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198 Cards in this Set
- Front
- Back
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If police see a suspect inside the house may they enter & arrest without a warrant?
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Only in hot pursuit or if suspect is going to destroy evidence
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When a commercial lease for more than 1 year ends what will it be if L renews?
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Year-to-year tenancy
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Landlord options when the lease ends
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Evict or bind tenant to a new period tenancy
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Can attorney show the witness the attorney's notes in order to refresh his recollection?
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Yes!
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Can a grantee enforce a gift if they acted in reliance?
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Yes!
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Can you EVER use deadly force to protect property?
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NO
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Can an electric company keep the voltage running simply to prevent theft?
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NO - can't use deadly force to protect property
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Does a pharmaceutical insert count as proper warning for medication?
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NO - doctor has to warn!
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Doctor has liability for taking someone off medication?
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If it's REASONABLY FORESEEABLE that it could cause harm
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Doctor videotapes patient without their knowledge
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Intruded upon patient's physical seclusion
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Is smoke blowing in the backyard a private nuisance?
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Only if it would disturb a person of ordinary sensibilities in the community.
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Duty DURING rescue
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Reasonable prudent rescuer standard!
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Employer liability if employer gives an ex-con a gun and he shoots someone when he's off duty?
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If a reasonable employer would have discovered the prior convictions
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D is driving too fast sees a tree in the road swerves to avoid it and damages P's property as a result. What theory of liability?
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INTENT - trespass trespass to chattels or conversion!
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Law designed to protect child. Mother violates law, child hurts SOMETHING ELSE. Does violation of negligence establish negligence per se?
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NO. Statute was designed to prevent harm to CHILD not harm to other things.
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Warheads made by O. Stored by D. Harms P. Can P sue O?
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YES.
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Intentional infliction of emotional distress: do you need physical injury?
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NO.
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Effect of judicial notice in a criminal case
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Burden of proof stays with the prosecutor but no additional evidence must be shown.
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When can you rehabilitate an impeached witness?
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When the witness was impeached by any prior bad acts
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Once the defendant has opened the door to character evidence what can prosecution introduce?
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Reputation
opinion "have you heard" |
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What are prior crimes / bad acts allowed to show?
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NOT TO SHOW THEY DID IT THIS TIME. But admissible to show something else like motive our intent! Probative value must outweigh prejudicial effect
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When is character evidence admissible in a civil case?
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CAN'T USE TO SHOW THEY PROBABLY DID IT THIS TIME. Can use to establish something else like negligent entrustment or defamation. If a party testifies truthfulness is automatically an issue.
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Criminal case: D has opened the door. Can prosecutor introduce prior crimes?
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No!
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Trial for assault with a deadly weapon: can D introduce character evidence for honesty & veracity?
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NO; not a material issue in the case!
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Settlement offers inadmissible WHEN:
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If offered to prove liability invalidity of the claim or to establish amount of damage
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Offer to pay medical expenses
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Inadmissible to show defendant's liability!
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Evidence of repairs after an accident
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Inadmissible to prove negligence or strict product liability. BUT admissible to show something else!
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What is admissible for impeachment
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- prior inconsistent statements
- bias - prior criminal convictions - prior bad acts - reputation for untruthfulness |
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Are records of arrests admissible to impeach?
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NO. Only convictions maybe.
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What doesn't count as hearsay
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- prior inconsistent statement under oath
- admission by party opponent - prior identification by someone currently on the stand |
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Hearsay exceptions
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- present sense impression
- current physical/mental condition for medical treatment/diagnosis - recorded recollection - business records IF WITNESS IS UNAVAILABLE: - former testimony - declarations against interest - dying declarations |
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Does accusation + silence count as an admission?
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Yes--adoptive admission if it's the kind of thing you should deny!
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When can dying declaration be used?
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Only in a homicide trial. Someone must be dead.
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Spousal privilege
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(1) spouse cannot be forced to testify against the other spouse—but they can if they want! Doesn't matter when they learned about it!
(2) confidential communication made between spouses during marriage: either spouse can assert privilege! |
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If you have a fee simple defeasible are you liable for waste?
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No!
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RAP: how to cheat
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last named party & all prior parties take next non-named party takes all subsequent parties lose
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Property conveyance to one spouse: common property?
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No
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Does subsequent buyer need notice of an easement in order to be valid?
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Yes!
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types of notice for violation of land sale contract
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record notice
actual notice inquiry notice common development scheme |
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Does mortgage interest attach to all fixtures on the real estate?
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Yes!
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Does a mortgage interest attach to things that didn't exist on the land when the mortgage was formed?
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NO.
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If you own based on adverse possession can you sell?
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NO - you don't have marketable title! Need to get quiet title from the court!
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If original owner goes insane does that interrupt tolling of adverse possession?
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NO.
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Variance in a purchace contract: is it still valid?
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As long as it's NOT MATERIAL and NOT AN EXCESSIVE VARIANCE.
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Mortgage transfers "subject to" - what does that mean?
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New owner is now primarily liable for the mortgage but the original owner is still personally liable (privity of contract).
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Second person to take / issue a mortgage in a notice jurisdiction:
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Wins! When they took / issued mortgage there was no notice!
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Riparian doctrine of reasonable use:
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Natural use wins over non-natural use
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Using water for agricultural purposes: what type of use?
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Artificial use
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Using water for domestic use: what type of use?
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Natural use
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"Necessary & proper clause"
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Always wrong answer!
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Constitutional justification for Congress money grants
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Power to tax & spend for the general welfare
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state tax: rules
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- state may not tax out-of-state businesses to assist in-state businesses
- must have clear connection or substantial nexus to state activities - must be fairly apportioned - fairly related to services provided by the state |
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federal justiciability doctrines:
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ripeness
advisory (can't do it!) mootness political question standing |
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Can Congress command the President to send troops to specific locations?
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No; infringes on President's authority as Commander in Chief
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Requirements for a taking:
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PROMOTES an IMPORTANT PUBLIC PURPOSE
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Level of scrutiny for discriminating against aliens
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feds: rational basis test (weak) state/local: strict scrutiny—NECESSARY to achieve COMPELLING GOVERNMENT INTEREST
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substantive due process vs. procedural due process
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if you want a hearing: procedural due process
content of the law: substantive due process |
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Right/privilege answer
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Always wrong answer!
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Is there an Equal Rights Amendment?
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No.
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Level of review for facially neutral economic measures
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Rational basis test
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Content-based discrimination violates:
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First Amendment!
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free exercise clause: statute upheld if
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it's a law of general application neutral not intended to discriminate
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Do federal taxpayers have standing to challenge any federal spending?
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Yes!
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establishment clause:
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purpose effect entanglement
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If you promise to give a reward after getting your dog back is it an enforceable contract?
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No - no consideration.
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Damages for breach of contract:
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Market price - contract price + efforts to mitigate + incidental & consequential damages
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If market price - contract price doesn't give adequate compensation (ie. lost volume)
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Contract price - cost to the dealer
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Does Statute of Frauds apply to a promise to repay a loan that really benefits you?
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No - Statute of Frauds does not apply
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"I will sell to George if he pays within 10 days." What is it?
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An offer for an unilateral contract
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If you assign away a contract does that assign away liability?
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NO. (Exception: under UCC you can contract out liability for goods lost during shipping.)
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Once an offer is rejected can the offeree later accept?
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NO.
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Agreement to forgive debt if you do something else instead. Is the original debt discharged?
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NO; it is only SUSPENDED until the new debt is discharged!
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If you fail to pay a third party is it a defense to argue that the contract price changed/was a mistake?
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YES - partial defense!
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In a personal services contract is performance excused by illness?
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Yes!
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If someone owes you a debt can you orally assign that to someone else?
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Yes
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If debtor's debt to creditor is past the statute of limitations and debtor assigns third party's debt to creditor can third party assert the statute of limitations defense?
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NO; third party's own debt has not passed the statute of limitations so he's still liable!
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If one party is mistaken on a fact and the other party knows better can they take advantage of that?
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NO.
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If one party knows the other party's offer is too low can they accept anyway?
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NO - can't take advantage of other side's mistake of fact.
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Ask for more money for the same contract. Enforceable?
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NO - preexisting duty to fulfill the contract!
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Original offer in writing. Oral counter-offer with new term. Is the new term enforceable?
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NO - not written.
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UCC: Is an offer to keep open for more than three months enforceable?
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Yes but only for the first three months!
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Shipment of nonconforming goods: is that an acceptance?
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NO - it's a counter-offer. Must be accepted or rejected in whole!
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Police lie to D's lawyer prevent her from seeing him and question him anyway. Admissible?
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YES as long as D was Mirandized properly!
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If you know that there's a "very small" possibility of harm does that qualify as "knowingly" committing the tort?
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NO. Knowledge is knowledge. Recklessness is not knowledge.
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What type of crime is attempt?
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Specific intent.
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Which crimes merge into the completed crime?
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Solicitation & attempt
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What must you do to successfully withdraw from a conspiracy?
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You must notify the co-conspirators!
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When you stop a car do you automatically have probable cause to search the back seat?
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NO; it's not probable cause!
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Blockburger test for double jeopardy
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Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require.
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Larceny:
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taking and carrying away of tangible personal property of another by trespass with intent to deprive that person of her interest in the property permanently (or for an unreasonable time)
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Robbery:
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larceny + assault
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If seller delivers an imperfect shipment what are buyer's options?
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- Reject entire shipment
- accept conforming part of shipment and reject nonconforming part - accept the entire shipment and sue for damages |
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Lost volume rule:
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Seller has unlimited supply and limited volume. If buyer breaches seller can sue for lost profits. (Even though he found another buyer that means only one sale whereas if buyer had not breached he would have had TWO sales.)
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Is intent required to invoke accomplice liability?
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YES.
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To have a conspiracy must more than one person have the requisite intent?
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YES.
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Is a nondiscriminatory indirect tax on the federal government permissible?
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YES as long as it does not unreasonably burden the federal government.
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Can an at-will employee be terminated without a hearing?
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YES.
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What if some at-will employees get a hearing but some don't? Does that violate due process?
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NO. If there's no statute requiring a hearing then there's no right to a hearing for at-will employees.
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Can you object to a violation of someone else's 4th Amendment rights?
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NO.
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Police have probable cause to arrest you. You are at someone else's house. Police enter without a warrant and arrest you. Can you object on the grounds that they entered without a warrant?
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NO - you can't object to a violation of someone else's 4th Amendment rights!
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Is a deed to a dead person valid?
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No.
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Federal Rules: must the person who made a dying declaration actually be dead?
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YES. If the person didn't actually die try excited utterance.
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Federal Property Clause of Article IV Section 3:
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"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States"
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If one conveyance in a chain violates the RAP what about subsequent conveyances?
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One violation cuts the chain; no subsequent conveyances are valid.
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Is an employer liable for the torts of an employee traveling to and from work?
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NO.
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If an employee is technically off duty but "on call " is his employer still liable for torts?
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NO.
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Does a title based on adverse possession count as good and marketable title?
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NO (unless the seller already sued for clear title and won)
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Define condition subsequent in a contract:
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When it occurs it cuts off an already existing absolute duty of performance.
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Is it burglary if you form criminal intent AFTER you enter the house?
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NO; you have to enter WITH the intent to commit a crime.
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Can you sue if your co-tenant violates a nonassignment provision?
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NO; you're not the beneficiary of the nonassignment provision!
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Is lay opinion permissible to identify handwriting?
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YES.
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Do you have standing as a taxpayer to challenge federal spending?
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NO.
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When a taxpayer can challenge federal spending:
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Challenged measure was: (1) enacted under Congress' taxing & spending power (2) exceeds some specific limitation on the power Has only been applied to Establishment Clause.
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Does the SC apply the Establishment Clause more generously to religiously affiliated colleges and hospitals than it does for grade or secondary schools?
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YES; aid to one aspect of an institution of higher education not shown to be pervasively sectarian does not necessarily free it to spend its other resources for religious purposes.
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Attractive nuisance:
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(1) dangerous condition that the owner should be aware of
(2) owner knows/should know that young people frequent the vicinity of this dangerous condition (3) condition is likely to cause injury because of the child's inability to appreciate the risk (4) expense of remedying the situation is slight compared to the magnitude of the risk |
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Doctrine of Equitable Conversion:
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A deceased seller's interest passes as personal property not real property even if it's an interest in land!
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If the defect existed when the product left the factory is a commercial seller strictly liable?
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YES.
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Can a business partner assign his share of the profits to a third party?
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Yes!
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Can a contractual duty be delegated?
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Yes but only as long as performance by the delegate won't materially change the obligee's expectancy under the contract!
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Private plaintiff sues for defamation in a matter of public concern what is the standard?
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At least negligently (preferably with malice). No strict liability!
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Can one co-tenant adversely possess against another co-tenant?
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Yes it's called ouster. More demanding than normal AP!
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Spousal privilege under federal criminal law:
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One spouse may testify against the other don't need consent of other spouse!
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Is an oral modification of a written contract valid under the parol evidence rule?
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NO.
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Can the contract include a clause for liquid damages?
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NO. Can only contract for actual damages! (Liquid damages only available under very limited circumstances.)
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Defamation of a public figure: what does P need to prove?
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(1) falsity
(2) actual malice |
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Is there a family document exception to the hearsay rule?
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YES
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Does aural voice identification require an expert?
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NO
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When do you have to be familiar with a voice in order to identify it?
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You can become familiar before or after you hear the voice!
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(Eg. hear the voice on the phone
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then hear it in the judge's chambers and realize it's the same person. That's ok!)
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Silent acceptance of a contract?
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- offeree silently takes the benefit of offered services
- reasonable opportunity to reject - reason to know that they were offered with the expectation of compensation |
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When can impossibility be used as a defense for not fulfilling a contract?
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Only after the contract has been entered into.
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Is impossibility objective or subjective?
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OBJECTIVE - no one could fulfill the contract!
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Is compliance with state regs a defense to negligence?
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NO - you can be negligent if there were special circumstances that required heightened caution. (Eg. hotel maintaining its locks.)
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Do you have a reasonable expectation of privacy with your own bank records?
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NO.
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Can you impeach on a collateral matter?
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NO.
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Unilateral mistake
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- one party is mistaken about material facts relating to the contract
- the mistake adversely affects that party - the other party knows of the mistake! |
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Is a new promise to pay an expired debt enforceable?
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YES! Even though the original debt isn't!
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Can the manufacturer of a defective product seek indemnity from the person who negligently designed the product?
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YES.
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If a shop window on a public street is mostly obscured but there's a small opening 8 feet above the ground and the officer has to climb onto trashcans in order to peer inside does that count as plain view?
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NO.
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Defendant claims killing was in the heat of passion. Who has burden of proof?
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The prosecutor dummy! Always the prosecutor!!! P has burden to prove that there WASN'T heat of passion!
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If you enter with the intent to commit a crime but it's NOT REALLY A CRIME is it still burglary?
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Nope. You have to enter with the intent to commit an actual crime not just something you THINK is a crime.
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Negligent infliction of emotional distress: who can collect inside the zone of danger?
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ANYONE - don't have to be related!
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If you commit larceny and then return it later is it still larceny?
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YES.
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Level of scrutiny for discrimination on the basis of alienage:
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strict scrutiny!
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Is a trust in perpetuity valid under the Rule Against Perpetuity?
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NO.
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Once someone is qualified as an expert can you still attack his expertise?
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YES!
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In order to combat a specific problem in a specific area during a specific time of day can the police randomly stop cars?
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NO - roadblocks are ok but random stopping isn't. Violates 4th Amendment and any evidence seized would be inadmissible.
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Does the parol evidence rule apply to subsequent modifications?
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NO.
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What do you need to sue for slander?
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Special damages! Ordinary slander is not actionable without special damages!
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When do you have to ask someone to leave your property?
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Only for torts against the property. Don't have to ask someone to leave for torts against your person.
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If someone is comitting a tort against you on your property can you commit a tort against them?
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NO. Eg. slamming door on the bullhorn: you're liable for that.
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What counts as malice aforethought?
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- intent
- reckless indifference - felony murder Thus malice can be implied from reckless indifference! |
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State of mind for larceny:
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INTENT. If you accidentally take something and then later decide to keep it it's not larceny! Have to have intent when you took it!
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Non-expert testifies on handwriting: does he have to be personally familiar with the handwriting ahead of time?
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YES - doesn't count if he only prepared for trial.
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Is it murder if you fire into an empty building?
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Probably not if the jury buys it.
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If you successfully adversely possess from someone and then pay them rent who owns the land?
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You do!
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Can Congress have a legislative veto over regulatory rules?
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NO. Unconstitutional. It's Congressional action not subject to presidential review and violates separation of powers.
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Title theory of mortgages:
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When you take out a mortgage the bank gets title. This severs joint tenancy and right of survivorship!
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Prevailing rule: duty to retreat?
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NO. Nowhere nohow. Kick his ass.
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If you are vicariously liable but the other person is 100% actually liable and you seek indemnification how much can you get from them?
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100%. Even if you're liable for damages if they are 100% at fault then you can seek 100% indemnification from them.
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10b-5: what is it?
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FRAUD forbids fraudulent scheme in connection with purchase/sale of security elements
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10b-5: elements
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instrumentality of interstate commerce
defendants: ANY person or corporation plaintiffs: SEC or private buyer/seller of securities bad acts |
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10b-5: bad acts
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1. misrepresentation of material information
2. trading on material inside information when a duty to disclose exists tipping 3. in connection with purchase/sale of a security 4. materiality—same as special facts 5. scienter—intent to deceive! (recklessness ok negligence not!) 6. reliance |
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16(b): what is it?
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INSIDER TRADING
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16(b): basic elements
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Who has a cause of action
Damages Who is liable What transactions Consequences |
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16(b): who has a cause of action?
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The corporation!
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16(b): damages
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Profits gained by insider
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16(b): when it applies
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only big corporations
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16(b): who is liable?
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directors, officers, 10% shareholders--had to own 10% before the event!
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16(b): what transactions are covered
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buy & sell within 6 months. only stock.
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16(b): consequences
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all profits are recoverable!
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parol evidence rule
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forbids the introduction of extrinsic evidence that would change the terms of a later written contract
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what counts as parol evidence?
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words of party before integration oral or written
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define "merger clause"
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"This is the complete & final agreement."
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complete vs. partial integration:
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don't worry about it; it's the wrong answer.
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functions of parol evidence (including inadmissible)
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contradicting: NO (court won't consider EARLIER statements)
getting out: YES explaining: YES adding: YES - only if not a complete integration! |
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rational basis test:
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RATIONALLY related to a LEGITIMATE government interest. Burden of proof is on the CHALLENGER
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intermediate scrutiny:
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SUBSTANTIALLY related to an IMPORTANT government purpose. Burden of proof is on the GOVERNMENT
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strict scrutiny:
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NECESSARILY related to a COMPELLING government purpose. Burden of proof is on the GOVERNMENT
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For receipt of stolen property when must you have the requisite intent?
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You must have actual intent to knowingly deprive at the time you receive the stolen goods!
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What if you rob someone but intend to give it back? Is it robbery?
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NO; intent to permanently deprive is an element of robbery. You should look at assault insted.
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If you fail to knock & announce will the evidence be excluded?
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NO. Hudson v. Michigan US 2006.
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Does an effective withdrawal absolve liability for conspiracy?
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NO. It just absolves liability for the target offense. You're still guilty of conspiracy.
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Am I awesome?
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Yes.
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Criminal negligence:
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When a person fails to be aware of a substantial and unjustifiable risk that circumstances exist or that a result will follow and such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances. Higher standard than civil negligence!
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If Defendant requests a mistrial does double jeopardy apply?
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NO. Although it usually would it's an exception if the Defendant asked for the mistrial.
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Does the Privileges & Immunities Clause apply to corporations or aliens?
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NO.
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Standard of review for a law regulating contributions to a PAC that supports or opposes a ballot referendum
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Intermediate scrutiny
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Zoning regulation prohibits 3 or more unrelated persons living together. Is it constitutional?
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Rational basis review. YES.
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Standard of review for GENDER
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Gender is a quasi-suspect class. If a law intentionally targets a single gender then it is subject to INTERMEDIATE SCRUTINY.
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Standard of review for AGE
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Rational basis
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Standard of review for MARITAL STATUS
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Rational basis
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Standard of review for a law that affects CHILD REARING
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Strict scrutiny!
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Can the President refuse to spend funds allocated by Congress?
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No.
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Can you sue to challenge a law if there is no substantial threat that the statute will be enforced?
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No.
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May a state impose a reasonable fee on an indigent who wants to run for office?
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No.
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Can a state make labeling requirements for foreign goods?
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No - it burdens interstate commerce
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If law enforcement threatens action (but hasn't done it yet) is that enough to sue?
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Yes.
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