--known as a reciprocal negative servitude--where evidence shows that the developer had a scheme for development when sales began and that the grantee in question had notice of the scheme

the covenant protects the parties who purchased in reliance on the scheme. evidence of the scheme can be obtained from the general pattern of other restictions, and notice can be from actual notice, record notice, or inquiry notice

does a K to pay the debt of another have to be in writing under the S/F?
Criminal Procedure

is a D's miranda rights violated if he agrees to talk, but states that he will not sign or put anything into writing without his attorney, and then proceeds to make incriminating oral statements?
No, a request for an attorney must be unambiguous and specific. if the D agrees to answer questions orally, but requests the presence of counsel before making any written statements, the D's oral statements are admissible

the D's agreement to talk constitutes a voluntary and knowing waiver of the right to counsel

in a K for sale of goods, what is the measure of damages when the seller fails to deliver or repudiates?
Under the UCC, the buyer may measure his damages by the difference
between the K price and the amount
he actually has to pay for
replacement goods

if the buyer chooses to fix
damages in this manner, he must
make a reasonable contract for
substitute goods in good faith
and without unreasonable delay

in addition to such damages,
the buyer is entited to incidental
and consequential damages
constitutional law

does a state grant of land to a private museum who discriminates in its hiring process, trigger the equal protection clause?
no, the Equal Protection clause prohibits only government infringement

private action may constitute state action where the private actor is performing an exclusive state function or the government is significantly involved in the private actor's activities

the running of a museum, however, is not an exclusive government function (e.g., running elections) and the state's grant of the land for the museum does not constitute significant state involvement in the museum's affairs

what is the liabilities of a mortgagor and the grantee when the mortgagor sells a foreclosed property that does not bring enough to satisfy the mortgage debt?
when the mortgagor sells the mortgaged property and gives a deed, the grantee takes subject to the mortgage, which remains on the land

if the grantee does not sign and assume the mortgage, he does not become personally liable on the loan, and the original mortgagor remains primarily and personally liable

if the grantee does sign an assumption, the lender is considered a third party beneficiary of the agreement and may sue either the original mortgagor or the assuming grantee on the mortgage note
Criminal Law

if an accused invokes his right to counsel under miranda, may the police officers then question him about a different crime?
No, if the accused invokes his right to counsel under Miranda, all questioning must cease, even about a totally unrelated crime, b/c the Fifth amendment right to counsel under Miranda, unlike the 6th amendment right to counsel, is not offense specific

what are incidental damages?
damages which include expenses
reasonably incurred in inspection,
receipt, transportation, care,
and custody of goods rightfully
Criminal Law

define murder
murder is the unlawful killing of a human being with malice aforethought

malice aforethough exists if the D has any of the following states of mind:

1. intent to kill

2. intent to inflict great bodily injury

3. awareness of an unjustifiably high risk to human life

4. intent to commit a felony

in deciding whether an offer was accepted, is an objective or subjective standard used?

would a reasonable person assume that there had been an acceptance
Criminal law

when a D at the scene of a crime says to the P, "the accident was my fault. I will pay your medical expenses," which statements are admissible?
the statement expressing fault would be admissible, but the offer to pay medical bills would not
Constitutional Law

does freedom of the press under the first amendment prohibit all regulation of the press when it comes to taxes based on content?
No, but it does place limits on regulation.

the press and broadcasting companies can be subject to general business regulations and taxes, bu generally may not be signaled out for a special tax

a tax impacting on the press or a subpart of the press cannot be based on the content of the publication absent a compelling interest

what are consequential damages?
damages that include any loss
resulting from the general or
particular requirements and needs
of which the seller has reason
to know at the time of contracting,
and which could not be prevented by
purchasing substitute goods or

is an oral K to pay the debt of another always within the S/F?
No, where the main purpose or leading object of the promisor is to secure an advantage or percuniary benefit for himself, the K is not within the S/F, even if the effect is still to pay the debt of another
Constitutional Law

what constitutional standard is applied to review a state's decision not to grant medical benefit payments for abortions when that state does grant benefits for childbirth services?
the SC has held that neither federal nor state government is required to grant medical benefit payments for abortions, even if it grants payments for childbirth services

the court has held that a state's failure to provide funding for a woman's abortion decision does not constitute interference with her constitutional right to make that decision, hence, such legislation is valid unless the P can show that it is not rationally related to a legitimate state interest

what is the doctrine of equitable conversion?
under the doctrine of equitable conversion, once a K is made and each party is entitled to specific performance, equity regards the purchaser as the owner of the real property

if the purchaser dies before title has passed, his interest is characterized as real property in his estate and will go to the takers of the estate's real property at the closing of the K

for there to be valid consideration, does the benefit to the promisor need to have economic value?

example: mom tells daughter she will pay her $10,000 if she quits smoking. the daughter will receive $10,000 if she quits smoking and the mom will receive the daughter's detriment for not doing something that she has a right to do
Criminal Law

does the acquital of a party to a conspiracy preclude conviction of the remaining conspirator?
Yes, but this rule does not apply where the other party is charged with a lesser offense or is no longer being prosecuted

what is the difference between the prior appropriation doctrine and the riparian rights doctrine?
under the prior appropriaton doctrine, an individual can acquire the right to divert and use water from a stream merely by being the first to do so. any productive or beneficial use of the water, such as for agriculture, is sufficient to create the appropriation right, unlike the riparian rights doctrine, which generally favors domestic uses over other beneficial uses

in contract negotiations between P and a third party, does the judge or jury decide if the third party was the D's agent?
whether an agency relationship existed between the D and a third party is a question of fact to be decided by the jury

while the judge must find that the proponent of the K negotiations has introduced enough evidence to allow the jury to find that an agency relationship existed, the ultimate determination of agency rests with the jury
criminal law

who is the burden on when an affirmative defense of insanity is raised?
the SC has held that as to affirmative defenses to a criminal charge, the state can place the burden of proof on the D

as to the defense of mental illness, the SC has held that the state can require the D prove the defense by clear and convincing evidence. the state can also place the burden on the D to prove the defense of illness by a preponderance of the evidence, which is a lesser burden of proof
Constitutional Law

how is it determined whether an evidentiary hearing is required under procedural due process?
whether a prior evidentiary hearing is requires and the extent of procedural requirements is determined by weighing

(i) the importance of the individual interest involved

(ii) the value of specific procedural safeguards to that interest, and

(iii) the government interest in fiscal and administrative efficiency
Criminal Procedure

does the 6th amendment right to counsel apply to indigents at misdemeanor trials?
Yes, however, the right to counsel applies to misdemeanor trials only when imprisonment is actually imposed

thus, even though the misdemeanor statute permits a potential jail term, its alternative penalty of a fine may constitutionally be imposed on the D despite the refusal to provide her with counsel

what happens if the seller of real property cannot provide marketable title under the terms of the K, but the buyer wishes to proceed with the transaction anyway?
the buyer can usually get specific performance with an abatement of the purchase price in an amount reflecting the title defect

what must a P prove in a private nuisance action?
the interference with the P's use or enjoyment of his land must be substantial. this means that it must be offense, inconvenient, or annoying to an average person in the community

is a conviction required for other crimes evidence in order to prove MIMIC?
No, only when extrinsic evidence of another crime is being used to impeach a testufying D is an actual conviction required

when do a third party beneficiary's rights vest?
(i) when he manifests assent to the promise in a manner invited or requested by the parties

(ii) brings suit to enforce the promise, or

(ii) materially changes his position in justifiable reliance on the promise
Criminal Law

is a physican liable for battery when he is called on to replace a Dr in surgery when the P has not given consent?
Criminal Law

if a D is charged under a theory of accomplice liability, will the state have to prove he had the necessary intent if the target offense requires a mental state of "intent?"
Yes, all courts hold that the accomplice must have intended for the crime to have occurred

when the target offense requires a mental showing of recklesness, some courts will require a showing of an actual intent on the part of the accomplice to have the crime occur, while other courts hold tha the accomplice can be found guilty if he had a mental state of recklesness with respect to the crime committed

Under the doctrine of respndeat superior, is an employer vicariously liable for the acts of an employee outside the scope of employment?
No, but the employer may be liable for his own negligent selection if he has some reason to be on notice that the actions that resulted in harm was likely to occur (e.g., giving a gun to a convicted convict)

what are the elements for res ipsa loquitur?
P must show that

(i) the accident causing his injury is the type that would not normally occur unless someone was negligent

(ii) the negligence was attributable to D, and

(ii) the injury was not attributable to P

what must an activity involve for strict liability to apply?
the activity

(i) must involve a risk of serious harm to persons or property

(ii) must be one that cannot be performed without a risk of serious harm no matter how much care is taken, and
(ii) must not be a commonly engaged in activity in the community

do courts consider the addition of an arbitration clause to be a material alteration in a sale of goods K between two merchants?
Yes, b/c such a clause affects the remedies that the parties can pursue

is doubt as to performance by the promisor enough to trigger anticipatory repudiation?
no, anticipatory repudiation requires that the promisor unequivocally indicate that he cannot or will not perform when the time comes, or act in a manner rendering him unable to perform

when this happens, the nonrepudiating party may treat the anticipatory repudiation as a total breach and sue immediately

however, an expression of doubt does not constitute an anticipatory repudation

Is a writing required to have an effective assignment?
No, the general rule is that a writing is not required to have an effective assignment

is consideration required for an assignment?
No, a gratuitous assignment is effective

Is rejection of a deed enough to rebut any presumption of acceptance?
Yes, as a general, delivery of the deed is the final operative act to complete a conveyance of title to the grantee, b/c courts will infer the grantee's acceptance if the conveyance is beneficial to him

however, all courts will consider evidence that is contrary to the presumption or inference

are prior inconsistent statements available for substantive, as well as for impeachment purposes?
no, under the FRE, prior inconsistent statements are not admissible as substantive evidence unless made under oath at a prior trial or disposition

does a new landlord have to honor the original landlords (the grantor) promise to a tenant to maintain the property?
Yes, when leased property is sold, the purchaser may be liable for his predecessor's promises if the promise runs with the land. a covenant in a lease runs with the land if the parties to the lease so intend and the covenant touches and concerns the land

generally, promises to do a physical act, such as maintain or repair the property, are considered to run with the land
Constitutional law

If a P brings a case involving federal issues to state trial court and loses, what is the next court he can seek review in?
state appellate court

a P bringing an action in a state trial court is required to exhaust its state appellate remedies before seeking review in federal courts, even where federal issues are involved

Under the UCC, is an oral offer by a merchant that it will buy or sell goods and that the offer will be held open for a specific period of time, valid?
No, under the UCC, an offer by a merchant to buy or sell goods in a signed writing that, by its terms, gives assurances that it will be held open is not revocable for lack of consideration during the time state

can a buyer sue for damages when the seller ships nonconforming goods with an accomodation letter?
no, while shipment of nonconforming goods ordinarily is an acceptance creating a bilateral K as well as breach of that K, the result is different if the seller seasonably notifies the buyer that a shipment of nonconforming goods is offered only as an accomodation to the buyer.

in that case, the shipment is a counteroffer rather then an acceptance and the buyer is free to accept or reject it
Constitutional Law

when a state has an durational residency requirement, under what provision of the constitution will it be examined and under what level of scrutiny?
an individual has a fundamenta right to travel from state to state, and a state law that is designed to deter persons from moving into the state is likely to violate the Equal Protection Clause

when a state uses a durational residency requirement for dispensing benefits, that requirement normally should be subject to the strict scrutiny test and will be found not to have satisfied that test
Constitutional Law

Does the President have the power to pardon people accused of federal and state crimes?
federal crimes only except in cases of impeachment

is the object of a suit (e.g., coat damaged due to bad smell) admissible for the jury to examine (smell)?
Yes, in the case of real evidence, the object at issue is presented for inspection by the trier of fact. such evidence may be presented to any of the senses of the jury from which the jury can obtain relevant info
Constitutional Law

if a woman is discriminated against by the federal government due to her gender, what constitutional right will the federal action be examined under?
the due process clause of the 5th amendment protects against action by the federal government. although not expressly stated, this clause also provides an equal protection guarantee against federal action that generally applies to the same extent that the 14th amendment equal protection clause applies to the states
Criminal Law

what is the mental state required for general intent?
the mental state required for general intent is analagous to "recklesness" under the MPC: conscious disregard of a sustantial or unjustifiable risk that the material element exists or will result from his conduct

does sovereign immunity attach to non-delegable duties which are "proprietary" in nature?
no, when the city performs a service which might as well be provided by a private corporation, and particularly when it protects revenue from it, the function is considered a "proprietary" one, as to which there may be liability for the torts of municiple agents within the scope

In establishing a wrongful death action, what must the deceased's estate prove?
wrongful or negligent conduct on the part of the D

who has the burden of proof in regards to Res Ipsa Loquitur?
The P by a preponderance of the evidence. it is never enough for the P to prove merely that she has been injured by the negligence of someone unidentified

in any case where it is clear that it is equally probable that the negligence was that of another, the court must direct the jury that the P has not proved her case

Does a private nuisance action have to be in regards to a physica interference with the use and enjoyment of land?
No, it may consist of a disturbance of the confort or convenience of the occupant, by prank phone calls, unpleasant odors, smoke dust or gas, loud noises or excessive light or high temperatures
Constitutional Law

How is the Lemon Test satisfied?
state aid must have

(1) a secular purpose

(2) a primary effect other than the advancement of religion

(3) no tendency to entangle the state excessively in state affairs
Constitutional Law

are aliens extended the right to govern and carry on a governmental function?
no, although aliens are extended the right to education and public welfare along with the ability to earn a livelihood and to engage in licensed professions, the right to govern and to carry on a governmental function is reserved to citizens only

does the common law right to lateral support include the right to have the additional weight of artificial structrues supported by the neighboring land?
No, the C/L right to lateral support is the right to the support of land in substantially its natural condition

can an owner of a lower tract of land make improvements to protect his property from surface waters which flow from a higher tract of land?
Yes, this is known as the "common enemy" rule

what will a deed absolute in equity be construed as?
a mortgage.

this means that a mortgagee cannot circumscribe the mortgagor's right to redeem by distinguishing the transaction as an outright conveyance
Constitutional Law

when the gov't regulates speech in a traditional public forum, when may it base its restriction on the content of the speech being regulated?
if that content falls within a category of speech which the court has found unprotected by the first amendment or if the government can demonstrate a compelling interest in supressing the speech
Con Law

when may the government employ a time, place and manner restriction to regulate speech?
when the regulation promotes an important interest unrelated to the suppression of a particular message and does not unnecessarily restrict the ability to communicate the message
Con Law

area of state economic regulation enacted so as to affect the health or safety of the citenry and the commerce clause
the court will not strike down the state legislation if the benefit to health and safety outweighs the burden imposed on interstate commerce

the challenged legislation must pass a commerce clause test of reasonableness
Con Law

if seats in both houses of a bicameral state legislature are not apportioned on a population basis, what constitutional clause has been violated?
The equal protection clause
Con Law

if a state court holds a law valid under both federal and constitutional provisions, may the Supreme Court review?
Yes, specifically if the SC disagreed with the state court's review of the federal constitution, the state decision would have to be reversed regardless of the interpretation of the state law
Con Law

which branch of the government is forbidden from appointing those who shall execute its laws?
The legislative branch
Con Law

what clause of the constitution deals with an employment K of a united state senate member?
the K clause of the constitution
Con Law

what do the two ex-post facto clauses in the constitution prohibit?
laws that have a retrospective effect