Mixed MBE review questions
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Torts: Seller of a product (Negligence)
The seller of a product can be held liable for negligence if he fails to exercise reasonable care
*Merely failing to exercise reasonable care to inspect goods to discover defects, or in preparing for sale.
Torts: When is handling abnormally dangerous/ultrahazardous "things and activities" not subject to strict liability?
In some situations, conduct that is subject to strict liability will result in an unexpected type of harm.
*In these circumstances, strict liability will not be imposed if the harm that occurs is not w/in the scope of the risk that makes the conduct subject to strict liability (whatever makes the conduct/thing dangerous)
Torts: Is a company liable for S/L if they placed warning on the product, but the V doesnt speak english?
A product may be unreasonably dangerous if there is an inadequate warning regarding its use.
*American manufacturers are not required to place warnings in different languages on products sole w/in the US.
*P will lose because the injury was attributable to her inability to read English, not to any flaw in the product or its warnings.
Torts: "Professional Rescuer Rule"
Provides that a professional rescuer (such as firefighter or cop) generall cannot hold someone liable for negligence that creates a need for the rescuer's services.
- *Policy reasons:
- 1) We all pay taxes to cover the costs of services such as cops and firefighters.
2)Professional rescuers will be entitled to workers' compensation benefits for on-the-job injuries
3) We don't want fear of liability to discourage people from calling for help when they need it
- *Rule only applies to:
- 1) Risk that are inherent in the professional rescuer's job, AND
2) Risk that are the very reason for the rescuer's presence at the scene
: If you negligently start a fire in your house, you will not be liable for injuries that a firefighter suffers trying to put out the fire.
Torts: Vicarious liability between Common Carrier and its passengers (planes, bus, train etc...)
The Doctrine of respondent superior imposes vicarious liabilty when there a special relationship exist. One type of special relationship is the relationship between common carrier and its passengers.
* The common carrier has a duty to its passengers to take reasonable care to protect them from unreasonable risk of harm
- This duty to protect extends not only to risk arising from the common carrier's own conduct, but also to risk arising from acts of 3rd persons, whether they be innocent, negligent, intentional or even criminal
NOTE: Although a common carrier is NOT vicarious liable for the tortious acts of its passengers, it is vicariously liable for the tortious conduct of its employees..
Contracts: UCC 2-328 (Auctions)
An auction is deemed to be w/ reserve unless specifically stated to be w/out reserve
*When goods are put up w/out reserve, the auctioneer makes an offer to sell @ any price bid by the highest bidder
*After the auctioneer calls for bids, the goods cannot be w/held unlessno bids are made w/in R time
Contracts: Waiver of delivery date
Just because a buyer waives delivery date (i.e "time is of the essense"), doesn't mean the buyer promises to forgo any cause of action he then had or might later require
* Buyer might be entitled to incidental damages
Contracts: Buyers right to cancel for failure of timely performance
Where the time set for performance has passed, the party awaiting performance
may agree to a new commercially reasonable time for performance prior to cancellation
- *Where there is no "new" delivery date set, the time for shipment or delivery shall be reasonable time.
- - The obligation of g/f requires reasonable notification before a contract may be treated as breached becasue a R time for delivery or demand has expired
Contract/Evidence: Admissibility of an oral condition
Where parties agree that a condition precedent must occur before the K is effective, it's generally agreed that the failure of the condition to occur may be shown despite what otherwise be deemed total integration
*It may be shown that the instrument was handed over to another w/ an oral condition attached to delivery
*The theory is that the agreement is not to take effect until the condition occurs, and thus there is no K K to be added to or contradicted until that time
Property: Adverse Possession - "Tacking"
The period of AP of one possessor can be tacked on to the period of AP of another possessor when there is privity (blood or contract) between the two.
*If there is no privity, the original AP'er "continous" requirment resets if the original AP'er re-occupies the land.
Property: Profits gained by use of property
In a MAJORITY of states, a tenant in possession has the right to retain profits gained by his use of the property.
*However, a co-tenant out of possession does have a right to share in rents and profits received from 3rd parties.
If one tenant wrongfully excludes another co-tenant from possession of the whole or any part of the whole property amounts to an ouster
*Actions and behavior alone cannot constitute an ouster because an ouster will be determined by whether or not the son a party has acted wrongfully
Crim: Voluntary intoxication as a defense for homicide
Voluntary intoxication will never mitigate murder to manslaughter
*It may reduce 1st degree murder to 2nd degree if the intoxication negates the Ds premeditation, deliberation or intent.
Crim: Does reckless conduct satisfy the malice requirment?
Yes it does!
Crim: "Acevedo Rule"
The cops can search any container that they have PC to search once it's placed in a car w/out a warrant.
Crim: 3rd party consent (Common Authority Rule)
Any person w/ an equal right of control (or who possessed common authority) over the premises generally may consent to the search
- *2 bases for common authority rule:
- 1) The consenting party can permit the search in his own right.
2) The D had "assumed the risk"
that a co-occupant might permit a search
*Someone who doesn't have the owner permission to be on the premises or is unlawfully on the premises does not have the authority to consent
[read the fact pattern--> there must be evidence of that the cops had reasonable belief that 3rd party had authority
Evidence: Does a hearsay declarant have to be questioned about their out of court statements?
No. There is no requirment that a hearsay declarant, even one who has already testified or will testify @ trial, be questioned about their out of court statements.
Evidence: Under the FRE, can a judge testify in a trial that he's currently presiding?
No. Under FRE 605, a judge presiding @ trial may not testify in that trial as a W.
*No objection need be made in order to preserve the point.
Con Law: The only contitutional limitation upon the President's power to "conduct foreign affairs" with reagards to treaties:
Under Art II, sec 2, the only constitutional limitation upon the President's power "to conduct foreign affairs" is w/ regards to treaties, which become valid only when ratified by 2-thirds of the Senate.
Con Law: Is there an explicit mention of the President's power to conduct "foreign affairs?"
*So if an answer choices comes down to this or treaty power, treaty power is likely the correct response
Con Law: Are all "treaties" the supreme law of the land?
YES. Under Art VI, para 2, all treaties "which shall be made under the authority of the U.S." are supreme law of the land (along w/ constitution and laws of U.S. made in pursuance of therof)
Con Law: States police power under the 10thA?
The state's police power under the 10thA gives the state the power to regulate health, safety, welfare and morals.
Con law: Are news stories about a matter of public interest absolutely privileged?
Con Law: Ordinances that prohibiting knocking on people's door
*The Court held an ordinance invalid that forbade any person to knock on doors, ring doorbells, or otherwise summon any residents to the door as violative of the freedom of speech and press.
: Substantive gurantee of DP requires that legislation have a rational relationship to the legitimate ends of government.
- NOTE: Check to see if the actor is exercising her free speech rights as a private citizen or as an employee of the Feds or State
*An ordinance may prohibit the business practices who utilize this shit
Torts: Respondent Superior
An ER can be held vicariously liable for an EE's tortious conduct that is w/in the scope of employment.
*Although respondent superior
usually applies to make an ER liable for an EE's negilgence.
ER liable for INTENTIONAL TORTS of EE only when the acts are in discharge of some responsibility the EE was hired to do
OR when the conduct can be viewed as a wrongful method OR means of perfoming the duties of the job
Tort: Tortious acts committed in "concert"
Whenever two or more persons commit tortious acts in concert, each becomes subject to liability for the acts of the others, as well as his own acts.
*Each will be liable for injuries, reagarless of who actually caused it.
*Check to see if the actors are connected w/ each other (i.e friends, relatives, etc...)
Torts: When does a comparative negligence statute apply?
A comparative negilence statute only applyes when there is a negligent P and one or more negligent D's.
Torts: "Pure" comparative negligence statute
Whers a jury assigns some fault to the P and some fault to the D(s), the P can recover for all the faut assigned to D's, no matter how low or high it may be compared to P's own fault.
ex: P 99% @ gault, D 1%. P can still recover 1% of the damages for the P's injuries.
Torts: "Modified" comparative negligence rules
In jurisdictions w/ "modified" comparative negligence rules, there is a cutoff point @ which the P's share of the fault becomes so high that the P's claim is barred.
* usually >50% or > or = 50%
Torts: How comparisons are made if there are multiple negligence defendants in "modified" comparative negigencejurisdictions:
- *P's share or the fault is compared separately w/ that of each D, or
- *Under the "unit rule", the P's share of the fault is compared w/ the sum of all the D's share
Torts: Collateral Source rule
Under the collateral source rule, a P's recovery is not reduced by virtue of the P having received compensation from sources other than the D (even insurance)
Contracts: Contracts to refrain from doing something illegal
Are probably void (i.e Ks to pertaining to illegal activities are void)
Contracts: Exception to the parole evidence rule
An exception to the parole evidence rule is where the evidence is being introduced to show lack of consideration.
Contracts: Are option contracts enforceble when the consideration is not actually paid?
The option agreement is not invalidated by proof that the recited consideraion was not in fact given.
Contracts: Express promise by debtor to pay a past debt barred by the S/L
An express promise by a debtor to pay all or part of a past debt barred by the S/L is legally enforceable w/out new consideration (some jurisdiction require it to be in writing)
Property: Easement by Implication
One has an easement by implication if the existence of the easement if strictly necessary (or reasonably) for the use of the land
*The creation of such an easementis based upon the presumed intent of the grantors
Property: If a claim is made that an easement arose out of a prior conveyance
There must be proof of the fact that @ one time both the dominant & serviant estates were under one owneership
Property: Easement Appurtenant
The easement is appurtenant if it's attached to a piece of land & benefits the owner of such land in his use and enjoyment thereof
Property: Right to subjacent support
The right to subjacent support means support from underneath the surface of the land as distniguished from the sides
*A landowner has an absolute right to support for land in its natural state and for any structure on the land
*A party doesn't have to prove negligence for property damage due to a loss of subjacent support
*Question typically involve plumbing/draining systems
Property: Mortgages on after-acquired property
Mortgages on after-acquired property are valid between parties.
*To be effectual against 3rd persons, it must point to the subject matter
so that such persons by inquiry notice
may be able to identify the property to be acquired.
*A clause covering all after-acquired property is good and is sufficient
to adequately identify
the property between the mortgagor-mortgangee and to put 3rd parties on notice
Property: Every leasehold includes the following elements:
1. an estatee in the tenant
2. a reversion in the LL
3. exclusive possession & control of the land in the tenant
4. generally, a K btw parties
* Ordinarally, a lodging K doesn't create a LL-T relationship, but only that of a lincensor-lincensee (occupants K for use of a room and facilities w/out a possessory interest in the land)
-exclusive possession and control remains w/ the LL
-holder can give up a license @ any time
Crim: When to assume a D intends to acommit a larceny or felony?
When D leads the V(s) into an apt (or any location) by gunpoint
*Check this in the fact pattern. If it's present, D can likely can be charged w/ burglary + any foreseeable acts as a result (satisfies the "intent to commit a felony or larceny therin" element for burglary)
Crim: Other way for D to satisfy "presence" requirment for burlgary?
The D takes property from the V's presence if D locks or ties the V up in one room of a building and then helps himself to valuables located in another room
Crim: When does a commercial business qualify as a "dwelling house?"
A place of business used only during the day will not qualify as a "dwelling house", unless it's attached to a residence
Crim: Is burglary a serious or inherently dangerous felony?
*NOTE: If D comitts a burglary, it is foreseeable that he may get chased down by someone trying to capture him (thus if "capturer" dies while to catch D, D will be guilty of felony murder)
*NOTE: Be careful w/ this, look @ who the capturer is (may play a role in foreseeability analysis)
Crim: Redline limitation on the felony-murder doctine
A felon is not liable for the death, which the felon didn't intend, of a co-felon participating in criminal activity
*It's now generally accepted that there is no felony-murder liability when one of the felons is shot and killed by the V, cop or bystander.
Crim Larceny: Is intention to return a defense to larceny?
*Also note that the if D is only intending to temporarily deprive V of property, there is no larceny
Crim: Primary function of a grand jury
The primary function of a grand jury is to detrmine probable cause, not guilt.
*Rules of evidence and other than privilege is not applicable during grand jury proceedings.
Crim: Is cross examination required during preliminary hearings?
The SC has long held that cross examination @ a preliminary hearing isn't required by the confrontation clause of the 6th A.
*The purpose of a pretrial hearing is to determine PC, no obtain discovery
Crim: A valid warrant authorizing any form of electronic surveillance requires:
1. warrant must describe w/ particularity the conversations to be heard
3. suspects mus be named
4. must be for a limited period of time
5. a return must be made to the court showing what conversations were intercepted
Crim: Washington v. Chrisman
The SC held that the cops may accompany the D into the home following his arrest so that D may obtain ID, effects or change clothes.
*It's not unreasonable under the 4thA for a cop to monitor the movements of an arrested person (as his judgement indicates) following an arrest
-ex: cop justified in inspecting closet before allowing D inside to change clothes
Evi: Is a company's label self-aunthenticating?
Yes.Inscriptions, signs, tags or labels purporting to have been affixed in the course of business and indicating ownership, control or design are self-authenticating.
Evidence: Former Testimony (same D, but new P)
A new P using former testimony against the same D, which was a party to the previous suit, and had opp @ first trial to interrogate the W, falls w/in the the former testimony hearsay exception.
*Former testimony of W @ 1st trial is admissible because D had opportunity to interrogate W
NOTE: Where same P, but new D-->former testimony of W @ 1st trial not admissible because new D @ 2nd trial most likely didn't have the opp to interrogate W @ 1st trial.
Evidence: Does a declarant have to be present @ trial for an excited utterance to be admissible?
Hell to the knaw. There is no requirement either to identify the declarant or produce him @ trial.
Con law: Laws regulating commercial speech
Regulations of commercial speech should be narrowly tailored and should be no more extensive than necessary. (narrowly tailored to achieve a compelling/substantial gov interest) STRICT SCRUTINY APPLIES
*Commercial speech has to be truthful, non-misleading advertising.
*A state will not be permitted to completely ban commercial advertising
Con law: Can a state place an ad valorem tax on imports?
Import & Export Clause: No. Art 1, sec 10, clause 2 of the constn states, "No state shall w/out the consent of congress, lay any imposts or duties on IMPORTS OR EXPORTS, except what may be absolutely ncessary for executing its inspection laws.
*ad valorem tax= property tax
*NOTE: an item can lose it's status as an import/export if it's mingled with other items (i.e. loses it's status once it becomes part of the inventory @ the distributors wearhouse)
*Note: check to see if the items remain on the loading dock. This would be evidence that the items are not mingled w/ others, becoming part of the regular inventory. Thus, not taxable w/out congress' consent or being necessary for the states inspection policies
*NOTE: A state's power to enact such a tax is derived from its 10thA reserved powers. (congress- probably commerce clause[could be enumerated too etc...]
Con Law: Privacy right of contraceptive users
For a law to be deemed invalid for violating this fundamental right, there must be a showing that the law infringes on the right.
*NOTE: A regulation would not infringe on this right if it merely requires one to obtain a DRs prescription to use it.
*Strict Scrutiny (substaintiall promotes a compelling state interest, w/ on less restrictive alternatives)
Con Law: Congress' power to provide for general welfare (Spending power)
Courts has taken the refrence to "general welfare" to mean that Congress enjoys great discretion in how it chooses to allocate funds for the public
*NOTE: A question selection asserting this power is probably wrong if there is no reference to $$$$ in the fact pattern.
Con law: States police power
Under its 10thA Police Powers, the state is entitled to pass legiglstion to regulate health, safety, welfare and morals.
*Where Congress has not acted, the sates have police powers to regulate any phase of local business provided that such regulations neither discriminate against NOR burden interstate commerce OR violate other provision of the constitution (otherwise would probably violate the DCC)
Torts: Abnormally dangerous activities
Strict liability will not be imposed if the harm occurred only because of the abnormal sensitivities of the P
Contracts: Contracts of infants
Contracts of an infant are voidable @ the option of the infant (but adult can't avoid because infant)
*After reaching the age of majority, the infant may ratify or affirm the contract (infant can tell other party they will pay k to "be fair")
Contracts: Substantial performance
Probably has to be more than 50% of promise performed
*In these instances "unjust enrichment" may be the option for P to recover for the reasonable value of his work on the theory of quasi-k to prevent injustice.
Contracts: When is an obligor obligated to perform to assignee?
An obligor is only obligated to perform to the assignee when notified of the assignment
Property: When can't a life tenant exploit natural resources on the land
A life tenant may not exploit natural resources where no prior use had been made (right of continued use)
*Such tenants can't start new exploits (court can grant an injunction against the life tenant to enjoin any further waste on the property)
*Life tenant doesn't have the right to use (or neglect) the land in such a way as to impair the interest of the holder of any reversion or remainder in interest
-court can also order an accounting for waste already committed by the life tenant
*also applies to "tenants for years"
Property: Permissive waste
Permissive waste consist of injury to the premises or land caused by tenant's failure to act when it's her duty to act
Property: Ameliorative Waste
Ameliorative waste is a change in the physical characteristics of the occupied premises by unauthorized act of the tenant that increases the value of the property
*The law awards the tenant with the increase
*Life tenant (or for years) has a right to use land as good husbandry dictates (usually includes the right to transform timberland into arable land for the plow, provided the use of soil can be made suitable)
Property: Equitable Waste
Equitable waste consists of injury to the reversionary interest in land, which is inconsistent w/ good husbandry.
*Only recognized by equitable courts and doesn't constitue legal waste
*Usually arises when the expression "w/out impeachment of waste" appears in the grant (means that the life tenant (or for years) may use the premises as fee simple owner of the land.
Property: Right to lateral support
Landowner has right to lateral support (land in its natural condition) by neighboring land (absolute right inherent in land itself)
*Does not include the right to have the additional weight of articial (houses etc...) supported.
*MAJORITY VIEW: If there's damage to structures, recovery is limited to damge to the land in its natural condition and may not include any damage to the artificial structures
EXCEPTION: If there is negligence on the part of the wrongdoer who removes lateral support, D is liable for all damages that proximately result, including damages to both the land and artificial structures.
Property: Negative Easments for light, air and view
In most jurisdictions, negative easements for ligh, air and view have been repudiated, absent an express grant between parties, because such restrictions would seriously hamper land development
Crim: Mistake of fact or law- Generally
As a general rule, ignorance or mistake as to matter of fact or law is a defense if it negates a mental state required to establish a material element of the crime.
*When D thinks what he's doing is not proscribed by law, generally not a defense
Crim: Robbery and Larceny
Larceny is a "lesser-included" crime and merges into robbery
*A D cannot be guilty of both larceny and robbery for the same criminal transaction
Crim: Distinguish btw D's competency to stand trial and the insanity defense
Insanity is a defense to a criminal charge (D acquitted may not be retried and convicted, but may be hospitalized under circumstances) (affirmative defense, MAJORITY, place BOP on D by a preponderence of evidence)
Competency to stand trial depends on D's mental condition at the time of trial (prosecution bears the burden of proof of competency once the issue has been raised by a preponderenc of evidence [ some states= R doubt])
Crim: "Strickland Test" for measuring prejudice
Whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would be different.
*failure to interview an alibi W would impact the outcome (relates to the legitamcy of the defense)
Crim: When can a previously valid confession by 1 co-d be used against both co-ds?
When the confessing co-d takes the stand and testifies @ trial
*The opportunity to cross the declarant (co-d) @ trail, at least where he repudiates the confession, sufficiently protects the non-confessing D's right of confrontation
Crim: Brunton Rule
Merely giving a precautionary instruction to the jury to consider the confession as evidence only against the D who made it permissibly infringes the right of confrontation of other co-ds
*Arises only where the confessing D refuses to take the stand and testify @ trial
Crim: Search warrants for an apt or multi-occupied building
GR: search warrant will be invalid if it fails to describe the particular sub-unit to be searched w/ sufficient definiteness to preclude a search of one or more sub-units indiscriminately (i.e describe only by street number or other ID common to all sub-units located w/in the stucture)
EXCEPTION: from its outward appearance, the building will be taken to be a single occupancy unit and cops didn't discover it was multi-unit until execution of warrant (warrant not defective for failure to specify a sub-unit w/in the named building)
Evi: Market report/Commercial publications hearsay exception
- This exception encompasses:
- 1. newspaper market reports
- 2. telephone directories
- 3. city directories
- 4. mortality and annuity tables used by life insurance companies
*The basis of trustworthiness is general reliance by the public and the motivation of the complier to foster reliance by being accurate.
Evi: Scope of prosecution introduction of character evidence
Under the FRE, once the D in a criminal trial opens the door by introducing evidence as to their good character, the prosecution may rebutt the same.
*HOWEVER, the prosecution is constrained in the same manner as D in that the evidence of character must be introduced through reputation or opinion evidence, NOT SPECIFIC ACTS
Evi: Non-hearsay utterances
1. verbal acts (defamation, slander, deceit)
- 2. utterances and writing offered to show effect on the hearers mind
- 3. delcarations offered to show circumstantially the feelings or state of mind of the declarant
- 4. knowledge
Con Law: Does the president have the power to regulate interstate commerce?
No. The president doesn not have any constitutionally delegated legislative power that is inherently law-making in nature
*The president may act only if there is explicit authorization in the Constitution or in a federal statute
Con Law: Can local govs regulate interstae commerce?
Under the commerce clause, ONLY Congress can regulate interstate commerce, including the instrument thereof.
*A local gov lacks constitutional power to regulate interstate commerce or its instruments
Torts: When does the "Last Clear Chance" doctrine apply
It applies in contributory negliget jurisdictions (not contributory negligence)
Torts: Determining an superseeding cause
look @ foreseeability. If it's a foreseeable risk of negligence, than not a superseeding cause
Includes anyone who comes upon the land w/ a privilege arising from the consent of the possesor
Torts: What duty of care does a possessor owe to a licensee?
As to passive conditions on land, the possessor is under no obligation to the licensee w/ respect to anything that the posessor does not know
*Duty is not to maintain the land in safe condition, but to exercise reasonable care so that the licensee is aware of the danger known to the posessor (duty to warn of dangers)
Torts: Lessor of land liabilites to licensses or others on land
- A lessor of land is generally not liable for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession.
- 1. lessor contracts to repair
- 2. undisclosed dangerous condition known to lessor
- 3. land leased for purpose involving admission of the public
- 4. parts of the land retained lessor's control, which lessee is entitled to use
- 5. where lessor makes negligent repairs
*ex: so if lessor orally (or otherwise) promises lessess that he would remedy a condition, and he fails to do so--> lessor liable for injuries to lesses or 3rd persons (lessee also liable to 3rd persons if lessee doesnt warn of dangerous condition)
Torts: Can one who settles w/out judgement recover contribution from other tortfeasors?
Yes. Unless statute provides otherwise, one who settles voluntarily w/out judgment can recover contribution
Contracts: Can extrinsic parol evidence be admitted when there's a complete integration of writing?
Where the is complete intergration of writing, not extrinsic parol evidence is admitted
Contracts: Collateral agreements
The subject matter required to make an oral agreement collateral to a written agreement must be so far separate that it's not covered, dealt w/ or even mentioned in the writing (cannot be the same subject)
Contracts: Hinderance or failure to cooperate as an excuse of a condition
Occurs where there's a condition that must occurs before a party's duty to perform arises.
*Party who fulfills the condtion can recover from the party who fails to follow thru w/ the deal after conditon is met for the full amount it says in the K
Contracts: Is failing to bring action viewed as an act of wrongful prevention?
No. Failure to bring an action for specific performance is not viewed as an act of wrongful prevention.
Property: Executory interest
1. Springing: estate created to begin in futuro and "cuts short" or terminates a reversion held by grantor (springs back to the grantor if condition isn't met)
2. Shifting: divest the proeceeding estate upon the happening of a stated event (called executory devise when created by will)
Property: Under common law, does is a tenant relieved of rent if the LL breaches a promise to keep the property in repair?
No. If the LL promised to keep the property in repair, a breach of this promise does not relieve the tenant from the duty of paying rent. (CL)
* Because, a tenant's rights and duties were treated independently of LL's rights and duties
*NOTE: CL will apply when the question states "there is no applicable statute"
Property: Are there any assurances coveyed in a quitclaim deed?
No. A quitclaim deed usually contains no assurances.
*It simply operates as a transfer to the grantee of whatever interest, if any, the grantor happens to own
Crim: Search & Seizure of Impounded Vehicles
An inventory search of a lawfully impounded vehicle must be necessary in light of standardized criteria, such as protecting the owner's property
*Impoundment may not be used as a PRETEXT for a search for evidence of a crime or a subterfuge for exploratory search
Ex: car parked in handicap spot. cops impound. impound likely held as pretext because car could have been moved (also might not be blocking traffic)
*no exploratory searches, must be to protect owner's property
Crim: "Open Fields Doctrine"
Any unoccupied or undeveloped area outside of curtilage (woods, desert, vacant lots, open beaches, reservoirs and open waters, even if fenced or posted w/ no trespassing signs, IS NOT AFFORDED 4thA PROTECTIONS (No REOP)
Evi: Failing to speak as a party admission
If a statement is made by a person in the presence of a party to the action, contains assertion of facts which, if untrue, the party would be expected to deny, his failure to speak constitutes an admission
Con Law: What level of scrutiny does the SC apply to age restrictions
The SC apparently is applying minimal scrutiny to age restrictions
Con Law: Right to be a candidate levels of scrutiny
1. Wealth restriction --> strict
2. Residency restriction--> strict
3. Property ownership requirements--> no articulated standard
4. Party affiliation--> strict
5. Racial classification--> strict
6. Age classification--> rational basis
7. Prohibitio on officeholders from being candidates of another office--> rational basis
Con law: State's interest in limiting voter access
*The right to be a candidate is related to the fundamental right to vote
1. reduce voter confusion
2. maximize the probability that the winning candidate will have received a majority of popular vote
*strict scrutiny standard
Con Law: Scope of Congress' power under the commerce clause
- *To be w/in Congress's power under the commerce clause, a federal law must either:1. regulate the channels of interstate commerce
2. regulate instrumentalities of interstate commerce
3. regulate activities that have a substantial effect on interstate commerce
Con Law: Exceptions Clause (Art III, sec 2)
- "In all cases affecting Ambassdors, other public ministers and consuls, and those in which a state shall be a party, the SC shall have original jurisdiction.
- In all the other cases before mentioned, the EXCEPTIONS, and uder such regulations as the Congress shall make"
*Congress may not use its exceptions clause to curtail those powers that belong to the judiciary
(abuse would violate separation of powers)
Con Law: When does a case go before the SC in certiorari?
When a state statue is declared unconstn by the highest state crt, the route of appeal is by certiorari.
Torts: Employers liability for general contractors
Generally, an employer isn't vicariously liable for the negligence of an independent contractor
- *EXCEPTION: 2 situations when vicarious liable for idependent contractors:
- 1. If the IC is performing an abnormally dangerous activity, OR
2. If the IC is engaged in an activity which the ER has a non-delagable
duty of care (includes work performed in a public area because it necessarily involves an inherent danger)
*ER should anticipate the need for specific precautions (i.e railing around construction)
Torts: Superseding Cause
An unforeseeable cause that relieves a D from liabilit for his anticident negligence
*IF D CAN FORESEE NEITHER ANY DANGER OF DIRECT INJURY NOR ANY RISK FROM AN INTERVENING CAUSE, HE IS NOT NEGLIGENT (i.e someones wreckless nature can be a superseding cause)
Torts: When can violating a statute be negligent per se?
- Violation of a statute imposing crim liability may be negligent per se where:
- 1. P is a member of a class of persons sought to be protected by the statutej
- 2. the harm suffered was a type the statute was designed to prevent
Torts: Product defect (strict liability)
D engaged in the business of selling a product may be held strictly liable for harm caused by the product being in a defective and unreasonably dangerous condition.
*Can still be liable for negligent use/installation if product is defective
Contracts: Is an oral contract for a condition precedent barred by the parol evidence rule.
Not even if it occurred before the integration of the writing.
*Where the parties agree that a condition precedent must occurr before the contract is effective, the failure of the condition to occur may be shown despite what otherwise would be deemed a total integration.
*Theory: the agmt is not to take effect until the condition occurs, so no K to be added to or contradicted until that time
Contracts: When can a K that has a 3rd part benificiary be modified or rescinded?
Modification or rescision is possible up to the time the TP rights vest.
- *A TPB's rights vest when he learns of the contract:
- 1. manifests assents to it @ the request of one of the parties (learns about it and agrees to it)
2. materially changes position in reliance on the K
3. files suit to enforce rights under the K
*After TPB's rights vest
, parties cannot by agreement discharge, modify or preclude themselves from varying their duties to each other by subsequent agreement unless the TPB consents
Contracts: Pre-existing duty rule
Under the pre-existing duty rule, neither doing nor promising to do or refrain from doing that which one is already legally bound to do or refrain from doing cannot furnish consideration for a promise
Contracts: Illusiory Promise
If, at the formation of a K, one of the parties doesn't incur legal detriment because he retains an unfettered election to perform or not
Contracts: Divisible Contracts
A divisible K is one in which the parties have divided their respective performances into separate units, so that performance of an installment on one side entitles such party to the other's performance of the installment
*ex: employment k's- work-->get paid etc...
Property: Assignees Liabilities
An assignee of a leashold is in privity of estate w/ the LL. (liability for rent and covenants running w/ leasehold)
*LL can recover from the assignee rent obligations occurring while privity of estate continues or until the assignee in turn assigns the leasehold to another party
*Subsequent assignee is not liable for the predecessor's unpaid rent
Property: Easement by Necessity inter alia requirement
An easement by necessity requires inter alia, that @ the time of conveyance one part of the land is already being used for the benefit of the other part.
Property: Riparian Rights
Allows a lower
riparian to sue an upper
riparian when the upper's use materially affects the quantity or quality of watyer or unreasonably causes damage
- *2 theories:
- 1. natural flow: right of each owner to have the natural state of the stream or lake undiminished in both quality and quantity
2. reasonable use
: stresses maximum use by each owner provided it doesn't interfere w/ like use by other owners
*using water for domestic purposes (watering of stock), is superior to use of water for artificial purposes (irrigation, mining, industry)
Property: Fee Simple Subject to a condition subsequent
When you look at the grants check to see if the words of condition are coupled w/ a provison of re-entry (if so then FSSC, and grantor or successor has the right to re-entry [not automatic])
*contrast w/ FS Determinable, which reverts automatically
Crim: Assault and Battery @ Common Law
were classified as misdeamenors
*so if either wouldn't satisfy the "commit a felony therin" element of burlgary
At common law, arson was defined as the malicious burning of a dwelling of another
*malicious= intentional or reckless
*requisite degree of burning is charring (more than blackening by smoke)
Evi: Secondary evidence of a writing
Under FRE, secondary evidence of the contents of a writing, recording or photograph is admissible if the originals are lost or destroyed
*Excluded if original purposely destroyed
Evi: Medical history exception
The FRE allows:
1. statements of pasy symptoms and medical history, and
2. the cause of source of a patient's pasy physical condition, insofar as reasonably pertinent to diagnosis or treatment
* P's statements to a physician are admissible if the statements are reasonably pertinent to diagnosis and/or treatment regarding the cause or source of his injuries
Con Law: Miller Test (Rule for Obscenity)
- Three considerations, whether:
- 1. the avg person applying community standards would find the wrk, taken as a whole, appeals to purient interest
2. the work, taken as a whole, depicts or describes , in a patently offensive way, sexual conduct defined by applicable statute
3. the work, taken as a whole, lacks serious literary, artistic, political or scientific value
Con Law: Ordinances limiting occupancy of housing
*Strict scrutiny because the right to familial organization is a fundamental right protected by the 14th A. (compelling ineterest and whether means chosen are least restrictive)
A housing ordinance limiting occupancy of housing to memebers of a single family and recognizing as a family only a few categories of related individuals, is violative of the Due Process clause of the 14thA.
*A city may not regulate the occupancy of its housing by selecting certain categories of relatives who may live together and declaring that others may not
Con Law: Law requiring R signatures before being placed on ballot
The SC has upheld the req that a candidate receive a R # of signatures before being placed on the ballot
*EXCEPTION: In cases in which the signature req places a severe restriction on being placed on the ballot, the burden will be on the state to show that the regulation is NARROWLY DRAWN TO ACHIEVE A COMPELLING STATE INTEREST (strict scrutiny)
Torts: Defamation- Apparent consent
Apparent consent can be implied where a R person would infer consent from the P's actions
Prop: Involuntary transfer
If a future interest can be transfered by its owner, it's also subject to involuntary transfer
*Interest can be reached by the owner's creditors by appropriate process
All types of vested remainders are fully transferable during life
Evi: Can extrinsic evidence be used to impeach a W?
Yes. A party may show that the W has, on another occasion, made statements that are inconsistent w/ some material part of his testimony. This can be done by cross-examination or extrinsic evidence.
Con law: Alternate way an answer selection describes standing standing could be asked?
"Reach the merits merits"
Crim: Does a D waive his 4thA rights when he pleads guilty?
The SC has ruled that a D's guilty plea neither admits the legality of the incriminating evidence nor waives 4thA claims in subsequent civil damages actions challenging the constitutionality of the incriminating evidence.
Prop: Priority rule when 2 "purchase money mortgages" are recorded
The recording statute will apply if neiter has notice
Con Law: Government Speech
- A permanent display on a government building constitutes government speech, even if the display was originally donated by a private party*The Gov generally is free to choose which messages it will and will not convey, absent some other constitutional proscription
Prop: Appurtenant (Easment & profit)
It's appurtenant if it exist to server the dominant estate (requires 2 estates)
* in gross: only 1 (i.e electric, cable)
A profit is a non-possesory interest in land that entitles the holder to enter on the servient tenement and take soil or substance of the soli
Prop: Difference between a profit and license
A profit is alienable, a licesne is not becaue it's personal in nature
Evi: D's good character by her own W
When a D puts her character in issue by calling a qualified W to testify her good character, the testimony must relate to the trait involved in the case, and is limited to reputation or personal opinion testimony
Prop: Common Law rule when benficiary dies before testator
If a will beneficiary died before the testator, the gift to the beneficiary was void, unless there's an "anti-lapse" statute (gift goes to beneficiariy's decedants)
Each co-T has the right to possess all portions of the property; no co-T has the right to exclusive possession of any part (undivided interest)
Prop: Difference btw trespass & nuisance
Trespass is an interference w/ possession of the land
Nuisance is interference w/ use and enjoyment of the land
Prop: Restraints on Alienation Exception
- Partial restraint: one that purports to restrict the power:
- 1. to transfer to specific persons,
2. by a specific method, or
3. until a specific time
*BASICALLY: If the owner can transfer the property some other way it doesnt violate the restraints on alienation rule
Con Law: Can members of congress challenge "line-item vetos"
No, because a lack of standing.
Prop: When is a deed void
- Deeds considerd void include those:
- 1. that are forged
2. were never delivered
3. obtained by fraud or factum
*as if it never existed
Prop: When is a deed voidable
- A deed is voidable if:
- 1. it's executed by a minor or incapacitated person or
2. is obtained through fraud in the inducement (duress, undue influence, mistake, or breack of fiduciary duty)
- *Undue influence exist when:
- 1. influence exerted on grantor
2. effect of influence is to overpower the mind and free will of grantor, and
3. the product of the influence is a deed that would not have been executed but for the influence
*deed will be set aside only if the property has not passed to a bona fide purchaser
*Party has right to cancel
Contracts: Latent Ambiguity
Where the expression of the parties' agreement appears to be clear @ the time the K was formed, but is open to 2 diff interpretations
*In cases where one party is aware of ambiguity and the party isn't @ the time of contracting, K will be enforced according to the intent of the party who was unaware of the ambiguity
Con Law: Are laws limiting voting to residents constitutional?
No. Laws prohibiting nonresidents from voting are generally valid, provided that they meet the rational basis test (rationally related to a legitimate gov interest)
*Serves the interest of efficiency and prevents persons w/ little personal interest in the city from voting
Crim: Can D be convicted of larceny if he intended to take illegally obtained property?
Yes. Larceny is a trespass against posession, not ownership.
*In most jurisdictions, a D can be convinced of larceny even when he takes property from someone who only has possession of that property because of some unlawful act.
Contracts: Can rejection of an offer terminate an option k?
Even a rejection by the offeree will not terminate the option (if option has consideration)
Torts: owner of automobile liability for torts of others who use the automobile (Common law rule)
The common law rule is that an automobile owner is not liable for torts committed by another person driving the automobile.
Con Law: Can Congress pass legislation conferring automatic standing?
No, Congress may not simply confer standing (can create rights and injuries which may be sufficient for standing)
Con Law:Is it unconstitutional to begin a legislative meeting w/ a prayer?
No. The long history of legislative prayer in America do not constitute an establishmenet of religion (can hire a chaplain to lead prayer)
Torts: Invasion of Privacy--> Is mistake to consent a valid defense to invasion of privacy action?
No. While consent is a defense to an invasion of privacy action, a reasonable mistake as to whether consent was given is not a valid defense
Property: Accepting a deed
Courts will infer the grantee's acceptance if the conveyance is beneficial to him
*Rejection has to occur @ the time of conveyance
Con Law: Prior Restraints
A prior restraint will not be upheld unless the gov can show that it's narroly tailored to achieve a compelling gov interest (strict scrutiny)
*Presumption against the restraint
Con Law: Priv & Immunities
Protects against discrim by state in favor of its own citizens when it affects a fundamental right (substantial justification)
- *Basically, it must show that nonresidents either:
- 1. caused or are part of the problem it's attempting to solve, and
2. there are no less restrictive means to solve the problem
Contract: Equitable defense
when item was sold to a bona fide purchaser (cuts off specific performance)
Evi: Confrontation Clause- Affidavits summarizing findings
Affadavits summarizing findings are testimonial in nature and cannot be offered against a D unless the pre (lab tech has to show up)
Prop: Abandonment of Servitude
If developer acquiesces in a violation of the servitude by one party, he may be deemed to have abandoned the servitude as to other burdened parties.
Contracts: F.O.B delivery term
Under the UCC the risk of loss depends on the terms of K
*When a K has a F.O.B deliver term, the seller is obligated to get the goods to the destination indicated and make a reasonable K for freight if the destination indicated
*The seller has the risk of loss until the goods make it to the destination, the buyer has it after
Crim: Does transfer intent apply to attempt
NO NO NO NO NO NO NO
Con Law: Congress power to appoint enforcement officers
Congress cannot appoint members of a commission that exercises enforcement powers
Evidence: Exception to attorney-client privilege
The privilege doesn't apply in suits btw two parties represented by the same attorney
Prop: State power to restrict land use
State under its police powers has the right to restrict land use
*The power isn't unlimited but the municipality has broad discretion to make land use restrictions as long as they are reasonable.
*A municipality cannot require a person to eliminate a pre-existing non-conforming use all @ once if it would be unreasonable. (if grossly unreasonable, it could be a taking & owner would be entitled to just compensation)
Torts: Product Liability claim based on negligence
Requires that D failed to exercise R care in some manner that was an actual or proximate cause of P's injury
*Where neg manufature has been established, P will have to show that retailer failed to exercise R care in some way (such as failing to detect a defect that a R person would have been expected to discover)
Torts: Rescuer's liability
REMEMBER: rescurer can be liable she acts unreasonably
Torts: Drive in negligence case
May still be liable even if driver negligently created a danger or a collision that caused the child to fall off his bikje and suffer injurires. Driver may be liable if he acted negligently
*A D can be held liable for negligence if he fails to exercise R care under the circumstances
*Even if driver wasnt speeding or violating any other traffic laws, he may still be liable if he was negligent
Torts: When does the "last clear chance doctine" come into effect"
ONLY APPLIES in SMALL # of states, THAT FOLLOW THE TRADITIONAL CONTRIBUTORY NEGLIGENCE PRICIPLES
*Unless the question indicates otherwise, you must assume that pure comparative fault applies, therefore, the LCC doctrine id obsolete.
Torts: Can a D (adult) driver be held liable for negligence, even if the minor's negligence was also a cause to the accident?
Torts: Offset Rule
The excess % of CN by a party will be offset to the money damages which the party is liable
*Instead of making each party pay, judgment goes to the party Who's is owed the most in damages
e: P owed 1k, D owed 500--->just make the judgement for 500 cash for P
Contracts: Unilateral Offer
Invites performance of an act as acceptance, rather than promises, becomes irrevocable as soon as the offeree has started to perform the act
: If you do this, I'll pay you...
Crim: Involuntary manslaughter
As a general rule, whenever an intentional battery or assault results in an unintended death, the D is guilty of involuntary manslaughter
Crim: Misappropriating EE
- who have possession of their ER's property are guilty of embezzelment
- those w/ custody are guilty of larceny
Evi: Physician- Patient privilege
In order to be privileged, the information obtained from the communication must be neccessary to enable the physician to prescribe or act for the patient.
*Must relate to treatment to be privileged
Crim: D testifying under a state grant or immunity
Once D demonstrates that he has testified, under a state grant of immunity, to matters related to the fed pros, the feds have the burden of showing that their evidence isn't tainted, by establishing that they had an independent, legitimate source for the disputed evidence
Con Law: Legislatve punishment for partymembership
A statute will violate if it makes it a crime for a member of a particular org to act as an officer or EE of a labor union ("another form of bill of attainder")
Con Law: "Speech and Debate" Clause
Art I, sec 6 provides that for any speech or debate in either house, members of congress shall not be questioned in any other place
*Confers immunity to congress, exemting them from liability for any remarks made duting the congressional hearing
Con Law: Licensing schemes
Likely constitutional if it deals w/ primarily a recreational endeavor (not a privilege or immunity)
Con Law: Example of a valid exercise of "power reserved by the people themselves"
The SC held that a city charger provision requiring proposed land use changes to be ratified by 55% of the votes cast did not violate the DP rights of the 14thA of landowner who applied for zoning change.
Con Law: Referendum Process
A refrendum, which is a means for direct political participation by th epeople, allowing them what amounts to a veto power over legislative enactments, cannot be categorized as a delegation of power
*In establishing legislative bodies, the people can reserve to themseleves power to deal directly w/ matters that might otherwise be assigned to the legislature, and here the power of refrendum was specifically reserved to the people under the constitution
*Nothing arbitrary or capricious about the refrendum process
Possession of an illegal substance requires that the D be in possession w/out a valid excuse
Crim: Mere presence
Mere presence alone will not suffice to be considered an agreement to commit the crime
Property: Life tenant and waste
Life tenant's may not commit waste
- Waste can be divided into three categories:
- 1. voluntary
- 2. permissive (due to tenant's neg)
- 3. ameliorative
*life tenant must pay all taxes and maintain the property in reasonably good repair
Where one property owner use of land substantially impaires another property owners use and enjoyment of land, courts will weight the relative burdens and benefits of the conflicting parties
*A nuisance arises if the detriment to one property owner is greater than the benefit enjoyed by another property owner in using his land
*Suing party entitled to injunctive relief if they show that pecuniary damages are not sufficient, they are asserting a valid right, that the equitable releif requested is enforceable, and the burdens to P outweigh benefits to D
Property: Surface Water- Common enemy
Under CL, water on the surface of land is viewed as "common enemy" and landowners are entitled to diverty the water in any manner off their land (could divert to neighboring lands)
*Modern approach: Landowners may divert the "common enemy" of surface water in any reasonable manner so long as it doesn't cause detriment to the land of others
Property: Executory interest
An executory interest may never come about, depending upon whether the required event happens or not
*EI can be either shifting or springing. A shifting EI is one that follows a grantee. A springing EI is one that follows the grantor
Property: Equitable conversion
When K is silent to who assumes risk of loss to the property from damage by fire or other casualty, the crts will look to which party was the equitable owner of the property (equitable owner assumes risk)
*Buyer is equitable owner and seller holds legal title as security for payment
* insurance proceeds limilted to the unpaid balance of purchase price, and amount in excess must be held in trust and given to the buyer (to avoid unjust enrichment)
Professional responsibility: Duty to prosepective client
A lawyer cannot use or reveal information that may be harmful to the prospective client even when that person doesn't become a client
* A lawyer cannot represent a client w/ interest materially adverse to those of a prospective cleint in the same or substantially related matter if the lawyer received info from the prospective client that could be harmful
*EXCEPTION: A lawyer may represent a client in the same matter when both the client and prospective client give informed consent
Fed tax: Income tax consequences of life insurance proceeds
Typically life insurance proceeds aren't taxable as gross income.
EXCEPTION: taxable when proceeds from a life insurance policy are transfered for valuable consideration or transfer for value (cash value included as income)
*The cash value is taxable in the year of the transfer (remainder of proceeds taxable the year received by beneficiary of policy)
Wills: 3 ways to establish a K regarding a will or testamentary provision
1. the existence of a provision of a will of a decedent stating material provisions of the K
2. An express reference in the will of the decedet to a K and extrinsic evidence proving the terms
3. a writing signed by the decedent evidencing the K serves as proof of such a K
trust/estates: surviving spouse claim to decedants estate
1. Under PA law, a surviving spouse left out of a will may make an election against the will (would be entitled to 1/3 of estate)
2. Alternative claim: when a testator marries after making a will, and the spouse isn't provided for in the will, the spouse is called a pretermitted spouse
-A pretermitted spouse may make a claim for the share of the estate to which she would have been entitled had the testator died intestate
family law: Emancipation
According to Pa law, parents must pay child support for unemancipated child who is under the age of 18
*emancipation is determined by several factors including the child's age, marital status, abilityto support self and desire to live independently. (determined on a case by case basis)
*The court pay particular attention to the child's physical and mental ability to engage in employment that will allow him to support himself. (crt evaluates the kids ability to earn a living)
Crim: Entrapment defense
Occurs when cop or agent induces another person to engage in illegal activity (cops makes false representations to illegality)
Also occurs whenthe cops or agent creates a substantial risk that an offense will be committed by persons not otherwise inclined to commit the crime
*Proven by a preponderance of the evidence
Torts: Duty to invitees
Owner of land is under an affirmative duty to protect invitees against not only dangers of which he is aware, but also against those that, w/ reasonable care could be discovered
Basis of liability to the invitee is the implied representation made to the public by holding the land open to them
Torts: Products liability- Distinction between negligence and strict liability
Manufacture or seller liable for neg if it fails to exercise reasonable care (inspection)
Strictly liable if the product is defective and unreasonably dangerous
Property: Can you "take" a deed back once it's delivered
No if the original delivery was intended to operate as a complete conveyance
Property: LE duties to vested remaineders
LE is liable to the vested interest for voluntary wase. (accounting for proceeds)
*A vested remainder has a right to compel the prior estate owner to pay taxes and interest on encumbrances to the extent of the value of rents and profits
Property: Does the covenants of seisin, right to convey and against encumbrances run w/ the land?
No. They are personal in nature and must be broken instantaneously on the delivery of the deed or they are never broken.
*Never run w/ the land (not continuous)
Con law: Is the BOR 2nd A applicable to the states
Con Law: "Free exercise clause"
The free exercise clause gives citizens the right to pratice their choice of religion free form gov intrusion
*If gov does , strict scrutiny is applied
Civ Pro: Declaratory relief
When grounds for a suit are sufficiently clear but neither party has yet committed a wrong, the party risking committing a wrong may file an action for declaratory relief so that they may avoid committing the wrong
Crim: Does D have to know V's status of a fed agent if to be liable for fed statute for conspiracy to commit assault on V
No, its not material issue
Crim: Accomplice Liability
Exist when the accomplice intentionally encourages or assist (can be action or inaction)
Crim: Felony Murder
Can be tried even though acquited of underlying murder because it's a separate offense
Crim: Larceny- finders of property
It's not larceny for the finder to pick up the property w/ knowledge of its ownership, intending to return it to the owner, even though, later, the finder converts it to his own use
- Larceny if:
- 1. D intends to steal it
- 2. either knows who the true owner is or has reason to believe that he can ascertain the owner's identity
Con Law: License as property right (for DP purposes)
A property interest is etablished by a legitimate claim of entitlement or an expectation that such interest is ongoing
*When a license to engage in business can be terminated only for cause, it constitutes an entitlement
*Absent egregious conduct, the license is expected to continue and is, therefore, an entitlement
Employment discrimination: ADEA
The ADEA is the age discrimination in employment act. It prohibits an employer from discrimination or discharge based upon age. It applies to firms w/ 20 or more EEs. The protected class consist of EEs over the age of 40. Civil actions are permitted under the ADEA in order to effectuate its purpose.
*P must make prima facie showing under the ADEA. This includes showing:1. P member of protected class; 2. qualified for job; 3. discriminated against or discharged; 4. replaced by a substantially younger person
*Next step--> ER rebut w/ legitimate non-discriminatory reason
*Then P can show pre-text if rebutted
Wills: Slayers Act
Under PA slayers act, a slayer is someone who participates either as a principal or accessory in the willful and unlawful killing of another person
*A slayer cannot receive any property or benefit as a result of the death of the decedent.
*For inheritance purposes, any property that the slayer passes through as though the slayer predeceased the decedent
Evidence: Distinction btw "spousal privilege" and "marital privilege"
Under the marital privilege, a spouse may be prevented from testifying but not under spousal privilege
*Marital privilege survives termination of marriage
Con Law: Taking
Permanant physical occupation (doesnt matter how small)
*A permanent physical occupation of private property by the gov that allows someone other than the property owner to have permanent physical occuaption of a definable party of a piece of property should constitute a taking
EX: city ordinance allowing the installation of a cable tv receiver on apt building and denying LL ability to collect payment = taking
Con Law: What's the most clear case where a state can regulate to protect one's 14th A rights?
When state action is involved
Con Law: Establishment clause of 1stA and school prayer
Voluntary pupil prayer during school hours violates (1A and 14A DP)
*Even if non-cumpolsory and informally because non-believers feel coerced into complying w/ the religious conduct
Con Law: Lemon Test (establishment clause)
1. secular purpose
2. primary effect other than advancement of religion
3. no excessive entanglement by state in church affairs
*Tax payers have standing and can bring suit on that they think violate the establiment clause
Con Law: Primary Elections
When discriminative violates 14thA EP and 15thA
*24th A= poll tax or other tax
Con Law: 15th A
The right to vote
*The right to vote also cannot be denied by the evasive devicce of a party primary conducted as an activity of a "private club." if such primary is a feeder election into the election system
A person is guilty of kidnapping if he unlawfully removes another a substantial distance, under the circumstancees, from the place where he is found
Or if he unlawfully confines another for a substantial period or place of isolation, w/ the intent to facilitate commission of any felony or flight thereafter
A removal or confinement is unlawful if it's accomplished by force, and a substantial distance is any distance where the risk of harm to the V increases
Crim: Second degree murder
Second degree murder is committed while D is engaged as a principal or accomplice in the perpetration of a felony, and includes flght after commission of a robbery.
Civ Pro: Protection from Abuse Act
Protects family or household members from future abuse (from former spouse or sex partners) based upon current or past abusinve actions.
Abuse includes placing another in reasonable fear of imminent serious bodily injury
A family or household member includes person who has been spouse or former sexual partner
Torts: Invasion of Privacy
Occurs when a person intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another person or his affairs (i.e breaking into someone office stealing private info)
Torts: Subsequent med mal after original tort by D
Where a P suffers harm caused by D's neg, and then the P's injury is worsend by neg medical treatment of the original injury, the subsequent med mal is FORESEEABLE and ordinarily not a supersceding cause that relieves the original tortfeasor of liability
*The DR will be jointly and severally liable along w/ the original tortfeasor, but the DR's liability will be limited to the extra harm inflicted by the doctor's neg and will not cover the original injury that the P suffered before the DR even became involved in the situation
Torts: Defamation- Public Interest defense
Defense not valid if the picture or information was taken w/ out P's consent or where it's stolen or obtained by bribery or other inducement of breach of trust
Torts: Dram shop statutes
Imposes liability on those who serve alcohol to minors or visibly intoxicated people
*Alcohol providers can be held liable for FORESEEABLE harm resulting from serving alcohol to minors or visibly intoxicated people
Contracts: When does a unilateral K become unrevokable?
When performance starts
*Performance starts when P begins the act promised
ex: promise to mow the lawn--> when P starts the mower
Contracts: Building Ks that require architects certificate of completion
*Must be proved or excused before builder entitled to payment
*Certificate will be excused where its non-production is due to fraud or "bad faith" on the part of the architect (crts will excuse the condition)
Crim: Defense of others "Alter-ego rule" (minority)
D is viewed as "standing in the shoes" of the person defended, making the right to defend another extensive w/ the other's right to defend himself.
Crim: Defense to Robbery-"Claim to Right Defense"
One may take the property of another honestly, but mistakenly, believing it's own property.
Con Law: Sex discrimination
The fact that there are other facilities available to the opposite sex means shyt (doesn't preclude finding of state action)
Con Law: Minimal req for standing
Case and controversy- P must demonstrate a definite and concrete personal stake in the outcome
*Usually applies to 3rd parties
One may be guilty of possession of a controlled substance w/ an intent to sell if D knowingly possess controlled substances w/out a prescription and intends to sell the controlled substances
Crim: Criminal Possession
The elements of criminal possession of a controlled substance are that one knowingly possess a controlled substance
*Knowledg may be inferred if the substance is found in a location under exclusive control of D
*Weight of the substance is presumed
Props: Restrictive Covenants
To determine if a restrictive covenant is binding upon successive owners, crts look for several factors.
First, the restriction must be in writing.
Second, it must touch and concern the land (impose benefit or burden on the land)
Finally, the parties must intend to bind successive land owners
DAMAGES: Injunction. When an equitable remedy is used to enforce an restritive covenant, it's refered to as an equitable servitude
Contracts: Liquidated Damages Clause
Clause specifying the amount of damages for breach. Such clause is valid if damages are speculative/difficult to estimate, and the clause contains a reasonable forecast of the expected loss.
Such a clause cannot be intended as a penalty or punishment.
Accordingly, when the amount fixed is disproportionate to the loss, the clause is considered a penalty and not compentation.
Crim: Attempted murder
D can still be charged w/ attempted murder if the V was dead @ the time of D's attempt (If D believes V is alive)
Legit Defense if reasonable (even if what D was thinking is wrong)
Con Law: 15th A
Specifically deals w/ the infringement on the right to vote on account of race, color or previous condition or servitude
Crim: Does a hearing to determine whether Miranda warning have to be outside of the jury?
Yes. Hearings on the admissiblity of confessions must be performed outside of the jury's presence
Property: Mortgages- Lien theory ( majority)
A mortgagee receives a lein on the property while the mortgagor retains legal and equitable title and possession of the property
Crim: Receiving Stolen Property
The crime of receiving stolen property requires that the receiver be aware @ the time that he receives the goods that they are stolen.
Torts: Public disclosure of private facts
Takes place where the D unreasonably discloses private facts about the P to the public
*Not actionable where the publication is news worthy (defense broadly applied and would include celebrites)
If only one party to a K was mistaken about a fact, which was a basic assumption on which the K was formed, the mistake will not make the K voidable unless the other party knew or had reason to know about the mistake or caused the mistake
Crim: False pretnses
The crime of obtaining property by false pretenses requires that the D acquire title to V's property by knowingly making false representations w/ intent to defraud
Evidence: Prior inconsistent statements
Can be used to impeach and as substantive evidence
Can be directed @ TP if TP 3rd party was present and D knew TP was present
Contracts: "Missing Foot"
When impossibility of performance would allow a party to profit damages include profit allocable to the "missing" space (ex. new law causes a party performance to lessen, so that party can't get full price for less)
Torts: When it's feasible to install a safety device....
Where it's feasible to install a safety device, a manufactuer does not fulfill its obligation to make a safe product by warning the purchaser that the product is unsafe
Torts: Product Defect
A product is defective if it fails to include a feasible safety device that would prevent injuries foreseeeably incurred in ordinary use
crim: use and derative use immunity
if granted, protects the constitutional privilege against self-incrimination if the gov wants to compell a D to produce evidence/incrimination info etc...
Crim: Conspiracy MPC
MPC 5.03 doesn't require 2 or more guilty participants.
*In other jurisdictions, the follow a similar rule if one co-conspirator cannot be covicted based on lack of capacity or some other defense personal to the co-conspirator
Crim: Modern Rule for Burglary
Expanded to include the breaking and entering of commercial buildings, during daytime and nightime
Con law: Congress power to raise revenue
Con Law: Sovereign Immunity
Applies only to suits seeking compensatory monetary relief and not to suits seeking only prospective injunctive relief
Prop: When doesn't a land owner owe a known trespasser a duty to warn about danger?
when trespasser should have realized the danger
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