Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
72 Cards in this Set
- Front
- Back
|
"Single Intent" Rule TORTS |
The ”single intent” rule does not require a showing that the defendant intended to cause physical injury; rather, the defendant need only intend to cause the contact with the person of another. |
|
|
Appellate Review of Facts Standard |
Findings of fact cannot be set aside unless clearly erroneous, and due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. |
|
|
Which Rule 12(b) Defenses Are Waived vs. Unwaivable |
The defenses of lack of personal jurisdiction, improper venue, and insufficient service of process must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defenses will be waived. The defense of lack of subject-matter jurisdiction may be raised at any time, even on appeal. |
|
|
Does Felony Murder require the Df. to act maliciously towards the victim? |
Felony murder does not require that the defendant act maliciously in bringing about the death of the victim. |
|
|
Will failure to mitigate preclude the recovery of damages in a pure comparative negligence jurisdiction? |
The plaintiff must take reasonable steps to mitigate damages following a tort committed by the defendant. In a pure comparative negligence jurisdiction (remember that you should always apply pure comparative negligence on the MBE unless you are told to do otherwise), the failure to mitigate is taken into account, but it does not categorically prevent recovery for such harm. Rather, the failure to mitigate will reduce the amount of damages that may be recovered. |
|
|
Will an easement merge if the grantee receives less than fee title to the dominant estate? |
An easement is terminated if the owner of the easement acquires fee title to the underlying estate, at which time the easement is said to “merge” into the title. The easement does not merge, however, if the owner acquires less than fee title, such as a life estate. |
|
|
Can an easement be terminated by non-use |
an easement cannot be abandoned or terminated by mere non-use; the owner of the easement must affirmatively act in a way that expresses clear intent to terminate the easement. |
|
|
How is an express easement created? |
An express easement arises when it is affirmatively created by the parties in a writing that is in compliance with the Statute of Frauds. An easement is transferred with the land to which it relates. Consequently, the benefit is transferred automatically with the transfer of the dominant estate, and the burden likewise is transferred automatically with the transfer of the servient estate. |
|
|
When can a party amend a pleading as of right? |
A party may amend a pleading once as of right if a responsive pleading is required, within 21 days of service of the responsive pleading, or within 21 days of being served with a motion to dismiss under Rule 12(b), whichever is earlier. |
|
|
What is depraved heart murder? |
Under the common law, depraved heart murder is an unintentional killing committed with reckless indifference to an unjustifiably high risk to human life. |
|
|
What is the standard for involuntary manslaughter? |
The standard for involuntary manslaughter is criminal negligence, which is a lower degree of culpability than what the jury found in this case. |
|
|
Can a judge prohibit attorneys from questioning jurors in voir doire? |
If the court examines the prospective jurors, then it must permit the parties or their attorneys to make any further inquiry it considers proper, or it must itself ask any of their additional questions that it considers proper. |
|
|
Negligence Per Se |
Negligence per se applies when an enacted statute defines the standard of reasonable conduct, and that statutory standard supersedes the common law standard of care. |
|
|
When can a person be convicted of arson? Is setting fire to something inside the home enough? |
In order for a fire set in a dwelling to be arson, there must be some damage (e.g., charring) to the structure of the dwelling. Smoke damage alone is insufficient. |
|
|
What is the standard for assessing state laws that restrict or prohibit an alien’s participation in government functions? |
When assessing an Equal Protection challenge to state or local governmental action based on alienage, the state or local government must generally satisfy the strict scrutiny standard. However, for state laws that restrict or prohibit an alien’s participation in government functions, the burden is on the challenger to show that the governmental action does not have a rational relationship to a legitimate state interest. |
|
|
What doesn't the Parole Evidence Rule Apply to? |
The parol evidence rule does not apply to evidence of agreements between the parties subsequent to execution of the writing, such as a modification of the original agreement. |
|
|
Where does Congress's taxing power come from and what standard should be applied? |
Article I, Section 8 of the Constitution gives Congress the plenary (i.e., exclusive) power to raise revenue through the imposition of taxes. The government has no burden to prove that the tax is necessary to any compelling governmental interest. Instead, the General Welfare Clause has been interpreted as permitting Congress to exercise its power to tax for any public purpose. A tax by Congress will generally be upheld if it has a reasonable relationship to revenue production. |
|
|
Is a state constitutionally required to provide an indigent defendant with counsel in order to pursue a discretionary appeal? |
A state is not constitutionally required to provide an indigent defendant with counsel in order to pursue a discretionary appeal. |
|
|
Can a plaintiff successfully challenge the use of a general verdict? |
The Federal Rules of Civil Procedure permit the use of three forms of a jury verdict—general, general with special interrogatories, and special. The choice of which form of verdict the jury must return is left to the discretion of the court. Unless the chosen form of verdict constitutes an abuse of discretion, a party’s challenge to the form selected by the court is unlikely to be successful. |
|
|
When is a law preempted? |
Federal law expressly preempts state law in cases where the Constitution makes the federal power exclusive or when Congress has enacted legislation that explicitly prohibits state regulation in the same area. |
|
|
Do landowners owe a duty to undiscovered trespassers? |
Land possessors do not generally owe a duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers. |
|
|
Hearsay Exception for Judgements |
The judgment of a conviction in the criminal case is hearsay because it is being introduced to prove that the defendant is responsible for the wrongful death of the victim. Nonetheless, it is admissible under a hearsay exception that permits the admission of such a judgment where the crime is punishable by death or imprisonment of more than one year. |
|
|
Limitations on a criminal defendant's use of character evidence? |
A criminal defendant may not introduce specific instances of his behavior to prove a relevant character trait when that character trait is being used to prove that the defendant acted in conformity with it on the night in question. Although a defendant’s character for peacefulness is relevant with regard to the defendant’s contention that he acted in self-defense, this character trait cannot be established by specific events. |
|
|
Option K rules Does it need to be in writing? Is it terminated by the death of the offeror? Does it end with a counteroffer? |
An option contract, as a contract to transfer property, is subject to the Statute of Frauds.An option contract, unlike an offer, does not terminate upon the incapacity of the grantor of the option. An option holder may propose to alter the terms for purchasing the property subject to the option without sacrificing the right to exercise the option. |
|
|
Who can an intended beneficiary sue? |
An intended beneficiary is one to whom the promisee wishes to make a gift of the promised performance. The promisee must have an intention (explicit or implicit) to benefit the third party, or the beneficiary is incidental. An intended beneficiary has a right to bring an action on the contract. An intended beneficiary of a gift promise may sue only the promisor. |
|
|
Is an employee's statement about a matter imputed to an employer for the purposes of the opposing party statement (non-hearsay) rule? |
A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party. A statement made by a party’s agent or employee constitutes an opposing party’s statement if it was made concerning a matter within the scope of and during the course of the relationship. |
|
|
When can you file an appeal if you enter a motion for a new trial? |
When a motion for a new trial is filed, the time for giving notice of appeal will run from the entry of the order denying the new trial. The entry of the order denying the last post-judgment motion starts the 30-day time period for filing an appeal. |
|
|
Can unrecorded easements be enforced against BFP? |
Written easements that are not recorded against the servient estate are not enforceable against bona fide purchasers of the servient estate without notice, but they may be enforced against purchasers with notice. Notice does not have to be constructive (as it is when an easement is properly recorded); it can also be actual or inquiry notice. |
|
|
Can congress expand the Supreme Court's original jurisdiction? |
Since Article III of the U.S. Constitution fixes the original jurisdiction of the Supreme Court, Congress lacks the authority to limit or expand that jurisdiction. |
|
|
If you sell your house, can someone else's fixture be sold when you didn't purchase the fixture? |
Fixtures, or structures built on real property, become part of the realty. Therefore, the wall became part of the woman’s land, which was then sold to the buyer. When the buyer bought the woman’s property, the wall, as a fixture, was included in the sale—whether the man paid for its construction or not. Absent some other legal prohibition not mentioned in the facts, the buyer could unilaterally decide to tear down the wall. |
|
|
Does evidence that a doctor complied with a standard of care entitle him to a favorable MSJ ruling? |
Ordinarily, a professional person is expected to exhibit the same skill, knowledge, and care as another practitioner in the same community. However, while evidence of custom in a community or profession may be offered to establish the proper standard of care, such evidence is not conclusive. The court may determine that the entire community or profession may be negligent. |
|
|
Accomplice liability? |
a person is an accomplice in the commission of an offense if he acts with the purpose of promoting or facilitating the commission of the offense. Thus, the accomplice must intend that her acts will assist or encourage the criminal aim. |
|
|
What is the remedy for conversion? |
The remedy for conversion is the fair market value of the goods at the time of the conversion of the collection. |
|
|
What is the risk-utility test? |
Under strict products liability, the manufacturer, retailer, or other distributor of a defective product may be liable for any harm to persons or property caused by such product. Using the risk-utility test, to prevail on a claim under a strict products liability design defect theory, the jury must determine whether the risks posed by the product outweigh its benefits. A plaintiff must prove that a reasonable alternative design was available to the defendant and the failure to use that design has rendered the product not reasonably safe. The alternative design must be economically feasible. |
|
|
Defamation of a public figure |
A plaintiff may bring an action for defamation if the defendant's defamatory language concerning the plaintiff is published to a third party who understands its defamatory nature, and it damages the plaintiff's reputation. As a public figure,one must prove that the caller acted with actual malice in order to recover. |
|
|
Must a life tenant pay property taxes? |
Property taxes are the responsibility of the life tenant. The holder of a future interest who pays the taxes may seek reimbursement from the life tenant. Unlike a mortgage payment, which is divided between the life tenant and the holder of the future interest, the life tenant alone is responsible for the annual property taxes levied during the life tenant’s tenure. |
|
|
Must co-tenants share profits? |
Co-tenants have the right to use and possess all of the property. A co-tenant is generally not required to share profits from a business that the co-tenant runs on the property with any of the other co-tenants. Likewise, co-tenants are generally not entitled to reimbursement for improvements made to the property. |
|
|
What is the measure of damages on a K? |
The general measure of damages for the owner's failure to pay the contract price, in whole or in part, is the profits that the builder would have earned, plus any costs incurred by the builder, less the amount of any payments made by the owner to the contractor and any materials purchased by the contractor that are used by the contractor on another job. |
|
|
PER - Ambiguous terms |
Evidence may be admitted for the purpose of interpreting or clarifying an ambiguity in the agreement, and this can include evidence of trade usage. |
|
|
Limits to Congress' spending power |
Congress may place conditions on recipients of federal grants. Generally, if the recipient finds the conditions offensive, the recipient’s option is to refuse the federal funds. However, Congress may not place conditions on grants that unconstitutionally burden a recipient’s First Amendment rights. |
|
|
Slander requirements |
For a statement to be slander, it must be communicated to a third party either intentionally or negligently. There is no strict liability with regard to publication of defamatory language. |
|
|
What is a motgagor's duty with regards to the mortgagee? |
A mortgagor has a duty to not commit waste with respect to the mortgaged property when such waste impairs the mortgagee's security interest in that property. |
|
|
Restaurant Strict Liability Rule |
As a commercial supplier of a defective product, the restaurant is strictly liable for personal or property injury cause by the product. Because the product was defectively manufactured (i.e., the dessert contained slivers of glass), the restaurant is strictly liable for the harm suffered by its customer in eating the dessert. |
|
|
Accomplice liability |
An accomplice is responsible for a crime to the same extent as the principal if the accomplice has provided encouragement or assistance. |
|
|
Is a gratuitous assignment revocable? |
If an assignment is for consideration, it is irrevocable. If no consideration supports the assignment (a gratuitous assignment), then it will generally be revocable, unless the obligor has already performed or promissory estoppel applies. |
|
|
Ripe |
In order for a case to be ripe for litigation, the plaintiff must have experienced a real injury or the imminent threat of real injury. |
|
|
Privity in Real Covenants? |
In order for an agreement be enforceable against a successor in interest as a real covenant, the traditional rule requires that there be horizontal privity of estate between the original parties to the agreement. |
|
|
Federal Interpleader Action Req |
Under the federal interpleader statute, diversity jurisdiction is met if any two claimants are citizens of different states. |
|
|
Can the govt. display religious speech? |
The display of a monument on public property, even if the monument has been donated by a private person, constitutes government speech. The Supreme Court has held that a display of the Ten Commandments on public property is an impermissible violation of the Establishment Clause if the display has a "predominantly religious purpose." |
|
|
prior inconsistent statement |
A prior inconsistent statement that was not made under penalty of perjury may be admissible to impeach a witness but is not admissible as substantive evidence. |
|
|
Default auction rule |
the auction of an item is with reserve, and the items may be withdrawn from sale any time before the completion of the sale is announced. |
|
|
Criminal trial jugement as a matter of law |
In a criminal jury case, a judge may order judgment as a matter of law (i.e., a directed verdict) only for acquittal; the power to convict is reserved to the jury. Consequently, although the judge could deny the defense’s request for judgment as a matter of law, the judge could not take the case from the jury by granting the prosecution’s request for judgment as a matter of law. |
|
|
Spousal Immunity |
Although the general rule of spousal immunity (one of the two “spousal privileges”) is that the spouse of a criminal defendant may not be called as a witness by the prosecution, and one spouse cannot be compelled to testify against the other in a criminal trial, the rule is different in federal court. In federal court, the witness spouse holds this privilege, and may choose to testify; the defendant spouse cannot prevent her from doing so by claiming the privilege. (Note that the rule is different for the “confidential marital communications” privilege—the other half of the “spousal privilege.” The confidential marital communications privilege prevents either spouse from testifying about communications made dependant on the sanctity of marriage, and one spouse can prevent the other from testifying. However, the wife in this case found incriminating paperwork, so her testimony is not about a marital communication and as such, her husband cannot prevent her from testifying.) |
|
|
Can the court consider privilege evidence in making its evidence determinations? |
In determining a preliminary question, such as the existence of a privilege, although the court is not generally bound by the rules of evidence, the court cannot consider privileged evidence. |
|
|
When is a MSJ timely?? |
A party may file a motion for summary judgment at any time until 30 days after the close of all discovery. |
|
|
Prior Consistent Statment |
A prior consistent statement may be admissible (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying or (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground. However, such a statement is admissible only if it was made before the declarant had reason to fabricate. |
|
|
Leasholder's Duty to Mitigate |
Under the majority rule today, a landlord who is aware that a tenant has abandoned her leasehold interest is under a duty to mitigate damages by making reasonable efforts to re-rent the premises. The failure of the owner of the apartment building to do so would reduce the owner’s amount of recovery. |
|
|
Time, Place, and Manner Restrictions on Speech |
. The government may restrict speech on the basis of content if the speech falls into particular historic and traditional categories, including obscenity and commercial speech. The restrictions based on established secondary effects of adult bookstores are valid time, place, and manner restrictions. There is a substantial government interest in controlling the secondary effects of adult bookstores and the restrictions do not effectively prevent adult bookstores from operating in the community. Therefore, the restriction is permissible. |
|
|
res ipsa loquitur |
res ipsa loquitur is applied only in cases where the defendant was in exclusive control of the instrumentality that caused the plaintiff’s harm, or at least was responsible for those with such control. |
|
|
right of first refusal |
A promissory restraint on alienation, such as a right of first refusal, may be enforceable by an injunction if it is reasonable. |
|
|
Who bears the burden of establishing that a defendant has waived his Miranda rights? |
The prosecution bears the burden of establishing that a defendant has waived his Miranda rights by a preponderance of the evidence. |
|
|
Residual Hearsay Exception |
The residual exception, which admits a hearsay statement if (i) the statement has equivalent circumstantial guarantees of trustworthiness, (ii) it is offered as evidence of a material fact, (iii) it is more probative on the point for which it is offered than any other evidence that the proponent can reasonably obtain, and (iv) admission will best serve the purposes of the Federal Rules and the interests of justice, will rarely be the correct answer on the bar exam. |
|
|
Impeachment w/ Criminal Conviction |
A witness may be impeached with evidence of a conviction for a felony that is less than 10 years old. If the crime does not involve dishonesty or false statement, the conviction of a witness who is not a criminal defendant will be excluded only if the party objecting to the impeachment shows that its probative value is substantially outweighed by its prejudicial effect. |
|
|
Erie |
A federal appellate court is bound by the decision of a state’s highest court on an issue even if it is handed down after a federal district court action on that issue was completed. The federal appeals court is bound by that ruling, so long as the final appeal has not been disposed of in the matter. |
|
|
Supplemental Jx over Cross Claims |
A cross-claim that arises out of the same transaction or occurrence may be asserted by one defendant against another defendant without regard to the amount in controversy or the citizenship of the parties to the cross-claim as long as the court has subject-matter jurisdiction. |
|
|
Best Evidence General Rule and Exception |
The original document rule requires the production of a recording when its contents are at issue. Here, the husband’s statement to his friend is not a direct inculpatory statement, but instead is an admission of making such a statement in a recording. Consequently, the contents of the recording are at issue and the recording itself must be produced since it is available. Although there is an exception to the original document rule for an adverse party’s admission as to the contents of a recording, this exception applies only when the admission was made in a deposition, testimony, or written statement. |
|
|
Who is liable for an animal's indiscretions? |
the owner of any animal, wild or domestic (other than a household pets) is strictly liable for any reasonably foreseeable damages caused by the animal while trespassing on another's land. Strict liability does not extend to the owner of the land on which the animals are kept, even when the animals are on the land with the landowner's permission, unless the landowner also has the right to possess the animals. |
|
|
Attempt |
the specific intent to commit a criminal act and has taken a substantial step toward the commission of the intended crime, but ultimately fails to complete the crime. |
|
|
Pure Comparative Negligence |
In jurisdictions that have adopted the doctrine of pure comparative negligence, a plaintiff's contributory negligence is not a complete bar to recovery. Instead, the plaintiff's full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff's fault bears to the total harm. Here, the plaintiff can recover $40,000. (The total damages of $100,000 are reduced by 60% of $100,000 "“ the proportion that the plaintiff's fault bears to the total harm.) |
|
|
Can the state place the burden of proving an affirmative defense on a defendant? |
A state (or the federal government) may place the burden of proving an affirmative defense, such as self-defense, on the defendant without violating the Due Process Clause. The preponderance of the evidence standard for judging whether the defendant has met this burden is also constitutional. The jury instructions, however, improperly prevent the jury from considering the defendant’s self-defense evidence, not as an affirmative defense, but as a defense to the elements of the crime that the prosecution must prove. Used in such a manner, this evidence need not satisfy the preponderance standard before being considered by the jury. |
|
|
Priority rules with regards to future advance mortgages |
If an original mortgagee loans an additional amount to a mortgagor that is optional rather than obligatory such amount may not enjoy priority over a second mortgage if the original mortgagee has notice of the second mortgage. This is true even though the mortgage by its terms serves as security for future advances. |
|
|
Establishment Clause Test for Enforceability |
The Establishment Clause of the First Amendment prohibits the establishment of religion by government. Government also cannot show a preference of one religion over another. If a government action does impact religion, it will only be valid if (i) it has a secular purpose, (ii) the principal effect neither advances nor inhibits religion, and (iii) it does not result in excessive entanglement of government with religion. Here, it would take "excessive entanglement" to determine what constitutes "instruction in religious subjects." This directly invalidates the provision under the appropriate test. |
