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45 Cards in this Set
- Front
- Back
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Standard for Regulating Commercial Speech |
Regulation of commercial speech must be by narrowly tailored, reasonable, and proportional means that directly advance a substantial government interest. Banning commercial publications, but allowing all others, is not a reasonable means of achieving the stated legislative intent of keeping the sidewalks and streets clean. |
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Trespass to Land and the Defense of Private Necessity |
Trespass to land occurs when the defendant’s intentional act causes a physical invasion of the land of another. Intent to trespass is not necessary; the defendant need only have the intent to enter the land at issue, or to cause a physical invasion with foreign objects. Private necessity, a defense to trespass to land, is a qualified privilege to protect a limited number of people, including the actor herself. If there are no actual damages, the landowner cannot recover nominal damages from a trespass out of necessity. The actor is, however, responsible for any actual damages that result from her actions. |
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Duty owed to Invitees |
An invitee is one who enters the land of another by invitation, often, but not necessarily, for the business purposes of the landowner. A landowner owes the greatest duty of care to invitees: he is under the same obligations owed to licensees (duty to warn and to use reasonable care), but he also must conduct reasonable inspections of his property and make the property safe for the protection of invitees. A landowner is liable for any negligence that causes an invitee to be injured due to unsafe conditions. The duty of care owed to an invitee does not extend beyond the scope of the invitation, however, and the invitee is treated as a trespasser in areas beyond that scope. |
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Duty Owed to Trespassers. |
Landowners owe no duty to undiscovered trespassers, and they owe discovered or anticipated trespassers a duty to warn or protect them from concealed dangerous artificial conditions only. There is no duty to warn them of an obvious dangerous condition. |
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What law should a federal court apply (when deciding a case in diversity) when a unique federal issue is in play? |
In determining whether to apply state or federal law, the district court will start by determining whether there is a conflict between state and federal law with respect to the issue before the court. If the applicable state and federal laws do conflict, then the district court must ask whether a valid federal statute or Federal Rule covers the disputed issue. If no federal statute or rule is on point, then the court must determine whether federal common law, rather than state law, should be applied. In making this determination with respect to federal common law, the district court will ask whether the failure to apply state law will lead to different outcomes in state and federal court. If the answer is yes, then the court will apply state law, unless affirmative countervailing federal interests are at stake that warrant application of federal law. The Supreme Court has also recognized the application of federal common law when a “uniquely federal interest” is at stake and a significant conflict exists between that interest and the operation of state law. In this case, there is a conflict between federal and state law as to the issue of defense contractor liability. Because no federal statute or rule is on point, the court must determine whether federal common law should be applied. |
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Neutral Laws Challenged Under The First and 14th Am. Get Which Standard? |
Neutral laws of general applicability that have the incidental effect of interfering with one’s ability to engage in religious practices are subject only to the rational basis test. A law passes the rational basis test if it is rationally related to a legitimate state interest. |
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Does a non-party HAVE TO comply with a subpoena dueces tecum? |
A party may use a subpoena to obtain documents relevant to litigation that are in the possession of a person who is not a party to the litigation. |
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When can a mortgagee foreclose? |
The bank, as mortgagee, may enforce its mortgage through foreclosure proceedings upon when the borrower (the mortgagor) defaults. |
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Easement Appurtenant - When does it run with the land and when is it created? |
Easements are presumed to be appurtenant (i.e., tied to the land) unless there are clear facts to the contrary. An easement appurtenant is transferred with the land to which it relates. |
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Is the Sixth Amendment right to representation by an attorney absolute? |
A criminal defendant's right to be represented by an attorney of his own choosing is subject to limitations, including the Sixth Amendment's guarantee of an effective advocate for a criminal defendant. |
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Are auctions with reserve |
Unless specifically announced otherwise, an auction is with reserve, meaning that the seller has the right to withdraw an item from sale at any time before the auctioneer announces the completion of the sale. |
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Is leafletting protected speech? |
Protected speech can include not only verbal communication but also activities such as picketing and leafleting. Expressive conduct (or symbolic speech) may be protected as speech, but it is subject to a lesser degree of protection. Government regulation of expressive conduct is upheld if: i) The regulation is within the government’s power to enact (e.g., through a local government’s police power); ii) The regulation furthers an important government interest; iii) The government interest is unrelated to the suppression of ideas; and iv) The burden on speech is no greater than necessary. |
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Where is the spending power in the constitution and what is the level of scrutiny to which it is subjected? |
Article I, Section 8 provides that Congress has the power to tax and spend. Specifically, the spending clause has been interpreted very broadly to permit Congress to spend for any public purpose if there is a rational basis to believe the spending will promote the good of the people. Congress can use its spending power to accomplish this regulation indirectly by conditioning federal funding. |
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Voluntary Manslaughter - Imperfect Self-Defense Rule |
Imperfect self-defense occurs when the person claiming self-defense unjustifiably kills her attacker, such as when she honestly but unreasonably believes self-defense is required. The rule reduces the charge from murder to voluntary manslaughter. |
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Res Ipsa Loquitur Test |
Under the traditional standard for res ipsa loquitur, the plaintiff must prove that (i) the accident was of a kind that ordinarily does not occur in the absence of negligence; (ii) it was caused by an agent or instrumentality within the exclusive control of the defendant; and (iii) it was not due to any action on the part of the plaintiff. |
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Which system of liability should you assume on the bar exam? |
Joint and Several Liability Joint and Several Liability |
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Can a court transfer a case to a foreign court? |
The federal district court is not empowered to transfer an action to a court in a foreign country, even if the facts indicate that such a forum would be the most appropriate for the action. A |
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Where is the "nerve center" or principle place of business? |
For the purposes of diversity jurisdiction, a corporation is deemed to be a citizen of every state in which it is incorporated and of the state where it has its principal place of business. A principal place of business refers to the “nerve center” of the corporation. The nerve center is generally the location from which the high-level officers direct, control, and coordinate the activities of the corporation. Typically, the nerve center is the corporate headquarters. |
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Unilateral Mistake Elements |
When one party is mistaken as to an essential element of the contract, the mistaken party can void the contract if she did not bear the risk of mistake and the non-mistaken party caused the mistake, had a duty to disclose or failed to disclose the mistake, and knew or should have known that the other party was mistaken. |
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Fair Housing Act |
The Fair Housing Act (FHA) prohibits discrimination in the sale, rental, and financing of homes and in other housing-related transactions such as advertising, homeowner’s insurance, and zoning. Among other protected classes, the FHA prohibits discrimination on the basis of familial status, which includes having custody of children under the age of 18 and being pregnant. |
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When does a party need to make a jury demand? |
Any party may make a demand for trial by jury. The demand must be in writing and, while it may be made in a pleading, the demand may also be made separately. It must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury. |
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Can all but one conspirator be convicted of conspiracy at a single trial? |
No. At common law, a conspirator cannot be convicted of conspiracy if all other conspirators are acquitted at the same trial, because there must be more than one conspirator to have a conspiracy. A prosecution need only prove the existence of a conspiracy when the other conspirators are never tried or apprehended. When one conspirator is tried and acquitted at the same trial, the other conspirator cannot be convicted of conspiracy. |
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Pinkerton Rule |
The “Pinkerton Rule” says that every co-conspirator is guilty of any foreseeable substantive offense committed in furtherance of the conspiracy, regardless of actual knowledge of its commission. |
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Can an offeror revoke w/o notice to the offeree? |
No, revocation is not effective until communicated to the offeree. Or, the offeree could get notice constructively. |
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Negligence Rule As It Relates To Failure to Excercise Reasonable Care |
Under a negligence theory, failure to exercise reasonable care in the inspection or sale of a product constitutes breach of duty. The plaintiff must establish not only that the defect exists, but that had the defendant exercised reasonable care in the inspection or sale of the product, the defect would have been discovered, and the plaintiff would not have been harmed. |
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Defamation Elements |
A plaintiff will prevail in a defamation action if the defendant's defamatory language concerning the plaintiff is published to a third person who understands its defamatory nature, and such language damages a plaintiff's reputation. |
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Counteroffer v. Offer - Revival of an Offer BEWARE |
An offer is terminated by rejection. A counteroffer acts as a rejection of the original offer and creates a new offer. A terminated offer may be revived by the offeror, however. As with any open offer, the revived offer can be accepted by the offeree. |
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Test for Medical Records as Business Records |
A writing or record of any act or event made in the course of regularly conducted business is admissible under Rule 803(6) if the custodian of records or other qualified witness establishes that the record was made (i) at or near the time of the event, (ii) by someone with knowledge of the event, and (iii) as part of a regular practice of making the kind of entry in question. Medical records are considered business records if the entries relate to diagnosis or treatment. |
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Double Jeopardy |
A conviction based on insufficiency of evidence occurs when, as here, the evidence, when viewed in the light most favorable to the prosecution, would not support a conviction by any reasonable fact finder. When a conviction is reversed on these grounds, jeopardy is implicated, and the prosecution is barred from retrying the defendant for the same offense. |
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Automobile Exception to the Warrant Requirement |
The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe it contains contraband or evidence of a criminal activity. |
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When is an arrest constitutional? |
If the police can properly arrest a suspect for a crime, the arrest is not constitutionally unreasonable simply because the police inform the suspect that he has been arrested for another crime for which the police lack probable cause. |
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Rule 704 - Past bar question!! |
Rule 704 permits expert testimony on the ultimate issue in a case except as to whether a criminal defendant had the requisite mental state of any element of the crime charged or of a defense. |
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If a conversation is recorded, but was also heard first-hand by the declarant, is the recording necessary due to the best evidence rule? |
No, so long as the declarant obtained his knowledge of the conversation from his own perception, and not by listening to the audiotape, the best evidence rule is not violated. |
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Doctrine of Attornment |
Under the doctrine of attornment, the tenant is bound to honor any covenant in his lease that has been assigned by the landlord to a third party, if the covenant touches and concerns the land. Here, the liability waiver touches and concerns the land because it has to do with clients using gym equipment in the gym facility. |
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Intoxication as a defense to Manslaughter? |
Intoxication is not a valid defense to a general intent crime such as manslaughter. However, there must be a causal connection between the unlawful act and the death for involuntary manslaughter to apply. |
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Are delagators still liable? |
When obligations are delegated, the delegator is not released from liability, and recovery can be had against the delegator if the delegate does not perform, unless the other party to the contract agrees to release that party and substitute a new one (a novation). |
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10th Am. |
The Tenth Amendment specifically reserves to the states all powers not expressly granted to the federal government. However, the doctrine of the Dormant Commerce Clause limits the power of states to legislate in ways that would adversely impact commerce, which means the state statutes cannot discriminate against out-of-state commerce; cannot unduly burden interstate commerce; and cannot regulate extraterritorial (wholly out-of-state) activity. If the statute is discriminatory, the state must show that the burden (i) serves a legitimate local interest and (ii) there is no non-discriminatory means to achieve that purpose. |
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Rule 4k |
Under Rule 4(k)(1)(B), a federal court has personal jurisdiction over a third-party defendant, joined under Rule 14, who is served within a U.S. judicial district and not more than 100 miles from the court from where the summons is issued (the federal district court), even if state law would otherwise not permit such service. |
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Exoneration |
The devisee of real property is entitled under the doctrine of exoneration of liens to have any outstanding balance of a mortgage or other encumbrance on the property to be paid from the remaining assets of the testator's estate. |
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Agency theory of felony murder |
under the agency theory of felony murder, a felon is not liable for the death of a bystander caused by a police officer, because the officer is not the felon’s agent. In this case, the death of a bystander does not fall within the felony murder rule because the officer is not an agent of the perpetrator of the felony. |
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Mutual mistake |
Mutual mistake occurs when both parties are mistaken as to an essential element of the contract. In such a situation, the contract may be voidable by the adversely affected party upon proof of the following: (i) mistake of fact existing at the time the contract was formed; (ii) the mistake relates to a basic assumption of the contract; (iii) the mistake has a material impact on the transaction; and (iv) the adversely affected party did not assume the risk of the mistake. occurs when both parties are mistaken as to an essential element of the contract. In such a situation, the contract may be voidable by the adversely affected party upon proof of the following: (i) mistake of fact existing at the time the contract was formed; (ii) the mistake relates to a basic assumption of the contract; (iii) the mistake has a material impact on the transaction; and (iv) the adversely affected party did not assume the risk of the mistake. |
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Re-direct |
Re-direct is generally limited only to reply to significant new matters raised in cross-examination. |
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Discretionary Appeal |
A court of appeals may permit an appeal from an order granting or denying class action certification if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered. The court of appeals has discretion to deny the appeal. |
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Negligent Infliction of Emotional Distress Claim |
. A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the defendant in harm’s way if the plaintiff demonstrates that: (i) he was within the “zone of danger” of the threatened physical impact—that he feared for his own safety because of the defendant’s negligence; and (ii) the threat of physical impact caused emotional distress. The emotional distress generally must result in some form of bodily harm. |
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Evidence of a condition standard |
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court must admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. In this case, if the jury could find that the person had actual or apparent authority to act for the defendant, then the plaintiff’s testimony will be admissible. |
