Final Review Outline + PQ Issues
Under what circumstances will a court be found to have personal jurisdiction over an out-of-state parent in various situations, including when the out-of-state parent:
Is personally served within the state or consents to jurisdiction; Resided with the child in the state in the past; or Engaged in sexual intercourse in the state, and the child may have been conceived by that act of intercourse (recently tested).
How do you know if you have a race statute?
"First to record"; "first recorded"
How do you know if you have a notice statute?
"In good faith"; "without notice"
A subsequent workers' compensation award in another state is barred only if there is ______ barring such recovery; double recovery is not permitted.
"unmistakable language by a state legislature or judiciary"
Courts will enforce a contractual COL provision if it is:
(1) A valid agreement with effective COL clause; (2) Applicable to the lawsuit under the terms of the contract; (3) Reasonably related to the lawsuit; and (4) Not in violation of the public policy of the forum state or another interested state
How does a government-interest choice-of-law analysis proceed?
(1) False conflict (forum has no interest in the litigation)? - ct. applies law of the state that does have an interest (2) True conflict? - ct. reviews forum state's policies to determine which law should apply; if conflict cannot be resolved, forum law (3) If the forum is disinterested and forum nonconveniens is not available, the forum state may either make it own determination as to which law is better, or apply the law that most closely matches its own state law
"Malice aforethought" includes the following mental states:
(1) Intent to kill (2) Intent to inflict serious bodily injury (3) Reckless indifference to an unjustifiably high risk to human life (depraved heart) (4) Intent to commit certain felonies (felony murder)
An express choice-of-law provision in a contract governs unless:
(1) It is contrary to public policy (2) There is no reasonable basis for the parties' choice, or (3) True consent was not given because of fraud or mistake
For torts, what law applies under the most-significant-relationship approach?
(1) Policy principles are applied to determine the applicable substantive law (2) The court considers (i) the place of the injury; (ii) the place where conduct causing injury occurred; (iii) the domicile, residence, place of incorporation, or place of business of the parties; and (iv) the place where the relationship is centered (3) Default rule—the place of injury controls unless another state has a more significant relationship to the parties or the tort
For torts, what law applies under the governmental-interest approach?
(1) The forum state generally looks to its own law, so long as that state has a legitimate interest in applying its own law (2) Another state's law would be applied if a party requests such an application and the forum court determines that the other state's law should apply in accordance with the forum state's policies
A buyer may revoke an acceptance of a nonconforming tender of goods if:
(1) The nonconformity substantially impairs their value to the buyer and (2) the buyer accepted the goods on the reasonable belief that the seller would cure the nonconformity, but the seller has failed to do so
Under what circumstances is failure to comply with informed consent not considered medical negligence?
(1) the risk is commonly known, (2) the patient is unconscious, (3) the patient waives or is incompetent, or (4) disclosure would be too harmful.
An equitable servitude is a nonpossessory property right created when:
(1) there is an intent that a land use restriction is to be enforceable not only by parties to the agreement but also by their successors-in-interest; (2) the person against whom the servitude is to be enforced has actual, constructive, or inquiry notice of the servitude; and (3) the servitude touches and concerns the land.
What is the four-part test for determining whether a state tax comports with the Commerce Clause?
(1) there must be a substantial nexus between the activity taxed and the taxing state (2) the tax must be fairly apportioned according to a rational formula (here, tax is calculated by usage) (3) the tax may not provide a direct commercial advantage to local businesses over interstate competitors, and (4) there must be a fair relationship between the tax and the service provided.
What are a life tenant's rights and duties?
Right to possess Right to collect rents/profits, less/sell/mortgage (must pay taxes on income or rental value of land) Duty not to commit waste
The court is not required to state findings or conclusions when ruling on a motion under ______ or ______ or, unless the rules provide otherwise, on any other motion.
Rule 12 (motions against the complaint) Rule 56 (summary judgment)
What are the two exceptions to the following rule: When an auctioneer knowingly accepts a bid by the seller or on her behalf, or procures such a bid to drive up the price of the goods, the winning bidder may avoid the sale or, at her option, take the goods at the price of the last good-faith bid prior to the end of the auction?
(i) A seller may bid at a forced sale and (ii) a seller may bid if she specifically gives notice that she reserves the right to bid.
In general, venue in a federal civil action is proper in only one of the following judicial districts:
(i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located, or (ii) a judicial district in which a "substantial part of the events or omissions" on which the claim is based occurred, or where a "substantial part of the property" that is the subject of the action is located
To establish a prima facie case of intentional interference with a contract, the plaintiff must prove:
(i) a valid contract existed between the plaintiff and a third party, (ii) the defendant knew of the contractual relationship, (iii) the defendant intentionally interfered with the contract, causing a breach, and (iv) the breach caused damages to the plaintiff.
A statement contained in a treatise, periodical, or pamphlet is not excluded as hearsay if: ____________. If admitted, the statement is read into evidence, but the publication itself may not be received as an exhibit.
(i) an expert witness relied on the statement during direct examination or it was called to the expert's attention on cross-examination; and (ii) the publication is established as a reliable authority by admission or testimony of the expert witness, by another expert's testimony, or by judicial notice
When a jury is instructed to deliver both a general verdict and to answer special interrogatories, and the answers are consistent with each other but not with the general verdict, the court may _______.
(i) approve a judgment that is consistent with the answers, notwithstanding the general verdict, (ii) direct the jury to reconsider its answers and verdict, or (iii) order a new trial.
Under the collateral-order doctrine, a court of appeals has discretion to hear and rule on a district court order if it:
(i) conclusively determines the disputed question, (ii) resolves an important issue that is completely separate from the merits of the action, and (iii) is effectively unreviewable on appeal from a final judgment.
To recover for invasion of privacy based on the public disclosure of private facts, the plaintiff must show that:
(i) defendant gave publicity to a matter concerning the private life of another and (ii) the matter publicized would be (a) highly offensive to a reasonable person and (b) is not of legitimate concern to the public
If Congress has not enacted legislation in a particular area of interstate commerce, the states are free to regulate so long as the state or local statutes do not:
(i) discriminate against out-of-state commerce, (ii) unduly burden interstate commerce, or (iii) regulate extraterritorial (wholly out-of-state) activity.
A person may only be punished or deprived of public employment based on their political affiliation if that individual:
(i) is an active member of a subversive organization, (ii) has knowledge of the organization's illegal activities, and (iii) has a specific intent to further those illegal objectives.
Lay witnesses may testify as to their own opinion if the opinion:
(i) is rationally based on the witness's perceptions and (ii) would be helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.
The general rule for statements against interest made by an unavailable declarant is that a statement qualifies as a hearsay exception if, at the time it was made, _______.
(i) it was against the declarant's pecuniary, proprietary, civil, or penal interest, and (ii) the statement was of a nature such that a reasonable person would not have made it unless she believed it to be true.
What are the elements of the tort of false pretenses?
(i) obtaining title to the property (ii) of another person (iii) through the reliance of that person (iv) on a known false representation of a material past or present fact, and (v) the representation is made with the intent to defraud.
A plaintiff seeking a preliminary injunction must establish that:
(i) she is likely to succeed on the merits; (ii) she is likely to suffer irreparable harm in the absence of relief; (iii) the balance of equities is in her favor; and (iv) the injunction is in the best interest of the public
Under the traditional standard for res ipsa loquitur, the plaintiff must prove that:
(i) the accident was of a kind that ordinarily does not occur in the absence of negligence; (ii) it was caused by an agent or instrumentality within the exclusive control of the defendant; and (iii) it was not due to any action on the part of the plaintiff.
What is required for a plaintiff to invoke res ipsa loquitur to permit the trier of fact to infer the existence of defendant's negligent conduct based on circumstantial evidence?
(i) the accident was of a kind that ordinarily does not occur in the absence of negligence; (ii) it was caused by an agent or instrumentality within the exclusive control of the defendant; and (iii) it was not due to any action on the part of the plaintiff. In this case, a burger patty would not ordinarily have a glass shard embedded in it in the absence of negligence
A course of performance is a sequence of conduct that is relevant to understanding an agreement between the parties if:
(i) the agreement involves repeated occasions for performance by a party, and (ii) the other party accepts performance without objection and with knowledge of the course of performance.
To prove a claim for misappropriation of the right to publicity, the plaintiff must prove:
(i) the defendant's unauthorized appropriation of the plaintiff's name, likeness, or identity, (ii) for the defendant's advantage, commercial or otherwise, (iii) lack of consent, and (iv) resulting injury.
Typically, an anti-lapse statute will save the gift if:
(i) the gift was made to a beneficiary related to the Testator by blood within a certain degree of relationship, and (ii) that beneficiary is survived by issue
Absent an agreement to the contrary, a non-freehold tenant can remove a fixture that the tenant has attached to the leased property if:
(i) the leased property can be and is restored to its former condition after the removal, and (ii) the removal and restoration is made within a reasonable time.
Under the UCC merchant's firm offer rule, an offer to buy or sell goods is irrevocable, even though consideration is not received to keep the offer open, if:
(i) the offeror is a merchant, (ii) there is an assurance that the offer is to remain open, and (iii) the assurance is contained in a signed writing from the offeror.
Under what circumstances may silence be considered an adoptive admission?
(i) the party was present and heard and understood the statement, (ii) the party had the ability and opportunity to deny the statement, and (iii) a reasonable person similarly situated would have denied the statement.
if a witness is unable to testify about a matter for which a record exists, that record may be admitted into evidence if the proper foundation is established:
(i) the record contains a matter of which the witness once had knowledge, (ii) the record was prepared or adopted by the witness when the matter was fresh in the witness's memory, (iii) the record accurately reflects the witness's knowledge; and (iv) the witness states that she has insufficient recollection of the event to testify fully and accurately, even after consulting the writing while on the stand.
The admission of out of court "testimonial" statements (such as hearsay statements) violates a defendant's right to confrontation if:
(i) the witness is unavailable to testify at trial and (ii) the defense has not had a prior opportunity to cross-examine the witness
For a servitude to be enforced at equity, it must be in writing and meet the following requirements:
(i) there must be intent for the restriction to be enforceable by and against successors in interest, (ii) the servitude must touch and concern the land, and (iii) the person against whom the servitude is to be enforced must have notice (whether actual, record, or inquiry notice) of the servitude.
The government may regulate speech-related activities in nonpublic forums as long as the regulation is _______.
(i) viewpoint-neutral and (ii) reasonably related to a legitimate governmental interest
What are the exceptions to state sovereign immunity protected by the 11th Amendment?
- Consent - Injunctive or declaratory relief - Damages paid by state officer - Congressional enforcement of 13th, 14th, and 15th Amend. rights
What are the factors considered by court's in determining spousal support?
- Financial resources of both parties - Standard of living during marriage - Time it will take for receiving spouse to find employment - Length of marriage - Contributions to marriage - Age and health of both parties - Marital misconduct (only in some states)
How is property distributed among an intestate decedent's issue (per stirpes)?
- Issue equally share the portion that the deceased ancestor would have taken if living - The estate is first divided into the total number of children of the ancestor who survive or leave issue who survive
What are the characteristics of the implied warranty of habitability?
- Only applies to residential leases - Landlord must maintain the property such that it is reasonably suited for residence - Failing to comply with housing codes is a breach, especially violations related to health or safety
How is property distributed among an intestate decedent's issue (per capita with representation)?
- Property is divided equally among the first generation with at least one living member - The share of a non-living member of that generation passes to the living issue of that member - Non-living member with no living issue—no property is allocated to the non-living member
How is property distributed among an intestate decedent's issue (per capita at each generation)?
- Property is divided into as many equal shares as there are living members of the nearest generation of issue and deceased members of that generation with living issue
What is the standard for permissive joinder?
- Ps & Ds may join/be joined in one action if any right to relief is asserted jointly, severally, or arising out of same transaction or occurrence - Need SMJ & PJ
When can a child born out of wedlock inherit from the natural father (Uniform Parentage Act)?
- Requires proof of paternity for a child to inherit - When a father holds a child out as his own: presumption of paternity; the child can bring an action to establish paternity at any time - Otherwise, no presumption of paternity; the child must bring an action within three years of reaching the age of majority
What is the test for government regulation of speech in a public forum?
- Subject and viewpoint neutral - Narrowly tailored to serve important gov't interest - Leaves open alternative channels of communication - Need not use least restrictive alternative
Under what circumstances can the government prohibit or punish group membership?
- subject to strict scrutiny - requires that the person be (1) actively affiliated with the group, (2) have knowledge of the illegal activities, and (3) specific intent of furthering the illegal activities
Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until:
1) Both parties no longer reside in the state 2) The child no longer has a significant connection to the state, and any substantial evidence connected to the child's condition is no longer available in the state
For contracts, what law applies under the most-significant-interest approach?
1) Default rules 2) No default rule--consider policy factors, as well as: a) Location of contracting, negotiation, and performance b) Place where contract's subject matter is located, and c) Location of the parties' domiciles, residences, nationalities, places of incorporation, and places of business
What the elements of the crime of false pretenses?
1) Defendant obtains title to property of another 2) Through reliance of that person 3) on a false representation of material fact 4) made by the defendant with the intent to defraud
What factors does a court consider when deciding whether to dismiss an action because a party is necessary but joinder would destroy diversity?
1) Extent to which judgment would prejudice the parties in the person's absence; 2) Extent to which prejudice could be reduced or avoided by protective provisions; 3) Whether a judgment rendered would be adequate; and 4) Whether the plaintiff would have an adequate remedy if action were dismissed for nonjoinder
What are the elements of false pretenses (crime)?
1) False representation of a past or present material fact 2) Made by the defendant with the intent to cause the victim to pass title to the defendant 3) Title is passed in reliance on the false representation
What exceptions to the rule against hearsay may apply if the declarant is unavailable?
1) Former testimony 2) Dying declaration 3) Statement against interest 4) Statement of personal or family history 5) Statement against party that caused declarant's unavailability
What are the exceptions to the general rule that a statute of limitations is procedural?
1) If the statute of limitations limits a statutory right, e.g., a statute that creates a right to sue for wrongful death 2) Prescription or adverse possession 3) Borrowing statutes: apply the shorter of the forum state's statute of limitations or the statute of limitations of the place where the cause of action arose 4) Second Restatement approach: apply the forum state's SOL, unless (i) maintenance of the claim would serve no substantial interest of the forum, and (ii) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence
What are the requirements for organizational standing?
1) Individual members have standing 2) Claim is related to purpose of the organization 3) Individual members are not necessary to adjudicate the claim
What test is applied to determine whether a person was given procedural due process?
1) Interest affected 2) Value of additional safeguards 3) Burden/Cost of Additional Process
What are the fairness considerations you must discuss in a personal-jurisdiction question?
1) Interest of the forum state in adjudicating the matter 2) Burden on the defendant of appearing in the case 3) Interest of the judicial system in efficient resolution, and 4) Shared interests of the states
What is the default order of abatement (reduction of gifts to pay the debts of the estate)?
1) Intestate property (property not addressed in the will) 2) Residuary bequests 3) General bequests 4) Specific bequests
What issues must I address in a change-of-venue question?
1) Is venue appropriate in original district? 2) Should the case be transferred to the new venue? (Venue? PJ? SJ?) 3) Is transfer in the interests of justice?
In a designated public forum, what test applies to a content-neutral regulation?
1) Must be narrowly tailored; 2) To serve a significant government interest; and 3) Leave open ample alternative channels for communication
What the requirements for a binding contract?
1) Mutual assent 2) Consideration 3) Lack of valid defenses
The testator lacks the requisite mental capacity if he, at the time of execution, did not have the ability to know the:
1) Nature of the act; 2) Nature and character of his property; 3) Natural objects of his bounty; and 4) Plan of the attempted disposition.
How is significant-connection jurisdiction over a child custody order established?
1) No other state has or accepts home-state jurisdiction 2) The child and at least one parent have a significant connection with the state, and 3) There is substantial evidence in the state concerning the child's care, protection, training, and personal relationships
If notice of completion of performance of a unilateral K is required but not provided, the offeror's duty is discharged, unless:
1) Offeree exercises reasonable diligence to give notice, 2) Offeror learns of performance within reasonable time, or 3) Offer indicates notice of acceptance is not required
In a unilateral K, the offeree is not required to give notice after completing performance, unless:
1) Offeror wouldn't learn of performance with reasonable certainty and promptness, or 2) Offer requires notice
What defenses are available to prevent application of the full faith and credit requirement?
1) Penal judgments 2) Equitable defenses (e.g, fraud) 3) Inconsistent judgments
For contracts, what law applies under the vested-rights approach?
1) Place of execution—validity, defenses to formation, interpretation 2) Place of performance—time and manner of performance, person obligated to perform and person entitled to performance, sufficiency of performance, excuse for nonperformance
What are the three primary defenses against the application of foreign law to a dispute?
1) Procedural v. substantive 2) Laws against public policy 3) Penal laws
How does a person have priority in a race-notice jurisdiction?
1) Purchase without notice of prior unrecorded interest 2) Record first
What aspects of minimum contacts for personal-jurisdiction purposes must you write about?
1) Purposeful availment 2) Foreseeability 3) Relatedness a) Specific Jurisdiction - action arises out of conduct b) General jurisdiction - "at home" or "nerve center"
What issues must you address in a question involving the propriety of removal?
1) SMJ - fed q or diversity 2) None of the defendant citizens of forum state? 3) Timely motion? 4) All defendants join/consent?
What issues must you address in a claim-preclusion question?
1) Same claimant v. same defendant? 2) Case #1 ended in valid final judgment? 3) Claimant is asserting same claim as in case #1?
What issues must you address in an offensive-issue-preclusion question?
1) Same issue actually litigated and decided? 2) Final judgment on the merits? 3) Issue was essential to the judgment? 4) Mutuality - is it "fair" to allow offensive issue preclusion? Did D have a fair and equitable opportunity to litigate the issue during the prior lawsuit?
If contracting parties enter into an accord, and one party fails to provide the required satisfaction, the wronged party may:
1) Seek damages under the accord, or 2) Seek damages under the original contract
A contestant to a will must prove the following four elements to prove undue influence:
1) Susceptibility: The testator was susceptible to being influenced. 2) Motive: The influencer has reason to benefit. 3) Opportunity: The influencer had opportunity to influence. 4) Causation: The influencer caused an unnatural result.
A child who is omitted from the will can force a share if certain requirements are met:
1) The child is born or adopted after the will is created, or the testator mistakenly believed the child was dead; and 2) The child is unintentionally omitted from the will.
An omitted spouse is entitled to an intestate share unless:
1) The omission was intentional; 2) The spouse was given property outside of the will in lieu of a disposition in the will; or 3) The spouse is party to a valid contract (prenuptial agreement) waiving her right to a share in the estate.
When must a party be joined in an action under Rule 19?
1) The party must be necessary 2) There must be personal jurisdiction over the new party 3) There must be subject matter jurisdiction (adding the party cannot destroy diversity) • If adding the party would ruin diversity, the court must decide whether to proceed without the party or dismiss the case
Under the UPC, if there is no surviving spouse or descendant, then the estate passes in the following order to the individuals designated below who survive the decedent:
1) To the decedent's parents equally if both survive, or to the surviving parent; 2) Then to the descendants of the decedent's parents; 3)Then the estate passes to the decedent's maternal and paternal grandparent, one-half to each, or to the descendants of the decedent's maternal and paternal grandparents if the grandparents are deceased; 4) Then the entire estate passes to the decedent's nearest maternal and paternal relative; and 5) If there are no surviving relatives, then the estate escheats to the state.
What topics must you cover in a personal-jurisdiction essay question?
1) Traditional bases 2) Long arm 3) Due Process (Minimum Contacts) a) Purposeful Availment b) Specific and General Jurisdiction c) Relatedness (Specific and General) d) Fair Play and Substantial Justice
What are the requirements for a covenant to "run with the land"?
1) Writing 2) Intent 3) Touch and Concern 4) Notice - only required for burden to run 5) Horizontal Privity - only required for burden to run 6) Vertical Privity - for the burden to run with the land, the owner must transfer the entire interest
What are the requirements for an equitable servitude to "run with the land"?
1) Writing 2) Intent 3) Touch and Concern 4) Notice—only required for burden to run
When is a plaintiff able to amend a timely complaint to add or substitute a new defendant after the statute of limitations has run?
1) claim arose out of same transaction or occurrence 2) new party received notice of action w/in 120 days of original complaint 3) new party knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party's identity
A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a particular use or a demand for an additional expenditure, in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if ______.
1) essential nexus between legitimate state interests and the conditions imposed on the property owner, and 2) rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development
What is battery (tort)?
1) harmful or offensive contact (objective standard) with the plaintiff's person (or anything connected to it), 2) intent by defendant to cause the touching (transferred intent applies), and 3) causation.
What is the Penn Central test?
1) how much value was lost 2) owner's reasonable expectation of return on investment 3) character of regulation--impact on a few owners or the entire community?
Under Rule 15, an amendment to a pleading that changes the named defendant relates back to the date of the original pleading if
1) it asserts essentially the same claim or defense, 2) the new party knew or should have known of the potential action and 3) the new party received notice within 90 days after the filing of the original complaint
What is the tort of false light?
1) published facts about plaintiff or attributed views/actions to plaintiff that place him in a false light and are highly offensive to a reasonable person.
What are the elements of assault?
1. Conduct or other circumstances (mere words not enough) 2. P must have reasonable apprehension and awareness of D's act 3. Imminent threat of harm 4. Intent to cause apprehension of imminent harm or offensive contact (includes transferred intent)
What are available defenses to intentional torts involving personal injury?
1. Consent 2. Self-defense 3. Defense of others 4. Defense of property 5. Parental discipline 6. Privilege of arrest
When can evidence of a criminal conviction be used to impeach a witness (not the defendant)?
1. Conviction involved fraud or dishonesty 2. Felony (less than 10 years since conviction or release from prison) subject to 403 balancing 3. If conviction is older than 10 years, partying seeking admission must give the other party notice, and admission is subject to 403 balancing
What are the elements of a defamation claim?
1. Defamatory language (diminishes the respect, esteem, or goodwill towards plaintiff) 2. Of or concerning plaintiff 3. Publication (intentional or negligence communication to a third party) 4. Damage to plaintiff's reputation - presumed in libel, not in slander; presumed in slander per se
When is evidence of a defendant's character admissible in a criminal prosecution?
1. Defendant can offer evidence of his own good character 2. By prosecution when defendant opens the door; impeachment of character witnesses on cross-X (including specific acts) 3. When defendant attacks victim's character, so long as it is related to the same character attributes
What are the two general constitutional defamation requirements?
1. Falsity 2. Fault
When does the privilege of arrest apply?
1. Felony • Private—ok if crime was actually committed and reasonable to suspect the person arrested committed it (reasonable mistake only defense as to identity of felon) • Police—ok for felonies if reasonable to believe it was committed and to suspect the person arrested (no tort liability for mistake as to commission of felony) 2. Misdemeanor—only if committed in presence of arresting party; private only if breach of peace
What are the elements of battery?
1. Harmful or offensive contact (objective standard; no actual harm required) 2. To person of another (or anything connected to it) 3. Causation (direct or indirect) 4. D's intent (transferred intent applies)
How is an "abnormally dangerous activity" defined?
1. High risk of harm 2. Not commonly found in the community 3. Risk cannot be eliminated with due care
What are the elements of IIED?
1. Intent (not transferred) or recklessness 2. Extreme and outrageous conduct by D (beyond human decency, outrageous) 3. Third party liability (distresses member of victim's immediate family—with or without resulting bodily injury—or other bystander resulting in bodily injury) 4. Causation (substantial-factor test) 5. Damages—severe emotional distress (beyond reasonable person's endurance or D knows of plaintiff's heightened sensitivity)
What are the elements of false imprisonment?
1. Intent to confine or restrain another w/in boundaries (no reasonable means of safe escape); confinement; victim is conscious of confinement or harmed by it 2. Methods of confinement (physical barriers or force, threats, invalid use of legal authority, duress, failure to provide means of escape) 3. Time—immaterial except as to amount of damages 4. Intent—purposeful act or knowing confinement is substantially certain to result 5. Damages—actual damages necessary only if P was unaware of confinement
What are the elements of trespass to land?
1. Intent to enter land or cause physical invasion, not to trespass 2. Physical invasion of property
What are the elements of the tort of conversion?
1. Intentional act 2. Interference with P's right of possession (exercising dominion or control) 3. So serious (based on duration/extent, intent to assert a right, D's good faith, extent of harm and P's inconvenience) that it deprives P of the use of the chattel 4. Damages (full value of property or replevin)
What are the three types of potential defects in a product for purposes of a strict liability action?
1. Manufacturing defect 2. Design defect 3. Inadequate instructions or warning
When do you use a statute to represent the duty owed by a defendant (negligence per se)?
1. Plaintiff was in the class of people meant to be protected by the statute 2. Type of harm suffered was the type of harm the statute intended to protect against 3. If the statute applies, defendant will be liable to the plaintiff if his violation of the statute proximately caused harm to the plaintiff
To whom do constitutional defamation requirements apply?
1. Public official/figure 2. Private individual, involving matter of public concern
Under what circumstances is defense of property available as a defense to an intentional-tort action?
1. Reasonable force allowed—if reasonable to prevent tortious harm to property 2. No deadly force allowed—including deadly traps 3. Reasonable force to prevent intrusion on one's land—ok unless visitor acting under necessity; generally not permitted to repossess land/realty 4. Reasonable force to reclaim personal property wrongfully taken—ok
When is parental discipline available as a defense to an intentional tort?
1. Reasonable force/confinement ok—considering age of child and gravity of behavior 2. Educator has same privilege—unless parent restricts privilege
To legally withdraw (and avoid liability for the substantive crime), the accomplice must:
1. Repudiate prior aid; 2. Do all that is possible to countermand prior assistance; and 3. Do so before the chain of events is in motion and unstoppable.
What duty of care is owed to trespassers by possessors of land?
1. To refrain from willful, wanton, reckless, or intentional misconduct 2. To warn or protect against known concealed, dangerous, artificial conditions
What are defenses to defamation?
1. Truth 2. Consent 3. Absolute privilege 4. Qualified privilege
How must you set up the duty analysis in a negligence question?
1. Who is owed a duty? a) Cardozo (majority) - plaintiffs within the zone of foreseeable harm b) Andrews (minority) - defendant owes a duty to everyone harmed 2. What is the standard of care?
Any witness, including a criminal defendant, may be impeached with evidence that he has been convicted of any crime involving dishonesty or false statement within ____ years of conviction.
10
How many depositions do you get without having to seek leave of court?
10
Without leave of court, the plaintiffs, the defendants, and the third-party defendants, each as a group, are limited to ____ depositions by oral or written examination.
10
Under the Class Action Fairness Act (CAFA), the class must have at least ____ members.
100
When a defendant files a pre-answer motion under Rule 12, such as a motion to dismiss for lack of personal jurisdiction, the defendant has _____ days after receiving notice of the court's decision on this motion to file its answer.
14
A temporary restraining order (TRO) preserves the status quo of the parties until there is a full hearing on the application for a preliminary injunction. This temporary injunction remains in effect for an amount of days to be set by the court, but no longer than ______ unless ________.
14 days good cause exists or by consent of the adversary
A plaintiff may amend a complaint once as of right without seeking leave of the court or consent of the defendant if the amendment if made within ___ days of the service of the defendant's answer.
21
The movant may file a renewed motion for judgment as a matter of law no later than ____ days after the entry of judgment.
28
A preliminary hearing to determine whether probable cause exists to hold the defendant (i.e., a Gerstein hearing) generally must be held within _____ of the defendant's arrest. There is no need to hold a preliminary hearing if ______.
48 hours probable cause has already been determined through a grand jury indictment or an arrest warrant
Expert witness disclosures must occur at least _____ days before the date set for trial.
90
What is the cy pres doctrine?
A court may modify a charitable trust to seek an alternative charitable purpose if the original one becomes illegal, impracticable, or impossible to perform.
What is a "wild deed"?
A deed that is outside the chain of title that, although recorded and indexed in the recording office, may not be sufficient to give notice to subsequent purchasers.
What defendants have an absolute duty to provide a safe product?
A defendant who is in the business of selling a commercial product--including manufacturers, distributers, and retail sellers
When is a defendant not liable for the death of a bystander under the felony murder rule?
A defendant will not be liable for the death of a bystander caused by a police officer or as a result of resistance by the victim of the felony because neither person is the felon's agent.
What type of gift is this: $100,000 to John from my Bank of Columbia account, but if funds are not sufficient, then the rest paid out of general funds?
A demonstrative gift
What must a plaintiff show to prove a failure to warn in a strict products liability action?
A failure to warn defect exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings.
How does a plaintiff successfully rely on a failure-to-warn theory in a strict products liability action?
A failure to warn defect exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings. For the action to succeed, the failure to include the instructions or warnings must render the product not reasonably safe.
What standard applies to assessing classifications based on alienage made by the federal government?
A federal alienage classification is likely valid unless it is deemed arbitrary and unreasonable.
What type of present estate is this: To Erica so long as she uses the property for a cat refuge?
A fee simple determinable
Grantor conveys his estate as follows: "to A for long as he does not make any transfer of Greenacre. In the event of such a transfer, Greenacre shall automatically revert back to Grantor." What type of estate has Grantor conveyed? What happens if A transfers the property?
A fee simple determinable. Nothing. The condition is likely an unreasonable restraint on alienation, and therefore, a court will strike it and A will have fee simple absolute.
What type of present estate is this: To Erica, unless she uses the property for mining?
A fee simple subject to a condition subsequent
What is a general gift?
A general legacy is a gift of personal property (such as money) that the testator intends to be satisfied from the general assets of his estate (such as "$100,000 to John").
What does it mean for a court to have home state jurisdiction over a child?
A home-state court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders.
What is the misdemeanor-manslaughter rule?
A killing committed in the commission of a malum in se (wrong in itself) misdemeanor is involuntary manslaughter.
What is depraved-heart murder?
A killing that results from conduct by a defendant that manifests a reckless indifference to an unjustifiably high risk to human life is a depraved-heart murder.
How is a manufacturing defect defined for purposes of a strict liability action?
A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test for the existence of such a defect is whether the product conforms to the defendant's own specifications.
Under what circumstances may a state not recognize the validity of a marriage that was valid where it took place?
A marriage that is valid in the state where it took place, but violates a prohibitory rule of the domicile of one of the parties will be void in the state where the marriage would have been prohibited if the parties immediately return to that state and become domiciled there
What is required to prove insanity in any jurisdiction?
A mental disease or defect
What is fraud in the execution (wills)?
A misrepresentation as to the will itself or its contents (testator does not know he is creating a will or is not told the true content of the will).
What is fraud in the inducement (wills)?
A misrepresentation that causes the testator to make a different will that he otherwise would have made. It must be shown that the testator would not have made the gift if he had known the truth.
What type of recording act is the following: "No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law"?
A notice statute
Who is a necessary party?
A person who has not been named as a party but whose interest could be impaired by the disposition of the action is a necessary party.
What is subrogation?
A person who pays off another person's mortgage obligation becomes the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment.
What is the "shelter rule"?
A person who takes from a BFP protected by a recording act has the same rights as his grantor.
Who is the proper plaintiff in a public-nuisance action?
A private citizen who has suffered a harm different in kind from the general public
What is a qualified privilege in an action for defamation?
A qualified privilege is one affecting an important public interest, in the interest of defendant or a 3rd party, and it can be lost if the statement exceeds the scope of the privilege or the speaker acted with malice.
How is equitable adoption established?
A relationship started during the child's minority and established by clear and convincing evidence that a legal barrier prevented adoption, or A foster parent agreed with the genetic parents to adopt the child and the foster parent treated the child as his own
What is the term for the equivalent of a motion for a directed verdict after the jury deliberates and delivers a verdict?
A renewed motion for judgment as a matter of law (JNOV).
What does F.O.B. indicate?
A shipment contract ("free on board")
What is shopkeeper's privilege?
A shopkeeper is permitted to reasonably detain a suspect shoplifter.
What is a specific gift?
A specific legacy, devise, or bequest is a gift of property that can be distinguished with reasonable accuracy from other property that is part of the testator's estate (a specific car ("my car") or item of furniture).
What is an adoptive admission?
A statement of another that a party expressly or impliedly adopts as his own is an adoptive admission by a party opponent.
What standard is applied to assess whether a retroactively applicable statute of limitations for tort cases is an unlawful ex post facto law?
A statute of limitations, which addresses procedural rights, is remedial in nature. Consequently, unless a change to a statute of limitations violates a fundamental right or deals with a suspect classification, the statute must simply meet the rational basis standard of review.
What is the difference between a substitute agreement and an accord?
A substitute agreement completely replaces the original contract.
What is a demonstrative gift?
A testator intends that a demonstrative legacy be paid from a particular source, but if that source is insufficient, he directs that the legacy be satisfied out of the general assets of the estate.
What is the standard of care for automobile drivers with respect to their passengers?
Absent "guest statute" (minority—refrain from wanton & willful misconduct), ordinary care to guests as well as passengers (majority)
How does the common-law mirror-image rule operate?
Acceptance must mirror the terms of the offer, so any change or addition to the terms acts as a rejection and a new counteroffer
Which act controls when a rejection follows an acceptance?
Acceptance will control even if offeror receives rejection first (but if offeror detrimentally relies on rejection then offeree is estopped from enforcing K)
What standard of fault must a plaintiff prove in a defamation action involving a public figure or official?
Actual malice - actual knowledge or recklessness with respect to the falsity of the statement
At what point can a party move for judgment as a matter of law?
After the opposing party has been fully heard on the issue.
To whom is the general duty to act with reasonable care owed?
All foreseeable persons who may be injured by D's failure to meet reasonable standard of care.
Under the doctrine of Integration, the will consists of:
All pages that are present at the time of execution and that are intended to form part of the will, which can be shown by physical connection of the pages (stapled or paper clipped together) or by the ongoing nature of the language of the will (pages are not attached, but page numbers indicate that the pages follow each other).
What is depecage?
Allows the law of one state to govern one or more issues while other issues are controlled by the law of one or more other states
What is the significance of an accord agreement?
Although the original debt is not generally discharged immediately upon entering into an accord, once the creditor accepts the lesser amount offered by the accord, the original contract is discharged. Note, however, that agreeing to accept a different type of performance does not discharge the original contract.
What is the difference between an assignment and a sublease?
An assignment is when the tenant transfer's his remaining lease to a new party, whereas a sublease is a transfer of less than the remainder of the lease.
When a parent is ordered to support a child through college, under what circumstances may the parent stop supporting the child?
An employable child's right to support is contingent on compliance with reasonable parental demands; an employable child who fails to comply, even if attending college, risks loss of parental support.
What is the warranty of suitability?
An implied assertion by a seller that he has used adequate materials and good workmanship in constructing a residence.
What is the tort of intrusion upon seclusion?
An intrusion upon seclusion is defendant's act of intrusion into plaintiff's private affairs in a manner thought would be objectionable to a reasonable person. Note that no publication is required.
What is the UCC firm-offer rule?
An offer to buy or sell goods is irrevocable if the offeror is a merchant, there is an assurance that the offer is to remain open, and the assurance is contained in a signed writing from the offeror.
Who is a proper plaintiff in an action for trespass to land?
Anyone in actual or constructive possession of land.
To whom is a D liable under a theory of negligence per se?
Anyone in the class of people intended to be protected by the statute for harms of the type the statute was intended to protect against.
What analysis applies under the Establishment Clause when the law contains no facially religious preference but has the effect of favoring religion?
Apply the Lemon test to determine whether the statute is constitutional: a) The law must have a secular purpose, b) The primary effect neither advances nor prohibits religion, and c) The law does not result in excessive government entanglement with religion
What law generally applies to a transfer of trust property?
Apply the rule for the type of property held in trust
What is assault (tort)?
Assault requires an act/threat (mere words not enough) placing the plaintiff in in reasonable apprehension of imminent harmful or offensive contact with his person, intent by defendant to place defendant in apprehension (transferred intent applies), and causation.
What are some ways in which diversity of citizenship can be destroyed?
Assignment of claims, failure to name indispensable parties, voluntary change of state citizenship, and replacement of parties
When must a party move for a directed verdict?
At the close of plaintiff's evidence or the close of all evidence.
What is the Lemon test?
SEX 1) Secular purpose 2) Effect neither advances nor inhibits religion 3) No excessive entanglement with religion
What is considered separate property for purposes of dividing marital assets?
SP includes assets acquired during marriage by gift, descent, or devise. SP also includes anything acquired before marriage.
In order for a person to be considered a surviving spouse for purposes of the Uniform Probate Code, what is required?
SS must have been legally married to D and must survive D.
Under the Uniform Probate Code, how is the property of a married decedent distributed when he dies intestate?
SS owns 50% outright; D's 50% of the community property is given to SS; D's separate property is distributed according to the general intestacy rules
When is a content-based regulation on speech permissible?
STRICT SCRUTINY 1) Necessary to achieve 2) Compelling governmental interest 3) Narrowly tailored to meet that interest
What portion of the constitution authorizes a state to deny a felon the right to vote?
Section 2 of the Fourteenth Amendment
What are some examples of general intent crimes?
Battery Rape Kidnapping False imprisonment
What are the duties of a mediator?
Be impartial and disclose any conflicts of interest he may have; Clearly explain and control the mediation process and ensure that the parties have the information to make an informed decision; and Not coerce or improperly influence a party to make a decision.
What is the standard for determining child custody?
Best interests of the child
What types of transactions violate a trustee's duty of loyalty?
Buying/selling trust assets, selling property between trusts that trustee manages, borrowing from or making loans to trust, using trust assets to secure personal loan, engaging in prohibited transactions with friends/relatives, or otherwise acting for personal gain through trustee position.
How is a joint tenancy created?
By express language.
What are the elements of a common law marriage?
Capacity: mental and legal capacity to marry Present agreement both parties must intend to presently be married Cohabitation: the parties must live together Holding out a marital relationship to the community: hold them self out as "spouses"
How is citizenship of a corporation determined when assessing whether a federal court has diversity jurisdiction?
Citizenship is state of incorporation and state where it has its principal place of business ("nerve center" from which the high-level officers direct, control, and coordinate the activities of the corporation)
Which crimes are malice crimes?
Common law murder & arson
At what point is a person considered dead for inheritance purposes?
Common law—irreversible cessation of circulatory and respiratory functions Modern standard—brain death (for which there are no established criteria)
What remedy is available in an action for trespass to chattels?
Compensation for diminished value or cost of repair.
Are proceeds from a personal injury claim marital property or separate property?
Compensatory damages (e.g., pain, suffering, disability) are SP of the injured spouse Consortium loss damages are SP of the non-injured spouse Lost wages, lost earning capacity and medical expenses are MP
How is private nuisance defined?
Substantial and unreasonable interference with another's use or enjoyment of his land (or any land in which he has possessory interests)
For choice-of-law purposes, are questions regarding the parol evidence rule substantive or procedural?
Substantive.
Is a statute of limitations substantive or procedural for purposes of Erie?
Substantive. Think about forum shopping!
States may tax interstate commerce if _______.
Congress has not already acted in the particular area and if the tax does not discriminate against or unduly burden interstate commerce
The states have no power to regulate the federal government unless ______.
Congress permits the state regulation or unless the state regulation is not inconsistent with existing federal policy
If a subpoenaed witness fails to appear before Congress or refuses to answer questions, what sanction may Congress impose?
Contempt
Which type of evidence takes precedence--trade usage, course of dealing, or course of performance?
Course of performance in the current contract.
How do you determine whether a party is necessary?
Court cannot afford complete relief without the party; There is a danger that the party would be harmed without joining; or There is a risk of an inconsistent judgment or double liability
What types of foreign judgments are covered by the Uniform Foreign Money-Judgments Recognition Act?
Covers foreign judgments that grant or deny specific lump sums of money, but excludes judgments for taxes, judgments for alimony or child support, and penal judgments
How is criminal negligence distinct from negligence in tort?
Criminal negligence is grossly negligent action that puts another person at a significant risk of serious bodily injury or death. It requires more than ordinary negligence for tort liability and something less than the extremely negligent conduct required for depraved-heart murder.
When is rehabilitative support available after a divorce?
Rehabilitative support (recently tested) is for a limited period of time, such as until the spouse receives education or employment.
How is "recklessly" defined under the MPC?
D acts with conscious disregard of a substantial and unjustifiable risk
How is knowingly/willfully defined under the MPC?
D is aware or knows that the result is practically certain to occur based on his conduct
What is the Palsgraf majority rule for duty?
D only liable to Ps w/in the zone of foreseeable harm
How is criminal negligence defined under the MPC?
D should be aware of a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct (gross deviation from standard of care)
How is "purposely" defined under the MPC?
D's conscious objective is to engage in the conduct or to cause a certain result
What remedies are available in a nuisance action?
Damages & injunctive relief (balance the equities)
What damages may a plaintiff obtain in an action for conversion?
Damages for the full value of the property.
When is evidence of a victim's character admissible in a criminal prosecution?
Defendant may attack witness's character, but the prosecution may, in turn, attack defendant's character
How is citizenship of an individual determined when assessing whether a federal court has diversity jurisdiction?
Domicile is state in which person is present and intends to reside for an indefinite period; person can only have one domicile at a time; and domicile determined when action is commenced
What are the elements of negligence?
Duty Breach Causation Damages
What is the standard of care for sellers of real property?
Duty to disclose known, concealed, unreasonably dangerous conditions; liability to third parties continues until buyer has a reasonable opportunity to discover and remedy defect
What is the standard of care for a bailor?
Duty to warn all bailees of known dangerous defects; duty to warn bailee for hire of defects bailor should have known about with reasonable diligence
What are the characteristics of a tenancy in common?
Each tenant owns an undivided interest in the entire property. This interest is freely devisable or transferable.
What standard of fault must a plaintiff prove in a defamation action involving a private citizen involving a matter of public concern?
Either negligence or actual malice
When does an offer to contract lapse?
Either on a specified termination date or within a reasonable period of time if none stated
TRUE OR FALSE: A member of a common-interest ownership community, such as a condominium, is entitled to withhold payment of assessments to set off against a default by the association in fulfilling its duties to the member.
FALSE
TRUE OR FALSE: A party whose duty is subject to a condition cannot waive the condition, either by words or by conduct.
FALSE
TRUE OR FALSE: A president enjoys immunity from an action for civil liability that stems from conduct before the president took office.
FALSE
TRUE OR FALSE: A previous out-of-court identification of a person after perceiving that person (e.g., a lineup or photo array) is hearsay and may not be admissible as substantive evidence.
FALSE
TRUE OR FALSE: An expert may state an opinion about whether a criminal defendant had the requisite mental state of any element of the crime charged or of a defense.
FALSE
TRUE OR FALSE: An underlying felony will not generally merge into the crime of felony murder.
FALSE
TRUE OR FALSE: Evidence of a subsequent remedial measure taken after the plaintiff suffers an injury or harm is admissible to prove that a product was defectively designed.
FALSE
TRUE OR FALSE: Parol evidence may not be admitted to prove a condition precedent to the existence of the contract.
FALSE
TRUE OR FALSE: The Eleventh Amendment does not prohibit an action in federal court by a citizen of one state against another state when the basis for the action is the violation of state law.
FALSE
TRUE OR FALSE: The defendant in a criminal case who testifies on his own behalf may be impeached by a juvenile adjudication to show that the defendant is untruthful.
FALSE
TRUE or FALSE: A plaintiff who has filed a lawsuit in a court is not deemed to have consented to the court's personal jurisdiction with regard to any counterclaim asserted against her.
FALSE
TRUE OR FALSE: Under the Fifth Amendment Privilege Against Self-Incrimination, a grant of use immunity by a state or by the federal government prevents the use of testimony in prosecuting the witness only by the jurisdiction that granted immunity.
FALSE A grant of use immunity by a state or by the federal government prevents the use of testimony given under that grant by another U.S. jurisdiction in prosecuting the witness.
TRUE OR FALSE: A prior inconsistent statement that was not made under penalty of perjury may be admissible both to impeach a witness and as substantive evidence.
FALSE A prior inconsistent statement that was not made under penalty of perjury may be admissible to impeach a witness but is not admissible as substantive evidence.
TRUE OR FALSE: A property owner, as an attribute of owning the property, has a legal right to sunlight.
FALSE A property owner, as an attribute of owning the property, does not have a legal right to sunlight or to a view.
TRUE OR FALSE: Under the UCC, mere expressions of doubt as to a party's ability to perform constitute an anticipatory repudiation.
FALSE According to the UCC, anticipatory repudiation occurs when there has been an unequivocal refusal of the buyer or seller to perform, or when reasonable grounds for insecurity arise with respect to the performance of either party, and the other party fails to provide adequate assurances within a reasonable time, not to exceed 30 days. Mere expressions of doubt as to a party's ability to perform do not constitute an anticipatory repudiation.
TRUE OR FALSE: A party may not eliminate liability for foreseeable consequential damages through an agreement with the other party.
FALSE Although a party may be liable for consequential damages of the other party to a contract where those damages are foreseeable, a party may eliminate that liability through an agreement with the other party.
TRUE OR FALSE: Creditors can reach the assets of a support trust.
FALSE Creditors cannot reach the assets of a support trust, except to the extent that a provider of a necessity to the beneficiary can be paid directly by the trustee.
TRUE OR FALSE: Duress can serve as a defense to intentional murder.
FALSE Duress is never a defense to intentional murder.
TRUE OR FALSE: Under the Equal Protection Clause, election districts for public office may be drawn using race as the predominant factor in determining the boundary lines, subject to rational basis review.
FALSE Election districts for public office may not be drawn using race as the predominant factor in determining the boundary lines, unless the district plan can survive strict scrutiny.
TRUE OR FALSE: A criminal defendant may not impeach a witness's character for truthfulness with the witness's juvenile adjudication.
FALSE Even if the conviction doesn't bear on the witness's motive or bias, a criminal defendant may impeach a witness's character for truthfulness with the witness's juvenile adjudication when an adult's conviction for the offense would be admissible to attack the adult's credibility and admitting the evidence is necessary to fairly determine guilt or innocence
TRUE OR FALSE: Police may search a person who is a guest in a house during the execution of a search warrant for that house, even if the person is not named in the warrant.
FALSE Independent justification is needed to search persons not named in a search warrant; mere proximity to a named person does not supply such justification.
TRUE OR FALSE: Congress may reinstate the right to bring a legal action after the judgment in the action has become final.
FALSE That violates the separation of powers.
TRUE OR FALSE: In prior restraint cases, the burden is on the speaker to prove that the material to be censored is protected speech.
FALSE The burden is on the government to prove that the material to be censored is not protected speech.
TRUE OR FALSE: A life tenant is responsible for damage caused by a third-party tortfeaser.
FALSE The general rule that a life tenant has a duty to reasonably repair the property does not apply in this case
TRUE OR FALSE: A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party and the statement is against that party's interest.
FALSE The statement need not be against the party's interest to be admissible as nonhearsay.
TRUE OR FALSE: U.S. courts must recognize foreign country judgments so long as the party received due process in the foreign country.
FALSE U.S. courts have discretion to decide whether to recognize foreign country judgments.
TRUE OR FALSE: Double hearsay is never admissible.
FALSE. Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
TRUE OR FALSE: Strict liability applies to an injury caused by a plaintiff's fearful reaction to the sight of a wild animal confined in a pen.
FALSE. Strict liability only attaches when the injury is caused by apprehension caused by an unrestrained wild animal.
Which crimes are specific intent crimes?
FIAT 1) First-degree murder 2) Inchoate offenses 3) Assault with intent to commit battery 4) Theft offenses
What is the well-pleaded complaint doctrine?
FQ exists only when federal issue is presented on the face of the complaint (P's c/a—not defenses, answers or counterclaims)
What is required to prove false imprisonment (tort)?
False Imprisonment is the intentional confinement/restraint of defendant (methods of confinement include physical barriers or force, threats, invalid use of legal authority, duress) for any amount of time. There must be no reasonable means of safe escape and actual damages are unnecessary if P was aware of confinement.
What are the elements of the crime of false pretenses?
False pretenses requires (i) obtaining title to the property (ii) of another person (iii) through the reliance of that person (iv) on a known false representation of a material past or present fact, and (v) the representation is made with the intent to defraud.
True or false: a plaintiff's recovery is generally limited to the claim for relief made in the complaint?
False.
Is there is no surviving spouse or descendant, how is property distributed to ancestors and remote collaterals under the parentelic approach?
Follows collateral lines until a live taker is found; D's property is distributed within that taker's parentelic line
May a private citizen use force to abate a nuisance?
For a private nuisance, the amount of force must be reasonable, and the D must have been given notice of the nuisance and refused to act. For a public nuisance, absent a unique injury, such a nuisance may be abated only by a public authority.
How does a "most significant relationship" choice-of-law analysis proceed?
Forum court will: (i) isolate the precise legal issue that results in a conflict between competing states; (ii) identify the policy objectives that each state's law seeks to achieve with respect to such issue; and (iii) determine each state's interest in view of its policy objectives, concluding which state has a superior connection
Is an owner of a wild animal strictly liable to a trespasser who is injured by a wild animal?
Generally no, except for injuries caused by a vicious watchdog.
If the government damages the economic value of land when responding to an emergency, is that a taking?
Generally no, unless there is a permanent, total of economic value.
What law applies is a dispute over intangible property?
Generally, the law of the state in which the intangible was created or the transfer was made, unless the UCC or governmental-interest approach applies
What law applies in a dispute involving tangible personal property?
Generally, the law of the state where it is physically located, unless the UCC or governmental-interest approach applies
When does a judicial lien creditor have priority over other security interests?
Generally, when the other interests are unperfected.
Must an offeree give notice of acceptance in bilateral K?
Generally, yes, in any reasonable manner/means unless otherwise specified.
How is a limited public forum defined?
Gov't property limited to certain groups or dedicated to discussion of limited topics
How is a designated public forum defined?
Gov't property that could be closed to speech, but which government has chosen to open
How is a non-public forum defined?
Gov't property that gov't can and does close to speech
How is a public forum defined?
Gov't property that is historically open for speech, e.g., streets, sidewalks and public parks
What is the standard for a directed verdict?
Granted if no reasonable person could differ in the outcome.
What is the standard of care for a bailee?
Gratuitous bailee liable only for gross negligence; bailee for hire must exercise extraordinary care; bailee for mutual benefit must take reasonable care
If a defendant initially fails to raise the defense of lack of personal jurisdiction in his answer, how can a defendant avoid waiving the defense?
He can amend his answer within 21 days as a matter of course.
In order for the firm offer rule to apply, what characteristic must the offeror have?
He must be a merchant.
What is the standard of care for common carriers?
Highest duty of care consistent with practical operation of the business (majority)
When is a content-neutral regulation on speech permissible?
INTERMEDIATE SCRUTINY 1) Substantially related to 2) An important government interest
What is the minority rule with respect to foreseeability and duty?
If D can foresee harm to anyone resulting from his negligence, D owed duty to everyone harmed (foreseeable or not).
What is the "two-dismissal" rule?
If a plaintiff has voluntarily dismissed an action based on a claim, a subsequent voluntary dismissal of an action based on the same claim is a dismissal with prejudice and thus has preclusive effect.
When does shopkeeper's privilege apply in an action for false imprisonment?
If a shopkeeper reasonably suspects plaintiff of stealing, he can detain the plaintiff for a reasonable amount of time in a reasonable manner.
What is the standard for compelling a mental or physical examination in a civil action?
If either the party's mental or physical condition is at issue, and there is good cause.
When is permissive intervention available?
If intervention would not create undue delay/prejudice to rights of original parties
When is a party not allowed to amend a pleading?
If it would immediately subject the claim to dismissal or it would result in undue prejudice to the opposing party.
What is the order of abatement?
If not otherwise specified in the will, gifts are abated in the following order: (i) intestate property; (ii) residuary bequests; (iii) general bequests; and then (iv) specific bequests. Abatement within each category is pro rata.
When is intervention as of right available?
If not through federal statute, non-party still has right to intervene if his interest is subject matter of c/a, disposition may impair non-party's interest, or interest not adequately represented by existing parties
What is required for the government to force disclosure of group membership?
If the disclosure has a chilling effect, strict scrutiny.
What is the difference between a mortgage and a deed of trust?
If the homeowner defaults, the deed of trust can be privately sold.
Under what circumstances is an owner of a domestic animal strictly liable for harms caused by that animal?
If the owner knows of the dangerous propensities of the animal.
Under what circumstances may a child support order be modified?
If the proponent of the change proves that there has been a substantial change in circumstances regarding the child's needs or the parents' financial situation.
How do you determine whether state law is procedural or substantive for purposes of an Erie analysis?
If the state law would change the outcome of the case, it is substantive and must be used. (Hmm.. this is obviously an oversimplification)
What is the traditional rule for ademption by extinction?
If the subject matter of a specific gift is missing, destroyed, or there is a substantial change in the form of the gift (the court can trace the gift it undergoes a minor change), the beneficiary takes nothing. The beneficiary is entitled to whatever is left of the specifically devised property or balance of the purchase price owing from the purchaser of the property.
Under what circumstances is a premarital agreement enforceable?
If there has been full disclosure, the agreement is fair and reasonable, and it is voluntary.
When can evidence regarding a victim's sexual behavior or predisposition be used?
In a civil case, if the probative value outweighs the potential prejudice
When a state attempts to tax foreign commerce, what is required?
In addition to meeting the same requirements as a tax on interstate commerce, a state tax on foreign commerce must not (i) create a substantial risk of international multiple taxation or (ii) prevent the federal government from "speaking with one voice" regarding international trade or foreign affairs issues.
When does the last clear chance doctrine apply?
In contributory negligence jurisdictions, a plaintiff may mitigate the legal consequences of her own contributory negligence if she proves that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.
May a suit based on a breach of the warranty of suitability be brought by a subsequent purchaser against the original builder of a residence?
In most jurisdictions, yes.
What does it mean for an interference to be unreasonable for purposes of a private-nuisance action?
Injury caused outweighs usefulness of the action
What is required for something to constitute an offer?
Intent - person to whom its communicated could reasonably interpret as an offer; expresses present intent of a person to be legally bound by a K Knowledge - the offeree must know of offer to have power to accept Terms - must be certain and definite (essential terms) Language - must contain words of promise and be targeted to people who could actually accept
How is general intent defined?
Intent to perform an unlawful act. Knowingly, recklessly, or negligently.
How is trespass to chattels defined?
Intentional interference with P's right of possession by either— • Dispossessing or • Using or intermeddling with P's chattel
What law generally governs the inheritance of personal property?
Intestate and testate succession is governed by the law of the deceased's domicile at the time of death
What law generally governs the inheritance of real property?
Intestate and testate succession is governed by the law of the situs of the real property
When does involuntary intoxication serve as a defense to a crime?
Involuntary intoxication is a defense when the intoxication serves to negate an element of the crime, including general as well as specific-intent and malice crimes. To be considered involuntary, the intoxicating substance must have been taken without knowledge of the intoxicating nature of the substance, including substances taken pursuant to medical advice.
Under what circumstances may a marital property division be modified?
It cannot be modified after the fact because it was based on the party's assets at the time of divorce.
Does a co-tenant owe the other tenants a fiduciary duty?
It depends. Co-tenants at the same time (e.g., by the same deed or will) can have a fiduciary obligation to each other, such that if one co-tenant buys back the property at a tax or mortgage foreclosure sale, the other co-tenants can reacquire their original interests by paying their due contributions.
What is logical relevance?
It has a tendency to make a fact more or less probable, and the fact is of consequence in determining the action
What is the consequence of a buyer's request that goods be shipped?
It invites acceptance either by seller's promise to ship or by prompt shipment of goods.
What is the legal effect of a seller's shipment of nonconforming goods?
It is both an acceptance and a breach, unless the seller seasonably notifies buyer that goods are an accommodation (counteroffer); buyer may then accept or reject the nonconforming goods.
How can a proponent establish the contents of a public record, such as a judgment?
It is generally necessary to introduce a copy of the record that has been certified by the appropriate public custodian. In the alternative, a witness who has compared the copy with the original may testify as to its correctness. Only when neither of these methods is available can the contents of a public record be proved by other evidence.
Is regulatory compliance a defense to a private-nuisance action?
It is not determinative, but is admissible.
What is the Export Taxation Clause?
It provides that Congress may not tax goods exported to foreign countries. A tax or duty that falls on goods during the course of exportation or on services or activities closely related to the export process is prohibited.
When is vicarious liability applicable to a crime?
It's generally limited to regulatory crimes; punishment generally limited to fines
What is equitable adoption?
Its effect is that the child can inherit from (but not through) the equitable adoptive parent.
Is an order denying class certification immediately appealable as of right, or is leave of the court required?
Leave is required.
How is legal custody of a child defined?
Legal custody is the right of a parent to make major decisions regarding the child.
What remedies are available when a trustee violates his duties?
Lost profits, interests, and other losses resulting from a breach of trust are trustee's responsibility; beneficiaries may sue the trustee and seek damages or removal of the trustee for breach of duties.
Which act controls when a acceptance follows a rejection?
Mailbox rule does not apply; first one received will prevail (offeror need not actually read communication)
If a spouse works during the marriage and creates or earns profits or benefits that will not be received until after divorce, are the profits marital property or separate property?
Marital property
To what materials does the work-product privilege apply?
Materials prepared by party in anticipation of litigation, except when: 1) Work product contains materials not reasonably available by other means, and 2) The party would be substantially prejudiced if not allowed to access the materials But NOT if the information is any attorney's mental thoughts and opinions about the case
What is the tort of misappropriation?
Misappropriation is the unauthorized use of P's name, likeness, or identity for D's advantage (commercial or otherwise). Plaintiff must prove lack of consent and injury.
At what point do courts evaluate the fairness of the terms of a premarital agreement?
Most courts evaluate fairness at the time of execution of the contract, and a minority of jurisdictions will also evaluate it at the time of enforcement.
What types of judgments are entitled to full faith and credit in the court of another state?
Must have been brought in the proper jurisdiction; be final; and on the merits
What the requirements for a valid deed?
Must identify the property and the parties, must be signed, and must include words of transfer
What is required for a contract to be binding?
Mutual consent, consideration, and lack of valid defenses
Under what circumstances is assertion of a cross claim mandatory?
Never.
Under what circumstances can tangible physical evidence be self-authenticating?
Never. Tangible physical objects are not self-authenticating.
Is additur permitted in a federal court action?
No!
Is evidence derived from an interrogation that violated the Sixth Amendment admissible?
No!
May a court impose a monetary sanction against a represented party for violating the requirement that legal contentions be warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law?
No!
May a state court decline to enforce the judgment of another state on public policy grounds?
No!
Does the mailbox rule apply to an irrevocable offer?
No, acceptance must be received by offeror before offer expires.
May a judge dismiss a selected juror in order to arrive at a specific number of jurors?
No, an individual who has been selected to serve as a juror must participate in the verdict unless excused for good cause, such as illness, family emergency, or misconduct.
Is an individual who is the subject of a court-ordered guardianship over that individual's property legally capable of entering into a contract?
No, any contract purportedly entered into by such an individual is void. If the contract involves necessities, then the seller may be able to recover the reasonable value of the goods in restitution (quasi-contract).
Is mistake of fact as to the nature of property owned by another a defense to larceny?
No, because a mistake of fact as to the nature of property does not negate the intent to steal.
At common law, is withdrawal a defense to conspiracy?
No, because the conspiracy is complete as soon as the parties enter into the agreement.
If a defendant does not file a pleading, and the court grants that defendant's motion to dismiss, may that defendant subsequently bring an action based on what would have been a compulsory counterclaim in the original suit?
No, because the defendant did not file a pleading.
If the grantor gives the deed to an independent third party for delivery upon the grantor's death, and the grantor intended to transfer only upon his death, is that grant effective?
No, because the grantor did not have a present intent to transfer.
May a party obtain a preliminary injunction if the harm that the party will suffer is compensable as monetary damages?
No, because the harm is not irreparable.
Is evidence of custom conclusive in establishing the proper standard of care?
No, but it is admissible.
Does the fact that a plaintiff came to the nuisance preclude that plaintiff from prevailing in an action for private nuisance?
No, but the jury may consider it.
Does a cotenant have the right to be reimbursed by other cotenants for necessary repairs to the property?
No, but the majority rule is that he can recover contribution for those repairs in accounting or partition actions. In other jurisdictions, an action for contribution can be brought if notice was given.
Does an order permitting the appeal of class certification automatically stay the proceedings in the district court?
No, but the proceedings may be stayed if the district court or court of appeals so orders.
Are parents vicariously liable for the torts of their minor children?
No, but they are liable for their own negligence with respect to their minor child's conduct. A parent has a duty to prevent a minor child from intentionally or negligently harming a third party, provided the parent has the ability to control the child, and knows or should know of the necessity and opportunity for exercising such control.
Does the constitution require that a state court respect the sovereign immunity of another state?
No, but they generally do as a matter of comity.
If a tenant assigns his lease in violation of the terms of the lease, and a landlord accepts payment from the assignee, may the landlord still enforce the prohibition clause?
No, by accepting rent from the assignee, the tenant waived the right to enforce the prohibition clause.
In order to be guilty of larceny, must a person move the property to a distinct location in order to have engaged in a trespassory taking and carrying away?
No, even a slight movement of the property can satisfy the carrying-away requirement, known as "asportation."
Does a cotenant have a right to reimbursement for improvements to commonly owned property?
No, except in actions for accounting partition.
When one cotenant rents the shared property to a third party, may he keep all of the rent collected?
No, he must share the rent with the other cotenants.
Is an attorney subject to sanctions if he withdraws the violative pleading?
No, if he does so within 21 days of service of the sanctions motion.
Does a default judgment have issue preclusive effect?
No, in order for an issue to be precluded by prior litigation, the issue must have been actually litigated.
In order to rely on the defense of self-defense in an intentional-tort action, must D have retreated from the altercation?
No, in the majority of jurisdictions, D has no duty to retreat when in a place that D is legally allowed to be (stand your ground).
Can the purpose of a police checkpoint be general crime prevention?
No, it must have a more specific purpose.
May the initial aggressor rely on self-defense in an intentional-tort action involving personal injury?
No, not generally.
May a state close its door to foreign claims simply because they arise under the law of another state?
No, only on strong public policy grounds.
Can an organization bring a claim that a state is discriminating against it, thereby depriving it of its constitutionally protected privileges and immunities?
No, only persons are protected under the Privileges and Immunities Clause.
Is an acceleration clause enforceable when the transfer is one by the mortgagor-borrower to her ex-spouse pursuant to a divorce decree?
No, per federal law.
Is an acceleration clause enforceable when the transfer is one by the mortgagor-borrower to her living trust?
No, per federal law.
Is an acceleration clause enforceable when the transfer is one by the mortgagor-borrower to her spouse?
No, per federal law.
In acting in self-defense, is a person liable for injuries to bystanders?
No, so long as the injuries were accidental and the actor was not negligent.
Are gifts covered by a recording act?
No, the common-law "first in time" rule governs in that situation.
When there are multiple defendants or plaintiffs, must a court treat them as a single party for purposes of determining how many peremptory strikes they get?
No, the court may also allow additional challenges or permit them to be exercised separately or jointly.
Does the availability of nationwide service of process permit a plaintiff to file suit in any federal court?
No, the court must still have personal jurisdiction over the defendant.
In a pure several liability jurisdiction, may a plaintiff recover all of the damages from one defendant?
No, the defendant is only liable for his comparative share of the plaintiff's damages.
Is a constructive revocation effective when the offeree is not aware that the offeror took action that was inconsistent with the offer still being available?
No, the offeree must know of the inconsistent action prior to accepting the offer in order for a construction revocation to be effective.
Does the holder of an easement have the duty to make necessary repairs?
No, the owner of an easement has the right and the duty to maintain the easement for its purpose unless the parties otherwise agree.
Can a plaintiff sue in negligence when she has suffered only economic harm?
No, there must be property damage or physical injury.
May a court correct a clerical error in a judgment after an appeal from that judgment has already been docketed in the appellate court?
No, unless the appellate court gives leave to make the correction.
Under the mailbox rule, an acceptance that is mailed within the allotted response time is effective when sent (not upon receipt), unless the offer provides otherwise. If an offeror states that offers must be received by a certain date, is an acceptance effective when sent?
No, when the offer states that an acceptance will only be effective if received by a certain date, the mailbox rule does not apply.
Are loss of use damages available in an action for trespass to chattels without dispossession?
No.
Do landowners generally have a duty to inspect their property for evidence of trespassers?
No.
Does a child have inheritance rights with respect to foster parents or stepparents?
No.
Does a notice-type recording act protect s a gratuitous donee from enforcement of a real covenant that is not recorded?
No.
Does a waiver of service waive an objection to personal jurisdiction or venue?
No.
Does an adopted child have inheritance rights with respect to his genetic parents?
No.
Does the admissibility of a statement as a present sense impression depend upon the declarant's availability?
No.
Does the admissibility of a statement as a statement made for medical diagnosis depend upon the declarant's availability?
No.
Does the admissibility of a statement as an excited utterance depend upon the declarant's availability?
No.
Does the attorney-client privilege apply to communications between former co-clients who are now adverse to each other?
No.
Does the felony murder rule apply what the felony is complete and the defendant has reached a place of safety?
No.
Does the felony murder rule apply when the death was unforeseeable?
No.
Does the mailbox rule apply to unilateral Ks?
No.
Does transferred intent apply in an action for IIED?
No.
Does yelling insults, indignities, or non-violent threats rise to the level of extreme and outrageous conduct?
No.
If a buyer does not have actual notice of a mortgage on the purchased property, does the buyer nevertheless assume the mortgage?
No.
If, in a shipment contract, the item is destroyed after it is delivered to a carrier, a contract is made for its shipment, and the buyer has notice that the goods have been shipped, is the seller liable?
No.
In the absence of an agreement to the contrary, may one co-tenant bind another co-tenant to a boundary line agreement?
No.
Is a person's mental or emotional disability considered when determining the proper standard of care for negligence purposes?
No.
Is a spouse's failure to seek legal advice about a prenuptial agreement sufficient to render the agreement involuntary?
No.
Is a trial court bound by the rules of evidence when deciding preliminary question regarding the competency of evidence?
No.
Is a warrantless cheek swab taken subsequent to an arrest supported by probable cause an unreasonable search under the Fourth Amendment?
No.
Is mistake about legality a defense either to an action for trespass to chattels or for conversion?
No.
Is real physical evidence subject to the best evidence rule?
No.
Is service on an employee physically present in the forum state sufficient in order for a corporation to be properly served?
No.
Is the fact that a party came to the nuisance determinative?
No.
Is title by adverse possession subject to a recording act?
No.
Is transferred intent applicable to IIED?
No.
May a federal court offer additur as a means for avoiding a new trial?
No.
If a defendant contests personal jurisdiction and loses, may he raise lack of jurisdiction as a defense to another state giving that judgment FF&C?
No. The judgment is valid, even if the first court did not correctly decide the issue of personal jurisdiction.
When one cotenant lives on the shared property, how much rent does he owe the other cotenants?
None.
For purposes of a right to a jury trial, does injunctive relief qualify as amounting to more than $20 in damages?
Nope!
If a party does not move for a directed verdict, may he move for JNOV?
Nope, a party can only "renew" a directed-verdict motion.
Are claims by existing defendants against additional persons joined as necessary parties under Rule 19 precluded by supplemental jurisdiction?
Nope.
Can a partnership sue in negligence for purely economic losses?
Nope.
Does a declarant's availability affect whether a statement falls within the "present sense impression" exception?
Nope.
Does an award of workers' compensation in one state preclude a person from receiving workers' compensation from a different state?
Nope.
Does fraudulent conduct negate consent to engage in sexual intercourse under the common law?
Nope.
Does the President's power to pardon extend to impeachment?
Nope.
Is a posthumously conceived child recognized as a child of the deceased parent?
Nope.
Is a state's mistake of fact or law a sufficient reason not to give a resulting judgment full faith and credit?
Nope.
Is factual impossibility a defense to conspiracy?
Nope.
Is strict adherence to the closing date for purchasing real property required?
Nope.
When are prior bad acts of a defendant admissible in a criminal prosecution?
Not admissible to show D's criminal propensity to prove D committed the crime in question unless MIMIC evidence (motive, intent, absence of mistake, identity or common plan)
Is supplemental jurisdiction permitted with respect to either intervention as of right or permissive intervention?
Not for either.
If a person stays in a location due to another person's use of moral pressure or future threats, is that sufficient to constitute confinement?
Not if the person willingly submits to the confinement.
How substantial must interference with another's use and enjoyment be in order to qualify as a private nuisance?
Offensive to average reasonable person in the community (objective)
What is the UCC firm offer rule?
Offer irrevocable (for reasonable time but no more than 90 days) if offeror is a merchant (or any business person), and assurances (in authenticated writing) are made that offer will remain open
What information is discoverable?
Relevant evidence or facts reasonably calculated to lead to relevant information
TRUE OR FALSE: A defendant may establish a successful defense to felony murder if he can show that death was not a foreseeable result or a natural and probable consequence of the felony (i.e., there was not proximate causation).
TRUE
TRUE OR FALSE: A person who is not offended, inconvenienced, or annoyed by a private nuisance is nevertheless entitled to recover if a normal person would be.
TRUE
TRUE OR FALSE: A purchase-money mortgage (i.e., a mortgage used to finance the purchase of the mortgaged property and executed at the time of sale) has priority over all earlier non-purchase-money mortgages and liens whether or not recorded.
TRUE
TRUE OR FALSE: A seller-financed purchase money mortgage generally takes precedence over a third-party purchase money mortgage.
TRUE
TRUE OR FALSE: A validly executed codicil can incorporate an invalid will and make the terms of the will valid.
TRUE
TRUE OR FALSE: A voice can be identified by any person who has heard the voice at any time. It makes no difference whether the voice was heard firsthand or through mechanical or electronic transmission or recording.
TRUE
TRUE OR FALSE: Abatement within each category of bequests is pro rata.
TRUE
TRUE OR FALSE: Accidentally damaging the plaintiff's chattel is not conversion if the defendant had permission to be using the property.
TRUE
TRUE OR FALSE: An illegal arrest does not prevent the subsequent prosecution of the person who is illegally arrested.
TRUE
TRUE OR FALSE: Any witness, including a criminal defendant, may be impeached with evidence that he has been convicted of any crime involving dishonesty or false statement within 10 years of conviction.
TRUE
TRUE OR FALSE: Bigamy is a strict-liability crime and does not require a mens rea, or guilty mind.
TRUE
TRUE OR FALSE: Compulsory counterclaims and the joinder of additional parties to compulsory counterclaims fall within the court's supplemental jurisdiction.
TRUE
TRUE OR FALSE: Consideration is not required to effect the conveyance of real property.
TRUE
TRUE OR FALSE: Even if the contract by its terms prohibits assignment, a party retains the power to assign, although an assignment operates as a breach of the contract.
TRUE
TRUE OR FALSE: Evidence of a juvenile conviction is never admissible in a civil case.
TRUE
TRUE OR FALSE: Extended family members have a fundamental right to live together in a single household.
TRUE
TRUE OR FALSE: Federal courts must give full faith and credit to state court judgments.
TRUE
TRUE OR FALSE: Federal statutes and treaties take precedence over executive agreements.
TRUE
TRUE OR FALSE: Generally, the proponent of a self-authenticating document is not required to give an adverse party advance notice of the intent to introduce the document.
TRUE
TRUE OR FALSE: If a hearsay statement is admitted into evidence, the declarant who made the original statement can be impeached as if the declarants/he was a testifying witness.
TRUE
TRUE OR FALSE: In applying the Lemon test with regard to governmental financial aid, the third element (no excessive governmental entanglement) is not a separate requirement, but instead is one factor to be considered in ascertaining whether the second element (no advancement or inhibition of religion) has been met.
TRUE
TRUE OR FALSE: In general, an offer can be revoked by the offeror at any time prior to acceptance, even if the offer states that it will remain open for a specific amount of time.
TRUE
TRUE OR FALSE: In order for diversity jurisdiction to exist with respect to an individual who is a party to an action, the party must either be a citizen of a state or a citizen (or subject) of a foreign country.
TRUE
TRUE OR FALSE: No overt act is required for the conspiracy to be complete at common law.
TRUE
TRUE OR FALSE: Once a custodial interrogation begins, anything the defendant says is inadmissible until the defendant is informed of the Miranda rights and the defendant waives those rights.
TRUE
TRUE OR FALSE: Parol evidence may be admitted to prove a condition precedent to the existence of the contract.
TRUE
TRUE OR FALSE: Preparatory acts, such as lying in wait for the victim or possessing materials required for the crime, may constitute a substantial step if they corroborate the defendant's criminal purpose.
TRUE
TRUE OR FALSE: Supplemental jurisdiction does not apply to the claims of a person seeking to intervene either as of right or permissively in a case based exclusively on diversity jurisdiction if the exercise of jurisdiction would be inconsistent with the requirements of diversity jurisdiction.
TRUE
TRUE OR FALSE: The crime of battery merges into the crime of robbery.
TRUE
TRUE OR FALSE: The federal government and its instrumentalities (such as a national bank) are immune from taxation by the states.
TRUE
TRUE OR FALSE: The grantor's signature is generally required for a document to be a valid deed.
TRUE
TRUE OR FALSE: The warranty of suitability is subject to a reasonable time limit.
TRUE
TRUE OR FALSE: Unless a party timely and properly objects on the record to an erroneous instruction given or proposed to be given by the court or to the court's failure to give an instruction timely requested by a party, the party generally cannot raise the matter on appeal.
TRUE
TRUE OR FALSE: When a criminal defendant requests, the prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial. The defense is not required to give the prosecution the same notice.
TRUE
TRUE OR FALSE: When polling reveals that the verdict is not unanimous, the court is not required to order a new trial, but may instead order the jurors to deliberate further.
TRUE
TRUE OR FALSE: When state law is more protective of the attorney-client privilege than the federal rule, and applicable state law governs, a disclosure is not treated as a waiver in a subsequent federal proceeding if it would not be a waiver under state law.
TRUE
TRUE OR FALSE: When there is only one plaintiff and one defendant, all of the plaintiff's claims against the defendant, including unrelated claims, are aggregated for purposes of determining whether the amount-in-controversy requirement has been satisfied.
TRUE
TRUE or FALSE: Although generally a district court order that does not constitute a final order is not immediately appealable, there is a special statutory exception for an order that appoints or refuses to appoint a receiver.
TRUE
What are examples of situations in which a speaker has an absolute privilege against an action for defamation?
Remarks during judicial or legislative proceedings, between spouses, or in required publications
What is renvoi?
Requires a forum court applying another state's law to apply that foreign state's COL rules. Generally rejected today; one exception is the FTCA.
When can voluntary abandonment serve as a defense to an attempt crime under common law?
Once the defendant has taken a substantial step toward the commission of the offense, the defendant may not legally abandon the attempt.
What is a vested remainder?
One that is not subject to any conditions precedent; ascertainable grantee
Do anti-lapse statutes typically apply to blood relatives or do they also apply to gifts to spouses?
Only blood relatives
How are general offers effectively revoked?
Only by notice given at least the same level of publicity as the offer (effective even if the offeree acts in reliance on the offer)
Must a defendant seek leave of the court to implead a third party?
Only if the defendant seeks to implead a third party more than 14 days after serving his answer to the plaintiff's complaint.
Is an ex parte modification to a spousal support award entitled to full faith and credit?
Only if the non-resident spouse agrees to the modification.
Is partial performance sufficient to render an offer irrevocable? Is the answer the same for both unilateral and bilateral Ks?
Only if the offeree has knowledge of the offer when performance begins. For a unilateral K, the offeror cannot revoke for a reasonable time once offeree has begun performance. For a bilateral K, commencement of performance operates as a promise to render complete performance.
When a document is used to refresh a witness's memory, is the document admitted into evidence?
Only if the opposing party wants it to be admitted.
Under what circumstances may extrinsic evidence of a witness's prior inconsistent statement be introduced?
Only if the witness is given the opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it.
Upon whom may interrogatories be served?
Only on a party to the lawsuit.
Must counterclaims be supported by an independent jurisdictional basis?
Only permissive counterclaims are precluded from supplemental jurisdiction.
What are the essential terms of a K under the UCC?
Only quantity, except in requirements or output Ks (UCC implies good faith) K formed if both parties intend to K and reasonably certain basis for giving remedy
What is the prudent investor rule? (Trusts)
Requires trustee to act as a prudent investor would act when investing his own property (putting less emphasis on risk level); trustee must exercise reasonable care, caution, and skill when investing and managing trust assets.
What is the standard of care for innkeepers?
Ordinary negligence (majority); "slight negligence" (common law)
What is required to prove that an owner of an easement has abandoned the easement?
Owner affirmatively acts to show clear intent to abandon right (statements of intent without conduct and mere non-use insufficient to extinguish easement right)
When does an agency relationship exist?
P manifests assent to an agent (A) A acts on P's behalf A's actions are subject to P's control, and A manifests assent or otherwise consents
What are the essential terms of a contract under common law?
Parties, subject matter, price, quantity If parties intended to create a K, the court may supply missing terms
What personal characteristics are considered when applying the reasonable person standard?
Physical characteristics (generally including age) are considered, but mental characteristics are not. Voluntary intoxication is not considered.
What is the future interest that accompanies a fee simple determinable?
Possibility of reverter
What factors are considered when determining the amount of a child support award?
Primary factor = income received by the paying parent Other factors include: best interests of child, age, special needs, assets of both parties, standard of living during marriage
Under what circumstances does the defense of private necessity apply in an action for trespass?
Private Necessity allows a person to enter plaintiff's land to protect her own person/property from harm; she is not liable for trespass but responsible for actual damages.
What standard of care applies to professionals?
Professionals are expected to show the same skill, knowledge, and care as other practitioners in the same community; specialists may be held to a higher standard. Many jurisdictions apply a national standard to physicians.
Under what circumstances does the defense of public necessity apply in an action for trespass?
Public Necessity allows a person to enter plaintiff's land to prevent an imminent public disaster; the person is not liable for damage if her actions were reasonable or she had a reasonable belief that necessity existed, even if initial entry was not necessary.
What is the duty to make property productive? (Trusts)
Pursue all possible claims, derive the maximum amount of income from investments, sell assets when appropriate, secure insurance, pay expenses, and act within a reasonable period of time in all matters.
Under what circumstances is private necessity available as a defense in an action for trespass to land?
Qualified privilege for limited number of people to enter land to protect own person/property from harm; not liable for trespass but responsible for actual damages
Under what circumstances is the use of force permitted to abate a private nuisance?
Reasonable force is permitted to abate the nuisance; P must give D notice of the nuisance first and D must refuse to act before action can be taken.
In order for self-defense to serve as a defense to an intentional tort, what level of force is D permitted to use?
Reasonable force--force proportionate to anticipated harm; reasonable mistake does not invalidate defense
Does negligence per se involve a conclusive or a rebuttable presumption that the person was negligent if it is proven that the person violated the statute that established a duty of care?
Rebuttable
How is malice defined?
Reckless disregard of a high risk of harm. Requires only a criminal act without excuse, justification, or mitigation. Intent is inferred from the accomplishment of the act.
If the court has ______ and at least one spouse ______, then a bilateral divorce judgment will be valid and will be entitled to full faith and credit.
personal jurisdiction over both spouses is domiciled in the state
Questions of law relating to the grounds for divorce are controlled by the law of the _______.
plaintiff's domicile
Generally, attempting to obtain evidence from the plaintiff without a court order and making a motion to compel are ______. Expenses cannot be awarded if _______.
prerequisites to obtaining any sanctions under Rule 37 the movant failed to make a good-faith effort to secure the information before filing the motion
Legal parents are _________, including grandparents or stepparents.
presumptively entitled to custody of their children in cases against third parties
Statutes of limitations are usually considered _______, with the law of _______ controlling.
procedural the forum state
Profits are created and analyzed similarly to easements, except that ______.
profits cannot be created by necessity
When the relevance of evidence depends upon whether a fact exists, __________.
proof must be introduced sufficient to support a finding that the fact does exist
Compromise offers made by any party, as well as any conduct or statements made during compromise negotiations, are not admissible to _______.
prove or disprove the validity or amount of a disputed claim, nor may they be admitted for impeachment by prior inconsistent statement or contradiction
When the original is unavailable through no fault of the evidence's proponent, the party may ________. However, if the information is stored electronically, ________.
prove the contents of the writing, recording, or photograph by other means any legible printout that reflects the information accurately is an original
A contract that violates a state statute may be declared unenforceable on grounds of ______.
public policy
Laws that do not target religion and are generally applicable are subject to the ________ test.
rational basis
Congress may impose _______ on the use of the mail (such as prohibiting obscene or fraudulent material to be mailed), but the postal power may not be used to _______.
reasonable restrictions abridge any right guaranteed by the Constitution (e.g., the First Amendment)
What restrictions may the government place on speech in traditional public forums?
reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are content-neutral as to both subject matter and viewpoint, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information
A search conducted by local public school personnel of a student must be based on ______ that the search will produce evidence that the student is or has violated school rules. The search must also be ______.
reasonable suspicion reasonable in its scope in light of the student's age and gender and the nature of the infraction
Local governments have the power to pass zoning ordinances, so long as they are ________.
reasonably related to a legitimate government purpose (health, safety, morals, and general welfare)
Under the Model Penal Code, to be guilty of involuntary manslaughter, the defendant must have acted _______.
recklessly, which is a "gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation," and must have been actually aware of the risk his conduct posed
Under the UIFSA, the receiving parent may ________ to enforce a child support order.
register a child support order from one state in another non-issuing state
Simply stated, substantive laws are those that _______.
regulate the behavior of persons outside of the courtroom.
When a seller fails to disclose known defects in a home, the buyer may ________.
rescind the sale or seek damages
To be subject to strict liability for a defective product, the defendant must be in the business of _______.
selling or otherwise distributing products of the type that harmed the plaintiff
Under the mailbox rule, an offer is effective when _____.
sent, unless the offer provides otherwise
Under the UCC, an installment contract is defined as one in which the goods are to be delivered in multiple shipments, and each shipment is to be ________________. Payment by the buyer is due ____________, _____________.
separately accepted by the buyer upon each delivery unless the price cannot be apportioned
When a jury's verdict does not properly follow the court's instructions, the court may ________.
set aside the verdict and order the jury to resume deliberations
While Congress has the power under the spending power to spend for the general welfare and may impose conditions on the receipt of an appropriation by a state, such conditions must be ______.
set out unambiguously to be enforceable
A defendant is guilty of larceny by trick if ______.
she obtains possession (but not title) to property owned by another through fraud or deceit, with the intent to unlawfully convert it and later does so
A _____ law that discriminates against aliens is subject to strict scrutiny under the Equal Protection Clause.
state
A person who enters upon another's property or interferes with another's personal property due to private necessity must ____________.
still pay for actual damages caused
Laws that intentionally target religions conduct are subject to ________.
strict scrutiny
For an ex parte divorce to be afforded full faith and credit, it must adhere to the _______ rules, namely that _______.
subject-matter jurisdiction at least one person must reside in the state
A party asserting a claim may join with it as many independent or alternative claims of whatever nature against the opposing party so long as the court has __________. If the original claim is based on federal-question jurisdiction, then a non-federal claim (such as the state law breach-of-contract claim here) may be joined only if _________.
subject-matter jurisdiction over the new claims diversity jurisdiction exists or if the new claim arises out of the same case or controversy as the federal claim such that supplemental jurisdiction applies
A senior mortgagee who enters into an agreement with the landowner to modify the mortgage by making it more burdensome _________.
subordinates his interest as to the modification
Rainwater is classified as ________. As such, although there are restrictions on the ability of a landowner to prevent such water from entering his property or altering the flow of such water off his property, a landowner may generally _________.
surface water or more precisely as diffused surface water impound such water on her property and may make whatever reasonable use she wishes of that water
A race-notice statute requires a subsequent purchaser to ___________.
take the interest without notice of a prior conflicting interest and be the first to record
The authority granted to Congress under the war power of Article I, Section 8, is very broad. Congress may _______,
take whatever action it deems necessary to provide for the national defense in both wartime and peacetime
Once a developer has relinquished control, the association has the power to _________.
terminate without penalty any contract or lease between the association and the developer, or an affiliate of the developer
An offer involving subject matter that is destroyed is ___________.
terminated
Embezzlement is ______.
the (i) fraudulent (ii) conversion (iii) of the property (iv) of another (v) by a person who is in lawful possession of the property
Because Congress has exclusive authority over interstate commerce, it may explicitly permit states to act in ways that would otherwise violate ___________.
the Dormant Commerce Clause
When the United States is a defendant in a civil action, service must be made on ______.
the U.S. Attorney General as well as the U.S. attorney for the district in which the action has been filed.
If the offeree sends an acceptance and later sends a communication rejecting the offer, then _______.
the acceptance will generally control even if the offeror receives the rejection first
What are some examples of preliminary questions regarding the competency of evidence, for which a trial court is not bound by the rules of evidence?
the admissibility of evidence, whether privilege exists, or whether a person is qualified to be a witness
With respect to the best evidence rule (which applies when the contents of a video recording are offered to prove the events captured in the recording), the jury determines whether _________ and, if so, _________.
the alleged recording ever existed whether other evidence as to the content of that recording reflects that content
A public school, as a designated limited public forum, may allocate access to school facilities and funds among student groups when _______.
the allocation is done in a manner that is viewpoint neutral
Although an allegation in the plaintiff's complaint is generally deemed admitted if that allegation is not denied in the answer, the same is not true if the allegation relates to _______.
the amount of damages
A person with special sensitivities can recover for a private nuisance only if ________.
the average person would be offended, inconvenienced, or annoyed
Under both interest analysis and the Second Restatement, a state will apply its cap on damages only if _______.
the cap will protect a defendant who is a domiciliary of that state
A share will not be forced for an omitted child if _______, or if ______.
the child has been provided for outside of the will the testator had other children at the time the will was executed and left substantially all of his estate to the omitted child's parent
When a dispute involves the existence of an equitable interest in land, the general conflict-of-laws rule is that the law applied by the forum court should be determined by __________.
the conflict-of-laws rule that would be applied by the state where the property is located
If the settlor does not expressly retain the power to revoke a trust, modification or termination can occur only with _______.
the consent of all beneficiaries and if the proposed change will not interfere with a primary purpose of the trust
If the main purpose of the surety in agreeing to pay the debt of the principal is the surety's own economic advantage, rather than for the principal's benefit, then _________.
the contract does not fall within the Statute of Frauds, and an oral promise by the surety is enforceable
Under the doctrine of attornment, the tenant is bound to honor any covenant in his lease that has been assigned by the landlord to a third party, if ___________.
the covenant touches and concerns the land
If the defendant agrees to waive service, then the date on which the plaintiff files the waiver form with the court will be deemed _______.
the date of service of process
Pecuniary loss, also referred to as special damages, is only required in a defamation action when ______.
the defamatory statement is not slander per se
Under the continuing trespass rule, a trespass is deemed to be continuing when ________. However, the initial taking of the personal property must have been ______.
the defendant does not possess the necessary intent at the time of the taking but later develops the intent to permanently deprive the owner of the personal property wrongful
The MPC allows subsequent withdrawal by a co-conspirator after the overt act, but __________.
the defendant must thwart the performance of the planned crimes
In most situations, no expert testimony is required to define this standard of care, particularly when _________.
the defendant's negligence is so apparent that a layperson can identify it without the assistance of an expert in the field
One is justified in using reasonable force in defense of others upon reasonable belief that _______.
the defended party would be entitled to use self-defense
The federal inadvertent waiver rule (Federal Rule 502) applies to ______.
the disclosure of information covered by the attorney work-product protection as well as communications covered by the attorney-client privilege
A child legitimacy is governed by the law of ______.
the domicile of the parent whose relationship to the child is in question
Medical records are considered business records to the extent that ___________.
the entries relate to diagnosis or treatment
If a communication is sent rejecting an offer, and a later communication is sent accepting the contract, the mailbox rule does not apply, and ____________.
the first one to be received by the offeror prevails
Forgery is ______. Making includes _______ another to sign a document when that person is unaware of the significance of the document.
the fraudulent making of a false writing with apparent legal significance and with the intent to defraud creating, altering, or fraudulently inducing
The UCC Statute of Frauds generally requires that a modified contract be in writing where the value of the goods is $500 or more. There is an exception for specially manufactured goods, but for this exception to apply, ________.
the goods cannot be suitable for sale to others in the ordinary course of the seller's business
If grantor gives deed to an independent third party for delivery to the grantee upon a condition, the deed will not be deemed delivered if ___________.
the grantor reserves the right to take the deed back
The covenant of warranty is a future covenant that guarantees that the grantor will defend against a third party's claim for title. This covenant, however, does not require _______.
the grantor to defend against a third party's wrongful claim
A buyer acquires an insurable interest in goods upon ______. Where the contract is for future goods (i.e., goods that are not both existing and identified), the buyer does not acquire an insurable interest until _______.
the identification of the goods the seller designates goods as those to which the contract refers, unless the parties have explicitly agreed otherwise
To establish a private nuisance, the inference with the use or enjoyment of another individual's property must be substantial and unreasonable. The interference is deemed unreasonable if _______.
the injury caused by the defendant outweighs the usefulness of his actions
An action against a federal officer or employee acting in an official capacity or under color of legal authority may be brought in __________.
the judicial district in which the plaintiff resides
A tenant is entitled to make changes to the physical condition of the leased property that are reasonably necessary for the tenant to use the property in a reasonable manner, unless _______.
the landlord and tenant agree otherwise
Under the common law, arson is _______.
the malicious burning of the dwelling of another
If the seller makes a nonconforming tender or tenders nonconforming goods under one segment of an installment contract, the buyer can reject only if ________________.
the nonconformity substantially impairs the value of that shipment to the buyer and cannot be cured
Although under the mailbox rule an acceptance is effective upon dispatch, the mailbox rule does not apply when __________. Instead, in such case, the acceptance must be received ___________.
the offer is irrevocable before the offer expires
Under the agency theory of felony murder, a felon is not liable for the death of a bystander caused by a police officer, because ______.
the officer is not the felon's agent
The owner of mineral rights is not liable for damage done to structures built on the surface of the land after the mineral rights were transferred unless __________.
the owner fails to exercise reasonable care in removing the minerals
An easement holder may be estopped from asserting an easement if _______.
the owner of the servient estate changes position to his detriment in reliance on statements or conduct of the easement holder that the easement is abandoned
Joint custody generally requires that ________.
the parents are both willing and able to cooperate with respect to the wellbeing of the child; typically, neither parent has a superior right to make major decisions
A third-party beneficiary contract results when ______. If the promisee tells the intended beneficiary about the contract and should reasonably foresee reliance, and the beneficiary does so rely to his detriment, then the _______.
the parties to a contract intend that the performance by one of the parties is to benefit a third person who is not a party to the contract intended beneficiary may sue the promisee for his breach of the contract
Evidence offered to prove a victim's sexual conduct or predisposition is may be admitted in a civil trial involving alleged sexual misconduct when the court determines at an in camera hearing that __________.
the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party
Protected work product will be subject to discovery if _____.
the requesting party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means
Physical custody of a child is _______________.
the right to have the child reside with a parent or guardian and the obligation to provide for routine daily care and control of the child
Only unreasonable searches and seizures are subject to Fourth Amendment protection. Warrantless searches are per se unreasonable unless _________.
the search satisfies an exception to the warrant requirement
Unless specifically announced otherwise, an auction is with reserve, meaning that _______.
the seller has the right to withdraw an item from sale at any time before the auctioneer announces the completion of the sale
The Uniform Vendor and Purchaser Risk Act (adopted by a minority of jurisdictions) keeps the risk of loss with ________. For the Act to apply, _______.
the seller, unless and until the buyer takes possession, or title is transferred a material part of the property must be destroyed
Under the federal interpleader rule, unlike the federal interpleader statute, diversity of citizenship is tested between _______. There is no requirement under the rule, unlike the statute, that there be _______.
the stakeholder and the other claimants diversity between at least two of the claimants
A state may constitutionally apply its own substantive law to a case only if ________.
the state has a significant contact or aggregation of contacts such that the use of its own law is neither arbitrary nor fundamentally unfair
A state may ban all write-in candidates in both primary and general elections, at least when _______.
the state provides reasonable means by which a candidate can get on the ballot
Under the most-significant-relationship approach of the Restatement (Second) of Conflict of Laws, the law of _______ will control.
the state with the most significant relationship to the privileged communication
A statement made by a declarant who is unavailable to testify is not excluded as hearsay if ________ and ________.
the statement was against the declarant's interest at the time it was made would not have been made by a reasonable person unless he believed it to be true
A landlord must repair damages under residential leases, unless _______.
the tenant caused the damages
When reproductions (e.g., photographs, diagrams, maps, movies) are introduced into evidence, they may be authenticated by ________.
the testimony of a witness with personal knowledge that the object accurately depicts what its proponent claims it does
The probable cause requirement in an anticipatory warrant is satisfied where, at the time that the warrant is issued, there is probable cause to believe that ______.
the triggering condition will occur and, if that condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular place
A trustee can block a premature trust termination by the beneficiaries if _____.
the trust is shown to have an unfulfilled material purpose
Undue influence is ________.
the unfair persuasion of a party to assent to a contract
Under the felony murder rule, a defendant can be found guilty for _______.
the unintended but foreseeable killing that is proximately caused by or during the commission or attempted commission of an inherently dangerous felony
Extrinsic evidence (i.e., evidence other than the witness's own testimony) of a witness's prior inconsistent statement may be introduced only if _________. The _______ need not take place before the statement is admitted into evidence.
the witness is given the opportunity to explain or deny the statement, and the opposing party is given the opportunity to examine the witness about it witness's opportunity to explain or deny the statement
Under Rule 801(d)(1)(C), a previous out-of-court identification of a person after perceiving that person is admissible as substantive evidence, but only if ________.
the witness testifies at the present trial or hearing and is subject to cross-examination concerning the identification
A witness may examine any item (e.g., writing, photograph) in order to refresh the witness's present recollection, but the witness's testimony must be based on __________.
the witness's refreshed recollection, not on the item itself
There is a legitimate property interest in continued public employment only if ______. An "at will" governmental employee has ______ to continued employment.
there is an employment contract or a clear understanding that the employee may be fired only for cause no right
In the commercial-speech context, narrowly tailored does not mean the least restrictive means available; rather, ________.
there must be a "reasonable fit" between the government's ends and the means chosen to accomplish those ends
A failure to warn defect exists if ________. The failure to include the instructions or warnings renders the product not reasonably safe.
there were foreseeable risks of harm not obvious to an ordinary user of the product, and those risks could have been reduced or avoided by providing reasonable instructions or warnings
A failure to warn defect exists if ___________.
there were foreseeable risks of harm, not obvious to an ordinary user of the product, that could have been reduced or avoided by providing reasonable instructions or warnings
State statutes that do not discriminate against out-of-state commerce are generally constitutional unless ____________. Although most state laws have been upheld in the face of a challenge based on the ________ test, some laws have been found wanting because ____________.
they impose an undue burden on interstate commerce "undue burden" there are less restrictive alternatives
If a product substantially changes between the time it is distributed by the manufacturer and the time it causes an injury, then ________.
this change may constitute a superseding cause that cuts off the liability of the original manufacturer
Traditional anti-lapse statutes prevent gifts from lapsing only when ______.
those gifts were given to a family member within a certain statutory degree
In criminal cases, the defendant is entitled to introduce evidence that his character is inconsistent with the crime charged. However, the only way he can introduce such evidence is ______.
through reputation or opinion testimony, not specific acts of conduct
In order to be able to raise an error in a jury instruction on appeal, a party must _______. A party's objection is timely if it is made ______.
timely object to the instruction on the record and state the grounds for the objection promptly after learning that an instruction has been or will be given or a request has been refused
When the holder of a future interest effectively disclaims that interest, the disclaimant is deemed ______.
to have predeceased the life tenant
Generally, a properly recorded mortgage that precedes another mortgage has priority over the later mortgage. Modification of a senior mortgage subordinates the mortgage to a junior mortgage only ______.
to the extent that the modification of the senior mortgage makes it more burdensome
Generally, most states allow their courts to take judicial notice of other states' laws and federal laws and ________; federal courts must ______.
treat them as law rather than fact take judicial notice of the laws of all states
A tenant in common or a joint tenant has the right to ________ partition the property. This can be either ______ or ______. Courts prefer a _______ if the division is practical and fair.
unilaterally voluntarily through the parties' agreement involuntarily through court action partition in kind
One is justified in using reasonable force in defense of others _________ that the defended party would be entitled to use self-defense.
upon reasonable belief
Government can regulate content in a non-public forum, so long as it is _______.
viewpoint neutral
In general, any state with a legitimate interest in an injury and its consequences may apply its workers' compensation act; the employer and employee may contractually agree to apply a particular state's law unless doing so would _______.
violate the public policy of another state with a legitimate interest
The commercial supplier of a component, such as sand used in manufacturing cement, is subject to liability if the component itself is defective, but not ______.
when the component is incorporated into a product that is defective for another reason
When a creditor agrees to accept a lesser amount in full satisfaction of the debt, the original debt is discharged only ___________. Partial payment of a liquidated debt is ____________.
when there is some dispute as to either the validity of the debt or the amount of the debt, or when the payment is of a different type than called for under the original contract invalid for a lack of consideration, unless there is a compromise of a claim disputed in good faith
When the court is faced with a substantive or procedural question for the purpose of applying the Erie doctine, the district court should determine ____________. If there is _______________, then the analysis does not need to proceed any further because the court can apply both state and federal law.
whether there is a conflict between state and federal law with respect to the issue before the court no conflict between state and federal law
A demand for a jury trial must be served _______________.
within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury
Under Rule 36, a party may serve upon any other party a written request for the admission of any relevant, non-privileged matters discoverable under Rule 26. A matter will be admitted unless, ______.
within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or her attorney
A motion for relief from a judgment under Rule 60(b) that is based on newly discovered evidence must be filed ______.
within a reasonable time and no later than one year from the entry of the judgment
Under what circumstances does a person have an affirmative duty to act?
• Assumption of duty • Placing another in peril • By contract • By authority • By relationship (e.g., employer-employee, parent-child, common carrier-passenger)
Under the UIFSA, the state that issued the initial child support order has continuing exclusive jurisdiction to modify the child support order, unless ______.
• The parties (both parents) and the child no longer reside in the state; or • The parties expressly agree to permit another state to exercise jurisdiction.
What standard of care is a child held to?
That of a reasonable child of similar age, intelligence, and experience, unless the child is engaged in high-risk adult activity. Children under 5 are generally found to be incapable of negligent conduct.
What is the Federal Property Clause?
The Federal Property Clause of Article IV, Section 3 gives Congress the "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." In addition, there is no express limit on Congress's power to dispose of property owned by the United States.
Which branch has the exclusive power to recognize a foreign government?
The President
What is the Property Clause?
The Property Clause of Article IV, Section 3 states, "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." This power includes not only the power to dispose of property owned by the United States and to make incidental rules regarding its use, but also the power to protect the property.
What is the Same Office Rule?
The Same Office Rule extends automatic perfection for proceeds when three requirements are met: (i) filed financing statement covers the original collateral, (ii) the proceeds are collateral in which a security interest may be perfected by filing in the office in which the financing statement has been filed, and (iii) the proceeds are not acquired with cash proceeds.
Through what means does Congress have the power to legislate for the general welfare?
The Taxing and Spending Clause
What is the Uniform Interstate Family Support Act (UIFSA)?
The UIFSA governs when a state has personal jurisdiction over an out-of-state parent in an action to establish or enforce child support, or establish paternity.
What is the UPC rule for ademption by extinction when there is evidence that the testator intended for the beneficiary to receive the gift?
The UPC permits a beneficiary of a specific extinct gift to inherit the property acquired by the testator as replacement property or, if the testator is owed money relating to the extinction, the outstanding balance.
What occurs when the UPC rule for ademption by extinction applies, there is evidence that the testator intended for the beneficiary to receive the gift, but neither the replacement property nor the outstanding balance doctrine applies??
The beneficiary of a specific gift is entitled to money equivalent to the value of the specific property as of the date of disposition of the gift if ademption is inconsistent with the testator's Intent or Plan of Distribution.
In determining whether to modify a child custody order to allow a parent to relocate, what factors does a court consider?
The best interests of the child The relationship of the non-relocating parent with the child Age and needs of the child The child's preference The quality of life of relocating parent and child
For torts, what law applies under the vested-rights approach?
The case is governed by the law of the place where the last event necessary to make the actor liable for the tort took place
How does a state qualify as a home state under the UCCJEA?
The child's home state and has been the home state for a period of six months or since birth, if the child is less than six months old; or Was the child's home state in the past six months, and the child is absent from the state, but one of the parents still lives there.
When does consent serve as a defense to an intentional tort?
The consent must be voluntary, and a defendant will be liable if he exceeds the scope of plaintiff's consent.
What rule applies when an adverse possessor exercises physical possession of a portion of property under color of title?
The constructive adverse possessor takes title to the whole property covered by the will or deed.
In a diversity action, when a federal rule conflicts with a state rule covering the same issue, what analysis must the court undertake?
The court must determine whether the rule is valid under the Rules Enabling Act, which depends on whether the federal rule abridges, enlarges, or modifies any substantive right.
Under what circumstances should a court allow an amendment to a complaint if the additional claim or party relates back?
The court should allow leave to amend unless it would cause undue prejudice against the defendant.
What must a custodial parent prove in order to modify a custody and visitation order based on relocation?
The custodial parent seeking relocation bears the burden of demonstrating that the relocation is for a legitimate and reasonable purpose, as opposed to restricting the noncustodial parent's visitation.
What is the Model Penal Code test for insanity?
The defendant is not guilty if a mental disease or defect either prevents the defendant from knowing the wrongfulness of the conduct or prevents the defendant from being able to conform his conduct to the law.
What is the irresistible impulse test?
The defendant is not guilty if a mental disease or defect prevented him from being able to conform his conduct to the law.
What is the Durham rule?
The defendant is not guilty if the crime would not have been committed but for the mental disease or defect.
What is the M'Naghten Rule?
The defendant is not guilty if, because of a mental disease or defect, the defendant did not know either (i) the nature and quality of the act, or (ii) the wrongfulness of the act.
When can a child born out of wedlock inherit from the natural father (modern trend)?
The father subsequently married the natural mother; The father held the child out as his own and lived with the child or provided support; Paternity is proven by clear and convincing evidence after the father's death; or Paternity is adjudicated during the father's lifetime by a preponderance of the evidence
What limitations do the Full Faith and Credit Clause place on the application of forum law to a particular case?
The forum state must apply the law of another state when the forum state has no contract with or interest in the controversy, unless application of another state's law would violate a legitimate public policy
What limitations do the Due Process Clause place on the application of forum law to a particular case?
The forum state must have a significant contact or aggregation of contacts with the state such that a choice of its law is neither arbitrary nor fundamentally unfair.
What law generally applies to the administration of a trust?
The law of the place where the trust is administered
What default rule applies under the most-significant-interest approach to a suretyship contract?
The law of the state governing the principal obligation
What law generally applies in a dispute over real property?
The law of the state in which the real property is located applies, unless the governmental-interest approach applies
What default rule applies under the most-significant-interest approach to a transportation contract (person or goods)?
The law of the state of departure
What law generally governs corporations?
The law of the state of incorporation
What default rule applies under the most-significant-interest approach to a life-insurance contract?
The law of the state of the insured's domicile
What default rule applies under the most-significant-interest approach to a land contract?
The law of the state of the situs of the land applies
What default rule applies under the most-significant-interest approach to a personalty contract?
The law of the state where delivery occurs
What default rule applies under the most-significant-interest approach to a loan contract?
The law of the state where repayment is required
What default rule applies under the most-significant-interest approach to a casualty-insurance contract?
The law of the state where the insured risk is located
If permissive waste occurs in a life tenant, what responsibility does the life tenant have?
The life tenant must make reasonable repairs (up to the amount of income produced by the property) and pay all property taxes and mortgage interest.
What happens when one's state judgment is inconsistent with a subsequent final judgment of a different state?
The most recent judgment controls, despite that court's failure to give the earlier judgment res judicata effect.
What does it mean for a claim to relate back to the original complaint?
The new claim arises out of the same transaction or occurrence as the claims in the original complaint.
Divorce decrees from other states are entitled to full faith and credit as long as _____.
The original state had jurisdiction to issue the decree and the decree is valid in the original state.
For a witness other than a criminal defendant, what standard does a court apply in determining whether to admit convictions for felony crimes not involving fraud or dishonesty?
The party objecting to the evidence must show that the probative value is substantially outweighed by the prejudicial effect (Rule 403).
Under what circumstances may a spousal support award be modified?
The party seeking modification of spousal support has the burden of establishing a significant change in circumstances that warrants the modification.
Who has the burden of proving that a spouse survived the other spouse for inheritance purposes?
The party whose claim depends on survivorship.
If there is insufficient evidence as to which spouse died first, which spouse is considered the surviving spouse for purposes of the Uniform Probate Code?
The property of each individual passes as though the other individual predeceased him.
What is the tort of public disclosure of private facts?
The public disclosure of private facts is actionable if the publication would be highly offensive to a reasonable person, and is not of legitimate concern to the public.
The test for reasonable time, place, and manner restrictions on speech activities in a public forum is:
The regulations must be: 1) content-neutral, 2) narrowly tailored to serve a significant governmental interest, and 3) leave open ample alternative channels for communication of the information.
What type of false representation is required to prove the crime of false pretenses?
The representation must be false and must be of a material past or present fact. An opinion, sales talk or puffing, a prediction, or a false promise is not sufficient.
Which generally takes precedence: a seller-financed purchase money mortgage or a third-party purchase money mortgage?
The seller-financed purchase money mortgage
When determining the validity of a premarital agreement, which state's law applies?
The state in which the agreement was executed; or The state with the most significant relationship to the parties and transaction
Where is a corporation's domicile for choice-of-law purposes?
The state of incorporation
If a lease agreement prohibits the tenant from assigning the lease, and the tenant subleases the property, what happens?
The tenant may still sublease.
What is the common law rule for a trust created to pay the settlor's surviving children at the time of the settlor's death?
The trust is divided between the children that are alive at the time of testator's death.
What is the UPC rule for a trust created to pay the settlor's surviving children at the time of the settlor's death?
The trust is divided between the children, even though that child predeceased the settlor, if the dead child left issue. The dead child's share goes to his issue.
The public policy exception to the application of foreign law should not be used to preclude _______.
The use of a defense available under the foreign law.
Does the result of the government-interest approach depend upon the substantive area of law?
There are no specific rules for different substantive areas.
If an instrument transfers ownership to A and B jointly, with a right of survivorship, and with A owning 40% and B owning 60%, what interests are created?
This creates a tenancy in common because, despite the intent to include a right of survivorship, an instrument must transfer equal interests to create a joint tenancy.
How many peremptory challenges does a party get in a civil case in federal court?
Three. There is no restriction on their exercise so long as they are not used for a constitutionally impermissible reason.
When does a court award restitutionary recovery?
To avoid unjust enrichment.
What does it mean for goods to be "merchantable"?
To be merchantable, goods must be fit for their ordinary purpose and pass without objection in the trade.
What is the one tweak in the application of proximate cause in a products liability action?
To be the proximate cause of plaintiff's injury, the defect causing plaintiff's injuries must have occurred when the product was being used in an intended or reasonably foreseeable way. A defendant will still be liable if the plaintiff misuses the product and is injured, if the misuse is foreseeable.
What duty does a possessor of land have to a licensee?
To correct or warn of known, concealed dangers To refrain from willful or wanton misconduct
How may habit evidence be used?
To prove that someone *always* does something to prove that they acted in accordance with habit on a particular occasion
When can evidence bolstering a witness's credibility be admitted?
To rehabilitate a witness.
What is the duty to diversify? (Trusts)
Trustee must adequately diversify the trust investments in order to spread the risk of loss under a total performance portfolio approach, but not if administrative costs would outweigh the benefits.
What is the duty to be impartial? (Trusts)
Trustee must balance interests of the present beneficiaries (must not favor one of the present beneficiaries over the others, unless trust provides for it), and along with a duty to balance the interests of present beneficiaries with future beneficiaries by investing property so that it produces a reasonable income for the income beneficiaries while preserving the principal for the remainder beneficiaries.
What is an accord agreement?
Under an accord agreement, one party to a contract agrees to accept a different performance from the other party than what was promised in the existing contract.
What is accord and satisfaction?
Under an accord agreement, one party to a contract agrees to accept different performance from the other party than what was promised in the existing contract. Generally, consideration is required for an accord to be valid. By compromising, each party surrenders its respective claim as to how much is owed. When a creditor agrees to accept a lesser amount in full satisfaction of the debt, the original debt is discharged only when there is some dispute either as to the validity of the debt or the amount of the debt.
How long must a spouse survive in order to qualify as a surviving spouse for inheritance purposes?
Under common law, any length of time. Under the UPC, 120 hours.
Is consideration necessary for an option K to be enforceable?
Under common law, yes, but not under the UCC
What is the implied warranty of merchantability?
Under the implied warranty of merchantability, a product that is sold is impliedly warranted to be reasonably useful and safe for average use. Always discuss in a strict products liability question!
What is the implied warranty of fitness for a particular purpose?
Under this implied warranty, if a seller knows or has reason to know of a particular purpose for which some item is being purchased by the buyer, the seller is guaranteeing that the item is fit for that particular purpose.
What is the Complete Auto test for a state imposed on interstate commerce?
Under this test, (i) the activity taxed must have a substantial nexus to the taxing state, (ii) the tax must be fairly apportioned, (iii) the tax may not discriminate against interstate commerce, and (iv) the tax must be fairly related to the services provided by the state.
Under what circumstances is public necessity available as a defense in an action for trespass to land?
Unqualified/absolute privilege to avert imminent public disaster; not liable for damage if actions reasonable or reasonable belief that necessity existed, even if initial entry not necessary
What is the doctrine of marshaling of assets?
Upon petition to the court by junior interests for the protection of their interests, the holder of a senior security interest must first proceed against the property on which there are not any junior security interests, and then against the property on which the junior interest was more recently created, before proceeding against property on which the junior interest was more remotely created.
Which crimes may be proven through transferred intent (unintended victim)?
Usually confined to homicide, battery, and arson; not for cases of mistaken identity, and not for attempt.
What questions should I address if I'm confronted with venue question?
Venue is appropriate in one of the three: a) Approp. where defendant resides if all defendants reside in the state (person = domicile, business = PJ) b) Substantial part of events or omissions occurred in the district, or property located in district c) If neither of the above apply, then where any defendant is subject to PJ
___________ is murder committed in "the heat of passion," that is, in response to adequate provocation.
Voluntary manslaughter
Under the Uniform Probate Code, when does the surviving spouse of an intestate decedent take the entire estate?
When (1) all of decedent's are also descendants of SS, and SS has no other descendants, or when (2) decedent has SS, but no descendants or parents
Under the Uniform Probate Code, when does the surviving spouse of an intestate decedent $150,000 and 50% of the remainder of the estate?
When D has issue not related to SS
What is a curative admission?
When a court erroneously admits evidence, the court may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence. Such additional evidence can be admitted in the court's discretion when necessary to remove unfair prejudice.
What is negligence per se?
When a criminal or regulatory statute imposes a specific duty for the protection of others.
When the duress defense available to a criminal offense?
When a third party's unlawful threat causes a defendant to reasonably believe that the only way to avoid death or serious bodily injury to himself or another is to violate the law, and that causes the defendant to do so.
Under the Uniform Probate Code, when does the surviving spouse of an intestate decedent take $225,000 and 50% of the remainder of the estate?
When all of D's issue are also of SS, and SS has other issue
When does the Penn Central test apply?
When analyzing whether the government has engaged in a partial regulatory taking.
When is character evidence admissible in a civil case?
When character is an essential element of a claim.
When is mistake of fact available as a defense to criminal liability?
When is negates criminal intent (if honest) Defense to specific intent-crime even if unreasonable mistake Defense to general-intent/malice crime only if reasonable
Under what circumstances can a federal court exercise jurisdiction over a cross claim?
When it arises out of the same case or controversy as the original action.
When is the revocation of an offer effective?
When it is communicated; revocation sent by mail not effective until received
Under what circumstances can separate property become marital property?
When marital funds or efforts by owner-spouse enhance its value or build equity during marriage
Under the Uniform Probate Code, when does the surviving spouse of an intestate decedent take $300,000 and 75% of the remainder of the estate?
When no descendant of D survives D, but D has a surviving parent
When is a mailed acceptance effective?
When sent.
When is a corporation criminally liable for an employee's criminal act?
When the act is performed by a high-ranking corporate agent who likely represents corporate policy
What is the "equal dignities" rule?
When the act performed by an agent on behalf of the principal is required by law to be in writing, the agent's authority must also be established in writing.
Under what circumstances can an additional plaintiff join a federal-question action?
When the additional plaintiff's claim is related to a claim that already qualifies under federal question jurisdiction, even if that claim is a state claim.
Under what circumstances can an additional plaintiff join a diversity action?
When the additional plaintiff's claim is related to the existing claim (whether state or federal) and the additional plaintiff does not destroy diversity.
Under what circumstances is consent not available as a defense to an intentional tort?
When the consent is invalidated by duress, fraud as to an essential matter, mistakes caused or knowingly utilized by D, or incapacity.
When can you aggregate amounts alleged against each defendant for purposes of diversity jurisdiction?
When the defendants are jointly and severally liable.
When does a rejection terminate the offer?
When the offeree conveys to the offeror that he no longer intends to accept the offer; rejection effective on receipt.
Under what circumstances is silence an acceptance?
When the offeree has reason to believe offer could be accepted by silence or previous dealings made it reasonable to believe that offeree must notify offeror if he did not intend to accept.
Under what circumstances does a promise not to bring legal action constitute valid consideration?
When the party making the promise has an honest belief as to the validity of the claim and has a reasonable basis for that belief
When are prior restraints valid?
When the standard is narrowly drawn, reasonable, and definite, and prompt review of a restraint is available
What is the standard for determining whether a change in use to an easement is permissible?
Whether it is reasonably within the scope of the easement
If you have a race statute, who has priority?
Whoever records first.
Once the last pleading has been served, how many days does a party have to demand a jury trial?
Within 14 days after service of the last pleading on the issue that is sought to be tried by a jury.
When must a notice of removal be filed?
Within 30 days of receiving the complaint from the plaintiff.
What types of reproductions cannot be authenticated simply by the testimony of a witness claiming that they are accurate reproductions of the facts?
X-ray images, electrocardiograms, and similar items are physical representations of things that cannot otherwise be seen (i.e., the inner workings and functionality of a human body)
Are courts more likely to find that conduct is extreme and outrageous for purposes of an IIED claim when the victim is a member of a group with known heightened sensitivity (e.g., pregnant women)?
Yep.
Can the parties in a civil action stipulate to a jury of less than 6 people?
Yep.
May a court require a party to appear for a pretrial conference to consider possible settlement?
Yep.
May a judge take judicial notice on his own initiative?
Yep.
Does transferred intent apply to battery?
Yes
May a state court decline to enforce the judgment of a foreign country on public policy grounds?
Yes!
Does transferred intent apply in an action for trespass to chattels?
Yes, a person simply must have the intent to perform an act that interferes with the plaintiff's possession of her chattel.
Generally, is an implied covenant of marketable title part of a contract to sell real property and therefore merges into the deed?
Yes, absent contrary language.
Can promissory estoppel render an offer irrevocable?
Yes, an offer is irrevocable if the offeree reasonably and detrimentally relies on the offer
Is implied consent sufficient to serve as a defense to an intentional tort involving personal injury?
Yes, and it can be implied through custom/usage, emergency situations, and consensual combat/athletics.
Is a profit a prendre subject to a recording act?
Yes, because it is a property right.
Is a forum always constitutionally permitted to apply its own statute of limitations?
Yes, because traditionally, statutes of limitations were considered procedural.
Is a D liable for negligently putting a rescuer or the rescued in danger?
Yes, but comparative responsibility can apply if rescuer's efforts are unreasonable, and emergency professionals cannot recover if the injury stems from inherent risks in the job.
Is the self-defense available as a defense to an intentional tort when D uses deadly force?
Yes, but only if D had a reasonable belief that P would inflict serious bodily injury or death.
Does an unwed biological father have a substantive-due-process right to contact with the child?
Yes, but only if the father demonstrates a commitment to the responsibilities of parenthood.
May a court grant an ex parte divorce even when it does not have personal jurisdiction over one of the spouses?
Yes, but the court does not have jurisdiction to address property division, spousal support, or child support.
Is a posthumously born child presumed to be the child of a deceased husband?
Yes, if the child is born within 280 days of his death.
If a court lacks personal jurisdiction over a party, does the court have the authority to transfer the action to another district?
Yes, if the court finds that it is in the interest of justice.
If both parties are merchants, is a memorandum acknowledging an order sufficient to satisfy the Statute of Frauds even if it not signed by the party to be charged?
Yes, if the party to be charged has reason to know of its contents and does not object within 10 days.
Does a putative spouse qualify as a surviving spouse under the Uniform Probate Code?
Yes, if the spouse believes in god faith in the validity of the invaild marriage.
Must a release of an easement be in writing?
Yes, it must satisfy the Statute of Frauds.
When a federal agency or its employee (in his or her official capacity) is a defendant in a civil action, is it sufficient to serve the U.S. Attorney General and the U.S. attorney for the district in which the action is filed?
Yes, neither the agency nor its employee must be served.
Does transferred intent apply to trespass to chattels?
Yes, only intent to do the act (dispossess/use/intermeddle) is necessary.
Is an ex parte divorce entitled to full faith and credit?
Yes, so long as the court had subject matter jurisdiction and personal jurisdiction over one spouse.
Does a board member on a condominium association violate a duty of care if he does not disclose a benefit that he receives from another entity who may benefit from the board's decision?
Yes, such a member must act in good faith and deal fairly with the association and its members, and the receipt of an undisclosed benefit violates that duty.
Is physical evidence derived from a confession obtained in violation of Miranda admissible?
Yes, the United States Supreme Court has ruled that derivative physical evidence (e.g., a gun) that has been obtained as a result of a voluntary, uncoerced confession that itself is inadmissible due to the failure by police to give Miranda warnings is admissible.
Is the elimination of a lien on a piece of personal property covered by the Takings Clause?
Yes, the elimination of a property right is covered.
If an action involves both legal and equitable claims and there are common factual issues, must the claims be tried in any particular order?
Yes, the jury determines the legal claims first and the court subsequently determines the equitable claims.
Does a witness subpoenaed by Congress have the right to the presence of counsel?
Yes, under procedural due process.
Oliver sells Blackacre to Anna, who does not record. Later, Oliver sells Blackacre to Benny. Benny has no knowledge of the prior conveyance. Carter is interested in buying Blackacre from Benny, though Carter is aware of the prior transfer to Anna. Benny sells to Carter. The state is a "notice" state. Does Carter have good title?
Yes, under the "shelter rule."
Is an order denying a state's motion to dismiss based on Eleventh-Amendment immunity immediately appealable?
Yes, under the collateral-order doctrine, because the benefit of immunity would be lost if the claimant were wrongfully forced to go to trial.
Is expert testimony required to establish the standard of care for a professional?
Yes, unless the negligence is so obvious that it would be apparent to a layperson.
Does death of the offeror terminate the offer?
Yes, unless the offer is for an option L
Is defense of others a valid defense to an intentional tort?
Yes, when the actor had a reasonable belief that the defended party was entitled to use force, and the amount of force was reasonable, i.e. proportionate to anticipated harm.
Does injunctive relief count toward the amount-in-controversy requirement for diversity jurisdiction?
Yes, you may have to speculate as to the value of the injunction.
Are the same defenses available in both private- and public-nuisance actions?
Yes.
Can a landowner recover actual damages from a trespasser when that trespasser can successfully assert private necessity?
Yes.
Can assumption of risk serve as a defense to a strict liability action?
Yes.
Can extrinsic evidence be admitted to attack a witness's sensory competence?
Yes.
Can extrinsic evidence be admitted to impeach based on a prior inconsistent statement?
Yes.
Can stolen property taken from a thief constitute larceny?
Yes.
Can you impeach a hearsay declarant if the declarant does not testify?
Yes.
Do you count weekend days when determining whether a party has taken action within the permissible time period (Civ Pro)?
Yes.
Does a party need to seek leave of the court to immediately appeal an order certifying a class?
Yes.
Does the confidential-marital-communications privilege survive the end of the marriage?
Yes.
Does transferred intent apply in an action for trespass to land?
Yes.
If a defendant puts on a character witness, may the prosecutor cross-examine the witness using specific acts?
Yes.
If one cotenant ousts the other, can he bring a claim for adverse possession?
Yes.
If parties are not in a dispute at the time a settlement offer is made, is such an offer admissible?
Yes.
Is a plaintiff required to prove actual damages in an action for trespass to chattels?
Yes.
Is an adopted child treated like a biological child for inheritance purposes?
Yes.
Is consideration required in order for the settlement of a debt to be enforceable?
Yes.
Is either party in an action at law permitted to make a demand for a jury trial?
Yes.
May statements during settlement negotiations be used to prove the bias or prejudice of a witness?
Yes.
May the warranty of fitness for a particular purpose be disclaimed in general language?
Yes.
Must a party seek leave of the court to depose a witness before it has made its initial mandatory disclosures?
Yes.
Under a theory of alternative causation, when there are a small number of defendants, is a plaintiff required to prove that all of the defendants were negligent in order to shift the burden to the defendants to prove that they were not the cause of the plaintiff's harm?
Yes.
When a third property occupies property owned by cotenants, can the cotenant who collects rent from the third party subtract expenses for necessary repairs before sharing the rent with the other cotenants?
Yes.
When used as opinion or reputation evidence, does another witness's testimony qualify as extrinsic evidence?
Yes.
Is battery a general intent crime?
Yes. It includes not only intentional conduct but also criminal negligence.
For the burden of a covenant to run with the land, must the transferee receive the entire interest?
Yes. This is the vertical privity requirement.
Are rights of first refusal subject to the RAP?
Yup.
What transfers are exempt from a "due on sale" clause under federal law?
[Look this up]
While, in general, a co-conspirator is liable for any death that occurs in the course of a felony, if ________, the defendant is not guilty of felony murder.
a co-felon is killed by a police officer (or a victim) either in self-defense or to prevent escape
Freedom of association protects the right to form or participate in any group, gathering, club, or organization virtually without restriction, although the right is not absolute. An infringement upon this right may be justified by ________.
a compelling state interest, such as preventing discrimination
A plaintiff's consent to physical contact can be implied by silence in a situation in which a reasonable person would object to the defendant's actions, but even in an emergency situation, __________.
a competent and conscious person's right to refuse treatment must be respected
If a valid judgment is rendered by ______, and the parties _______, the judgment will receive the same effect in other states as it receives in the state where it was rendered.
a court that has jurisdiction over the parties receive proper notice of the action and have a reasonable opportunity to be heard
The warranty of quiet enjoyment is ________. It runs to _______.
a future covenant that is breached only upon interference with possession successive grantees, as well as to the original grantee
A bill of attainder is ________.
a legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial
A state may discriminate against out-of-state commerce if it is acting as __________.
a market participant (buyer or seller), as opposed to a market regulator
To recover for intentional misrepresentation, the plaintiff must establish:
a misrepresentation by the defendant, scienter, intent to induce the plaintiff's reliance, justifiable reliance by the plaintiff, and actual economic damages
Transferred intent exists when _______.
a person intends to commit an intentional tort against one person, but instead commits the intended tort against a different person
Evidence of a bad act is not admissible to prove ________.
a person's character in order to show that the person acted in accordance with that character on a particular occasion
Evidence of a bad act is not admissible to prove _________.
a person's character in order to show that the person acted in accordance with that character trait on a particular occasion
Government holiday displays will generally be upheld unless ________.
a reasonable observer would conclude that the display is an endorsement of religion
Unless a self-authenticating document is ________, the proponent of the document generally is not required to give an adverse party advance notice of the intent to introduce the document.
a regularly kept business record
A charitable trust is one with _______. In a charitable trust, the beneficiaries must be ________.
a stated charitable purpose made to benefit the community at large or a particular segment of the community reasonably numerous and unidentifiable
Life tenant may alter structures on the property (ameliorative waste) when _______.
a substantial and permanent change in the neighborhood makes it necessary in order to continue reasonable use of the property, so long as the property value is not diminished
Under what circumstances can a tenant withhold or deduct rent?
a) If landlord breaches the covenant of quiet enjoyment b) If the landlord violates the implied warranty of habitability (residential only)
If commercial speech is protected (e.g., not false, misleading, or unlawful), under what circumstances can it be regulated?
a) The government interest is substantial, b) The regulation directly advances the interest, and c) The regulation is narrowly tailored
Government can regulate speech in non-public government forums if:
a) The regulation is viewpoint-neutral, and b) Reasonably related to, c) A legitimate government interest
What are the requirements for issue preclusion?
a) same issue was actually litigated b) final valid judgment on the merits c) issue was essential to the judgment d) mutuality (fair for new plaintiff to assert same issue)
What are the requirements for claim preclusion?
a) same plaintiff and same defendant as lawsuit #1 b) lawsuit #1 ended in a valid final judgment c) claimant is asserting the same claim as in lawsuit #1
What are the elements of adverse possession?
a. Continuous b. Actual c. Open and Notorious d. Hostile e. Exclusive
A person who pays off a loan that is secured by a mortgage in order to protect her own interests ____________.
acquires the rights of the original mortgagee-lender and may therefore enforce the mortgage
Under the doctrine of ________, the transfer of property by a testator subsequent to the execution of a will removes the property from his estate and the devise of the property is adeemed.
ademption
The routine practice of an organization, such as a hospital, is _________ to prove that on a particular occasion the organization acted in accordance with that practice.
admissible
Under an accord agreement, one party to a contract _______. Generally, consideration is required for an accord to be valid. By compromising, each party ______. If a claim is subject to dispute, it can be discharged if _______.
agrees to accept different performance from the other party than what was promised in the existing contract surrenders its respective claim as to how much is owed the person against whom the claim is asserted in good faith tenders a negotiable instrument (e.g., a check) accompanied by a conspicuous statement indicating that the instrument was tendered as full satisfaction of the claim (e.g., "Payment in full"), and the claimant obtains payment of the instrument
In a majority of jurisdictions, a seller of a residence has a duty to disclose ___________. The defect must not be _________. To be material, the defect must __________.
all known material physical defects to the buyer readily observable or known to the buyer substantially affect the value of the residence, impact the health or safety of a resident, or affect the desirability of the residence to the buyer.
When state substantive law is determinative of the existence of a claim or defense under the Erie doctrine, state law ______ the effect of a presumption related to a claim or defense.
also governs
When an owner-mortgagor has a valid defense to the enforcement of the loan obligation, he _________ to enforcement of the mortgage.
also has a valid defense
Under the Fourth Amendment, officers must have ______ in order to stop an automobile.
an articulable, reasonable suspicion of a violation of the law
State regulation that discriminates against out-of-state commerce is only upheld if the state or local government can establish that _________.
an important local interest is being served and no other nondiscriminatory means are available to achieve that purpose
Involuntary manslaughter is _________.
an unintentional homicide committed with criminal negligence or during an unlawful act
A public nuisance is ______. However, a private citizen has a claim for public nuisance only if ______.
an unreasonable interference with a right common to the general public she suffers harm that is different in kind from that suffered by members of the general public
The state may conduct warrantless searches of businesses in highly regulated industries due to ________.
an urgent public interest
A bequest of a security (stocks) that was owned at the time the will was executed will include ________. A stock dividend is treated like a stock split instead of a cash dividend, so the beneficiary will also receive the stock dividends.
any additional shares of that stock or of another stock as long as the action was initiated by the corporate entity
When a hearsay statement has been admitted into evidence, the credibility of the declarant may be attacked by ________.
any evidence that would be admissible if the declarant had testified as a witness
When a hearsay statement is admitted into evidence, the credibility of the declarant may be attacked by _________.
any evidence that would be admissible if the declarant had testified as a witness
The devisee of real property is entitled under the doctrine of exoneration of liens to have __________.
any outstanding balance of a mortgage or other encumbrance on the property to be paid from the remaining assets of the testator's estate
A defaulting buyer is entitled to a refund of ______, and a penalty of _______.
any payments made on the contract less damages provable by the seller "twenty percent of the value of the total performance for which the buyer is obligated under the contract, or $500, whichever is smaller."
Trade usage is ________.
any practice or method of dealing in the particular business or industry that is practiced with such regularity so as to justify an expectation that it will be practiced in the instant case
For statutory interpleader, diversity jurisdiction is met if _______________________.
any two adverse claimants are citizens of different states
Interrogation refers not only to express questioning, but also to _________.
any words or actions that the police know or should know are likely to elicit an incriminating response
Under the Fourth Amendment, if a suspect makes an ambiguous statement regarding the right to counsel, the police ________.
are not required to end the interrogation or to ask questions to clarify whether the suspect wants to invoke the right
A party asserting a claim may join with it __________ as the party may have against the opposing party.
as many independent or alternative claims of whatever nature
A lay witness with personal knowledge of the claimed author's handwriting may testify as to whether the document is in that person's handwriting. The lay witness must not have _________.
become familiar with the handwriting for the purposes of litigation
If the income beneficiary of a trust disclaims her interest, then the trust principal _______. If the remainder is contingent upon a condition, the remainder _______.
becomes immediately distributable (accelerates) to the remainder beneficiaries of the trust if the remainder is vested will not accelerate
Traditionally, ________ are considered to be inherently dangerous felonies.
burglary, arson, robbery, rape and kidnapping
Is there is no surviving spouse or descendant, how is property distributed to ancestors and remote collaterals under the degree-of-relationship approach?
calculated by counting the number of relatives between the living taker and D using the closest common ancestor
Although the court may require the parties to file jury instructions at the close of evidence or at any earlier reasonable time, a party _______.
can file a request for jury instructions on issues that could not have reasonably been anticipated as of the earlier time set by the court for such requests
Repudiation may be retracted so long as the other party has not __________.
canceled the contract or materially changed position
If the purchase price reflects the assumption of the mortgage, the purchaser of a mortgaged property who assumes the mortgage ________.
cannot assert the defenses of the mortgagor-seller against the enforcement of the mortgage
Under the doctrine of merger, a buyer of property generally __________.
cannot sue on promises contained in the contract once closing has taken place
Testimony given under a grant of immunity is considered ________. A defendant's _______ statement, such as a confession produced by coercion, cannot be used ________.
coerced and involuntary involuntary either substantively or for impeachment purposes
Courts will generally extend _____ to foreign divorce judgments, as long as the requirements of domicile are met.
comity
The primary limitation on Congressional action with regard to the states is that Congress may not _______.
commandeer state legislatures to administer a federal regulatory program, either directly or by conscripting a state official
When a district court has diversity jurisdiction over a claim, the ___________ rule applies to determine whether the court can exercise supplemental jurisdiction over an additional claim. Although the additional claim is not required to ____________, the addition of the party bringing the claim cannot result in a violation of the requirement for complete diversity of citizenship.
common-nucleus-of-operative-facts satisfy the amount-in-controversy requirement
When only one party's performance of his contractual duty requires a period of time, that party must ___________, unless the language or circumstances indicate otherwise.
complete his performance before the other party is required to perform
A statement made by a party's agent or employee constitutes an opposing party's statement if it was made ____________.
concerning a matter within the scope of and during the course of the relationship
By statute, Congress has granted federal district courts ______ jurisdiction over all controversies over which _______, except for a controversy between two states.
concurrent original the Constitution granted the U.S. Supreme Court original jurisdiction
A statement of present intent, motive, or plan can be used to prove _________.
conduct in conformity with that state of mind
What test(s) are used to determine whether a product has a design defect?
consumer-expectation test -- plaintiff must prove that the product is dangerous beyond the expectation of an ordinary consumer risk-utility test -- plaintiff must prove that a reasonable alternative design that is economically feasible was available to defendant, and failure to use that design rendered the product unreasonably safe.
The trustee has powers granted expressly in the trust, and powers necessary to act as a reasonably prudent person in managing the trust, including the implied power to ______.
contract, sell, lease, or transfer the trust property
The accomplice is liable for any ________.
crimes that are the natural and probable consequence of the accomplice's conduct
Deadly force may be justified in self-defense only when it is reasonably necessary to prevent _____ or _______.
death or serious injury to prevent the commission of a serious felony involving a risk to human life
Using the risk-utility test, to prevail on a claim under a strict products liability design defect theory, a jury must __________. To succeed, a plaintiff must prove that _____________ was available to the defendant and the failure to use __________. _____________ must be economically feasible.
determine whether the risks posed by a product outweigh its benefits a reasonable alternative design that design has rendered the product not reasonably safe The reasonable alternative design
If a necessary party cannot be joined because of jurisdictional or venue concerns, then the court must _____. If the court determines that _________, the court must dismiss the case.
determine whether, in equity and good conscience, the action should proceed among the existing parties or be dismissed the party is indispensable
By itself, however, a disparate impact is not sufficient to trigger strict or intermediate scrutiny; proof of ______________ is required to show a violation of the Equal Protection Clause.
discriminatory motive or intent
A seller's shipment of nonconforming goods with a notice of accommodation _______________.
does not constitute an acceptance and breach, but rather a counteroffer, which the buyer is free to either accept or reject
If a defendant timely returns a waiver of service before being served with process, then the defendant _________.
does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after it was sent to a defendant outside a judicial district of the United States
When the goods are required to be delivered to a specific place (e.g., the buyer's place of business) and delivery is to be made by a third-party carrier (i.e., a destination contract), the risk of loss __________.
does not pass to the buyer until the goods are tendered to the buyer at the designated place
In an action filed under the Federal Tort Claims Act, venue is proper __________.
either in the judicial district where the plaintiff resides or in the judicial district where the act or omission occurred
A new promise to pay a debt after the statute of limitations has run is _______________.
enforceable without any new consideration
Under the doctrine of _________, equitable title to real property passes to the buyer upon entering the contract, even though the seller retains legal title. Most jurisdictions place the risk of loss between the contract and the closing on the buyer. However, if the seller has casualty insurance on the property, the seller must _________.
equitable conversion give the buyer credit in the amount of insurance proceeds against the purchase price
While a person is generally not liable for the criminal acts of another, and has no duty to prevent such acts, a person who places another in peril is under a duty to __________.
exercise reasonable care to prevent further harm by rendering care or aid
The use of reasonable force in the exercise of parental authority (i.e., discipline) by a parent or by a person in charge of a child is justified if ________.
exercised for the benefit of the minor child
The devisee of real property is entitled under the doctrine of _________ of liens to have any outstanding balance of a mortgage or other encumbrance on the property to be paid from the remaining assets of the testator's estate.
exoneration
When an expert's opinion is based on facts and data that are not admissible, the opinion itself may nevertheless be admissible if ________.
experts in the particular field would reasonably rely on those kinds of facts and data in forming an opinion on the subject
Negative easements prevent landowners from using their own land in particular ways, and they must be ______.
expressly created in a writing signed by the grantor to be valid
Although recording the deed raises the presumption of delivery, that presumption is rebuttable by ______.
facts indicating the grantor's contrary intent
To obtain a new trial, a party must demonstrate that a juror _______ on voir dire, and show that a proper response would have _______.
failed to answer honestly a material question provided a valid basis for a challenge for cause
When a contract fails to specify the assortment of goods, the duty to select the assortment _________. If the ______ fails to specify the assortment of goods, then _______.
falls on the buyer buyer the seller can treat the failure as a breach by failure to accept the contracted-for goods only if the buyer's failure materially impacts the seller's performance
Commercial speech is protected unless it is ______.
false, misleading, or unlawful
Under the Multiparty, Multiforum Trial Jurisdiction Act of 2002, when a civil action "arises ________," only one plaintiff need be of diverse citizenship from one defendant for a federal court to have diversity jurisdiction, provided a ________ and _______.
from a single accident, where at least 75 natural persons have died in the accident at a discrete location defendant resides in a state a substantial part of the accident took place in another state or other location
The federal government and its instrumentalities (such as a national bank) are immune from taxation by the states. States may, however, impose ________.
generally applicable indirect taxes so long as they do not unreasonably burden the federal government (e.g., state income taxes on federal employees)
The requirement that indirect federal taxes (i.e., duties, import and excise taxes) must be uniform throughout the United States has been interpreted to mean _________ only.
geographical uniformity The product or activity at issue must be identically taxed in every state in which it is found.
Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a court can make initial custody decisions if it is in the child's home state, and all other states must _______.
give full faith and credit to such decisions
While a state must give notice and hold a hearing prior to terminating welfare benefits, in cases of terminating disability benefits, the state must _______.
give prior notice, but only a post-termination evidentiary hearing
If a federal court with diversity jurisdiction over an action issues a judgment, a state court must _____.
give such judgment the same res judicata effect that the judgment would have been given by the courts of the state where the federal court was located
A mortgagor may waive the right to redeem after the mortgage has been executed in exchange for ______.
good and valuable consideration
If an attorney representing co-defendants makes a timely motion for appointment of separate counsel based on a potential conflict of interest, the trial judge must either _______. Failure of the judge to do so requires ________.
grant the motion or at least conduct a hearing to determine whether appointment of separate counsel is warranted under the circumstances automatic reversal of a subsequent conviction
Criminal negligence is _______.
grossly negligent action that puts another person at a significant risk of serious bodily injury or death
Although the perfect tender rule generally applies to a sale of goods, the seller has a right to cure a defective tender—even after the time for performance under the contract has elapsed—if the seller _______. In curing the defect, the seller must _______.
had reasonable grounds to believe that the buyer would accept the goods despite the nonconformity notify the buyer of its intent to do so and effect the cure within a reasonable time
A defendant in a criminal case who testifies as to a preliminary question, such as the voluntariness of the defendant's confession, _______ opened himself up to cross-examination on other issues in the case.
has not
When a jury is instructed to deliver both a general verdict and to answer special interrogatories, if the answers to the interrogatories are consistent with each other but not with the general verdict, the court ______. However, when the jury's answers to those interrogatories conflict with each other, the court ______.
has the option of approving a judgment that is consistent with the answers, notwithstanding the general verdict cannot enter a judgment and cannot approve the entry of the general verdict
While a prior, out-of-court statement of identification is often considered non-hearsay and can be admissible as substantive evidence, the witness who made the prior statement of identification must _________.
have testified at the present trial and have been subject to cross-examination concerning the identification for it to be admissible
A cotenant can generally collect expenses if ___________ unless _________, and ___________.
he paid more than his share (taxes, mortgage payments) he is the only one in physical possession of the property the value of his use is equal or outweighs the overpayment
A civil judgment, unlike a criminal judgment, constitutes __________. (Evidence)
hearsay that is not admissible under an exception to the hearsay rule
What are the elements of constructive eviction?
i) Landlord substantially interferes with the tenant's use and enjoyment of the land, ii) Tenant gives notice of the problem and reasonable time for the landlord to repair, but the landlord does not repair, and iii) Tenant vacates the premises in a reasonable amount of time
What are the three general arguments against the application of foreign law?
i) Procedural, rather than substantive; ii) Against public policy; or iii) A penal law
Restrictions on commercial speech are reviewed under a four-part test:
i) The commercial speech must concern lawful activity and be neither false nor misleading (fraudulent speech or speech which proposes an illegal transaction may be prohibited); ii) the asserted government interest must be substantial; iii) the regulation must directly advance the asserted interest; and iv) the regulation must be narrowly tailored to serve that interest.
What are the seven policy principles that guide choice-of-law decisions under the Second Restatement of Conflicts?
i) The needs of the interstate or international system ii) The relevant policies of the forum iii) Policies of interested states iv) Party expectations v) Policies underlying the substantive areas of law vi) Certainty, predictability, and uniformity vii) Ease of future application
False imprisonment results when a person acts:
i) intending to confine or restrain another to a bounded area; ii) those actions directly or indirectly result in such confinement; and iii) the other is conscious of the confinement or harmed by it.
Principal will be liable for torts committed by agent if:
i) principal-agent relationship exists and ii) tort was committed by agent within the scope of the relationship.
If a witness is unable to testify about a matter for which a record exists, that record is not excluded as hearsay if the party seeking to introduce the evidence can establish that:
i) the record is on a matter that the witness once knew about; ii) the record was made or adopted by the witness when the matter was fresh in the witness's memory; iii) the record accurately reflects the witness's knowledge; and iv) the witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand.
Under FRE 201, the court must take judicial notice of an adjudicative fact ________ and ________.
if a party so requests provides the court with the necessary information to do so
If the original claim is based on federal-question jurisdiction, then a nonfederal claim may be joined only ___________.
if diversity jurisdiction exists or if the two claims are part of the same case or controversy as the federal claim such that supplemental jurisdiction applies
When obligations are delegated, the delegator is not released from liability, and recovery can be had against the delegator __________, unless the other party to the contract agrees to _________.
if the delegate does not perform release that party and substitute a new one (a novation)
A prior inconsistent statement made under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition may be admissible to _____.
impeach the declarant's credibility and as substantive evidence
A confidential communication between a client and an attorney for the purpose of seeking legal advice or representation is privileged. However, the attorney-client privilege does not protect communications made to enable or aid _________.
in the commission of what the client knew or should have known was a crime or fraud
A landowner is not strictly liable for injuries inflicted by his animals against a trespasser, except for _______.
injuries inflicted by a vicious watchdog
Under the UCC, a contract is formed if the parties ______, and there is a _______. A sale-of-goods contract may be made in _________, even though the moment of its making is undetermined.
intend to contract reasonably certain basis for giving a remedy any manner sufficient to show agreement
A defendant is liable for ______ acting with extreme and outrageous conduct that causes the plaintiff severe emotional distress.
intentionally or recklessly
Extrinsic evidence ______ admissible to show that the witness is biased and may not be testifying truthfully is admissible.
is
Although the common law Rule Against Perpetuities applies to options to purchase real property, it does not apply to an option to purchase the property that _______.
is held by a current leasehold tenant
A statement contained in a medical treatise that has been established as a reliable authority by the testimony of another expert witness _____ excluded as hearsay if the statement is called to the expert's attention on cross-examination.
is not
Evidence of a settlement offer, including evidence of the acceptance of such an offer, ______ admissible for the purpose of establishing the validity of a claim or the amount of damages.
is not
Supplemental jurisdiction _____ available to join claims of a person seeking to intervene as of right in a case based exclusively on diversity jurisdiction.
is not
A tax by Congress will generally be upheld if ________, or if ________.
it has a reasonable relationship to revenue production
A tax by Congress will generally be upheld if ___________.
it has a reasonable relationship to revenue production
A state regulation that is not discriminatory may still be struck down as unconstitutional if ______ interstate commerce.
it imposes an undue burden on
Under the parol evidence rule, evidence that contradicts the writing is generally inadmissible, but evidence that supplements a contract that is partially integrated is admissible if ________.
it is consistent with the writing and does not contradict its terms
A statement made by a party to the current litigation is not hearsay if __________.
it is offered by an opposing party
In most states, a disclaimer is not effective unless ______.
it is reduced to writing within nine months after the future interest would become "indefeasibly vested"
Under the UPC, a writing intended to be integrated into a will need not exist at the time the will was executed if ______.
it only disposes of the T's personal property (in other words, the testator can write a will referencing another document and then create the document later)
A marriage (including a common law marriage) valid in one state will be valid in another state unless _________.
it violates a strong public policy of the other state
A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party. A statement made by a party's agent or employee constitutes an opposing party's statement if __________.
it was made concerning a matter within the scope of and during the course of the relationship (i.e., a vicarious admission)
The original document rule, which generally requires that the photograph be introduced or its unavailability be satisfactorily explained, does not require the production of the photograph where _______.
its contents are established by an admission, at a deposition, of the party against whom the evidence is offered
A defendant is not guilty as an accomplice when that person's action is _______.
itself an essential element of the crime
Programs that discriminate based on race, even if they favor racial or ethnic minorities, are subject to strict scrutiny; and for a governmental affirmative action program based on race to survive, the relevant governmental entity must show more than a history of societal discrimination. The government must ______.
itself be guilty of specific past discrimination against the group it is seeking to favor, and the remedy must be narrowly tailored to end that discrimination and eliminate its effects
Absent contrary language, every land sales contract contains an implied covenant of __________. Unless otherwise agreed, the seller is not required to ____________. In an installment land contract, _____________ until delivery occurs after all installment payments have been made.
marketable title deliver marketable title until the closing marketable title is not required to be given
In a ________ jurisdiction, the plaintiff is precluded from recovering if he is more at fault than the defendant.
modified (i.e., partial) comparative negligence
If a kidnapping occurs incident to another crime (e.g., robbery), then the movement must be ______.
more than is necessary for the commission of that crime in order for the perpetrator to be liable for both kidnapping and the separate offense
There is a right to a jury trial for offenses that carry an authorized sentence of _____.
more than six months, regardless of the actual penalty imposed
A defendant's past crimes or other wrongful acts are not admissible to show his criminal propensity, but they are admissible as circumstantial evidence of _________.
motive, intent, absence of mistake, identity, or common plan or scheme (MIMIC)
Although a defendant's crimes or other wrongful acts are not admissible to show his criminal propensity in order to prove that he committed the crime for which he is charged, such bad acts are admissible for another purpose, such as proving _______.
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident ("MIMIC")
A party is considered necessary if the party's absence would leave the existing parties subject to a substantial risk of _______.
multiple or inconsistent obligations
If the condemnation of a leased property is partial, meaning that only a portion of the leased property is condemned or the property is temporarily condemned, then the tenant _____.
must continue to make his rent payments
Issue preclusion requires that the party against whom the issue is to be precluded (or one in privity with that party) ______.
must have been a party to the first action
If a pleading contains an insufficient defense, a party ______ either before responding to the pleading or, if a responsive pleading is not permitted, within ____ days after being served with the pleading.
must move to strike the defense from the pleading 21
Restrictions on the right of the media to publish about matters of public concern and the right of the public to receive such information may only be restricted by governmental action that is ______.
narrowly tailored to further a compelling government interest (i.e., strict scrutiny analysis applies)
Restrictions on commercial speech are valid if the regulation is _________.
narrowly tailored to serve a substantial governmental interest
For a sale of goods, an acceptance that contains a modification to the terms in the offer is ____________.
nevertheless an acceptance
A public employee who may be discharged only for cause has a property interest in her job and therefore is entitled to __________.
notice of termination and a pre-termination opportunity to respond
What are some defenses to negligence per se?
o Compliance impossible or more dangerous than noncompliance o Violation reasonable under the circumstances o Statutory vagueness or ambiguity
At common law, false pretenses requires ______.
obtaining title to the property of another person through the reliance of that person on a known false representation of a material fact, and the representation is made with the intent to defraud
Although the prosecution generally may offer rebuttal evidence of the victim's good character only after the defendant has introduced evidence of the victim's bad character, the prosecution in a homicide case may ________.
offer evidence of a victim's peacefulness to rebut evidence that the victim was the first aggressor
A motion for relief from judgment under Rule 60(b) must be filed within a reasonable time and no later than _______ following the entry of the judgment.
one year
When there is a nonconforming tender or a tender of nonconforming goods under one segment of an installment contract, the buyer may cancel the contract _______________.
only if the nonconformity substantially impairs the value of the entire contract to the buyer
Life tenants have the obligation to pay all __________ to the extent that the property can produce income. If the property is not producing an income, the life tenant is responsible for ____________.
ordinary taxes on the land and interest on the mortgage the taxes and mortgage interest to the extent of the reasonable rental value of the land
A law that burdens substantially more speech than is necessary to protect a compelling governmental interest is _______ and therefore void. A statute's _______ must be ______ both in an absolute sense and relative to the statute's plainly legitimate reach.
overbroad overbreadth substantial
What are the characteristics of a tenancy at will?
parties must expressly agree, no fixed period of time, may be terminated by either party at any time
