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115 Cards in this Set
- Front
- Back
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Can a state regulate activities of the federal government?
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NO- unless Congress consents to the regulation
...thus, agents and instrumentalities of the fed gov are immune from state regulations relating to performance of their federal functions |
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Can a state tax imports and exports?
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NO- unless congress consents
...The Import-Export Clause prohibits states from imposing any tax on imported goods as such or on commercial activity connected with imported goods as such, except with congressional consent |
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Is the US Government (and its agents and instrumentalities) immune from state regulation?
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YES- where it interferes with federal activities, functions, and programs
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Can an agency be given discretion to decide if a court's judgment is fair?
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No- this would render the court opinions to be advisory in nature... BAD
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Can government limit the amount of money you contribute to a political committee?
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NO- but it can limit the amount you can personally contribute to a specific candidate
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Will a federal court ever hear an action to enjoin a pending state court prosecution?
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Generally, NO...
...unless the state prosecution is being conducted in BAD FAITH (like harassment) |
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If a state court decides a case on both state and federal law grounds, will the SC hear the case?
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NO- the SC will not hear a case from a state court, even though it has jurisdiction over the parties and the subject matter, if there are adequate and independent state grounds to support the decision
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What is the limit to state taxation and regulation with regards to local aspects of subject area?
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Dormant Commerce Clause...
...if the tax does not discriminate against interstate commerce- a local tax will be held to unduly burden interstate commerce if the locality's need for the revenue does not outweigh the burden on interstate commerce... |
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What is the Lemon Test?
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The legislation:
1. has a secular Purpose 2. its primary effect neither advances nor inhibits religion 3. it does not produce excessive government entanglement with religion |
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Which branch of government has the authority to settle border disputes?
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Judiciary
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When will a unilateral mistake be sufficient to rescind a contract?
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When the unmistaken party knew or should have known of the mistake...
...like a really low sub-bid compared to all other bids |
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When a buyer breaches a contract to purchase by repudiating his offer, what damages is the seller entitled to?
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Incidental Damages... PLUS
either the difference between the contract price and the market price OR the difference between the salvage price (selling to someone else) and the contract price ...minus expenses saved as a result of the breach |
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Analyze... Joe contracts with Sarah to build a house, payment upon completion...
...half way through the building process, the house burns down (no fault)... ...can Sarah stop building and is she entitled to anything? |
Sarah MUST finish performance!
If she doesn't... breach. |
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When can you modify a services contract without added consideration?
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When you are correcting an error in the original contract
...where there is a unilateral mistake that the unmistaken party should have known about, the contract itself is invalid, so it doesn't really count as a mistake but rather as a new contract |
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When is a liquidated damages clause enforceable?
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When damages are difficult to estimate at the time the contract was formed and the amount agreed upon is a reasonable forecast of the damages that would result from a breach
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When is an assignment freely revocable?
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When it is gratuitous...
...A gratuitous assignment is generally revocable unless the obligor has already performed (paid the assignee) or the assignee has relied on the promise to his detriment |
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Can Joe's dad offer Sarah $500 if she promises to marry Joe?
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YES- but it must be in writing to satisfy the SoF...
...unless you can show detrimental reliance (as an exception to the SoF) |
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Analyze... Joe gets an option to rent a really cool apartment but the landlord rents it to Sarah instead?
Can Joe get the apartment? |
Specific Performance will be granted where money damages are inadequate... like leasholds
BUT... if the contract has been transferred to a bona fide purchaser for value, the court will NOT grant specific performance! |
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How do you define murder under the common law?
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The unlawful killing of a human being with malice aforethought...
...malice aforethought exists if the defendant had any of the following states of mind: 1. Intent to kill 2. Intent to inflict great bodily injury 3. Reckless indifference to an unjustifiably high risk to human life 4. Intent to commit a felony |
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When would a common law murder be reduced to voluntary manslaughter?
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When the killing occurs while the defendant is acting under a provocation that would arouse sudden and intense passion in the mind of an ordinary person so as to cause him to lose self-control, with insufficient time between the provocation and the killing for the passions ofa reasonable person to cool
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When is it acceptable to use deadly force for purposes of self-defense?
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When you are faced with imminent death or great bodily harm...
...threat of future harm is not enough |
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What makes you an accessory after the fact?
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If you assist a criminal TO HELP HIM AVOID APPREHENSION... knowing that he had committed a felony
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If you accept stolen property without knowing it is stolen, but you later find out that it is stolen... and you decided to keep it anyway, can you be charged with anything?
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NO- in order to be charged with being an accessory after the fact, you would have had to have known of the larceny and taken the property in an effort to help the felon escape captivity
...for receipt of stolen property, you have to have known it was stolen when you received it (the intent cannot be created later) |
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What needs to be shown for the McNaghten test?
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the defendant lacked the ability to know the wrongfulness of his actions
OR he lacked the ability to understood the nature and quality of his actions |
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When are you guilty of involuntary manslaughter?
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when you cause a death due to CRIMINAL NEGLIGENCE...
...this is a much harsher form of negligence than a reasonable person standard would allow ...if a fact pattern has someone being negligent and then someone dies, it probably won't be actionable as any type of homicide |
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If you intend to kill someone under a voluntary manslaughter theory (adequate provocation and insufficient time to cool off)... but you accidentally kill someone else, can you be convicted of voluntary manslaughter against the other person?
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YES...
...there could be a justification though, if you are intending to kill a fleeing felon |
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can you be charged with attempted murder if the murder is based on a reckless indifference to an unjustifiably high risk to human life theory?
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NO- attempt is a SPECIFIC INTENT crime and therefore intent to kill is required!
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Can a 15 year old prostitute be charged with being an accomplice to statutory rape?
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NO- the statute was enacted to protect her, so she can't be charged with either the crime or as an accomplice
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when can deposition testimony be used at trial?
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When the witness is unavailable
AND there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing or deposition was meaningful |
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What happens if a witness testifies as to authentication of handwriting?
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If the witness authenticates it, then the document is entered into evidence and the jury decides for itself if the note is authentic.
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Do you need to die in order for a dying declaration to be admissible?
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NO- you just need to be unavailable
AND you need to have feared imminent death AND the statement needs to be concerning the cause or circumstances surrounding the incident |
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Will a court take judicial notice of the law of a foreign country?
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NO
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What is the best defense against trespass to land?
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I didn't intend to touch your land
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What is the best defense against negligence?
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The plaintiff was not foreseeable
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Joe lends his car to Sarah to get pizza... Sarah stops at the bookstore first...
...because she delayed, something happens to the car What is the claim and what is the defense? |
The claim is negligence on the part of Sarah for delaying...
...the defense is that the accident was unforesseable because a reasonable person would not have foreseen damage arising from the delay in getting pizza |
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Joe is in a restaurant, choking on some tofu... a waitress runs over to help but slips on some spilled pudding, landing on and injuring Sarah
causes of action? |
against the waitress... nothing
against the restaurant... negligence (vicarious liability if the busboy had neglected to clean up the pudding) |
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Are you liable for damages to a person's property if you enter pursuant to private necessity?
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YES
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What duty does a land owner have to licensees?
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To warn against KNOWN death-traps...
...no duty to inspect or repair |
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What is the best defense to invasion of privacy involving public disclosure of private facts?
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The person was caught doing it in public (like a picture of someone smoking in front of a restaurant)
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Are nominal damages allowed for negligence claims?
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NO- only actual damages, consequential damages, and incidental damages
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what is false light?
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when D publishes something about P that places him in a false light in the public eye and the "false light" is something that would be objectionable to a reasonable person under the circumstances
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Can you have vicious dogs protecting your house?
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Not really, if a trespasser is injured by one, you will be liable because you can't use deadly force to protect property (spring guns, vicious dogs, traps, etc...)
not the same as strict liability though because these are trespassers we're dealing with |
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When discussing agency issues like apparent and express authority to bind a boss to contracts with third parties, what should you include about the boss?
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What kind of principal he is (disclosed, partially disclosed, undisclosed)
Whether the boss ratified the contract |
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If an employee exceeds her scope of authority but the boss is still found to be liable on a contract the employee entered into, what can the boss do?
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Seek indemnification from the employee for the price of the contract
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Analyze... Promissory note with Joe as the maker and Sarah as the payee... Sarah transfers the note to Jon, but doesn't endorse... Sarah tells Joe to pay Jon directly
...what rights does Jon have against Joe? |
Without indorsement, Jon is not a holder in due course. Therefore, Jon can enforce the note but is subject to any real or personal defenses that Joe could have raised against Sarah (like breach of warranty)
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If you have a state statute that conflicts with a federal statute, what do you say about the state statute?
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It is invalid, as it has been preempted by the federal statute
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If a state discriminates between different counties (like not allowing counties to hire citizens of the state that do not live in the counties), what is the best way to challenge it and what is the level of scrutiny?
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Fourteenth Amendment Equal Protection Challenge- while rational basis is usually used for governmental classification, a higher level of scrutiny (not strict scrutiny) will be used where the action impedes a citizen's ability to ply his trade throughout the state...
... there must be a reason for the distinction beyond mere geogrophy |
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If you hire someone to sell your house and they screw up, are you within your rights to lower the purchase price in order to save the sale?
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YES- you are mitigating your damages and you can get that money back from the party you hired
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How can you prove entrapment?
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If the government agent induces you to commit a crime that you would not have committed but for the governmental enticement
you have to show that there was enticement AND that you are not predisposed to do that type of crime |
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How can you use necessity to escape an illegal possession of a handgun charge?
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In a sudden emergency, a person may avail himself of a weapon in the immediate vicinity even if he has no lawful justification to carry one
to take advantage... 1. D must be, or appear to be, in imminent danger 2. D must not have intentionally or recklessly placed himself in the danger 3. D must have no other legal alternative 4. The gun must be made available without preconceived design 5. D must relinquish the gun as soon as the necessity ends |
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If you steal a car an the cops stop you for failing to use a turn signal... and then they search the car, can you object?
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NO- you have no expectation of privacy with regards to the stolen car and therefore you have no standing
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What should you ALWAYS include in an evidence question?
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That evidence may be tossed out if the probative value is outweighed by other factors
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If a defendant in a civil trial denies having committed a crime, can you enter the judgment in as evidence?
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NO- you take the answer as you get it
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What is statutory separation?
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two year separation... either party can claim it for absolute divorce
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When is an absolute deed treated as an equitable mortgage?
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An absolute deed, if given for security purposes, can be treated by the court as an equitable mortgage to be treated as any other mortgage... meaning that a creditor would have to foreclose by judicial action
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Analyze... you try to kill Joe by poisoning his food... it turns out that you did not put enough poison in the food to kill him, but it made him sick enough to run downstairs and call the doctor...
...on his way down stairs, Joe slips and breaks his neck. Murder? |
Yes- even though there wasn't enough poison to kill him, his death was a natural and probable consequence of the posioning
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When is impossibility a defense against performance?
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Contractual duties will be discharged where it has become impossible to perform them. For impossibility to operate, the duty must be objectively impossible (no one would be able to perform- like specific artists and stuff)...
...one common situation where impossibility is applied is where either the means for carrying out the contract or the subject matter of the contract is destroyed or damaged. |
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Does the physician-patient privilege apply to federal cases?
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NO
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Joe takes Sarah's magic hat, thinking it is his...
(a) Joe damages the hat (b) Joe loses the hat Liability? |
(a) Trespass to chattel
(b) Conversion It doesn't matter if he thought the hat was his... so long as he intended to take the hat |
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Once a couple has come up with a child support agreement as part of a separation agreement, will the court ever be allowed to modify it?
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Of course- the court has the authority to modify any provisions of a separation agreement which pertain to children...
...the best interest of the child standard will always be used |
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What factors are used to analyze the best interests of the child?
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1. length of time the kid has been away from the biological parent
2. the age of the child when care was assumed by the third party 3. the possible emotional effect on the child 4. the nature and strength of the ties between the child and the third-party custodian 5. the intensity and genuineness of the parent's desire to have the child 6. the stability of the child's current environment |
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Analyze... Joe represents Sarah in a personal injury case...
...Sarah has signed letters of protection that enable you to pay the medical bills using insurance money and settlement money... ...now Sarah wants you to give her all of the money instead of having you pay the bills. |
First off, once Joe receives any money to which Sarah or a third-party has an interest, he must notify them and make a full accounting
If the third party demands payment, you must pay... otherwise, your client may be liable for wrongful interference and you may be liable for engaging in fraud or deceit ...if Sarah refuses to go along with it, place the funds in a registry of the court and have the court settle it |
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What are the elements of intentional misrepresentation or fraud?
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1. misrepresentation
2. scienter (D knew the representation was false or had reckless disregard for its truth or falsity) 3. intent to induce P's reliance on the misrepresentation 4. causation (actual reliance) 5. justifiable reliance 6. damages |
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will a court take judicial notice of a birthday?
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NO- you need to present a certified copy of a birth certificate
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Joe gives Sarah a PN... Sarah secures a loan from Bank by using the PN as collateral... Bank records the financing statement but Sarah retains the PN
...Sarah defaults on the loan. What are the Bank's rights? |
The Bank can take possession of the note and sell it. If it sells it for more than the debt is worth, the remainder goes back to Sarah
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If you are employed by the government and they fire you for posting fliers around the office, are you entitled to notice and a hearing?
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YES- this is protected under first amendment rights
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What is an accommodating party?
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An accommodating party signs a note to guarantee payment of the obligation of a maker...
...if the maker does not pay, the payee can sue the accommodating party as well as the maker ...the accommodating party has the same defenses available to him that the maker has (which defenses are available turns on whether the payee is a holder in due course or a mere transferee) |
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What happens if D never responds to a pleading by P?
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P can have the court enter a default judgment...
the clerk will alert D that he has 30 days to make a motion to vacate the order... ...if D fails to make that motion, he can still move to vacate the order prior to entry of judgment ...D cannot utilize the rule that allows a motion to be filed within 10 days of entry of judgment (with a joined motion for new trial) because a default judgment is not decided by the court but rather by default... ...but D can still have the court reopen the case to determine damages but not liability within 30 days of judgment |
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Can a polygraph test be used to rehabilitate a witness whose character was attacked on cross?
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NO- it is too likely to confuse the jury
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If Joe injures a child and the child's mother refuses to get the child medical treatment, is Joe off the hook?
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No- the negligence of a parent is not imputed to the child
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If Joe and Sarah hold Blackacre as joint tenants and one of Sarah's creditors obtains a lien on her interest in the property...
...what happens when Sarah dies? |
Most jurisdictions will not consider the existence of a lien to sever the unities...
...upon Sarah's death, Joe gets the property and the creditors lose their interest (Blackacre is no longer subject to the lien) |
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Analyze... Bank1 loans Joe and Sarah $50,000... Joe forges Sarah's indorsement on the back and cashes it the check at Bank2...
...Bank2 then presents the forged check to Bank1, which pays Bank2 the $50,000 What is Joe guilty of and what can Bank1 do about the $50,000? |
Joe is guilty of fraud, uttering, and false pretenses
Bank1 can get the money back from Bank2 because Bank2 is the collecting bank and Bank1 is the payor bank... ...the collector bank warrants that it has good title for the instrument (which it doesn't)... this is called a presentment warranty |
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What is the effect of having your charter forfeited?
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The corporation has no legal existence and is not amenable to suit.
The directors are transformed into trustees of the corporation's assets for purposes of liquidation These "trustees" can be sued in order to force the corporation to honor outstanding obligations |
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If a bonus is given to directors when there is not enough money to pay a corporation's debts, what can the creditors do?
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The creditors can hold the directors personally liable for that money
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When does a husband and wife relationship establish an agency relationship between the spouses?
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When one spouse knowingly accepts benefits from the unauthorized acts of the other spouse
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What should Joe do if he finds out that his wife made an unauthorized transaction in both of their names?
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Repudiate the transaction! Don't accept the benefits... don't make payments on it...
...if you do, this will be considered ratification and you will be liable for the debt |
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A v. B... complaint is properly drafted and served...
complete the procedural steps for answers, counterclaims, and requests for a jury trial |
B must file and serve an answer within 30 days containing a general denial of liability and any affirmative defenses like contributory negligence
B should also file and serve a counterclaim against A within 30 days of filing the answer, asserting that A is liable for B's injuries A then has to answer the counterclaim within 30 days of service, asserting a general denial of liability and any affirmative defense like contributory negligence Within 15 days after service of the last pleading, any party may file a written demand for a jury trial |
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A v. B... what if C was also involved?
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B can file a third party complaint within 30 days after filing his answer to A's complaint
A can then amend his complaint to add C as a defendant B can file cross-claim against C for B's injuries within 30 days of filing his answer to A C has 30 days to file an answer to B and A (general denial of liability and any affirmative defense) C can then file a counterclaim against A and B within 30 days of filing his answer to B and A |
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If you voluntarily put yourself in danger and someone tries to rescue you, are you liable for injuries to the rescuer?
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YES- a person, because of her wrongful conduct, gets herself into a position from which she must be rescued, that person is liable to the rescuer who suffers injuries while reasonably trying to aid her
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If you are bequeathed a piece of land in a will, but the testator sells the land prior to death, do you have an interest in the land still?
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NO- the gift is adeemed
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Procedure- party refuses to answer interrogatories or is unresponsive
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file a certificate describing good faith efforts to discuss a resolution of the dispute with opposing attorney... then move for an order compelling discovery
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Procedure- new information comes up after you answer an interrogatory
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if the new information is material, supplement promptly...
...this is irrespective of whether the answers are expressly made continuing by provision |
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Procedure- out of state deposition... the deponent doesn't want to be deposed
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you cannot require a party to attend a deposition in Maryland unless he is served a subpoena in Maryland. You can require the person to be deposed in the other state, but you have to follow that state's civil procedure
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Joe and Sarah are married... Joe makes a confidential communication to Sarah and Sarah goes and blabs to Suzanne...
...Joe dies and Matt is on trial for Joe's crime... can Sarah be compelled to testify? |
YES- she lost her privilege when she blabbed to Suzanne and Joe cannot claim the privilege because he is dead
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where a state law does not discriminate against out-of-staters, what is the test to determine if the law violates the commerce clause?
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If the law burdens interstate commerce and the burden outweighs the state’s interest in the action, the law is invalid
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where a state law does discriminate against out-of-staters, what is the test to determine if the law violates the commerce clause?
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If the discrimination burdens interstate commerce and there is no applicable federal legislation, the action is invalid unless:
(i) It furthers an important non economic state interest and there are no reasonable nondiscriminatory alternatives; (ii) The state is a market participant (i.e., purchaser, seller, subsidizer); or (iii) It involves government action regarding the performance of a traditional governmental function |
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where a state law does discriminate against out-of-staters, what is the test to determine if the law violates the privileges and immunities clause?
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If the action denies the out-of state person important economic interests (e.g., livelihood) or civil liberties...
...the law is the state invalid unless the state has a substantial justification and there are no less restrictive means. |
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What right does a seller have with regards to outstanding mortgages at the time of closing?
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A seller has the right to satisfy a mortgage or lien at closing with the proceeds of the sale
a buyer cannot claim that title is unmarketable because it is subject to a mortgage prior to closing, if the closing will result in marketable title |
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Explain the last clear chance rule
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Where we are in a contributory negligence jurisdiction, the defendant will use contributory negligence as a way to bar recovery by the plaintiff...
...plaintiff can escape this bar to recovery by proving that the defendant had the last clear chance to avoid the accident |
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If a member of an LLC does something bad, what law do we use?
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Either analogous corporation law or agency law...
...analyze by using both |
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A forgets to file the limited partnership agreement with SDAT...
...B thinks he did, so he enters into a K with XYZ... ...if the K is breached, how can B claim protection under limited partnership law? |
If B had a good faith belief that the agreement was filed, he can file it within 30 days of finding out...
...then he is protected (so long as he is a limited partner) |
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If you deed your property to Joe but put the deed in an envelope and give it to Sarah with the instruction not to give the deed to Joe until you die... is this acceptable?
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YES- you no longer have the ability to revoke the escrow, so the delivery date will relate back to the date of delivery to Sarah
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Analyze... Joe buys a bike from XYZ and tells them to deliver it to Sarah as a gift on Dec. 1...
...XYZ calls Sarah to set up a delivery time... Sarah relies on this call and sells her old bike... ...Joe cancels the sale and Sarah never gets the bike... Damages? |
NO- Sarah is a third-party donee beneficiary
in order for her to claim detrimental reliance, JOE would have to have told her about the gift... if XYZ tells her, so what! |
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Can a state tax the press?
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Generally, yes- business and regulation taxes are ok so long as they are not targeted for SPECIAL REGULATION OR TAXES (like only taxing magazines that have cigarette ads)...
...the tax cannot be based on the content of the publication |
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Can a corporation bring a privileges and immunities clause challenge?
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NO... only citizens can
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What other claims should you raise when making a privileges and immunities clause argument?
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Dormant Commerce Clause
Equal Protection Due Process (14th Am.)... arbitrary restraints |
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A and B rob a store in Maryland... what other crimes should you probably talk about?
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Conspiracy, Robbery with a Dangerous Weapon, Assault, Battery (if appropriate), Felony murder (if appropriate- must be committed by an accomplice though), theft (but most likely merged... NOT LARCENY in Maryland)
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how do you handle "widows" when determining future interests for purposes of RaP?
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A widow cannot be a "life in being at the creation of the interest" because you can't have a widow until you die... so the issue of the "unborn" widow makes any remainder regarding the widow's children VOID
...to A for life, then to A's widow for life, then to A's living children... ...A's living children violates the RaP because the widow may live for more than 21 years after A dies... and the contingent remainder in A's children would therefore not vest within 21 years |
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Can you defend a claim to nuisance by saying that the plaintiff moved to the area knowing about your activities?
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NO...
...but if the area is zoned for commercial purposes and you are acting within those purposes, it is presumed that it is not a nuisance |
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How do you deal with "heirs" for purposes of future interests?
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Heirs do not exist until you die...
To A for life, then to B's heirs... if A dies and B is still alive, the property would go back to O until B died... then it would go to his heirs |
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can a state university deny a teacher employment because he is not a US citizen?
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not without a compelling purpose...
you can only deny non-citizens employment as teachers for primary and secondary school |
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how should you start every professional responsibility answer that deals with representing new clients?
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identify the clients, the scope of representation, and any possible conflicts of interest
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can a lawyer tell a client that they specialize in an area of law?
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NO!
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does threat of prosecution create a controversy for purposes of standing?
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YES- the complainant can seek enjoinment or injunction if he shows that he has engaged, or wishes to engage in specific conduct and that the challenged governmental action poses a real and immediate danger to his interests
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What gives MD jurisdiction to hear divorce cases?
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If the ground for divorce happened within the state, one of the parties has to live in MD
If the ground for divorce occurred outside the state, then there is a one year residency requirement |
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If a state grants a private company a monopoly on something (like a state lottery) and heavily regulates that private company, does this amount to state action for purposes of employee due process rights?
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NO
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how long do the cops have to file a charge for a misdemeanor?
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1 year from the date of the incident
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is possession of marijuana a felony or a misdemeanor?
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misdemeanor
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what court has exclusive jurisdiction to hear misdemeanor cases?
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District Court
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what are the elements of proving possession of a controlled substance?
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1. proximity between D and the contraband
2. If the contraband was in plain view or otherwise in the knowledge of D 3. Ownership or proprietary interest in the vehicle or bag (if found in a car or bag in a car) 4. Circumstances suggesting D was participating with others in the mutual enjoyment of the contraband |
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What makes a theft a felony?
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If it is over $500 in value
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What is Brady material?
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Any information the prosecution gets that may exculpate the defendant...
...it doesn't matter if a witness is called to testify or not if that witness says something to the prosecutor |
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when can a state restrict speech in a non-public forum?
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when it is viewpoint neutral and reasonably related to a legitimate governmental purpose
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if a state law does not conflict with a federal law, is that good enough?
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NO- if you regulate stuff that affects interstate commerce, it has to pass the dormant commerce clause test
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Can an administrative law judge be removed?
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Sure- he's not an Article III judge
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