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What is the four-part test for state taxation on interstate commerce?

1) Substantial nexus between activity being taxed and taxing state 2) Fair tax apportionment such that interstate commerce doesn't pay total taxes greater than local commerce 3) No local direct commercial advantage over interstate competitors (even if neutral on its face), and 4) Tax must be fairly related to services provided by taxing state

Under what circumstances may the acts of a private entity can be considered state action?

1) Sufficient mutual contacts between conduct of a private party and government such that the government is pervasively entwined with the entity, and 2) State must act affirmatively to facilitate, encourage, or authorize the activity (licensing or regulation of private party not enough), or 3) State creates a private entity by special law for governmental objectives and retains permanent control of the entity, or 4) Private entity carries on activities traditionally performed exclusively by the state.

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.

What is required to contest a will based on an insane delusion?

1) T held belief for which there is no factual or reasonable basis, but to which T adheres despite all reason and evidence to the contrary. 2) A rational person in T's situation could not have reached the same belief. 3) The delusion was the sole cause of the testamentary disposition.

What are the solemnization requirements for a ceremonial marriage?

1) The ceremony must be performed in front of two or more witnesses 2) A judge, political official, or member of the clergy must solemnize a marriage

If a child can inherit from an equitable adoptive parent, what is the effect?

1) The child can only inherit from (not through) the equitable adoptive parent 2) Equitable parents cannot inherit through or from the child 3) Inheritance rights between the child and the genetic parents is unaffected

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.

A court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is:

1) 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 2) Was the child's home state in the past six months, and the child is absent from the state, but a parent (or guardian) continues to live in the state

What requirements must be met to justify a no-fault divorce?

1) The marriage is irretrievably broken and there is no prospect of reconciliation 2) The irreconcilable differences must exist for a specific period of time prior to the filing of the divorce action

In order to prove that a K is void or voidable based on fraudulent misrepresentation, a party must prove:

1) The misrepresentation is fraudulent = knowing false assertion of fact + with intent to mislead; 2) The misrepresentation induced assent to the K; and 3) Justifiable reliance on the misrepresentation by the adversely affected party.

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.

What are the requirements for the application of issue preclusion?

1) The party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the earlier action 2) The issue must be the same as that involved in the prior action--same facts and legal principles 3) The issue must have been actually litigated in the prior action 4) Determination of the issue must have been essential to the judgment

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

In order to bring a rule 10b-5 action, a shareholder must meet the following requirements:

1) The plaintiff purchased or sold the security 2) Use of interstate commerce 3) The defendant's fraudulent/deceptive conduct—untrue statements of material fact, failure to prevent misleading statements, or insider trading 4) Materiality—a reasonable investor would find the fact important in deciding whether to purchase or sell a security 5) Scienter—the defendant must make the statement intentionally or recklessly o The plaintiff's justifiable reliance on the defendant's fraudulent conduct 6) Harm to the plaintiff

A party whose duty is subject to a condition can waive a nonmaterial condition by words or conduct; the condition may be reinstated if:

1) The waiving party communicates the retraction of the waiver before the condition is due, and 2) The other party has not suffered detrimental reliance.

A husband who is not the biological father of his wife's child may be estopped from denying his obligation to pay child support when:

1) There is a representation by the husband that he would provide for the child 2) The wife relied on his representation, and 3) The wife suffered an economic detriment as result of the reliance

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 tax consequences of equitable distribution?

1) Transfer of property between divorcing spouses is tax-free 2) Transferee's basis in property—same as transferor's basis

What are a nonbreaching party's options in the face of an anticipatory repudiation?

1) Treat repudiation as a breach; 2) Ignore repudiation and demand performance, but suspend any performance if it would increase breaching party's damages; or 3) If date of performance has not passed and the only performance left is payment, nonbreaching party must wait for actual breach before filing suit

Factors considered in determining compliance with the prudent-investor rule include:

1) Trust's distribution requirements 2) General economic conditions 3) Investment in relation to the trust's overall investment portfolio 4) Trust's need for liquidity, income regularity, and preservation or appreciation of capital

A party generally cannot bring a claim based on third-party standing, except when:

1) When 3rd party unable to assert his own rights; 2) If there is a special relationship between P and 3rd party; or 3) P's injury adversely affects the P's relationship with 3rd party.

Under the Uniform Probate Code, when does the surviving spouse take the entire estate of an intestate decedent?

1) When all decedent's descendants are also descendants of the surviving spouse, and the surviving spouse has no other descendants, or 2) Decedent has a surviving spouse, but no descendants or parents

In order to determine whether it is proper to piece the corporate veil, a court must determine whether, under the totality of circumstances:

1) Whether C is being used as a façade or alter ego for a dominant SH's personal dealings, 2) Whether there is unity of interest and ownership between the C and its members

What factors are considered in determining what custody arrangement is in the best interests of the child?

1) Who the primary caretaker was during the marriage, separation, and prior to the divorce 2) Race, religion 3) Parents' sexual conduct (if it has or will have a negative impact on the child) 4) Child's preference 5) Placement of siblings 6) Domestic violence (in some states, rebuttable presumption against placement with the abusive spouse)

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

What is required for a writing to be incorporated into a will by reference?

1) Writing existed at the time of execution of the will 2) Is intended to be incorporated, and 3) Is described in the will with sufficient certainty to permit identification

What are the required formalities for a valid will?

1) Writing signed by the testator (T) 2) Two or more witnesses 3) T has present testamentary intent

What is required to form a valid will contract?

1) Writing stating the contract's material provisions (either in a written contract or the will expressly references a contract and extrinsic evidence proves its terms) 2) Consideration -- e.g., promise to care for testator 3) Signed by the party to be charged; no remedy for breach while T is alive

In order for a contractual obligation to be discharged by frustration of purpose, there must be:

1) an unexpected event that occurs, 2) the nonoccurrence of the event was a basic assumption of the contract, 3) the event occurred without the fault of the frustrated party and 4) the event destroys that party's purpose in entering into the contract

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

What rights does an agent have in the principal-agent relationship?

1) compensation, 2) not have P interfere, 3) indemnification & reimbursement, 4) safe work environment, and 5) contract or tort remedies

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?

What is the order of abatement for intestacy purposes?

1) intestate property 2) residuary bequests 3) general bequests 4) specific bequests (Note: a demonstrative gift is treated as a specific bequest; if it cannot, then it is treated as a general bequest)

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.

When is a resulting trust imposed?

1) purchase-money resulting trust, 2) failure of express trust, or 3) incomplete disposition of trust assets due to excess corpus

In order for a principal's ratification of an agent's act to be effective, the principal must:

1) ratify the entire act/transaction, 2) have legal capacity, 3) ratify in a timely fashion, and 4) have knowledge of the material facts involved in the original act

Under the UCC, when a K for the sale of goods is at least $500, the memo must indicate:

1) that K has been made, 2) identify parties, 3) contain a quantity term, and 4) be signed by the party to be charged

A controlling shareholder has a fiduciary duty to minority shareholders when:

1) the controlling SH is selling interest to an outsider, 2) seeking to eliminate other shareholders from the C, or 3) receiving a distribution denied to other shareholders

"Malice aforethought" includes:

1) the intent to kill, 2) the intent to inflict serious bodily injury, 3) reckless indifference to an unjustifiably high risk to human life (depraved heart), or 4) the intent to commit certain felonies (felony murder).

A temporary restraining order (TRO) may be issued without notice to the adverse party if:

1) the moving party establishes that immediate and irreparable injury will result prior to hearing the adverse party's opposition, and 2) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required

Nonmarital children can become marital children when:

1) the parents marry after the child's birth, 2) the father consents to being named on the birth certificate, the father acknowledges that he is the child's father, or 3) a judicial decree establishes paternity

A presumption of undue influence arises when _______, when he _______, and when ______.

1) the principal beneficiary under a will stands in a confidential relationship to the testator (such as the testator's attorney or physician) 2) participated in executing the will 3) the gift to the beneficiary is unnatural or consists of the majority of the estate

In order for a private restriction on the sale of a security to be enforceable:

1) the security must be certified; 2) the restriction must be conspicuously noted on the security certificate; and 3) the person must have knowledge of the restriction

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)

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 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

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.

How many depositions do you get without having to seek leave of court?

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.

A special shareholder meeting may be called by the board of directors or shareholders who own at least ___ of voting shares.

10%

Under the Class Action Fairness Act (CAFA), the class must have at least ____ members.

100

How do you know if you have a notice statute?

"In good faith"; "without notice"

Voting shareholders must be notified of time/date/place in a timely manner no less than ____ days and no more than ____ days before a special meeting. A shareholder may waive notice either ____ or ____.

10; 60; in writing; by attending the meeting

Article III, Section 2 of the Constitution gives the Supreme Court "original jurisdiction" (i.e., the case may be filed first in the Supreme Court) over _____. Congress may not expand or limit this jurisdiction.

"all cases affecting ambassadors, other public ministers and consuls and those in which a State shall be a party"

When a cause of action does not arise out of or relate to the defendant's contacts with the forum, jurisdiction is warranted only when the defendant is ____ in the forum state.

"at home"

In an installment contract, the right to reject goods is determined by a ____. The buyer can only reject if ____.

"substantial conformity" standard; nonconformity substantially impairs value to buyer and cannot be cured

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"

The Uniform Statutory Rule Against Perpetuities takes a ____ approach with respect to the applicability of the Rule Against Perpetuities. Under this approach, an otherwise invalid interest is valid if ____.

"wait and see"; it does in fact vest within 90 years of its creation

For a statutory interpleader action, the amount in controversy need only exceed ____.

$500

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

To prove intentional interference with a contract, the competitor must prove that:

(1) a valid contract existed between the competitor and the manufacturer, (2) the company knew of the contractual relationship, (3) the company intentionally interfered with the contract, causing a breach, and (4) the breach caused damages to the competitor.

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 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.

Under the "attractive nuisance" doctrine, a land possessor may be liable for injuries to children trespassing on the land if:

(i) an artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass, (ii) the land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children, (iii) the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition, (iv) the utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children, and (v) the land possessor fails to exercise reasonable care to protect children from the harm.

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.

A class remains open and may admit new members until:

(i) at least one class member is entitled to obtain possession of the gift, or (ii) the named person dies.

A consumer buyer is a person who:

(i) buys consumer goods for value; (ii) for his own personal, family, or household use; (iii) from a consumer seller; and (iv) without knowledge of the security interest.

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.

The government may impose reasonable restrictions on the time, place, and manner of protected speech in a public forum, such as a public sidewalk, provided the restrictions are:

(i) content neutral as to both subject matter and viewpoint, (ii) narrowly tailored to serve a significant government interest, and (iii) leave open alternate channels for communication of the information

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

In the winding up process, an LLC must:

(i) discharge the LLC's debts, obligations, or other liabilities; and (ii) settle and close the LLC's activities, and marshal and distribute the LLC's assets; It may also perform acts necessary or appropriate to the winding up.

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 plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the defendant in harm's way if the plaintiff demonstrates that:

(i) he was within the "zone of danger" of the threatened physical impact—that he feared for his own safety because of the defendant's negligence; and (ii) the threat of physical impact caused emotional distress.

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.

Pretermitted heir statutes permit children of a testator under certain circumstances to claim a share of the estate even though they were omitted from the testator's will. An omitted child statute does not apply if:

(i) it appears that the omission of the child was intentional; (ii) the testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child; or (iii) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will.

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.

Under the mere-instrumentality test, a plaintiff may pierce the veil of an LLC if:

(i) members dominated the entity such that the LLC had no will of its own, (ii) members used that domination to commit a fraud or wrong, and (iii) the control and wrongful action proximately caused an injury

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 district court has discretion to decline to exercise supplemental jurisdiction:

(i) over claims that raise new or complex state law issues or that substantially predominate over claims within original federal jurisdiction; (ii) when the claims within the court's original jurisdiction are dismissed; or (iii) if there are other compelling reasons for declining jurisdiction in exceptional circumstances.

Federal Rule of Civil Procedure 4 provides that service may be made by:

(i) personally serving the summons and complaint on the defendant; (ii) leaving the summons and complaint at the defendant's usual place of abode with a person of suitable age and discretion who resides there; or (iii) delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service.

A criminal defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged, but that evidence must be:

(i) pertinent to the crime charged and (ii) in the form of reputation or opinion testimony.

To legally withdraw (and therefore avoid liability for the substantive crime), an accomplice must:

(i) repudiate prior aid, (ii) do all that is possible to countermand prior assistance, and (iii) do so before the chain of events is in motion and unstoppable.

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

A witness's prior out-of-court identification of a person after perceiving that person is not hearsay and is admissible as substantive evidence if the witness ____.

(i) testifies at the present trial or hearing, and (ii) is subject to cross-examination

A federal court will not rule on a matter in controversy if it is a political question, meaning ____.

(i) the Constitution has assigned final decision-making on this subject to a different branch of government, and (ii) the matter is inherently not one the judiciary can decide.

A PMSI in inventory or livestock prevails over all other security interests in the same collateral, even if they were previously perfected, if:

(i) the PMSI is perfected by the time the debtor receives possession of the collateral; and (ii) the purchase-money secured party sends an authenticated notification of the PMSI to the holder of any conflicting security interest before the debtor receives possession of the collateral.

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

Under the traditional standard for res ipsa loquitur, the plaintiff must prove that:

A defendant can successfully challenge a facially valid warrant only when the defendant can establish, by a preponderance of the evidence, that:

(i) the affidavit contained false statements that were made by the affiant knowingly, intentionally, or with a reckless disregard for their truth; and (ii) the false statements were necessary to the finding of probable cause.

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.

For contracts for the sale of goods, a defaulting buyer is entitled to a refund of any payments made on the contract less damages provable by the seller and either:

(i) the amount to which the seller is entitled by virtue of an enforceable liquidated-damages provision or (ii) a penalty of "20 percent of the value of the total performance for which the buyer is obligated under the contract, or $500, whichever is smaller."

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.

Most jurisdictions provide that an out-of-wedlock child can inherit from his natural father if:

(i) the father subsequently married the natural mother, (ii) the father held the child out as his own and either received the child into his home or provided support, (iii) paternity was proven by clear and convincing evidence after the father's death, or (iv) paternity was adjudicated during the lifetime of the father by a preponderance of the evidence.

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.

In general, absent an agreement to the contrary, a tenant may 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.

Courts rely on various theories to pierce the corporate veil, including the "mere instrumentality" test, wherein a person would have to show that:

(i) the members dominated the entity in such a way that the LLC had no will of its own, (ii) the members used that domination to commit a fraud or wrong, and (iii) the control and wrongful action proximately caused the injury.

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.

A novation may be express or implied after delegation if:

(i) the original obligor repudiates liability to the original promisee; and (ii) the obligee subsequently accepts performance of the original agreement from the delagatee without reserving rights against the obligor.

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.

To prevail on a claim for strict products liability based on a manufacturing defect, the plaintiff must prove that:

(i) the product was defective, (ii) the defect existed at the time the product left the defendant's control, and (iii) the defect caused the plaintiff's injury when used in an intended or reasonably foreseeable way.

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.

A record of an event or condition is not excluded as hearsay if:

(i) the record was kept in the course of a regularly conducted activity of a business, (ii) the making of the record was a regular practice of that activity, and (iii) the record was made at or near the time by someone with knowledge.

A party to a contract whose duty is subject to a condition can waive the condition, either by words or by conduct. In addition, that party may reinstate the condition if:

(i) the waiving party communicates a retraction of the waiver before the condition is due to occur, and (ii) the other party has not already suffered detrimental reliance.

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

Under the UPAA, a premarital agreement is enforceable if ____. The agreement must be in writing and signed by the party to be charged.

(i) there has been full disclosure, (ii) the agreement is fair and reasonable, and (iii) the agreement is voluntary

A promoter is personally liable for knowingly acting on behalf of a corporation (C) before incorporation, and remains liable after C comes into existence unless:

(i) there is a subsequent novation releasing the promoter from liability, (ii) the third party looks only to C for performance, or (iii) the promoter had no actual knowledge that the corporation's charter has not yet been issued

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.

An implied reciprocal servitude must meet the following requirements to be enforceable:

(i) there must be intent to create a servitude on all real property interests (i.e., a common scheme); (ii) the servitude must be negative (i.e., a promise to refrain from doing something); and (iii) the party against whom enforcement of the servitude is sought must have actual, record, or inquiry notice.

What are the requirements for a security interest to attach to collateral?

(i) value given by the secured party; (ii) the debtor has rights in the collateral; and (iii) the debtor has authenticated a security agreement that describes the collateral, or the secured party has possession or control of the collateral

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

Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the defendant's negligent conduct in the absence of direct evidence of such negligence. To permit this inference, the plaintiff must prove that the accident:

(i) was of the kind that ordinarily does not occur in the absence of negligence, (ii) was caused by an agent or instrumentality within the exclusive control of the defendant, and (iii) was not due to any action on the part of the plaintiff.

How do you know if you have a race statute?

"First to record"; "first recorded"

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

Even if an intrastate activity has no direct economic impact, Congress can regulate as long as there is:

1) A rational basis for concluding 2) That the "total incidence" of activity in the aggregate 3) Substantially affects interstate commerce

Under what circumstances may a child inherit from a foster parent or stepparent (non-adoptive)?

1) A relationship started during the child's minority and establish by clear and convincing evidence that a legal barrier prevented adoption, or 2) A foster parent agreed with the genetic parents to adopt the child and foster parent treated the child as his own

A PMSI in goods exists when:

1) A secured party gave value to the debtor and the debtor used the value to incur an obligation that enabled the debtor to acquire goods; or 2) A secured party sold goods to the debtor, and the debtor incurred an obligation to pay the secured party all or part of the purchase price

Under what circumstances may a principal be directly liable to third parties?

1) A's actual authority or P's ratification 2) Negligence in selecting, supervising, or controlling A 3) Non-delegable duties

What is the priority of creditor's claims in probate?

1) Administrative expenses 2) Last medical expenses and funeral expenses 3) Family allowance 4) Tax claims 5) Secured claims 6) Judgments against D 7) All other claims

What are grounds for a fault-based divorce?

1) Adultery 2) Cruelty 3) Desertion 4) Habitual drunkenness 5) Bigamy 6) Imprisonment 7) Institutionalization for insanity

A surrogacy agreement is enforceable when:

1) All parties enter into the agreement voluntarily, 2) Parents agree to be parents of resulting child, 3) Agreement makes provision for proper medical care, 4) Agreement may not limit the right of the gestational mother to make healthcare decisions, 5) Consideration must be reasonable, 6) Agreement may be terminated for cause, 7) Agreement is approved by a court

If offer and purported acceptance differ too much to create a contract but the parties begin to perform anyway, then UCC allows for a contract to be recognized with the following terms:

1) Any terms actually agreed upon in the parties' writings, and 2) Any supplementary terms filled in by the UCC

What is required to form an agency relationship?

1) Assent - both A and P manifest assent 2) Benefit - A acts on P's behalf 3) Control - A's actions are subject to P's control

Under what circumstances does a person have an affirmative duty to act?

1) Assumption of duty 2) Placing another in peril 3) By contract 4) By authority 5) By relationship (e.g., employer-employee, parent-child, common carrier-passenger)

What does is mean for at testator to have capacity at the time of executing a will?

1) At least 18 yo and of sound mine, and 2) Knows a) Nature and extent of her property b) Persons are the natural object of T's bounty c) Disposition she is trying to make, and d) Testamentary plan

What requirements must be met to file to form a corporation?

1) Authorized shares (number, class, and series) 2) Purpose 3) Agent & address of registered documents 4) Incorporators - names and addresses 5) Name of corp, with some indicia of corporation status

Evidence to establish paternity includes:

1) Blood tests ordered by the court 2) Prior statements regarding paternity by deceased family members 3) Medical testimony on the probability or improbability of conception 4) Defendant's acknowledgment of paternity

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

What transactions by a trustee are prohibited?

1) Buying or selling trust assets, 2) Selling property between trusts that the trustee manages, 3) Borrowing from or making loans to the trust, 4) Using trust assets to secure a personal loan, 5) Engaging in prohibited transactions with friends or relatives, or 6) Otherwise acting for personal gain through the trustee position

Shareholders can pursue involuntary dissolution if:

1) C's assets are being misapplied/wasted, 2) Ds are acting illegally/oppressively/fraudulently, 3) SHs are unable to break Ds deadlock causing irreparable injury, or 4) if the SHs are deadlocked and fail to elect successor Ds

What are some defenses to negligence per se?

1) Compliance impossible or more dangerous than noncompliance 2) Violation reasonable under the circumstances 3) Statutory vagueness or ambiguity

What must the articles of incorporation include?

1) Corporate name 2) Statement of C's legal purpose 3) May enumerate powers or limit C's duration

In order to overcome the application of the business-judgment rule, it must be shown that:

1) D did not act in good faith; 2) D was not informed to the extent he reasonably believed was necessary; 3) D had material interests in challenged conduct and was not objective; 4) D failed to devote attention to C's affairs; 5) D failed to timely investigate matters of material concern; or 6) D received financial benefits to which he was not entitled

When there is no SS or descendant, how is an estate distributed to ancestors and remote collaterals using the UPC approach?

1) D's parents equally if both survive or all to the surviving parent if only one survives 2) Then to descendants of D's parents 3) Then to D's living maternal/paternal grandparents 4) Then to descendants of D's deceased grandparents 5) Then to D's nearest maternal/paternal relative 6) Finally D's estate escheats to state

What duties does a principal have to the agent?

1) Deal fairly and in good faith per the contract terms, including providing A with notice of risks of physical or financial harm of which A is not aware 2) Compensation (if agreed to) 3) Duty not to interfere with completion of A's work 4) Duty to indemnify against pecuniary loss suffered in connection with agency relationship and within scope of A's actual authority

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

The rights of an intended beneficiary vest when beneficiary:

1) Detrimentally relies on rights created, 2) Manifests assent to K at one of the party's request, or 3) Files lawsuit to enforce K

What factors does a court consider when determining whether damages are adequate?

1) Difficulty of proving damages with reasonable certainty 2) Hardship to D 3) Balance of the equities 4) Practicality of enforcement 5) Mutuality of agreement

What are the safe harbors available to prevent a self-dealing transaction from violating a director's duty of loyalty?

1) Disclosure of all material facts and majority approval by BD or SHs without a conflicting interest 2) Fairness (substantive and procedural) of the transaction to C at the time of commencement

What order of priority do various types of evidence have in interpreting a contract covered by the UCC?

1) Express terms 2) Course of performance 3) Course of dealing 4) Trade usage

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 is the difference between a frolic and a detour?

1) Frolic—the employee's personal errand involving a significant deviation from performing work is outside S/E 2) Detour—travel for a personal errand may be within S/E if it is merely a detour

A premarital agreements is enforceable if:

1) Full disclosure of financial status of each party at the time of execution 2) Agreement is fair and reasonable, and 3) Agreement is voluntary (must be in writing and signed by the party to be charged)

What are the required elements for the formation of a trust?

1) Grantor / settlor 2) Intent to create a trust 3) Trustee 4) Ascertainable beneficiary 5) Trust assets

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 are the elements of false imprisonment?

1) Intent to confine or restrain another w/in boundaries; purposeful act or knowing confinement is substantially certain to result 2) Confinement = physical barriers or force, threats, invalid use of legal authority, duress, failure to provide means of escape; time in confinement is immaterial except as to amount of damages 3) Victim is conscious of confinement or harmed by it; actual damages necessary only if P was unaware of confinement

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?

To be considered a precatory trust, the transfer must meet two requirements:

1) It must contain specific instructions to a fiduciary. 2) It must be shown that, absent imposition of a trust, there would be an unnatural disposition of the donor's property because of familial relations or a history of support between the donor and the intended beneficiary.

An adversely affected party can generally void a contract based on mutual mistake if:

1) Mistake existed when K was formed 2) Mistake relates to basic assumption of K 3) Mistake has material impact on transaction, and 4) Adversely affected party did not assume the risk of mistake

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.

What are the requirements for the issuance of a marriage license?

1) Need capacity to marry—minimum age restrictions; parental consent for young 2) Waiting period between date of marriage and date of ceremony 3) Medical testing—state can mandate testing, but cannot condition a license on the results 4) Expiration date—most states impose an expiration date on a marriage license

A court can enter or modify a child-custody order if:

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 about the child's care, protection, training, and personal relationships

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 performing under a unilateral K, when the offeree is required to give notice and fails to do so, 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

In performing under 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

Under what circumstances will a marriage license not issue?

1) One party is married to someone else 2) The parties are too closely related 3) The marriage is a "sham" 4) The parties are incapable of understanding the nature of the act 5) One or both parties is under the influence of drugs or alcohol 6) A party lacks consent due to duress or fraud

How is express actual authority for an agent created?

1) Oral or written words; clear, direct and definite language; or specific, detailed terms and instructions 2) Intent—P's manifestation must cause A to believe that A is doing what P wants (subjective standard) and A's belief must be reasonable (objective standard) 3) Dissent—P must give clear notice if P disagrees with A's actions

A liquidated-damages clause if enforceable if:

1) Parties intended to agree in advance to damages that might arise from breach 2) Stipulated amount was reasonable at time of K, bearing some relation to damages that might be sustained, and 3) Actual damages would be uncertain in amount and difficult to prove

In order for apparent authority to be established, a third party may rely upon:

1) Past dealings between P and A 2) Trade customs 3) Relevant industry standards 4) P's written statements of authority 5) Transactions that do not benefit P 6) Extraordinary transactions for P

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

If a plaintiff confers benefit on a defendant and the plaintiff has reasonable expectation of compensation, the may court imply an enforceable K to prevent unjust enrichment if:

1) Plaintiff conferred measurable benefit on defendant, 2) Plaintiff acted without gratuitous intent, and 3) Unfair to let defendant retain benefit

What circumstances render a marriage void?

1) Prior existing marriage 2) Incest 3) Mental incapacity

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

Under a promissory estoppel theory, a promise is binding if:

1) Promisor should reasonably expect it to induce action on the part of the promisee or a third person 2) Promise does induce such action, and 3) Injustice only avoided by enforcement of promise

In order to forestall liability for illegal or improper action taken by a board of directors at a meeting at which the director is present, the director must:

1) Promptly object to the holding of the meeting; 2) Ensure that his dissent or abstention from the specific action is noted in the minutes of the meeting; or 3) Not vote in favor of the action and deliver written notice of his dissent to the presiding officer of the meeting before its adjournment or to the corporation immediately afterword.

What types of property are considered nonmarital property?

1) Property acquired before the marriage 2) Property excluded by the parties' valid agreement 3) Property acquired by gift or inheritance (except for gifts between spouses) 4) Any award or settlement payment received for a cause of action or claim that accrued before the marriage, regardless of when the payment was received

What are the principal duties of a personal representative (executor = named in will; administrator = appointed by court)?

1) Provide notice to legatees, heirs, and claimants 2) Inventory, collect, and manage D's assets 3) Receive and pay claims of creditors and tax collectors 4) Distribute remaining assets

What are the elements of a rule 16(b) action?

1) Publicly traded Cs—must have securities traded on a national securities exchange or have assets of more than $10 million and more than 500 SHs 2) Corporate insiders—Ds, Os, or SHs with more than 10% of stock 3) Short-swing profits—a corporate insider both bought and sold C's stock during any six-month period 4) SEC report of change in stock ownership

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"

The parol evidence rule does not apply to communications occurring after the execution of a written K and when parties are:

1) Raising a defense to formation 2) Raising a defense to enforcement 3) Proving condition precedent to existence of K 4) Interpreting/clarifying ambiguity in K 5) UCC - supplementing even apparently unambiguous terms by evidence of trade usage or course of dealing

What is required to prove that a contract was induced by unfair persuasion?

1) Relationship between dominant party and dependent party due to lack of expertise or experience, or diminished mental capacity 2) Persuasion of one party seriously impairs the free and competent judgment of other party

Under the common law, agreements to modify a contract are enforceable if:

1) Rescission of existing K and entering into of new K 2) Unforeseen difficulties arise and one party agrees to compensate other party for them, or 3) New obligations arise on both sides

What are the available will substitutes?

1) Revocable trusts 2) Pour over wills 3) Bank accounts and securities registered in beneficiary form 4) Payable-on-death clause in contract 5) Life insurance 6) Deeds 7) Totten trusts

What rights does a principal have in a principal-agent relationship?

1) Right to control A 2) Right for A to act consistently with his duty of care--e.g., follow P's instructions and perform duties, tasks, and transactions with reasonable care, diligence, and judgment 3) Right to A to adhere to duty of loyalty and obedience 4) Notice & accounting from A

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 writing evidencing a K for the sale of goods over $500 is not required under the UCC when:

1) Specially manufactured goods; 2) Part payment; 3) Receipt and acceptance; 4) Judicial admission; or 5) Failure to object to memo within 10 days (if both parties are merchants)

A prospective adoptee must consent to his adoption if he is over ____ years of age.

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.

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 demand for a jury trial must be served within ____ days after service of ____.

14; the last pleading directed to the issue that is sought to be tried by a jury

If the secured party has a PMSI that is perfected before or within ___ days after the debtor ____, then the security interest takes priority over the rights of a creditor that ____. A secured party with a PMSI will prevail over any creditor that obtains a lien within that ____ period.

20; receives possession of the collateral; arose between the time the security interest attached and the time of filing; 20-day

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.

If no responsive pleading is required, a party may amend a pleading once as of right within ____ days. If a responsive pleading is required, the party may amend within ____ days of service of the responsive pleading or within ____ days of being served with a motion to dismiss under Rule 12(b), whichever is earlier.

21; 21; 21

The movant may file a renewed motion for judgment as a matter of law no later than ____ days after the entry of judgment.

Under Rule 26(a)(3)(B), pretrial disclosures must be made at least ____ days before trial. Pretrial disclosures include the name and, if not previously provided, the address and telephone number of each witness, separately identifying those ____ and those ____.

30; a party expects to present; it may call if the need arises

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.

Wrongful dissociation creates a possibility of dissolution, if, within ____ days of dissociation, a majority of the remaining partners express a will to ____. If dissolution results, the dissociated partner is not entitled to any payout until the end of the original term unless the partner can prove to the court that ____.

90; wind up the business; earlier payment would not cause undue hardship to the business

If both parties believe that they are agreeing to the same material terms, but they in fact agree to different terms, and one party is aware of the misunderstanding, what occurs?

A K is formed based upon the meaning of the material term as understood by the unknowing party.

What rights does a beneficiary have with respect to alienation?

A beneficiary's equitable interest in trust property is freely alienable unless a statute or trust instrument limits this right.

What is a shareholder voting pool?

A binding voting agreement under which SHs retain legal ownership; does not need to be filed with the C; no time limit.

What is the income-share model for calculating child support?

A child should receive the same proportion of parental income as if the parties continued to live together (most states)

What is a forfeiture clause?

A clause in a will designed to deter a beneficiary from suing over his share by causing him to lose his share entirely if he does so.

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 is the Redline doctrine?

A defendant is generally not guilty of felony murder when a victim or a police officer, acting in self-defense or trying to prevent the escape of the defendant or his co-felon, kills the co-felon.

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.

Under the UCC, when one or both parties are not merchants, what effect does an acceptance containing additional or different terms have?

A definite and seasonable expression of acceptance or written confirmation that is sent within a reasonable time is acceptance, except when acceptance is expressly conditioned on assent to new/different terms (then it's treated as proposed additions to the K that must be separately accepted by offeror).

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 is a Totten trust?

A designation given to a bank account in a depositor's name as trustee for a named beneficiary (no separation of legal and equitable title); can be revoked by any lifetime act manifesting the depositor's intent to revoke, or by will.

What type of contract is denoted by "F.O.B. buyer's place of business"?

A destination contract

What is cy pres?

A doctrine through which 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 must a plaintiff show to prove a failure to warn in a strict products liability action?

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 lump sum spousal support award?

A fixed amount; cannot be modified.

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.

What is the result of a residuary lapse under common law?

A lapsed residuary interest passes by intestacy ("no residue of a residue")

What is the result of a residuary lapse under the UPC?

A lapsed residuary interests passes to the remaining residuary beneficiaries

What constitutes a quorum for purposes of a shareholder meeting?

A majority of the votes entitled to be case on a matter.

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

When does a party bear the risk of a mistake when entering into a contract?

A party may bear the risk of a mistake when she is aware at the time of the contract that she has only limited knowledge of the facts to which the mistake relates, is aware that she has limited knowledge, and accepts her limited knowledge as sufficient.

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.

Who is a trustee?

A person who holds legal interest or title to trust property

What is the slayer rule?

A person who intentionally and feloniously kills a decedent cannot take under the decedent's will (including assisted suicide). Slayer is treated as if she predeceased the decedent.

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 pour-over trust?

A provision in a will that directs the distribution of property to a trust upon the happening of an event, even if the trust instrument was not executed in accordance with the Statute of Wills, as long as the trust is identified in the will and its terms are set forth in a written instrument.

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).

Who can prevent a corporation from engaging in ultra vires activity if it is equitable to do so?

A shareholder can file suit to enjoin the C's ultra vires action; C can take action against a director (D), officer (O), or employee who engaged in the action, or the state can initiate a proceeding

What type of contract is denoted by "F.O.B. seller's place of business"?

A shipment contract

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 joint will?

A single instrument that serves as the will of more than one person.

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).

Who qualifies as an omitted spouse?

A spouse who married T after T's will was executed and who is not a beneficiary in the will

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 standard for modifying a child-support award?

A substantial change in circumstances regarding the child's needs or the parents' financial situation.

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 a discretionary trust?

A trust in which the trustee is given complete discretion regarding whether or not to apply payments of income or principal to the beneficiary.

What is a support trust?

A trust that directs the trustee to pay income or principal as necessary to support the trust beneficiary.

What is a constructive trust?

A trust that is used to prevent unjust enrichment if the settlor causes fraud, duress, undue influence, breach of duty, or detrimental reliance by a third party on a false representation.

What is a shareholder voting trust?

A trust to which legal ownership of SH's stock is transferred; the trustee votes the shares and distributes the dividends in accord with trust; must be in writing, limited to 10 years, and filed with the C.

What is a "self-proved" will?

A will acknowledged by T and affirmed by Ws before a court official. It removes the need to testimony of the attesting Ws at a formal probate proceeding.

If a principal dies, when does the agent's authority terminate?

A's actual authority terminates upon notice of the death.

If a principal loses capacity, when does the agent's authority terminate?

A's actual authority terminates upon notice of the incapacity.

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)

If a party successfully pierces the corporation veil, who is liable?

Active shareholders or directors and officers.

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.

What are grounds for annulling a voidable marriage?

Age, impotence, intoxication, fraud, duress, or lack of intent

To either become a new member of an LLC or transfer a membership interest in an LLC, ____.

All existing members must consent.

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).

In most states, what generally constitutes marital property?

All property acquired during marriage.

What is implied actual authority for an agent?

Allows A to take whatever actions are properly necessary to achieve P's objectives, based on A's reasonable understanding of the manifestations and objectives of P

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 step-parent exception to the rule that an adopted child cannot inherit from his genetic parents?

An adoption by a stepparent establishes a parent-child relationship between the stepparent and the child (with full inheritance rights) but does not curtail the parent-child relationship of the genetic parent who is married to the stepparent nor the right of the adoptee (or a descendant of the adoptee) to inherit from or through the other genetic parent.

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.

What is a permanent spousal support award?

An award for the remainder of the dependent spouse's life (unless certain circumstances occur); typically awarded only when the marriage was one of long duration (15 years or more)

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.

Under agency law, what does it mean for a principal to be an employer?

An employer is a P who employs an employee to perform services and has the right to control the physical conduct of the employee's performance.

What is an LLC?

An entity that enjoys the pass-through tax advantage of a partnership and the limited liability of a corporation

What is a remedial trust?

An equitable remedy not subject to trust requirements.

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 type of contract is formed when a person's assent is inferred by her conduct?

An implied-in-fact contract

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.

What is a nuncupative wills?

An oral will--not permitted in most states.

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.

For Article 9 purposes, how are "goods" defined?

Anything that is moveable at time that the SI attaches; the debtor's principal use at the time the SI attaches determines the class of the goods

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

Congress cannot abrogate Eleventh Amendment immunity by exercising its _____ powers.

Article I

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 is exoneration of liens available?

At common law, a beneficiary of encumbered real property can have the lien paid off. Not available in most states (UPC).

When are directors selected?

At the annual shareholder meeting

When must a party move for a directed verdict?

At the close of plaintiff's evidence or the close of all evidence.

When is a witness's capacity determined for purposes of witnessing the execution of a will?

At the time of signing, the witness must have sufficient mental capacity/maturity to comprehend the value of the act of witnessing

If an agent dies or loses capacity to serve as an agent, when does the principal-agent relationship terminate?

Automatically upon the event in question.

What is the procedure for dissolving a corporation after the issuance of stock?

BD adopts a proposal for the dissolution of C and a majority of SHs approve

A director may resign at any time with written notice to the ____.

BD, its chair, or C

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.

If a person who enters into a contract as an infant wants to void that contract, when must he do so?

Before the infant reaches the age of majority or within a reasonable time thereafter.

What is the standard for determining child custody?

Best interests of the child

Which felonies are considered inherently dangerous for purposes of the felony-murder rule?

Burglary, arson, rape, robbery, and kidnapping

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.

Under what circumstances can a spouse waive his or her right to an elective or forced share?

By a signed writing after fair disclosure before or during the marriage.

How is a joint tenancy created?

By express language.

How is an LLC created?

By filing articles of organization with the state, including the LLC's name, mailing address, and, if there are no members upon filing, a statement to that effect

What is an S corporation?

C avoids double taxation by passing income and expenses through to its SHs, who are then taxed directly

When there is no SS or descendant, how is an estate distributed to ancestors and remote collaterals using the degree-of-relationship approach?

Calculated by counting the number of relatives between the living taker and D using the closest common ancestor

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"

Some examples of changes in circumstances upon which an agent may reasonably believe that the principal no longer wishes the agent to act on her behalf include:

Change in law, insolvency, dramatic change in business conditions, destruction of subject matter, disaster

When can a child-support award be extended?

Child in college or disabled adult child who is unable to support himself

When is child support terminated?

Child reaches the age of majority (e.g., 18 years of age), child marries, parental rights are terminated, or the child or parent dies

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)

When does death occur for purposes of determining whether an heir survived the decedent?

Common law - irreversible cessation of circulatory and respiratory functions Modern standard - brain death (for which there are no established criteria)

What is the survival requirement for an SS to inherit?

Common law - must have survived D for any length of time USDA - 120-hour rule; insufficient of order of death, then property passes as though the other individual predeceased him

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

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

What are six available defenses to intentional torts involving personal injury?

Consent; Self-defense; Defense of others; Defense of property; Parental discipline; Privilege of arrest

If a subpoenaed witness fails to appear before Congress or refuses to answer questions, what sanction may Congress impose?

Contempt

What performance-related duties does a principal have to an agent?

Contractual duties, duty of care/diligence normally exercised by A in similar circumstances, duty of obedience, duty to provide relevant information and accounting, and no commingling of accounts

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.

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

What must be proven for desertion to serve as the basis for a fault-based divorce?

Desertion results when one spouse voluntarily leaves the marital home with the intent to remain apart on a permanent basis; does not apply if the parties separate by mutual consent.

What is an act of independent significance?

Designation of a beneficiary or disposition by reference to some unattested act or event occurring before or after the execution of the will or T's death if the act or event has some significance apart from the will

What is the percentage-of-income model for calculating child support?

Determines the minimum amount of child support by using a percentage of the supporting (i.e., noncustodial) parent's net income, determined by the number of children supported

Under the UCC, when both parties are not merchants, what effect does an acceptance containing different terms have?

Different terms in offer/acceptance nullify each other, and court uses Article 2's gap-filling provisions to patch holes in K.

What occurs during the "winding up" process?

Dissolving C can continue to exist to collect assets, dispose of property not distributed to SHs, discharge liabilities, and distribute property among SHs according to their interests

What is the interest or expectancy test for determining whether a board member has usurped a corporate opportunity?

Does C have an existing interest or an expectancy arising from an existing right in the opportunity?

What notice is required before a special meeting of the board of directors?

Ds are entitled to two days' notice of the date, time, and place of special meetings (purpose is not required)

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 elements of negligence?

Duty; Breach; Causation; Damages

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

How is property divided between unmarried cohabitants?

Equitable property distribution may be available to avoid unjust enrichment (e.g., resulting trust, constructive trust, or quantum meruit)

What is a spendthrift trust?

Expressly restricts the beneficiary's power to voluntarily or involuntarily transfer his equitable interest.

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 LLC member's duty of care is not subject to the business-judgment rule.

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: Government-owned land can be adversely possessed.

FALSE

TRUE OR FALSE: Joint physical custody requires 50-50 time-sharing.

FALSE

TRUE OR FALSE: Nonmarital children can be denied child support, government benefits, or wrongful-death claims.

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's recovery is generally limited to the claim for relief made in the complaint?

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: A failure to hold shareholder meetings may impact a corporation's existence and could invalidate its business.

FALSE A failure to hold meetings does not affect C's existence or invalidate C's business

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: An easement appurtenant can be used for the benefit of property other than the dominant estate, so long as any increase in the easement's use is modest.

FALSE An easement appurtenant cannot be used for the benefit of property other than the dominant estate, regardless of whether the change in use is modest.

TRUE OR FALSE: An option contract, like any other offer, terminates upon the incapacity of the grantor of the option.

FALSE An option contract, unlike an offer, does not terminate upon the incapacity of the grantor of the option.

TRUE OR FALSE: At common law, a conspirator can be convicted of conspiracy even if all other conspirators are acquitted at the same trial.

FALSE At common law, a conspirator cannot be convicted of conspiracy if all other conspirators are acquitted at the same trial, because there must be more than one conspirator to have a conspiracy.

TRUE OR FALSE: Children of an annulled marriage are not considered marital children.

FALSE Children of an annulled marriage are considered marital children.

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: If a plaintiff provides sufficient evidence to satisfy the requirements of res ipsa loquitur, a rebuttable presumption of negligence arises.

FALSE Res ipsa does not create a rebuttal presumption of negligence; rather, it simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff's action.

TRUE OR FALSE: Child support may not be terminated even if a child is emancipated before the age of majority.

FALSE Support may be terminated if a child is emancipated before the age of majority.

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: There is a rebuttable presumption that a decedent intentionally omitted his or her spouse from the will.

FALSE There is a rebuttable presumption that the omission was by mistake.

TRUE OR FALSE: A defendant has a right to counsel during an identification through a photo array, if it takes places after indictment.

FALSE There is no right to counsel during an identification through a photo array, regardless of when the photo array is conducted.

TRUE OR FALSE: Voting agreements (pooling agreements) are generally enforceable.

FALSE They are generally unenforceable.

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 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.

What duty does a promoter have to the corporation?

Fiduciary duty; no secret profits.

How is property distributed in per capita with representation?

First generation with at least one living member (FG) --> divide property equally --> the share of a non-living member of FG passes to the living issue of that member --> if the FG member has no issue, no property is allocated to that member

What is balanced allocation?

Focuses on the total return in the trust portfolio, such that the trustee is empowered to re-characterize items and reallocate investment returns as he deems reasonably necessary to fulfill the trust purpose.

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 long is a subscription agreement to buy shares irrevocable?

For six months.

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

What does it mean for a person to act with a depraved heart?

He acted with a reckless indifference to an unjustifiably high risk to human life.

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.

What is needed for two parties to create a binding contract not to revoke their wills?

If evidence establishes (e.g., the wills state that devises were made in consideration of reciprocal devises), the contract becomes irrevocable upon death of first party; a constructive trust is imposed on property transferred by the second party in violation of the contract.

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

If a marriage is void by virtue of a prior existing marriage, when may the marriage become valid?

If one party had a good-faith belief that the marriage was valid and the impediment is removed

When does an anti-lapse statute apply?

If the beneficiary was T's relative and left issue, then the issue succeeds to the beneficiary's gift

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.

What is an easement by implication?

If the owner of two parcels of land previously used one parcel to benefit the other, then the court may find that, upon the sale of the dominant parcel, the parties intended the easement to continue if the prior use was continuous, apparent, and reasonably necessary to the dominant land's use and enjoyment (not strict necessity).

If a promotor obtains secrets profits, what portion of the profits is recoverable?

If the property was acquired before formation and sold to the corporation, the profit is recoverable if the property was sold for more than fair market value. If the property was acquired after the formation of the corporation, any profit is recoverable.

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.

When can a court terminate a trust?

If the purpose has been achieved or becomes illegal, impracticable, or impossible

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.

What is the modern trend with respect to "secret" and "semi-secret" trusts?

Impose a constructive trust in favor of the intended beneficiaries (if known).

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.

In order to revoke a will by destruction, what is required?

In most states, defacement of some language of the will. Under the UPC, the destructive act need only affect some part of the will.

How is testamentary intent determined for a holographic will?

In some states, by reference to printed parts of the will or extrinsic evidence.

When are personal injury claim proceeds or workers' compensation awards considered marital property?

In some states, if the cause of action accrued during marriage, the proceeds or award are marital property. Other states allocate the proceeds or award between marital and separate property.

Must a holographic will be dated?

In some states, yes.

Must an entire holographic will be in the testator's handwriting?

In some states, yes.

Is the goodwill of a business considered marital property?

In some states.

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 sanctions are available to enforce a child-support award besides civil and criminal contempt?

Interception of tax refund, report to credit bureau, suspension of driver's/occupational license, seizure of assets, garnishment of wages, ordering payment of attorney's fees.

What standard of review applies to a classification based on gender?

Intermediate scrutiny (substantially related to important governmental interest) + review for whether there is an "exceedingly persuasive justification" for the classification

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 the majority rule, is a trust presumed to be revocable or irrevocable?

Irrevocable, unless it expressly states otherwise.

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).

What is the line-of-business test for determining whether a board member has usurped a corporate opportunity?

Is the opportunity within the C's current or prospective line of business, and how expansive is C's line of business?

How is property distributed using the per stirpes method?

Issue equally share the portion that the deceased ancestor would have taken if living Estate is first divided into the total number of children of the ancestor who survive or leave issue who survive

What is required to disclaim the implied warranty of fitness for a particular purpose?

It can be disclaimed by conspicuous writing.

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.

When is a third-party permitted to sign a will on the testator's behalf?

It is permitted to occur in T's presence and with T's direction.

What is required to disclaim the implied warranty of merchantability?

It is sufficient by use of the phrases "as is," "with all faults," or similar language. The disclaimer may be oral, but must use the term "merchantability" and be conspicuous if in writing.

What results if a marriage is void?

It is treated as if it never happened; it does not need to judicially dissolved; not legally recognized for any purpose.

How can a deed operate a will substitute?

It is unconditionally delivered to the grantee during the D's lifetime or delivered to an escrow agent during D's lifetime with instructions to turn over to grantee upon D's death.

What is "dependent relative revocation"?

It means that T's revocation of a will is disregarded if it was based on a mistake of law or fact and would not have been done but for that mistake.

When is a disclaimer of an inherited gift effective?

It must be affirmatively done by the heir because acceptance of a gift is presumed.

What must be proven for adultery to serve as the basis for a fault-based divorce?

It must be shown that the spouse had the opportunity and the inclination to commit adultery; usually proven by circumstantial evidence.

What is the doctrine of shareholder oppression?

It protects minority from oppressive majority control; statutory provisions regarding involuntary dissolution are interpreted to protect the reasonable expectations of shareholders

What is a gift-over clause?

It provides for the disposition of trust property if trust property fails.

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.

What is the effect of a codicil?

It republishes the will as of the date the codicil was executed.

What is the Uniform Parentage Act?

It requires proof of paternity for a child to inherit. When father hold child out as his own, presumption of paternity; child can bring action to establish paternity at any time. Otherwise, no presumption of paternity; child must bring action within three years of reaching age of majority.

What is the prudent investor rule applicable to a trustee?

It requires the trustee to act as a prudent investor would act when investing his own property (putting less emphasis on risk level); the trustee must exercise reasonable care, caution, and skill when investing and managing trust assets.

What effect does the revocation of a codicil have?

It revives the will.

What effect does the revocation of a will have on codicils to the will?

It revokes all codicils.

What is an annulment?

It voids a marriage and declares it as having never been valid.

At common law, what was the presumed effect of a lifetime gift to an heir?

It was presumed to be an advancement (ademption by satisfaction) unless the child could prove otherwise.

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.

If one party substantially performs and then breaches, that party is entitled to recover the ____.

K price minus any amount it will cost other party to obtain complete performance as promised

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 factors are considered when distributing marital property?

Length of marriage; prior marriages; age, health, earnings, earning potential, liabilities, and needs of both spouses; contributions to education; income, medical needs, retirement of both spouses; homemaking and child-rearing services; value of separate property; reduction in valuation in marital property by one spouse; standard of living; economic circumstances of each spouse at time of divorce; custody of any minor children

Who is entitled to trust income: the life beneficiary or the remainder beneficiary?

Life beneficiary.

What is a "secret" trust?

Looks like a testamentary gift, but is created in reliance on the named beneficiary's promise to hold and administer the property for another (a constructive trust is imposed on the property for the intended beneficiary).

What rights may a beneficiary enforce against a trustee?

Lost profits, interests, and other losses resulting from a breach of trust are the trustee's responsibility; beneficiaries may sue the trustee and seek damages or removal of the trustee for breach.

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

How is undue influence defined for purposes of a will contest?

Mental or physical coercion exerted by a third party on T with the intent to influence T such that he loses control of his own judgment and executes and unnatural will.

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.

What consideration is sufficient for issuance of stock?

Money Binding obligation to perform future services with an agreed value Tangible/intangible property Services already performed

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

Congress does not have an express power to investigate, but the ____ Clause allows Congress broad authority to conduct investigations incident to its power to legislate. The investigatory power may extend to any matter within a ____.

Necessary and Proper; legitimate legislative sphere

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.

How is ademption by satisfaction treated under the UPC?

No ademption by satisfaction absent an express writing.

What is a general power of appointment?

No restrictions or conditions on the exercise of the power

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!

Under the UPC, must the witnesses to the execution of a will be present at the same time as when the testator signs it?

No, T may acknowledge his signature to Ws; Ws need not be present at the same time.

Will a trust fail if no trustee is appointed?

No, a court will appoint one if the settlor fails to designate one.

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.

Under the common law, is an interested witness competent as a witness?

No, and the will is invalid unless there are at least two disinterested Ws.

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.

May a marital-property division be modified after the fact?

No, because the division is based on the parties' assets at the time of the divorce.

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.

In order to serve as a valid witness, must the witness know the contents of the will that the testator is signing?

No, but they must be aware that the instrument is a will, but need not know its contents.

Is commuting within the scope of employment?

No, but traveling to perform work on behalf of the principal is within the scope of employment.

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).

Is a charitable trust subject to the rule against perpetuities?

No, it may continue indefinitely.

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.

Are social security benefits considered marital property?

No, separate property.

Is circumstantial evidence of undue influence sufficient to contest a will?

No, simply having the opportunity to exert influence or demonstrating a testator's susceptibility to being influenced (e.g., due to old age, poor health, or memory problems) does not establish that the testator's mind was overpowered.

In a requirements contract, if the party's requirements change to the extent that the supply is no longer needed, does the party breach by cancelling the contract?

No, so long as the change-in-requirements was asserted in good faith.

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.

Under the UPC, is strict compliance with the formal statutory requirements for executing a will required?

No, substantial compliance is sufficient if there is clear and convincing evidence of the testator's intent.

Does the termination of a membership in an LLC automatically trigger a dissolution?

No, the LLC may elect to liquidate the fair value of that person's interests.

Does a claim in the amount of $75,000 satisfy the amount-in-controversy requirement?

No, the claim must be for more than $75,000.

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.

Are life insurance proceeds considered part of a decedent's estate?

No, unless payable to the estate as beneficiary.

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.

Does an adopted child maintain inheritance rights with respect to his biological parents?

No, unless the stepparent exception applies?

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 claims by existing defendants against additional persons joined as necessary parties under Rule 19 precluded by supplemental jurisdiction?

No.

Are loss of use damages available in an action for trespass to chattels without dispossession?

No.

Are professional licenses/degrees marital property?

No.

Can a posthumously-conceived child inherit from a deceased person as the decedent's child?

No.

Can visitation be denied to a parent based on nonpayment of support?

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 anticipatory repudiation apply in a unilateral K?

No.

Does fraudulent conduct negate consent to engage in sexual intercourse under the common law?

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 business-judgment rule apply when a director engages in a conflict-of-interest transaction with the corporation?

No.

Does the creation of a joint will create a presumption of a contract not to revoke?

No.

Does the creation of reciprocal wills create a presumption of a contract not to revoke?

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 a party rescinds a contract based on frustration of purpose, must that party pay damages?

No.

If a spouse willfully or voluntarily reduces his income, may he obtain modification of support payments?

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 an oral revocation of a will valid?

No.

Is factual impossibility a defense to conspiracy?

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 director of a corporation vote by proxy?

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.

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 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 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)

To qualify as an unexpected event under a frustration-of-purpose theory, must the event be unforeseeable?

Not completely, but it must be so severe that it's not within the assumed risks inherent under the K.

A provision in a marital agreement that prevents modification of child support, including spousal support is ____.

Not enforceable

Is supplemental jurisdiction permitted with respect to either intervention as of right or permissive intervention?

Not for either.

Is it permissible for a testator to alter a will in order to increase a gift?

Not if it involves cancelling words in the will.

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.

____ payments under a senior future-advances mortgage paid out after a junior lender remits its loan amount and records its lien ____ over amounts loaned by the junior lender.

Obligatory; have priority

What is a "semi-secret" trust?

Occurs when a gift is directed in a will to be held in trust, but the testator fails to name a beneficiary or specify the terms or purpose of the trust (a resulting trust is imposed on the property to be held for the testator's heirs).

What does "testamentary" mean?

Occurs when the terms of the trust are contained in writing in a will or in a document incorporated by reference into a will.

Does a reference in a will to a "child" include an adopted child?

Of course.

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 is the no-further-inquiry rule?

Once self-dealing on the part of a trustee is established, there need be no further inquiry into the trustee's reasonableness or good faith because self-dealing is a per se breach of the duty of loyalty.

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 chattel paper?

One or more records that evidence both (i) a monetary obligation and (ii) a security interest in specific goods or a lease of specific goods

What is a private express trust?

One that clearly states the intention of the settlor to transfer property to a trustee for the benefit of one or more ascertainable beneficiaries

What is a honorary trust?

One that has no private beneficiaries (usually for a pet).

What is a vested remainder?

One that is not subject to any conditions precedent; ascertainable grantee

What is a material breach?

One that prevents the nonbreaching party from receiving the substantial benefit of the bargain

What type of transaction engaged in by a director is considered a self-dealing transaction?

One that would normally require approval of BD and is of such financial significance to D that it would reasonably be expected to influence D's vote on the transaction (also includes dealings with persons related to D); the interest must be financial and material.

Can extrinsic evidence be used to prove a mistake in a will?

Only as to mistake in the will's execution.

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)

If a child is mistakenly omitted from a will, what share is she entitled to?

Only child - intestate share Other children - shares equally in property devised to other children

Who has standing to contest a will?

Only directly interested parties who stand to benefit financially may contest a will; not T's general creditors nor the spouse or prospective heir of a beneficiary under a prior will.

Under the UPC, can a personal representative be personally liable for the actions of the estate?

Only for a breach of the fiduciary duty.

Under the UCC, what is required for a modification to be enforceable?

Only good faith--no consideration is necessary

Is a threat to breach a K considered an improper threat for purposes of duress?

Only if it violates the duty of good faith and fair dealing

Is a threat of criminal or civil action considered an improper threat for purposes of duress?

Only if made in bad faith

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.

Is a writing required to create an inter vivos trust?

Only if the res is real property.

When does a trustee have the power to terminate a trust?

Only if the trust contains express termination provisions.

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 difference in procedure between a merger and an asset acquisition?

Only the transferor C's BD and SHs are entitled to vote on the transaction; transferor C remains liable for its debts

To whom does the Comity Clause apply?

Only to citizen (not corporations or aliens)

Under the UPC, is a will revived upon revocation of a subsequent will?

Only upon proof that T intended to revive the original will; extrinsic evidence is only admissible if revocation was by physical act.

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 factors are considered when determining whether an employer-employee relationship exists for purposes of agency law?

P's control over day-to- day activities, supplying tools of trade, structured pay period, specialized skill level, and P directs work to completion

If a consignment is subject to Art. 9, the consignor's SI in the consigned goods is treated as a ____.

PMSI in inventory

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 is the burden of proof for proving that an heir did not predecease the decedent?

Party whose claim depends on survivorship must be proven by: 1) Common law - preponderance 2) USDA - clear and convincing evidence

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 a special power of appointment?

Places limitations on the holder's exercise of the power

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.

What is a specific gift in a will?

Property distinguished with reasonable accuracy from T's other property

How is property distributed using the per-capita-at-each-generation method?

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 a general gift in a will?

Property to be satisfied from general estate assets

What is a demonstrative gift in a will?

Property to come from a particular source

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.

What defenses to fault-based divorce are available?

Recrimination, unclean hands, connivance, condonation, collusion, provocation, insanity, consent, justification, religion.

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.

What information is discoverable?

Relevant evidence or facts reasonably calculated to lead to relevant information

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.

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 type of recovery is available under a quasi-contract theory?

Restitutionary recovery

Under the Uniform Trust Code, is a trust presumed to be revocable or irrevocable?

Revocable, unless it expressly states otherwise.

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 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 a community property state, what is the effect of a SS taking an elective share?

SS must elect to take a forced share in lieu of any interest under T's will.

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.

What is required for a person to be considered a surviving spouse?

SS must have been legally married to D; putative spouse qualifies if the spouse believes in the validity of the marriage in good faith; separated spouse qualifies until issuance of final dissolution decree

In a community property state, how much of an intestate D's estate does the SS take?

SS owns 50% of CP outright; D's CP is given to SS; D's separate property (SP) is then distributed pursuant to the general intestacy scheme

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

Under the Uniform Probate Code, what does a surviving spouse take when an intestate D has issue not related to SS?

SS takes $150,000 and 50% of the remainder of the estate

Under the Uniform Probate Code, what does a surviving spouse take when all of an intestate D's issue are also issue of SS, and SS has other issue?

SS takes $225,000 and 50% of the remainder of the estate

Under the Uniform Probate Code, what does a surviving spouse take when no descendant of an intestate D survives D, but D has a surviving parent?

SS takes $300,000 and 75% of the remainder of the estate

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 is the legal significance of the formation of a corporation?

Separate legal person; shareholders are not liable for debts of corporation b/c of limited liability; shareholder is only liable for the price of her stock

To what types of gifts may ademption by extinction apply?

Specific bequests

Are accumulated sick and vacation days considered marital property?

States are split.

What is treasury stock?

Stock previously issued and then reacquired by the corporation.

What is preferred stock?

Stock that has preference over other stock with regards to distributions.

What is watered stock?

Stock that issued for consideration less than par value.

Under the common law, is strict compliance with the formal statutory requirements for executing a will required?

Strict compliance is required.

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!

What is a palimony support award?

Support provided by one unmarried cohabitant to another after the dissolution of a stable, long-term relationship (available in only a few states)

A testator lacks capacity if, at the time of the will's execution, _______.

T did not have the ability to know the nature of act, the nature and character of his property, the natural objects of his bounty, and the attempted disposition plan

TRUE OR FALSE: A board of directors can act by unanimous written consent without holding a meeting.

TRUE

TRUE OR FALSE: A conviction for a crime involving dishonesty is admissible to impeach the witness's character for truthfulness, regardless of the prejudicial effect.

TRUE

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 defendant who is not a resident of the United States may be sued in any judicial district.

TRUE

TRUE OR FALSE: A denial of the opportunity to cross-examine a prosecution witness with regard to bias violates the Confrontation Clause.

TRUE

TRUE OR FALSE: A director has a right to inspect and copy a corporation's books and records.

TRUE

TRUE OR FALSE: A federal court can only remand a case to the state court from which the claim originated.

TRUE

TRUE OR FALSE: A forged instrument, such as a deed or release from a mortgage, is void and has no effect on property rights, even if relied upon by a bona fide purchaser.

TRUE

TRUE OR FALSE: A management agreement allows shareholder to alter the way a corporation is managed even if the agreement is inconsistent with statutory provisions.

TRUE

TRUE OR FALSE: A parent can be required to buy life insurance on his life for the child's benefit.

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 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.

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 subsequent purchaser with actual or constructive notice of a burdening covenant is bound by it, even if the covenant was not recorded in the deed.

TRUE

TRUE OR FALSE: A third party can potentially be held liable for his role in a breach of trust.

TRUE

TRUE OR FALSE: A trespasser who in good faith believes that he owns real property may recover amounts expended for improvements to the property.

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: Agreements to modify a contract may still be enforced without consideration if there is a rescission of the existing contract and the entering into of a new contract, whereby one of the parties must perform more than she was to perform under the original contract.

TRUE

TRUE OR FALSE: Although the holders of equitable interests in trust property are often not recorded, their interests can be affected by the failure to record the conveyance of legal title when the grantor subsequently conveys the same property to a purchaser for value.

TRUE

TRUE OR FALSE: An easement appurtenant cannot be used for the benefit of property other than the dominant estate.

TRUE

TRUE OR FALSE: An easement appurtenant is transferred with the land to which it relates, even if the easement is not noted in the deed.

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: Both parents, regardless of marital status, are legally required to support their minor children.

TRUE

TRUE OR FALSE: Citizenship, not residency, is the basis for diversity jurisdiction.

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: Defenses to a fault-based divorce must be affirmatively pleaded.

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: Evidence that impeaches the witness but does not specifically attack the witness's character for truthfulness, such as testimony that the witness is biased, does not constitute an attack on that witness's truthfulness.

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, an agent is prohibited from delegating either express or implied authority to a third party without the principal's express authorization.

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: Grandparent visitation is subject to the special weight given a fit parent's decision regarding such visitation.

TRUE

TRUE OR FALSE: If P has not substantially performed and is in breach, P not permitted to recover restitutionary damages.

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: If a plaintiff shows that a publisher made public facts about her that a reasonable person would find highly offensive, and which placed her in a false light, she will prevail in an action for false light, even if the published facts were not true.

TRUE

TRUE OR FALSE: In an annulment, a party may request an equitable distribution of property, spousal support, child support, custody, attorney's fees, and other costs related to the dissolution of the marriage.

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: In some states, an adoption is permitted if a parent has abandoned the parent-child relationship.

TRUE

TRUE OR FALSE: It is generally accepted that the owner of the right to use property in a manner that is not in keeping with the zoning ordinance may transfer that right to another person.

TRUE

TRUE OR FALSE: Laws may limit contributions to individual candidates, but not to ballot measures.

TRUE

TRUE OR FALSE: Nationwide personal jurisdiction over a party exists with regard to an action brought under the federal interpleader statute.

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: Once the location of an easement is fixed, the owner of the servient estate may not unilaterally change the location of the easement, even if that change is objectively reasonable in light of changed circumstances.

TRUE

TRUE OR FALSE: Only substantial performance is required to satisfy an implied condition.

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: Regular meetings may be held without notice of the date, time, place, or purpose.

TRUE

TRUE OR FALSE: Shareholders can cumulate votes to allow minority shareholders to elect representatives to board of directors.

TRUE

TRUE OR FALSE: Spousal immunity does not apply in civil cases.

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 Rule Against Perpetuities does not require that a future interest become possessory within a life in being plus 21 years, but that it vest within that time period.

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 federal rules provide that service of process may be made by following the law of the forum state for service of process.

TRUE

TRUE OR FALSE: The grantor's signature is generally required for a document to be a valid deed.

TRUE

TRUE OR FALSE: The hardship for which a variance is sought may not be created by the owner who seeks the variance.

TRUE

TRUE OR FALSE: The plaintiff can seek reimbursement from the corporation for reasonable litigation expenses from a shareholder derivative suit.

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 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.

Under the UCC, when both parties are not merchants, what effect does an acceptance containing additional terms have?

The additional terms are automatically included in the K, unless: 1) Term materially alters original K (i.e., would result in surprise or hardship) 2) Offer expressly limits acceptance to terms of the offer, or 3) Offeror objects to new terms within a reasonable time after notice of new terms is received 4) If one of these exceptions is met, original terms of offer control

What liability does a power of attorney have for actions engaged in on behalf of the principal?

The agent is only responsible for intentional misconduct.

What type of capacity is necessary for a person to be an agent?

The agent just needs physical/mental capability to do whatever he has been appointed to do (minors/incompetents can be As but minors cannot form contracts, and unincorporated associations cannot be As).

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

Who selects a corporation's officers?

The board of directors

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

When can a child born out of wedlock inherit from her natural father?

The child cannot inherit from the natural father unless: 1) father subsequently married natural mother; 2) father held the child out as his own and lived with the child or provided support; 3) paternity is proven by clear and convincing evidence after the father's death; or 4) paternity is adjudicated during the father's lifetime by a preponderance of the evidence

There is a rebuttable presumption that the child is the child of the deceased husband if _____.

The child is born within 280 days of his death.

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.

What does it mean for a corporation to be undercapitalized?

The corporation failed to maintain sufficient funds for foreseeable liabilities.

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.

Under the UPC, what is the effect of a lifetime gift to an heir?

The gift is an advancement if D declared in a contemporaneous writing that the gift was an advancement, or the heir acknowledges that the gift was an advancement in writing.

What fiduciary duty does a personal representative have to the estate?

The highest duty of loyalty and care to those represented, which means that he cannot profit from the trust instilled in him.

If there are inconsistencies between a will and a subsequent document, which controls?

The later document controls and revokes prior inconsistencies.

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 is the par value of stock?

The minimum issuance price. No par value permits issuance for any valid consideration that the board of directors deems adequate.

What are the elements of a claim of a fraud in a will contest?

The misrepresentation must have been made by the beneficiary with both: 1) The intent to deceive the testator; and 2) The purpose of influencing the testamentary disposition. The result must be a will that would not have been executed but for the fraud.

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.

What is a defense to a void marriage?

The only defense is to deny the existence of the impediment that makes the marriage void; removing the impediment makes the marriage voidable.

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.

What the requirements for common-law marriage?

The parties agree they are married, cohabit as married, and hold themselves out to the public as married.

What must be proven for habitual drunkenness to serve as the basis for a fault-based divorce?

The party must prove frequent intoxication that impairs the marital relationship.

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.

What is the priority for appointment as personal representative of the estate?

The person named in the will; the surviving spouse who is a devisee; other devisees; the surviving spouse; other heirs; any creditor (45 days after death)

What rules of interpretation generally governs the construction of wills?

The plain meaning rule. The wills "speaks" at the time of testator's death.

What must be proven for cruelty to serve as the basis for a fault-based divorce?

The plaintiff must demonstrate a course of conduct by the other party that is harmful to the plaintiff's physical or mental health and the makes continued cohabitation between the parties unsafe or improper.

In order to bring a derivative action, what is required for a plaintiff-shareholder to have standing?

The plaintiff must have been a shareholder at the time of the wrong and at the time the action is filed, must continue to be a shareholder during the litigation, and must fairly and adequately represent corporation's interests.

How does one rebut the presumption that a spouse was omitted from a will by mistake?

The presumption is rebutted if T's intent to omit the spouse is apparent from the language of the will or if the spouse was provided for outside of the will. Under the UPC, a valid prenuptial agreement also rebuts the presumption.

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.

If an alleged conflict-of-interest on the part of a trustee does not involve self-dealing, what standard is used to assess the conduct?

The reasonable and in good faith standard

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.

What are a shareholder's preemptive rights?

The right of a SH to purchase newly issued shares in order to maintain the SH's proportional ownership share as provided by the articles; a waiver of preemptive rights in writing is irrevocable.

What is physical custody of a child?

The right of a parent to have the child reside with the parent and the obligation to provide for routine daily care and control of the child

What is legal custody of a child?

The right of a parent to make major decisions about the child's life (e.g., health, education, religion)

What rights does a secured party have arising from possession or control of collateral?

The right to charge for reasonable expenses; risk of loss or damage is on the debtor; right to use or operate collateral; right to hold proceeds

What right of control must a principal exercise over an agent?

The right to control the result or the ultimate objectives of A's work.

What is the business-judgment rule?

The rule establishes a rebuttable presumption that the director reasonably believed his actions were in the best interest of the corporation.

What formalities are required to render a codicil valid?

The same formalities as for a will must be observed.

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.

A buyer of goods not in the ordinary course takes free of a security interest to the extent that it secures an advance made after the earlier of: i) ____; or ii) ____. The buyer takes subject to the security interest if ____ and ____.

The time the secured party acquires knowledge of the buyer's purchase; 45 days after purchase; the advance is made pursuant to a commitment entered into without knowledge of the buyer's purchases; before the expiration of the 45-day period

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.

What is a trustee's duty to make property productive?

The trust must pursue all possible claims, deriving the maximum amount of income from investments, selling assets when appropriate, securing insurance, paying expenses, and acting within a reasonable period of time in all matters.

What is a mandatory trust?

The trustee has no discretion; the trust document explains in detail how and when trust property is to be distributed.

What is a trustee's duty to diversify?

The 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 a trustee's duty to be impartial?

The trustee must balance the interests of the present and future beneficiaries by investing property so that it produces a reasonable income while preserving the principal for the remaindermen, and sell trust property within a reasonable time if a failure to diversify would be inconsistent with the total performance portfolio approach.

What is a trustee's duty to disclose?

The trustee must disclose complete and accurate information about the nature and extent of the trust property, including allowing access to trust records and accounts, if the trustee intends to sell a significant portion of the trust assets.

What is a trustee's duty to account?

The trustee must periodically account for actions taken on behalf of the trust so that the trustee's performance can be assessed against the terms of the trust.

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.

Under the UPC, are forfeiture clauses enforceable?

There are unenforceable if the beneficiary has probable cause to contest the will.

What occurs when a will once known to exist cannot be found?

There is a rebuttable presumption of revocation. That presumption does not apply if a duplicate original is found.

What is the result when a child born is omitted from a will that was executed before she was born?

There is a rebuttable presumption that the omission was by mistake. That presumption is rebutted by (i) intentional omission; (ii) T had other children when will executed, left estate to other parent of omitted child; (iii) T otherwise provided for the child.

What must be proven for institutionalization to serve as the basis for a fault-based divorce?

There must be no reasonable prospect of discharge or rehabilitation.

Is an expectancy interest in property considered marital property?

They are considered separate property.

When a state allocates the proceeds of a personal-injury claim between marital and separate property, how are damages for pain & suffering allocated?

They are considered the separate property of the injured spouse.

When a state allocates the proceeds of a personal-injury claim between marital and separate property, how are damages for consortium losses allocated?

They are considered the separate property of the non-injured spouse.

Can unexercised stock options be subject to equitable distribution?

They are marital property if acquired during marriage.

When a state allocates the proceeds of a personal-injury claim between marital and separate property, how are damages for lost wages, loss of earning capacity, and medical expenses allocated?

They are typically split between marital and separate property based on the portion of the award attributable from the time of the accident to the end of the marriage (marital property), and the portion attributable to loss of wages or medical expenses after the termination of the marriage (separate property).

In states where nuncupative wills are permitted, when are they enforceable?

They are valid for disposition of limited personal property made in contemplation of immediate death.

What factors are considered in determining the amount of spousal maintenance?

They typically include financial resources, including property to be awarded in the divorce, child support, spouse's earning potential, and other spouse's ability to pay support; spouses' standard of living; time to find employment or complete any education or training necessary for a job; length of marriage; contributions to marriage (particularly those that enhanced the earning potential of the other spouse); age and physical and mental health of each spouse; marital misconduct.

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.

What does an agent's duty of loyalty to a principal encompass?

To act solely for the benefit of P (whether A is compensated or gratuitous), including not dealing with P as an adverse party without P's knowledge, not acquiring a material benefit in actions on P's behalf, not usurping business opportunities or competing with P, and not using P's confidential information

Under what circumstances may a party pierce the corporate veil, rendering shareholders liable for to third-party victim?

To avoid fraud or unfairness. Requires proof that the shareholders treated the corporation as their alter ego by failing to observe sufficient corporate formalities OR corporation is undercapitalized. A tort victim is more likely to be able to pierce the corporate veil than a K claimant.

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 is a reimbursement spousal support award?

To compensate a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future (rarely granted)

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

When may a shareholder bring a direct action?

To enforce SH rights for breach of fiduciary duty by a director or officer, or an action based on grounds unrelated to shareholder's status

What is a rehabilitative spousal support award?

To enhance and improve the earning capacity of the economically dependent spouse; limited period of time, such as until spouse receives education or employment

What implied authority does a corporate officer have?

To perform those tasks necessary to carry out O's duties by virtue of her status or position, so long as the matter is within the scope of ordinary business (i.e., not "extraordinary" transactions)

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 a limited-duration spousal support award?

Typically awarded when the marriage was of short duration, but there is still an economic need for support

What equitable defenses to a voidable marriage are available?

Unclean hands, laches, and estoppel are recognized

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 "intent theory" of dealing with ademption by extinction?

Under the UPC, it creates a mild presumption against ademption.

Do anti-lapse statutes apply to non-probate transfers?

Under the UPC, yes.

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.

What does UIFSA stand for?

Uniform Interstate Family Support Act

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 are powers of appointment for a trust?

Usually given to the beneficiary; enables the holder to direct a trustee to distribute some or all of the trust property without regard to the provisions of the trust

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

What is the general rule for venue?

Venue proper in judicial district where any D resides in state where all Ds reside; or where substantial part of the events/omissions occurred; or where property that is subject of the action is located (otherwise where any D 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

When is a de facto corporation established?

When a business does not fulfill the formalities, but the organizers made a good faith, colorable attempt to comply with the corporate formalities and have no knowledge of the lack of corporate status.

What is replevin under the UCC?

When a buyer can obtain undelivered goods from seller if at least partial payment is made or the buyer is unable to effect cover.

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.

What is ademption by satisfaction?

When a gift is satisfied by inter vivos transfer of property after the execution of the will if that is T's intent.

What is an implied-in-fact contract?

When a party indicates assent by conduct and not words

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.

What is a resulting trust?

When a trust fails, a court will create a resulting trust requiring the holder of the property to return it to the settlor or his estate to prevent unjust enrichment.

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

What is a "de jure" c?

When all statutory requirements for incorporation are satisfied, the C is liable for C's activities.

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.

What is a reciprocal will?

When separate wills contain identical or reciprocal provisions.

When can a third party revoke a will on behalf of the testator?

When she does so at T's directions and in T's conscious presence.

What is an elective or forced share?

When the SS elects to take a share of T's augmented estate rather than the gifts left to SS in the will.

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.

When are diminution in value damages awarded?

When the amount of damages owed is disproportionate to any economic benefit/utility gained as a result of the award

When does corporate existence begin?

When the clerk accepts the fee and files the articles

When may an employee's intentional tort be considered within the scope of employment?

When the conduct is within the space and time limits of employment, the employee was motivated to act for the employer's benefit, and the act was of the kind that the employee was hired to perform

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 is a corporation liable for Ks entered into by a promoter?

When the corporation's board of directors expressly adopts the K or implied adoption (knowledge and accepts benefits).

When can you aggregate amounts alleged against each defendant for purposes of diversity jurisdiction?

When the defendants are jointly and severally liable.

When is parental discipline available as a defense to an intentional tort?

When the force or confinement was reasonable considering the child's age and gravity of behavior, and the force or confinement was for the benefit of the child.

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.

If a general partnership becomes an LLP, when is the LLP liable for the debts of the general partnership?

When the partnership is not new, and it is governed by the same rules as the old partnership

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 does the special relationship between a psychotherapist and a patient impose on the therapist a duty to act to protect a third party?

When the patient has made credible threats of physical violence against the third party, the therapist has a duty to warn the intended victim. The threat must be a serious threat of physical violence against an ascertainable intended victim, determined by the objective standard of a reasonable psychotherapist in the same circumstance.

When are prior restraints valid?

When the standard is narrowly drawn, reasonable, and definite, and prompt review of a restraint is available

When is a promoter relieved of liability for pre-formation Ks?

When there is a novation. If the corp never forms, the promotor is solely liable.

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)

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 it permissible for a testator to alter a will in order to decrease a gift?

Yes, as long as the alteration is made to the existing language rather than through the addition of new language to the will.

Do assets poured over from a will into an inter vivos trust pass outside the reach of the testator's creditors?

Yes, as long as the trust was executed before or simultaneously with the will.

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 partial revocation of a will permitted?

Yes, but if a revoked gift falls outside of residuary, revocation is not given effect until re-execution or republication of will.

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.

Must a beneficiary to a trust accept his interest?

Yes, either impliedly or expressly.

Are retirement or pension benefits marital property?

Yes, if acquired during marriage.

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 a person receives actual notice of a proceeding, may he raise the defense of insufficient service of process?

Yes, if the manner of service was not authorized by the FRCP.

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 good faith in the validity of the invalid marriage.

Can property acquired after separation but before divorce be subject to equitable distribution?

Yes, in most states.

For diversity purposes, does a person qualify as a citizen of a state if the person moved their for the sole purpose of creating diversity of citizenship?

Yes, it doesn't matter if that was the purpose for changing domiciles.

Under common law, is a will revived upon revocation of a subsequent will?

Yes, it is revived automatically.

Must a release of an easement be in writing?

Yes, it must satisfy the Statute of Frauds.

Does the destruction of an executed will impact the validity of duplicate originals?

Yes, it presumptively revokes all other duplicate originals.

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.

Is a promise to perform a voidable duty enforceable without new consideration?

Yes, so long as the promise doesn't suffer from an infirmity rendering it voidable.

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.

X, who is 15 years old, enters into a contract with Y that is voidable because of X's infancy. Upon reaching the age of majority, X promises to perform the contract. Is that promise enforceable without new consideration?

Yes, such promise will be enforceable without any new consideration. Note that if X reaffirmed the promise before reaching the age of majority, such promise would be voidable (because of X's continued infancy).

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 K.

Is it constitutional to place a time limit on filing a paternity petition?

Yes, unless there is a reasonable opportunity to pursue such an action and the limit is substantially related to the government's interest in restricting such action.

Under the modern trend, is past consideration sufficient for the formation of a contract?

Yes, when necessary to prevent injustice, unless the promisee intended the act to be a gift.

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 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)?

Yes.

Are rights of first refusal subject to the RAP?

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 extrinsic evidence be used to resolve ambiguities in a will?

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 anti-lapse statutes apply to class gifts?

Yes.

Do anti-lapse statutes apply to void gifts?

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 a person who chooses to ride on a crowded subway implicitly consent to being bumped by other people?

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 a spouse remarries, may the other spouse obtain modification of support payments?

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 child that is related by "half-blood" to a parent treated the same as a "whole blood"?

Yes.

Is a plaintiff required to prove actual damages in an action for trespass to chattels?

Yes.

Is a promise to pay a debt barred by the statute of limitations binding without new consideration?

Yes.

Is a valid marriage sufficient consideration for a prenuptial agreement?

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 a codicil validate a previously invalid will?

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.

Under the common law, can a personal representative be personally liable for the actions of the estate?

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.

How is an implied easement created?

[LOOK THIS UP]

What transfers are exempt from a "due on sale" clause under federal law?

[Look this up]

When property is improperly transferred as a result of a breach of trust to a third party who is not ____, a beneficiary or successor trustee may have ____.

a bona fide purchaser; the transaction set aside

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

An unwed biological father has a fundamental right to have contact with his child if he demonstrates ____.

a commitment to the responsibilities of parenthood

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

A transferee may take the collateral free of the security interest if they qualify as ____ or a ____.

a consumer buyer; buyer in the ordinary course of business

A third party may recover on a contract if that third party is an intended beneficiary of the agreement. For a third party to be an intended beneficiary, there must be ____, with the clear intent that ____, a breach by either party to the contract, and damages sustained by the third party.

a contract between a promisee and another party; the contract directly benefit the third party

An LLC member may seek involuntary dissolution if ___ to the member seeking the order; the action must ____.

a controlling member acts in a way that is oppressive and directly harmful; violate member's reasonable expectations

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

A court may take temporary emergency jurisdiction over a child if there is no prior custody order, and the order remains in effect until ____.

a decision by the child's home state

Under the M'Naghten test, the defendant is not guilty if, because of ____, the defendant ____.

a defect of reason due to a mental disease did not know at the time either the nature and quality of the act or the wrongfulness of the act

The Pullman abstention doctrine asserts that _____.

a federal court may refrain from ruling on a federal constitutional claim that depends on resolving an unsettled issue of state law best left to the state courts

Congress may change federal civil statutes and may direct federal courts to apply those changes in all actions in which ____.

a final judgment has not been rendered

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 condition is ____. Express conditions, those that are written in the contract, must be ____.

a future event that must take place before a party's rights or obligations are created, destroyed, or enlarged complied with fully unless excused, and substantial performance will not suffice

For a governmental affirmative action program based on race to survive, the relevant governmental entity must show more than ____. The government must ____ it is seeking to favor, and the remedy must be ____ to end that discrimination and eliminate its effects.

a history of societal discrimination; itself be guilty of specific past discrimination against the group; narrowly tailored

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 merger requires BD and SH approval by ____; required documents must be filed with the state.

a majority vote at a meeting with a quorum (at least a majority of the shares entitled to vote) present for each corporation

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

Collateral estoppel (or issue preclusion) requires that the party against whom the issue is to be precluded was ____ (subject to narrow exceptions).

a party to the original action

With respect to the duty of care, directors have a duty to act with the care that ____.

a person in a like position would reasonably believe appropriate under similar circumstances

A director has a duty to act with the care that ____ (objective standard), and is ____ to use any additional knowledge and special skills he possess when deciding how to act.

a person in a like position would reasonably believe appropriate under similar circumstances; required

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

A habit is ____. Evidence of a person's habit is admissible to ____. Before admitting habit evidence, ____ or ____ is not necessary.

a person's particular routine reaction to a specific set of circumstances; prove conduct in conformity with the habit on a particular occasion; corroboration; evidence of the absence of an eyewitness

Government holiday displays will generally be upheld unless ________.

a reasonable observer would conclude that the display is an endorsement of religion

A trustee has a duty to secure possession of property within ____; to maintain ____; to segregate personal property from ____ (the trustee is only liable when ____).

a reasonable time; real property; trust assets; a breach of duty to segregate causes damage to trust property

The modern trend is for the court to grant the trustee all those powers necessary to act as ____.

a reasonably prudent person in managing the trust

When a party can show that another party intentionally destroyed evidence, that party is entitled to ____. The party seeking the presumption must establish that ____.

a rebuttable presumption that the destroyed evidence would have been unfavorable to the party that destroyed it (i) the destruction was intentional, (ii) the destroyed evidence was relevant to an issue about which the party seeks the inference, and (iii) the injured party acted with due diligence in seeking the evidence

A security agreement must (i) be in ____; (ii) contain a ____ of the collateral; and (iii) be ____ by the debtor.

a record; description; authenticated

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 party may voluntarily dismiss a cross-claim (or a counterclaim or third-party claim) without the approval of the court or the consent of the parties before ____, or if there is no ____, before ____ at a hearing or trial. The service of a summary judgment motion by a co-party with respect to a cross-claim (or counterclaim or third-party claim) ____ a party's ability to voluntarily dismiss the claim without court approval or the consent of the other parties. This occurs only after ____.

a responsive pleading is served; responsive pleading; evidence is introduced; does not cut off; evidence is introduced at the court hearing on the motion

The party seeking modification of a spousal-support award typically has the burden of establishing ____ that warrant the modification.

a significant change in circumstances in the needs of the dependent spouse or financial abilities of obligor

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

Although intent is not required for a strict liability crime, the attempted commission of a strict liability crime requires ____ and ____.

a substantial step; the specific intent to commit the crime

Delivery must accompany the declaration of trust if ____, whereby the settlor parts with dominion and control over the trust property.

a third-party trustee is named

When an unwed father fails to register as a putative father, that constitutes ____.

a waiver of the right to notice of an adoption and irrevocably implies his consent to the adoption

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 factors does a court consider when determining whether to pierce the corporate veil?

a) Undercapitalization, disregard of corporate formalities, b) Using C's assets as SH's own assets, c) Self-dealing with C, siphoning of C's funds, d) Using corporate form to avoid statutory requirements, e) SH's domination over C, and f) Fraudulent dealings with a corporate creditor

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

In order for a mistaken party to rescind a contract, there must be an ____.

absence of serious prejudice to the other party

A principal implicitly acquiesces in an agent's conduct by P's ____ of A's acts or P's ____ object to unauthorized actions of A that affirm A's belief regarding P's objectives and support A's ____ to act in future.

acceptance; failure to; perceived authority

Absent contrary instructions, an agent has implied authority to act within ____ or ____ within an industry.

accepted business customs; general trade usage

A corporation is liable for the acts of a promotor if it expressly or impliedly adopts a contract by ____, or ____.

accepting the benefits of the transaction; gives an express acceptance of liability for the debt

Unless determined by an operating agreement, allocations of profits and losses in an LLC are made ____.

according to each member's contributions to the LLC

If both parties misunderstand the terms of their agreement, one party can choose to enforce the K ____.

according to the other party's understanding

In order for a property owner who is in the process of building a structure when a zoning ordinance is adopted that prohibits such a structure to convince a court that his right to build the structure has vested, the property owner must have ____.

acquired a building permit prior to the date that the zoning ordinance took effect

A consumer good is ____.

acquired primarily for personal, family, or household purposes

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

A majority of courts hold that children can be held liable for intentional torts if they either ____ or ____.

act with a purpose; know the consequences of their acts with a substantial certainty

One with the ____ to control another, such as a parent over a child or an employer over an employee, has an ____ to exercise reasonable control. However, without such authority, one party may not ____.

actual ability and authority; affirmative duty; generally be held liable for the negligent conduct of another

A court may also use its equity power to award a spouse reimbursement for his ____ toward the other spouse's educational and related living expenses.

actual contribution

In a majority of jurisdictions, the measure of recovery in misrepresentation cases is the "benefit of the bargain" rule, or the difference between the ____ and the ____.

actual value received in the transaction; value that would have been received if the misrepresentation were true

A court must disqualify an attorney from representing co-defendants where there is an ____, a court may also disqualify an attorney where there is a ____.

actual, present conflict; serious potential for a conflict of interest

A copy of an official record or of a document authorized by law to be recorded or filed that was ____ and certified as correct by the custodian or other person authorized to make the certification is ____.

actually recorded or filed in a public office; self-authenticating

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

Hearings on preliminary matters must be conducted outside the presence of the jury when the hearing involves the ____, when ____, or when ____.

admissibility of confessions; a defendant in a criminal case is a witness and so requests; justice requires it

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

Among the defects in title that render the title unmarketable are future interests held by persons who have not ____.

agreed to the transfer

Fiduciary waivers are recognized in LLCs; the LLC may agree to specific activities that do not violate the duty of loyalty, as long as the ____.

agreement is not manifestly unreasonable

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

Under the UPC, if a class gift is limited in favor of a class of children, only those children ____ of distribution are entitled to possession of the property. If a child who survives the settlor but then predeceases the time of distribution has surviving issue, that issue ____ a right to the parent's share of the gift.

alive at the time; would have

Purchase money mortgages have priority over ____.

all earlier non-purchase-money mortgages and liens whether or not recorded

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.

A will consists of _____ at the execution and _____ a part of the will.

all pages present intended to be

Through the doctrine of integration, the will consists of ____ that are present at the time of execution and that are ____ to be included in the will, which can be shown either by ____ of the pages or by the ____ of the language of the will.

all pages; intended; physical connection; ongoing nature

Under a grantor-grantee indexing system, each yearly index would be ____ by the last names of grantors and grantees. A potential purchaser searching the title would first search for the grantor's name as a grantee in the grantee index, then the name of the grantor's grantor as a grantee and so on. However, a deed not within the chain of title is a ____.

alphabetized; wild deed

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

A court may not ____ due to changed circumstances, but may interpret certain changes as ____ in order to make such modifications.

alter the rights of beneficiaries; frustrating to the trust purposes

Under the UCC, an acceptance containing additional or different terms is generally treated as ____.

an acceptance

In order for a member of an LLC to bring a direct action to enforce the member's rights under the operating agreement, there must be ____.

an actual or threatened injury that is not just a result of an LLC injury

Conspiracy is _____.

an agreement between two or more persons to accomplish an unlawful purpose with the intent to accomplish that purpose

An offender does not have an absolute constitutional right to counsel at a probation revocation hearing when ____. Instead, an offender only has such a right if it is necessary for a ____.

an already-imposed sentence is executed as a result of the revocation of probation; fair trial

Under the Fourth Amendment, officers must have ______ in order to stop an automobile.

an articulable, reasonable suspicion of a violation of the law

An assignment of a contract is generally treated as both ____.

an assignment of rights and a delegation of duties

A power of attorney is _____. The person authorizing the other to act is the _____, and the one authorized to act is the _____.

an authorization to act on someone else's behalf in a legal or business matter principal agent

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 property owner whose nonconforming use predates a zoning ordinance may not, after the ordinance becomes effective, switch to ____.

another nonconforming use

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

Compromise offers made by any party, as well as ____, are generally not admissible to prove or disprove the validity or amount of a disputed claim.

any conduct or statements made during compromise negotiations

For purposes of a battery claim, "harmful or offensive" contact is ____.

any contact that a reasonable person, measured by an objective standard, would find harmful or offensive

When a party is suing as a third-party beneficiary of a contract, the promisor can raise ____.

any defense against the third-party beneficiary that the promisor had against the original promisee

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

A superseding cause is ____.

any intervening cause that breaks the chain of proximate causation between the defendant's tortious act and the plaintiff's harm, thereby preventing the original defendant from being liable to the plaintiff

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

An express warranty is ____.

any promise, affirmation, description, or sample that is part of the basis of the bargain, unless it is merely the seller's opinion

The General Welfare Clause of Article I, Section 8 of the U.S. Constitution has been interpreted as permitting Congress to exercise its power to tax for ____.

any public purpose

The court, on its own initiative, may order a new trial for ____. The court, though, must ____ in its order.

any reason that would justify granting a new trial on the motion of a party; specify the reasons

A corporation is required to indemnify a director for ____ of a proceeding against that director for violating a duty.

any reasonable expense incurred in the successful defense

Parents can enter into private agreements regarding child support payments, but they cannot agree to ____.

any release or compromise that would negatively affect the child's welfare

Evidence must be relevant to be admissible. Relevant evidence is that which has ____.

any tendency to make any fact of consequence more or less probable than it would be without evidence

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

A principal is liable for a tort committed by an agent with ____ when the agent's appearance of authority enables him to commit a tort or conceal its commission. For such authority to exist, a third person must believe that ____, and such belief must be ____ and be ____.

apparent authority; the agent acted with actual authority; reasonable; traceable to a manifestation by the principal

In tort law, an assault is the plaintiff's reasonable _____ of an ____ caused by the defendant's action or threat with the intent to cause the apprehension of such contact or the contact itself.

apprehension imminent harmful or offensive bodily contact

Easements are presumed to be ____ unless there are clear facts to the contrary. The benefits of an easement must correspond ____.

appurtenant (i.e., tied to the land) directly to the use and enjoyment of the possessor of the dominant estate

A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction or destroy venue must be joined as a party if the party's participation in the lawsuit is necessary for a just adjudication. Tortfeasors facing joint and several liability ____ considered necessary parties.

are not

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

Under the Sixth Amendment's right to a speedy trial, the time period for measuring this right commences at the time of ____ or ____, whichever comes first.

arrest; formal charge

If there is a conflict between the articles of incorporation and the bylaws, the ____ control.

articles

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 parent has a right to raise her child ____, including decisions relating to the child's religious upbringing.

as she sees fit

While an outstanding mortgage does constitute an encumbrance, if the amount of the mortgage is less than the selling price, it does not render the title unmarketable because, ____.

at closing, the seller can apply the proceeds from the sale of the property to pay off the balance of the mortgage and remove the encumbrance

Parties may seek to rescind a contract for a variety of reasons but grounds for rescission must have existed ____.

at the time the K was made

Dissociation that complies with the provisions of the partnership agreement may also trigger dissolution, such as when it is an ____ or when the partnership agreement so provides. If the dissociating partner's withdrawal is not wrongful, the partner is not ____ and would retain the right to participate in the ____ and winding up the partnership.

at-will partnership agreement with no definite term; liable for damages; dissolution

The crime of assault is an ____ (the unlawful application of force to the person of another, which can be applied through a third person acting ____). Attempt requires a substantial step toward the commission of a crime, such as ____ of an innocent agent to engage in criminal conduct, coupled with ____.

attempt to commit a battery; under the defendant's direction; solicitation; the intent to commit that crime

All tangible evidence must be ____. To do so, the proponent must produce sufficient evidence to support a finding that ____.

authenticated; the thing is what its proponent claims it is

A SH owning 50% plus one of a C's shares is ____.

automatically a controlling shareholder

A purchase-money security interest (PMSI) in consumer goods is ____ upon attachment.

automatically perfected

A gratuitous assignment of contract rights ____ upon the death of the assignor.

automatically terminates

When the content or legal effect of K is misrepresented, the deceived party can either ____ or ____.

avoid K; reform it to express what was represented

A party to K must ____ or ____ damages to the extent possible by taking such steps as to not involve undue risk, expense, or inconvenience.

avoid; mitigate

Under the Younger abstention doctrine, a court will not enjoin a pending state criminal case in the absence of _____.

bad faith, harassment, or a patently invalid state statute

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

Unlike other powers of attorney, a healthcare power of attorney ____.

becomes effective upon incapacitation of the principal

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

If the clerk in a filing office unjustifiably refuses to file a financing statement, the financing statement is treated as having ____; the statement is effective except as to a purchaser of the collateral who gives value in reasonable reliance upon ____.

been filed; the absence of the record from the files

A nonbreaching party may recover for any ____ on breaching party by way of part performance or reliance. A nonbreaching party may not recover restitution if ____.

benefit conferred; he has fully performed and the only remaining performance by the other party is the payment of a definite sum of money

Members of an LLC must account to the LLC for any ____, refrain from ____, and refrain from ____.

benefit derived by the member related to the LLC's business; dealing with the LLC on behalf of one having an adverse interest; competing with the LLC

References in a will to "children" are deemed to include adopted children. An adopted child is treated as a ____ for purposes of inheritance.

biological child

If both parties know that a K's terms are ambiguous at the time of formation, there is no contract unless ____.

both parties intended the same meaning

If an agent fails to disclose either the existence or the identity of the principal, then ____.

both the principal and the agent are parties to the contract

A prohibited assignment of contractual rights is only a ____ and the contract can ____.

breach of contract; still be enforced by the assignee

A director who engages in a business venture that competes with a corporation has ____.

breached the duty of loyalty

Traditionally, ________ are considered to be inherently dangerous felonies.

burglary, arson, robbery, rape and kidnapping

If buyer breaches/repudiates after goods have been identified but before risk of loss shifts, then risk immediately shifts to ____.

buyer (to extent of lack of insurance coverage by seller)

If a seller delivers nonconforming goods, risk of loss remains on the seller until ____.

buyer accepts or there is cure

A "general offer" is an offer made to a large number of people, generally through an advertisement. A general offer can be revoked only ____.

by notice that is given at least the same level of publicity as the offer

A power of attorney can be revoked _____.

by the principal at any time

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

The doctrine of substantial performance provides that a party who substantially performs ____. Substantial performance is negated if ____.

can recover on the contract even though full performance has not been tendered; the incomplete performance amounted to a material breach of contract

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

A revocable trust can be terminated by the settlor at any time, and an irrevocable trust usually ____.

cannot be terminated

Under the doctrine of merger, a buyer of property generally __________.

cannot sue on promises contained in the contract once closing has taken place

The Board of Directors is authorized to make distributions, usually in the form of ____.

cash dividend payments

At common law, a defendant could be convicted of murder not only for an intentional killing, but also for causing another's death by actions intended to ____.

cause serious bodily injury short of death

Before a court can issue a temporary restraining order without giving the adverse party notice, the attorney of the party seeking the order must ____.

certify in writing any efforts made to give notice and the reasons why notice should not be required

Generally, a specific instance of conduct (e.g., lying on a job application) is not admissible to attack or support the witness's ____. However, on cross-examination, a witness may be asked about specific instances of conduct if it is probative of the truthfulness or untruthfulness of ____ or ____.

character for truthfulness; the witness; another witness about whose character the witness being cross-examined has testified

Creditors usually cannot reach a trust interest if the governing instrument contains a spendthrift clause (unless for ____).

child or spousal support, basic necessities providers, and tax lien holders

The standard applicable to minors is more subjective in nature because ____.

children are unable to appreciate the same risks as adults

Impossibility is not a defense to attempt if the crime attempted is factually impossible to commit due to ____.

circumstances unknown to the defendant

An obligor with the ability to pay child support may be found in ____.

civil contempt and can be sent to jail until the amount owed is fully paid

A remand order is generally not reviewable on appeal or otherwise (except for an order remanding a civil rights case removed pursuant to § 1443 or a remand order in a ____, if the application for review is made to the court of appeals ____).

class action; not more than 10 days after the entry of the order

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

In order to be considered present at a meeting, a director must make an appearance using ____.

communications equipment that allows all persons participating in the meeting to hear and speak to one another

What sanctions are available to enforce a child-custody order?

compensatory visitation, attorney's fees, court costs, fines, jail time, tort damages

Unless the language or circumstances indicate otherwise, when one party's performance requires a period of time, that party must ____.

complete his performance before the other party has to perform

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

Express conditions, which are those that are written in the contract, must be ____; substantial performance will ____.

complied with fully unless excused not suffice

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

Compromise offers made by any party, as well as any ____ made during compromise negotiations, are not admissible to prove or disprove the ____ or amount of a disputed claim, nor may they be admitted for ____ by prior inconsistent statement or contradiction.

conduct or statements; validity; impeachment

While a defendant may waive the right to a jury trial and opt for a trial by judge, known as a "bench trial," a defendant does not have a ____ to a bench trial. (Note: A defendant who can establish that a jury trial would ____ may be entitled to a bench trial on that ground.)

constitutional right; deny him a fair trial

An after-acquired clause is not effective for ____, unless the debtor acquires them within ____ days after the secured party gives value, or a ____ tort claim.

consumer goods; 10; commercial

The description of collateral in a security agreement can list specific items or can identify the Art. 9 type of collateral ("all debtor's equipment) unless the collateral is ____ or a ____; a ____ description ("all debtor's assets") is not sufficient.

consumer goods; commercial tort claim; super-generic

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 covenant against encumbrances guarantees that the deed ____. A special warranty deed contains this covenant but only warrants against ____.

contains no undisclosed encumbrances; defects arising during the time the grantor has title

If the owner of two parcels of land previously used one parcel to benefit the other, then the court may find that, upon the sale of the dominant parcel, the parties intended the easement to continue if the prior use was ____, ____ (open and obvious), and ____ to the dominant land's use and enjoyment. Strict ____ is not required.

continuous; apparent; reasonably necessary; necessity

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

For conversion there must be intent to ____, in other words, intent to ____.

convert; take or exercise dominion over personal property

In construction contracts, damages for defective performance are generally the ____ to ____ the defect.

cost; correct

Delegation in contracts for the sale of goods may be treated by the other party as ____; the other party may demand ____ from delegate; conforming promises by permitted delegates must ____.

creating reasonable grounds for insecurity; assurances; be accepted

The accomplice is liable for any ________.

crimes that are the natural and probable consequence of the accomplice's conduct

If breaching party has benefitted from P's performance, P can recover for benefit conferred less the breaching party's ____.

damages for the breach

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

Questions regarding the transfer of personal property from someone who dies intestate or who has a will are governed by the law of the ____. Questions regarding the transfer of real property from someone who dies intestate or who has a will are governed by ____.

deceased's domicile at the time of death; the law of the situs

Under the M'Naghten test, the defendant is not guilty if, because of a ____, the defendant did not ____.

defect of reason due to a mental disease; know either the nature and quality of the act, or the wrongfulness of the act

Under a shipment contract, the seller must ____.

deliver goods to a carrier and make a contract for their shipment

Under a destination contract, the seller must ____.

deliver goods to the place specified in contract and tender them there by holding them at the buyer's disposition

The doctrine of ____ allows a court to disregard a testator's revocation that was based on a mistake of law or fact and would not have been made but for that mistake.

dependent relative revocation

In order to file a federal statutory interpleader action, the stakeholder must be willing to either ____ or to ____.

deposit the property at issue with the court; post a bond in an appropriate amount

The defense of economic duress applies to both common-law and UCC contracts. Any wrongful act or improper threat that ____ and ____ is considered duress. Duress is generally evidenced by a ____ or malicious threat, or a violation of the duty of ____ and ____. A party is deprived of a meaningful choice when there is no ____. If all elements of economic duress are met, the contract is ____ by the threatened party.

deprives the party of a meaningful choice; induces the party to accept; bad-faith; good faith; fair dealing; reasonable alternative; voidable

Duress exists when a person enters into a contract in response to an improper threat that ____. The threat of criminal prosecution ____ an improper threat, ___ if the person threatened was actually guilty of the crime.

deprives the person of a meaningful choice; constitutes; even

A defendant is liable for conversion if he intentionally commits an act ____ the plaintiff of possession of his chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff of ____ the chattel. The plaintiff's damages are the chattel's full value at the time of ____. The defendant must only intend to ____; intent to cause damage is not necessary.

depriving; the use of; the conversion; commit the act that interferes

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

Generally, a federal court with diversity jurisdiction over an action is required to apply state substantive law, such as a statute of limitations, but is not required to apply a state procedural rule. However, when that state procedural rule ____ statute of limitations, the federal court ____.

determines the applicability of the state; must apply the state procedural rule

Under the Model Penal Code test for insanity, a defendant is not guilty when, at the time of the conduct, as a result of a mental disease or defect, he ____ or ____.

did not have substantial capacity to appreciate the wrongfulness of the act; to conform his conduct to the law

When a contract is made by an infant, it is voidable by the infant but not by the other party. This means that the infant may either _____ or _____.

disaffirm (void) the contract and avoid any liability under it choose to hold the adult party to the contract

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

Short-term use of a home (e.g., several hours) with the permission of the owner ____, at least when the home is being used for ____.

does not give rise to a reasonable expectation of privacy; an illegal business purpose

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

Knowledge by the purchase-money secured party of a conflicting prior security interest ____ the priority of the PMSI over the earlier perfected security interest.

does not prevent

A federal court sitting in diversity may assert supplemental jurisdiction over a counterclaim that ____ when the counterclaim is compulsory. However, a permissive counterclaim ____ for supplemental jurisdiction and therefore must ____ and the rule of complete diversity.

does not satisfy the jurisdictional amount; does not qualify; satisfy the jurisdictional amount

Unless the governing instrument provides otherwise, the common law general rule is that, when a gift is expressly limited to the transferor's surviving children, the surviving issue of a deceased child ____.

does not take

Violation of the knock-and-announce rule ____ the exclusionary rule with respect to evidence discovered as a result of a search conducted in violation of the knock-and-announce rule because ____.

does not trigger; the interests protected by the knock-and-announce requirement do not include the shielding of potential evidence from discovery

A director who engages in a conflict-of-interest transaction with his own corporation has violated his ____. A conflict-of-interest transaction may enjoy protection via ____.

duty of loyalty unless the transaction is protected under the safe-harbor rule; (i) a majority vote of informed and disinterested directors; (ii) a majority vote of informed and disinterested shareholders; or (iii) fairness of the transaction.

A party's ____ if K becomes illegal after formation.

duty to perform is discharged

A partnership is considered a citizen of each state in which ____. This is true for both general and limited partnerships; a limited partnership is a citizen of every state in which its ____ and ____ partners are domiciled.

each of its partners is domiciled; general; limited

Congress can regulate the rental terms for residential property pursuant to the commerce clause because such rentals constitute ____.

economic activity that, in the aggregate, has a substantial effect on interstate commerce

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

The revocation or renunciation of authority in a principal-agent relationship is effective as soon as ____ (unless A's power is coupled with an interest in the subject matter of the power).

either party gives notice to the other party.

The primary purpose of an annual shareholders meeting is to ____.

elect directors

A principal is vicariously liable to a third party harmed by an agent who is an ____ and who committed an act ____.

employee; within the scope of employment

Under the material benefit rule, when a party performs an unrequested service for another party that constitutes a material benefit, the performing party can ____. However, the material benefit rule is not enforced when the ____.

enforce a promise of payment made by a party who benefits from the service rendered; performing party rendered the services without the expectation of compensation

Under the Uniform Commercial Code (UCC), a clause in a written contract that prohibits oral modification of the contract is ____.

enforceable

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

A defendant is not guilty as an accomplice when that person's action is itself an ____ of the crime.

essential element

A person dealing with an entity in a contractual agreement as if it were a corporation is ____ from denying its existence and seeking personal liability.

estopped

Once a party waives a condition, he can be ____ from using that condition as a defense if other party ____ on the waiver.

estopped; reasonably relied

The "Pinkerton Rule" says that ____.

every co-conspirator is guilty of any foreseeable substantive offense committed in furtherance of the conspiracy, regardless of actual knowledge of its commission

A corporation can acquire stock in another corporation to acquire control of that corporation without doing a merger by ____ or by ____.

exchanging its own stock for that stock; paying cash or other property for the stock

A prescriptive easement can be obtained by continuous, actual, open, and hostile use for a specific period. Unlike with adverse possession, the use need not be ____. The scope of an easement by prescription is limited to ____.

exclusive; the nature and extent of the adverse use

If party whose duty is subject to a condition wrongfully prevents or interferes with occurrence of that condition, then the condition is ____ and interfering party has an ____ per implied duty of good faith and fair dealing

excused; absolute duty to perform

Unless the language or circumstances indicate otherwise, when both parties performance can be rendered at the same time, one party's failure to perform ____.

excuses the other party's performance

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

To recover under a strict products liability theory of recovery, the plaintiff must prove that the product was defective, the defect ____, and the defect caused the plaintiff's injuries when used in an ____ or ____ way.

existed at the time the product left the defendant's control; intended; reasonably foreseeable

A property owner's disability is relevant if it ____ of adverse possession.

exists at the inception of the period

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

An assault occurs when the defendant's intentional overt act causes the plaintiff to ____ of an imminent battery. The act must be volitional and performed with the ____ in apprehension of imminent harm or an offensive contact.

experience reasonable apprehension; intent to place someone

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

A defendant will be held liable for intentionally or recklessly acting with ____ conduct that causes the plaintiff severe emotional distress. Conduct is ____ if it exceeds the possible limits of ____, so as to be entirely intolerable in a civilized society. Liability does not extend to ____.

extreme or outrageous; extreme and outrageous; human decency; mere insults, threats, or indignities

Although recording the deed raises the presumption of delivery, that presumption is rebuttable by ______.

facts indicating the grantor's contrary intent

An intervening cause is a ____.

factual cause of the plaintiff's harm that contributes to his harm after the defendant's tortious act has been completed;

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

The objective of an equitable distribution system is a ____, not necessarily ____.

fair distribution of marital property; an equal division

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

U.S. Supreme Court precedent establishes that the First Amendment does not protect commercial speech that is ____ or ____. Fraudulent commercial speech may actually be prohibited on the basis of ____.

false; misleading; content

The prosecution has an affirmative duty to disclose any material evidence ____ to the defendant and relevant to the prosecution's case in chief that would ____ or ____. Failure to disclose such evidence (known as Brady material) violates the Due Process Clause of the Fourteenth Amendment.

favorable; negate guilt; diminish culpability or punishment

An easement is terminated if the owner of the easement acquires ____. The easement is said to ____ into the title.

fee title to the underlying estate; merge;

Under the "plain feel" exception, if an officer conducting a valid frisk _____, then the officer may seize the evidence.

feels an object that has physical characteristics that make its identity immediately obvious

The debtor's authentication of the security agreement serves as authorization to ____.

file the financing statement

When there is no SS or descendant, how is an estate distributed to ancestors and remote collaterals using the parentelic approach?

follows collateral lines until a live taker is found; D's property is distributed within that taker's parentelic line

A promise not to bring a legal action or to assert a particular claim or defense in such an action generally can serve as consideration for a settlement agreement because the party making the promise is ____. The legal action need not be one that is certain to succeed. Instead, the party agreeing to forbear bringing the action must have only ____, and there must be a ____.

foregoing a legal right; an honest belief as to the validity of the claim; reasonable basis for that belief

Any ____ user of a defective product who is personally injured or whose property is harmed by the product may maintain a strict liability action.

foreseeable

The majority rule for proximate cause requires that the plaintiff suffer a ____. The ____ must be foreseeable, though the ____ need not be foreseeable.

foreseeable harm that is not too remote and is within the risk created by the defendant's conduct; type of harm; extent of harm

To be voluntary, the parties must enter into a premarital agreement free of ____. A party's insistence on the agreement as a condition to marriage is ____.

fraud, duress, or misrepresentation; not considered duress on its own

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

In order to bring a shareholder derivative suit, the SH must first make a written demand on the board not to engage in act that would harm C unless it would be ____.

futile

Although the adverse possession period does not run against ____ that exist at the time that the adverse possession begins, adverse possession does apply to ____ after the adverse possession has begun.

future interests; a future interest created from a fee simple absolute estate

The Uniform Trust Code and the Restatement (Third) both presume a ____ purpose and authorize applying cy pres even if ____.

general charitable; the settlor's intent is not known

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)

When only one of the parties is mistaken as to an essential element of the contract, either party can ____. However, the mistaken party can void the contract if ____.

generally enforce the contract on its terms the he did not bear the risk of the mistake

Even with a warrant, most states and federal law mandate that a police officer who is making an arrest in a home must ____.

generally knock and announce his purpose before entering the home

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

A corporation may indemnify in an unsuccessful defense if a director acted in ____ that the conduct was in corporation's best interest and the director did not have ____.

good faith with a reasonable belief; reasonable cause to believe the conduct was unlawful

A trustee has a duty to administer the trust in ____ (subjective standard) and to ____ (objective standard) when investing property and otherwise managing the trust solely in ____.

good faith; act reasonably; the best interests of the beneficiaries

When a seller transfers ownership of goods, the seller implicitly warrants automatically ____.

good title, rightful transfer, and goods free of security interest of which buyer is unaware

An owner who makes a ____ to comply with the incorporation requirements and operates C ____ is not personally liable under a de facto corporation theory.

good-faith effort; without knowing the requirements were not met

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 prima facie case for battery requires that the plaintiff show that the defendant caused ____, and that the defendant acted with the intent ____.

harmful or offensive contact to the plaintiff's person;

A landowner has a right to lateral support from adjoining land. If the adjoining land ____, the excavating landowner is strictly liable for any damage caused by the excavation only if the land would have collapsed in its natural state (regardless of the improvement).

has been improved (i.e., is not in its natural state)

A trust may terminate by consent if the settlor is deceased or ____, and if all of the beneficiaries and the ____. Under the Claflin doctrine, a trustee can block a ____—even one to which all of the beneficiaries have consented—if the trust is shown to have an ____. Most courts allow the trustee to block the termination if it can be shown that termination would violate the ____.

has no remaining interest in the trust; trustee consent to the termination; premature trust termination; unfulfilled material purpose; settlor's intent

A trust may terminate by consent if the settlor is deceased or ____, and ____.

has no remaining interest; all the beneficiaries and the trustee consent

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

A third party may properly raise fraudulent concealment of a principal when the agent or principal ____.

have notice that the third party would not have dealt with the principal

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

If there is a unilateral mistake in the formation of a contract, the mistaken property can void K if ____ and either ____ or ____.

he didn't bear risk of mistake mistake would make enforcement of K unconscionable non-mistaken party caused the mistake, had duty to disclose or failed to disclose mistake, or knew or should have known the other party was mistaken

A domestic animal's owner is strictly liable for injuries caused by that animal if ____, and ____.

he knows or has reason to know of the animal's dangerous propensities; the harm results from those dangerous propensities

A seller can reclaim goods from an insolvent buyer if ____.

he makes a demand within 10 days after buyer receives goods

A civil judgment, unlike a criminal judgment, constitutes __________. (Evidence)

hearsay that is not admissible under an exception to the hearsay rule

A controlling shareholder is a shareholder (or a group of shareholders acting in concert) who holds a ____.

high enough percentage of ownership in a company to enact changes at the highest level

A cotenant can generally collect expenses if he paid more than ____ unless he is the only one ____, and the value of his use is ___.

his share (taxes, mortgage payments); in physical possession of the property; equal or outweighs the overpayment

A defendant may be liable for battery if he is aware that the victim is ____ but proceeds to act nonetheless. In such a case, the fact that ____ would not find the contact offensive is not a defense.

hypersensitive; a reasonable person

A BOCB is a person who:

i) Buys goods (not including farm products); ii) In the ordinary course of business; iii) From a merchant who is in the business of selling goods of that kind; iv) In good faith; and v) Without knowledge that the sale violates the rights of another in the same goods.

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

What are the traditional elements of undue influence?

i) Susceptibility (the testator was susceptible to being influenced); ii) Motive or predisposition (the influencer had reason to benefit); iii) Opportunity (the influencer had the opportunity to influence); and iv) Causation (the influencer caused an unnatural result).

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

Government regulation of expressive conduct is upheld if:

i) The regulation is within the government's power to enact (e.g., through a local government's police power); ii) The regulation furthers an important government interest; iii) The government interest is unrelated to the suppression of ideas; and iv) The burden on speech is no greater than necessary.

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.

Trust property must be ____ and ____, and it must be described with ____.

identifiable; segregated; reasonable certainty

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)

Restrictions contained in the recorded declaration of a common-interest ownership community are enforceable unless ______.

illegal, unconstitutional, or against public policy

A trust can be created for any purpose as long as it is not ____ or ____; if one of several trust terms violates public policy, alternative terms will be honored, or, if none, the term will be stricken; but the trust will not fail unless removal of the term is ____.

illegal; contrary to public policy; fatal

If the original charitable purpose of a charitable trust becomes ____, ____, or ____, a court may modify a charitable trust to provide ____ that approximates the settlor's intent in creating the trust. The settlor's ____ controls.

illegal; impracticable; impossible to perform; an alternative charitable purpose; intent

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 controlling shareholder has a duty to disclose information that a reasonable person would consider ____ on a transaction, and a duty of ____ when purchasing a minority shareholder's interest.

important in deciding how to vote; fair dealing

A party who withdraws from an illegal K before the ____ may recover under restitution when the party has not engaged in ____.

improper purpose has been achieved; serious misconduct

A director's duty of loyalty requires that she act ____.

in a manner that she reasonably believes is in the best interest of the corporation

Under the UCC, a seller must strictly perform all obligations under K or be ____. Material breach only applies to ____ or when ____.

in breach; installment Ks; parties stipulate to it in K

A director is personally liable to the corporation for unlawful distributions in violation of her duty of care and loyalty in the amount ____.

in excess of a lawful amount

To constitute sufficient consideration, must be bargained-for ____, promise must ____, and detriment must ____.

in exchange for the promise; induce the detriment; induce the promise

Implicit in an express condition precedent is an obligation on the party charged with performing under the condition will attempt to bring about that condition ____.

in good faith

The Uniform Trustees' Powers Act (UTPA) obligates third parties to act ____ and ____. Under the UTPA, third parties are protected as long as they act ____.

in good faith; to give valuable consideration; without actual knowledge that such action constitutes a breach of trust

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

To be valid, a power of attorney must be ______. The principal must be ______ at the time she signs the document.

in writing, signed, and dated mentally competent

In order to vote by proxy, a shareholder must express that intent ____ and ____.

in writing; deliver it to the corporation or its agent

A buyer is entitled to specific performance despite a seller's breach of a contract to sell land because the buyer's remedy at law (i.e., damages) is considered ____. In addition, when the buyer seeks specific performance with respect to property for which there is a title defect (e.g., an encumbrance), the buyer may also obtain an ____ to compensate the buyer for the defect.

inadequate due to the unique nature of land; abatement in the purchase price

In most states, the cost of providing medical insurance for the child is ____.

included in the child-support award

Spousal-support payments are treated as ____, and are deductible by the payor.

income to the recipient

Rezoning that affects a small number of parcels of land, most typically a single parcel, in manner that is ___ and that usually ____ constitutes impermissible "spot zoning."

inconsistent with the zoning of the neighboring land (and the comprehensive plan where one exists); benefits the owner of the parcel or parcels to the detriment of the neighboring land

What are a principal's remedies for a breach by the agent?

injunction, breach of contract action, tort action, rescission, restitution, accounting, termination of agency relationship, forfeiture of compensation, or disgorgement

A landowner is not strictly liable for injuries inflicted by his animals against a trespasser, except for _______.

injuries inflicted by a vicious watchdog

Disclaimers that unreasonably negate or limit express warranties are ____.

inoperative

Creditors can pursue involuntary dissolution only for an ____ corporation.

insolvent

A corporation cannot distribute if the corporation is ____ or if the distribution would ____.

insolvent; make the corporation insolvent

A PMSI in software exists only when the debtor acquired his interest in software in an ____ in which the debtor also acquired an interest in ___ (e.g., a computer), and the debtor acquired that interest in the software for the principal purpose of ____.

integrated transaction; goods; using the software in the goods

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

Conduct within the scope of employment includes acts that the employee is employed to perform or that were____. Careful instructions directed to the employee ____ from liability—even when the ____—if the employee is acting within the scope of employment.

intended to profit or benefit the employer; do not insulate the employer; employee acts counter to the instructions

A defendant is liable for ______ acting with extreme and outrageous conduct that causes the plaintiff severe emotional distress.

intentionally or recklessly

Classifications on the basis of status as a nonmarital child are subject to ____ scrutiny—they must be ____.

intermediate substantially related to an important governmental interest

A defendant may be able to avoid liability under a negligence per se theory by proving that compliance with the statute or regulation would have ____.

involved a greater risk of physical harm to the defendant or others than noncompliance would have (e.g., it was an emergency)

If an assignment of a contract is for consideration, it is ____.

irrevocable

Extrinsic evidence ______ admissible to show that the witness is biased and may not be testifying truthfully is admissible.

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

When a jury renders a verdict that a defendant is guilty of certain offenses but not guilty of other related offenses, the guilty verdict ____ reviewable on the grounds of ____, even when the jury acquits the defendant of an offense that is a predicated on an offense for which the same jury finds the defendant guilty.

is not; inconsistency

Under the minority view (states that follow the so-called "retreat doctrine"), retreat is required if ____. Even under the minority view, however, retreat is never required when ____ (i.e., the "castle doctrine").

it can be safely accomplished; the person employing deadly force is in his own home

A court that has either initial or exclusive-continuing jurisdiction can decline jurisdiction over a child-custody order if ____.

it finds forum to be inconvenient

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 describing medical history or past or present symptoms is not hearsay if ____. A statement of the cause or source of the condition is admissible as an exception to the rule against hearsay if ____.

it is made for medical diagnosis or treatment; it is reasonably pertinent to diagnosis or treatment

A statement made by a party to the current litigation is not hearsay if __________.

it is offered by an opposing party

Generally, a specific instance of conduct is not admissible to attack or support the witness's character for truthfulness. However, on cross-examination, a witness may be asked about specific instances of conduct if ____.

it is probative of the truthfulness or untruthfulness of the witness

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"

Any instrument, unless the donor directs otherwise, may be used to exercise a power of appointment. However, if the power is testamentary, then ______.

it may be exercised only by a will

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)

Acceptance of an offer of an accord agreement does not automatically discharge the original contract; instead, it ____.

it suspends the earlier contracct for a reasonable time to allow the accord-offeree to "satisfy" the accord agreement

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 assignment of rights under a contract is not allowed if ____.

it will materially increase the duty or risk of obligor or materially reduces the obligor's chance of obtaining performance

The trustee may delegate responsibilities if ____; however, a critical function concerning the property is ____.

it would be unreasonable for the settlor to require the trustee to perform such tasks; discretionary and not delegable

Denial of parental visitation is permitted only when ____. However, restrictions, including _______, may be imposed.

it would seriously endanger a child's physical, mental, or emotional health; supervision, denial of overnight visits

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

Co-trustees are ____; the trustee is liable for a predecessor's breach if ____; generally, the trustee is liable for an agent's breach if ____.

jointly liable; he failed to address it or was negligent in delivering property; the trustee directs or conceals the agent's act or fails to exercise reasonable supervision over the agent

In order to join defendants in a single action, the plaintiff's right to relief must be asserted against them _____.

jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence

A voidable marriage is valid until a ____.

judicial decree dissolves the marriage

If one party is ____ of facts making K illegal or ____, he can recover if the other party had knowledge of the illegality.

justifiably ignorant; lacks illegal purpose

Nonfraudulent misrepresentation renders a K voidable by the adversely affected party who ____ and ____.

justifiably relied on material misrepresentation; was induced to assent to K because of it

A principal is estopped from disclaiming liability a third party is ____ induced to make a ____ in position because that third party believed the transaction was entered into for the principal and the principal failed to ____.

justifiably; detrimental change; take reasonable steps and use ordinary care

A defendant may go beyond the face of a warrant and challenge its validity due to the inclusion of false information in the affidavit. However, the defendant must establish by a preponderance of the evidence that the false information was ____ included by the affiant in the affidavit and that ____.

knowingly, intentionally, or with reckless disregard for its truthfulness; the information was necessary to a finding of probable cause by the magistrate

An attorney submitting a pleading to the court is certifying that to the best of her ____, information, and belief, the factual contentions have ____ or, if specifically so identified, will likely have ____ after a reasonable opportunity for further investigation or ____.

knowledge; evidentiary support; evidentiary support; discovery

A seller has right to cure defective tender if time of performance under K has not yet ____ or seller had ____ to believe that buyer would accept despite the nonconformity.

lapsed; reasonable grounds

Robbery is ____. The taking of property by intimidation must be the result of ____. A threat to damage or destroy ____, is probably not sufficient.

larceny by force or intimidation when the taking of the property is from the person or presence of the victim a threat of immediate serious physical injury to the victim, a close family member, or other person present property, other than the victim's home

One who obtains possession of, but not title to, property owned by another through fraud or deceit who has the intent to unlawfully convert and who later does so convert is guilty of ____.

larceny by trick

A bill of attainder is a ____.

legislative act that inflicts punishment on named individuals or on easily identifiable members of groups

A person who comes to the aid of another is a foreseeable plaintiff. If the defendant negligently puts either the rescued party or the rescuer in danger, then he is _______.

liable for the rescuer's injuries

Generally, a mortgagee is not entitled to take possession of the mortgaged property in a ____ jurisdiction because title to the property remains in the mortgagor until the mortgage is foreclosed. However, when the mortgagor abandons the mortgaged property, the mortgagee may ____, even when the mortgagor is not ____.

lien; take possession of the property in order to protect its interest in the property; in default of its loan

Rehabilitative support is for a ____, such as until the spouse receives education or employment. The purpose of this type of support is to ____ and improve the ____ of the economically dependent spouse.

limited period of time; enhance; earning capacity

Permanent spousal support is typically awarded only when the marriage was one of ____, typically refers to a marriage of ____.

long duration; 15 years or more

Spousal support may be a ____, permanent, ____, rehabilitative, or ____.

lump sum; limited duration; reimbursement

In general, the assent of a ____ of directors ____ at a meeting is necessary for board approval.

majority; present

The Due Process Clause requires that the prosecution prove all of the elements of the case beyond a reasonable doubt. A ____ presumption regarding an element of an offense violates the due-process requirement. This could include either a ____ or a ____.

mandatory; conclusive presumption that cannot be rebutted (which would relieve the prosecution of having to prove an element of their case); rebuttable mandatory presumption (which shifts the burden of proof regarding the element of the offense)

Conduct that _____ is known as "depraved heart murder."

manifests a reckless indifference to an unjustifiably high risk to human life, unaccompanied by the intent to kill, and that actually results in death,

A state may behave in a discriminatory fashion if it is acting as a ____ (buyer or seller), as opposed to a market regulator. In such circumstances, the state may favor ____ or ____ against non-resident commerce as could any private business.

market participant; local commerce; discriminate

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

For purposes of larceny by trick, in order to obtain possession of property through fraud or deceit, the defendant must make a false factual representation of a ____ on which owner of the property relies.

material past or present fact

If a party fails to substantially perform, she ____.

materially breaches

While a declaration of covenants may give the developer a general power to amend the declaration with respect to lots owned by the developer, the developer may not use this power in a way that would ____ or ____ unless the declaration ____.

materially change the character of the development; the burdens on the existing community members; fairly apprises purchasers that the power could be used for the kind of change proposed

One aspect of claim preclusion is that when a judgment is in a party's favor, the entire claim ____ with the judgment and is extinguished. Under the transactional approach, a subsequent claim with respect to ____, out of which the original action arose is barred.

merges; all or any part of the transaction, or series of connected transactions

Easements are terminated when the servient estate ____ with the easement, i.e., when the same owner owns both the easement and the servient estate. The easement is not ____ when the ownership is subsequently split.

merges; revived

In a ________ jurisdiction, the plaintiff is precluded from recovering if he is more at fault than the defendant.

modified (i.e., partial) comparative negligence

Once a child-support award has been paid, the obligor is not permitted to ____.

monitor how the money is expended

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")

Under Rule 37, if a party fails to make the automatic disclosures required by Rule 26(a) or fails to respond to discovery that has been properly served, the party seeking the information may ____. Generally, making a motion ____ to obtaining any sanctions under Rule 37.

move to compel such disclosure or discovery to compel is a prerequisite

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

The trustee can delegate the determination of management and investment strategies but ____.

must oversee the decision-making process

Affirmative defenses ____ be stated in the defendant's answer or they are deemed ____.

must; waived

Beneficiaries must be identifiable by ____ so that the equitable interest can be transferred ____ and directly benefit the person; the settlor may refer to acts of ____ to identify the beneficiaries.

name; automatically by operation of law; independent significance

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

A director of a corporation must be a ____ person.

natural

Consequential damages are recoverable if they are the ____ consequences of breach, or if they were ____ at K formation, or if they were otherwise foreseeable.

natural and probable; contemplated by the parties

When a party performs an unrequested service for another party, the modern trend permits the performing party to enforce a promise of payment for material benefits received to the extent ____ (unless ____).

necessary to prevent injustice; donative intent

Evidence that a person was or was not insured against liability is not admissible to prove (or disprove) ____.

negligence or wrongdoing

If a contract deals with identified goods (e.g., a specific painting or specifically identified items of inventory), and those goods are totally destroyed through no fault of the seller prior to the risk of loss being shifted to the buyer, ____.

neither party is required to perform and neither party has breached

If both parties believe that they are agreeing to the same material terms, but they in fact agree to different terms, no contract is formed if ____.

neither party knows of the misunderstanding

For a sale of goods, an acceptance that contains a modification to the terms in the offer is ____________.

nevertheless an acceptance

A court that makes initial ruling has exclusive jurisdiction over matter until parties ____, or ____.

no longer reside in state; child no longer has significant connection to state

A corporation is not liable for pre-incorporation transactions, even those for the benefit of C, because there is ____.

no principal-agent relationship

The board of directors can amend the articles of incorporation if ____; if stock has been issued, then BD ____ and ____ for majority approval.

no stock has been issued; adopts the amendments; submits them to shareholders

Reliance damages (reasonable out-of-pocket expenses incurred by nonbreaching party) are recoverable if ____.

nonbreaching party incurs expenses in reasonable reliance upon the promise that other party would perform

A victim of undue influence may void the contract unless ____.

nonvictim third party to K gave value or materially relied on K in good faith and without knowledge of undue influence

In the majority of jurisdictions, when a person is killed during the commission of a felony due to the direct action of someone other than the perpetrator of the crime or his accomplices, the perpetrator is ____.

not criminally liable for that death because the killer is not an agent of the perpetrator and therefore the perpetrator is not responsible for the killer's actions

A security interest created in collateral that becomes an accession is ____ due to the collateral becoming an accession.

not lost

While an operating agreement by an LLC is generally ____, many LLCs adopt an operating agreement that governs any and all aspects of the entity's affairs. The operating agreement generally takes precedence over ____.

not required; contrary statutory provisions

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

If the debtor assigns his right to receive payment from the account debtor to the secured party, the secured party may ____; upon receipt of notification, the account debtor may discharge her obligation only by ____.

notify the account debtor to pay the secured party; paying the assignee

The satisfaction of a condition is examined against an ____ standard unless ____, in which case, a ____ standard applies subject to ____).

objective, reasonable person; aesthetic taste is involved; subjective; a requirement of good faith

Although in contract law, intent is generally determined by an ____ standard and not by the subjective intent or belief of a party, when an offeree is aware of the other's party's subjective intent not to enter into a contract, the offeree's agreement to enter into a contract does not ____.

objective; constitute a valid acceptance

Under the Uniform Trust Act, a trustee can avoid liability for self-dealing if he can prove that the transaction was ____ and reasonable, and not ____.

objectively fair; affected by a conflict of interest

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

In a strict liability cause-of-action, a product is considered defective when, at the time ____, it contains a ____ defect, a ____ defect, or inadequate ____ or ____.

of the sale or distribution; manufacturing; design; instructions; warnings

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

Parties may reduce the four-year limitations period for a breach of a sales contract to not less than ____, but they may not ____.

one year; extend it

If membership in an LLC is transferred, the transferee ____.

only acquires the transferor's right to share in the LLC's profits and losses, not a right to participate in the LLC's management

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

The articles of organization of an LLC only reflect its existence, but an LLC may also adopt an ____ to govern business; agreement can be ____.

operating agreement; oral, in a record, or implied by conduct

An original authenticated security agreement can serve as a new debtor's authenticated security agreement (i.e., the new debtor need not execute another agreement) by ____ or by ____.

operation of law; contract

The settlor may manifest the intent to make a gift ____, ____, or ____; manifestation of intent must occur _____ with the transfer of property (use of common trust terms will create a presumption of intent).

orally in writing by conduct prior to or simultaneously

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

Either party can demand assurances if reasonable grounds for insecurity about ____ (and may suspend performance until provided). Failure to provide adequate assurances within reasonable time (not to exceed ___ days) is treated as repudiation.

other party's ability to perform arise; 30

The Adoption and Safe Families Act provides that a state can move for termination of parental rights when the child has been placed ____ and not with a relative for ____, provided certain ____.

outside of the home; 15 of the past 22 months; reunification attempts have been provided by the state

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

A shareholder who brings a derivative action on behalf of a corporation must have ____ at the time of the wrong.

owned stock in the corporation

A ____ relationship must be established for an individual to be classified as issue of another. Under the UPC and the majority of jurisdictions, adoption establishes a ____ relationship between the stepparent and child, including ____.

parent-child; parent-child; full inheritance rights in both directions

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

The general rule is that, in the absence of an agreement to the contrary, ownership of a fixture attached to real property ____.

passes to the buyer of the related real property

Under the doctrine of equitable conversion, equitable title to real property ____, even though ____. Most jurisdictions place the risk of a loss that occurs after the contract has been entered into ____.

passes to the buyer upon entering the contract; the seller retains legal title; on the buyer

The Supreme Court has held that a statute is unconstitutional if it denies inheritance rights to a nonmaterial child when ____.

paternity has been established during the father's lifetime

Nonmarital children may inherit from their father's estate so long as ____.

paternity proved prior to the father's death

Creditors can obtain a charging order (judgment lien) against a member's LLC interest, requiring the LLC to ____; the operating agreement cannot alter this rule to ____.

pay to the judgment debtor distributions that otherwise would be paid to the member; the prejudice of third parties

The UCC implies a duty of cooperation when ____.

performance of one party depends on the cooperation of the other party

An employee is within the scope of employment when either ____ or ____.

performing work assigned by the employer; engaging in a course of conduct subject to the employer's control

Accidentally damaging the plaintiff's chattel is not conversion if the defendant had ____ to be using the property.

permission

A provision in a marital agreement that prevents modification of property rights, including spousal support is ____.

permitted

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

A person who without good faith conducts business as a C without complying with the incorporation requirements is ____.

personally liable for the nonexistent C's obligations

An expert's opinion may be based on facts and data that the expert has ____ or ____. When such facts and data are not admissible, the opinion itself may nevertheless be admissible if ____.

personally observed; about which the expert has been made aware; experts in the particular field would reasonably rely on those kinds of facts and data in forming an opinion on the subject

Under the doctrine of part performance, either party may seek specific performance of a real estate contract when the acts of performance constitute ____. Such acts include ____, ____, or ____. Most jurisdictions require at least two acts to establish sufficient part performance.

persuasive evidence of the existence of a contract; payment of all or part of the purchase price; possession by the purchaser; substantial improvement of the property by the purchaser

Under the "unity of interest and ownership" test for ____, a petitioner must demonstrate that there was such a unity of interest and ownership between the entity and the members that, in fact, the LLC did not have an ____ and that failure to pierce the veil through to the members would be ____.

piercing the corporate veil; existence independent of the members; unjust or inequitable

Questions of law relating to the grounds for divorce are controlled by the law of the _______.

plaintiff's domicile

The ability of Congress to authorize the President to call the National Guard and the President's choice to do so are ____.

political questions on which the federal court should not rule

Tenants in common have the unrestricted right to ____. Further, co-tenants are entitled to the land's natural resources (such as timber) in ____.

possess the whole property; proportion to their share of the property

One who obtains ____ of, but not ____ to, property owned by another through fraud or deceit who has the intent to ____ and who later ____ is guilty of larceny by trick.

possession; title; unlawfully convert; does so convert

If a donor transfers property to a donee using language that expresses a hope or wish (rather than creating a legal obligation) that such property be used for the benefit of another, then the gift may be considered a ____.

precatory trust and not an outright gift

Performance by one or both of the parties may be made expressly conditional in the contract, and the conditions may precede the obligation to perform (condition ____), or may discharge the duty to perform after a particular event occurs (condition ____).

precedent; subsequent

Generally, the modification of a senior mortgage does not forfeit the mortgage's priority over a junior mortgage except to the extent that the mortgage ____ the junior mortgage.

prejudices

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

The difference between an accessory before the fact and a principal in the second degree is ____. An accomplice who is physically or constructively present during the commission of the crime is ____.

presence a principal in the second degree

A testator must execute a will with ______ testamentary intent, must understand that ______, and intend that it have _________ effect.

present he is executing a will testamentary

Legal parents are _________, including grandparents or stepparents.

presumptively entitled to custody of their children in cases against third parties

A parent's religious beliefs regarding medical care can be overridden by a court to ____.

prevent serious harm to the child

A limitation of consequential damages for personal injury in the case of consumer goods is ____.

prima facie unconscionable

Although limitation of consequential damages for injury to the person in the case of consumer goods is ____, a limitation of damages when the loss is commercial is ____.

prima facie unconscionable; not

A corporation is "at home" in the state of its incorporation and the state where its ____.

principal place of business is located

A consumer buyer of consumer goods takes free of a security interest, even if perfected, unless ____.

prior to purchase, the secured party filed a financing statement covering the goods

An adverse possessor may tack on his predecessor's time as long as there is ____, which is satisfied if the possessor takes by ____ (such as descent, devise, contract, or deed).

privity between successive possessors; any non-hostile means

When a tenant assigns his interest in a lease, ____ arises between the assignee and the landlord, but ____ still exists between the tenant and landlord.

privity of estate; privity of contract

Under Rule 403, evidence that is relevant may nevertheless be excluded if its ____ is ____ by the danger of unfair ____, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

probative value; substantially outweighed; prejudice

Statutes of limitations are usually considered _______, with the law of _______ controlling.

procedural the forum state

A security in specific goods that have been commingled is lost, but an SI may attach to the ____.

product or mass that results when the goods are commingled

Profits are created and analyzed similarly to easements, except that ______.

profits cannot be created by necessity

A repudiation can be retracted until ____.

promisee acts in reliance on repudiation, accepts repudiation, or commences action for breach of K

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

A shareholder with a ____ has the right to inspect and copy corporate records upon ____ days' written notice.

proper purpose; five

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

The original document rule requires that the original document (or a reliable duplicate) be produced in order to ____. A duplicate is a ____, and is generally admissible to the same extent as an original unless there is ____.

prove the contents of a writing, recording, or photograph counterpart produced by any process or technique that accurately reproduces the original a genuine question as to the authenticity of the original

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

Occurrence of a minor breach allows nonbreaching party to ____, but they must ____.

pursue remedies for a nonmaterial breach (damages); perform under the K

In order for a board of directors' action to be valid, a ____ must have been present at the meeting.

quorum

Laws that do not target religion and are generally applicable are subject to the ________ test.

rational basis

State laws that restrict or prohibit an alien's participation in government functions need only have a ____ to a ____, and are generally upheld as ____.

rational relationship; legitimate state interest; preventing aliens from having a direct effect on the functioning of the government

Generally, the government is required to provide the owner with notice and a hearing prior to seizure of ____ property.

real

Even when self-dealing by a trustee is authorized (by the settlor, court order, or all beneficiaries), the transaction must still be ____ to avoid liability for breach.

reasonable and fair

Even when self-dealing is authorized by the settlor under the terms of the trust, by court order, or by all beneficiaries, the transaction must still be ____ for the trustee to avoid being liable for breach.

reasonable and fair

The guarantee of substantive due process is based upon the idea that laws should be ____, and ensures that a governmental action that infringes upon a fundamental right is generally subject to ____.

reasonable and not arbitrary; strict scrutiny

While parents do enjoy a fundamental right to make decisions regarding the care, custody, and control of one's children, including the right to privately educate one's child outside the public school system, that right is subject to ____.

reasonable educational standards imposed by the state

An agent's apparent authority derives from the ____ on that party's perception of the level of authority granted to the agent by the principal's behavior (over a period of time).

reasonable reliance of a third party

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

A noncustodial parent allowed ____ with a minor child.

reasonable visitation (or "parenting time")

The test for challenging a restriction on the sale of stock is ____.

reasonableness

In the exercise of its discretionary powers, a common-interest community association or one of its bodies, such as an architectural review board, must act ____.

reasonably

Test to distinguish gift from valid consideration is whether offeree could ____. If yes, then there is consideration and promise is enforceable.

reasonably believe intent of offeror was to induce the action

A third party's consent to a search is not invalid because he lacks the authority to consent, so long as the police ____.

reasonably believe that he does have such authority

A person may use reasonable force to defend against an offensive contact or bodily harm that he ____. The force used in self-defense must be ____.

reasonably believes is about to be intentionally inflicted upon him; reasonably proportionate to the anticipated harm

The duty of loyalty requires a corporate director to act in a manner that the director ____.

reasonably believes is in the best interests of the corporation

A director can rely on information and opinions of officers, employees, outside experts (e.g., attorneys, accountants), or committees, if the director ____.

reasonably believes them to be reliable and competent

If a third party ____ that an agent acted with actual authority and it is traceable to the ____, then the principal is vicariously liable for the agent's tort (e.g., misrepresentation, defamation, conversion) even if the agent's conduct isn't ____ to the principal.

reasonably believes; principal's manifestation of authority; beneficial

A tenant is entitled to make changes to the physical condition of the leased property that are ____ for the tenant to use the property in a reasonable manner, unless ____.

reasonably necessary; the landlord and tenant agree otherwise

The trustee has the powers necessary to act as a ____ (e.g., revoke, withdraw, or modify), including the implied power to ____.

reasonably prudent person in managing the trust; contract, sell, lease, or transfer the trust property

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

FRE 803(14) establishes a hearsay exception for the record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a ____ and ____.

record of a public office; an applicable statute authorizes the recording of documents of that kind in that office

Generally, only ____ of voting stock are permitted to vote; an owner of voting stock at the ____ has the right to vote; a corporation generally cannot vote its own stock.

record owners; close of business on the record date

If the K can easily be divided into legal and illegal parts, a party may ____.

recover on the legal parts

Neither party can void a contract based on mutual mistake if ____.

reformation is available to cure the mistake

Under the UIFSA, the receiving parent may ________ to enforce a child support order.

Simply stated, substantive laws are those that _______.

regulate the behavior of persons outside of the courtroom.

An executory interest is a future interest in a third party that is not a ____ and that ____.

remainder; cuts the prior estate short upon the occurrence of a specified condition

When a seller fails to disclose known defects in a home, the buyer may ________.

rescind the sale or seek damages

Agreements to modify a contract may still be enforced without consideration if there is a ______ and _____, whereby one of the parties must _____.

rescission of the existing contract the entering into of a new contract perform more than she was to perform under the original contract

The settlor must expressly ____ in order to be granted such powers; otherwise ____ can occur only with the consent of all beneficiaries and if ____.

reserve the right to modify or terminate a trust; modification or termination; the proposed change will not interfere with a primary purpose of the trust

When a trust fails, a court may create a ____ requiring the holder of the property to return it to the settlor's estate.

resulting trust

Upon tender of nonconforming goods, a buyer must ____ for a reasonable period of time to allow the seller to reclaim them. However, a buyer's attempts in good faith to ____ when the seller fails to give instructions within a reasonable time are not to be regarded as an acceptance.

retain possession of the rejected goods; dispose of defective goods

The Contract Clause applies only to state legislation that ____ contractual rights. Impairment by the state of a public contract (one to which the state or local government is a party) must be ____. Furthermore, the state must show that its important interest cannot be served by a ____ and that the impairment it seeks is ____.

retroactively impairs; reasonable and necessary; less-restrictive alternative; necessary because of unforeseeable circumstances

If a settlor had a specific intention limited to that stated in the trust, the property ____. If, on the other hand, the testator's intent can be determined to be a ____, then the court selects a new purpose that ____ the original purpose.

reverts to the estate; general charitable intent; approximates

A subsequent assignment of the same contractual right generally ____ any prior revocable assignment. A ____ assignment is generally a revocable assignment. If, however, the second assignee ____, then he is estopped from asserting a claim over the first assignee even if he would have otherwise prevailed.

revokes; gratuitous; knows about a prior assignment

A court can reform a contract except to the extent that ____.

rights of third parties who relied on K would be unfairly affected

A financing statement is generally effective for five years, even when there is no obligation ____ and no commitment to make ____, unless a ____ has been filed.

secured by the collateral; an advance; termination statement

There is an irrebuttable presumption that the trustee breached the duty of loyalty when ____; no further inquiry into the trustee's reasonableness or good faith is required because ____.

self-dealing is an issue; self-dealing is a per se breach

If unidentified goods are damaged/destroyed and there is no breach, risk of loss is on ____ until he satisfies ____.

seller; delivery obligations

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

If the court decides to deviate from the amount set forth under the child-support guidelines, it must ____.

set forth specific findings explaining and supporting the deviation

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 contract between unmarried persons is invalid if the only consideration is ____; otherwise, generally enforceable.

sexual relations

If a fraudulent misrepresentation is used to induce another to enter into a K, the K voidable by adversely affected party if ____.

she justifiably relied on the misrepresentation

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 K is voidable by an intoxicated party if ____ and ____.

she was unable to understand the nature and consequences of K; the other party knew of intoxication

When a presumption of undue influence arises, the burden ______.

shifts to the beneficiary to show by a preponderance of the evidence that such influence was not exercised

When the contract is silent as to whether it is a shipment or a destination contract, a ____ is presumed when the contract requires shipment by third-party carrier.

shipment contract

A trustee can block a premature trust termination if the trust is ____ (e.g., discretionary trusts, support trusts, spendthrift trusts, and age-dependent trusts).

shown to have an unfulfilled material purpose

Under the federal rules, a jury must initially have at least ____ and no more than ____ members.

six; 12

A K is unconscionable when it is ____.

so unfair to one party that no reasonable person in the position of the parties would agree to it

A PMSI in goods exists when a secured party ____ to the debtor, and the debtor incurs an obligation to pay the secured party ____ (i.e., a sale of goods on credit).

sold goods; all or part of the purchase price

The privilege against self-incrimination extends to a witness in any proceeding, whether civil or criminal, formal or informal, if the answers provide ____.

some reasonable possibility of incriminating the witness in future criminal proceedings

When character evidence is admissible in a civil case (i.e., evidence that is an essential element of a claim or defense), it may be proved by ____ as well as either by ____ or by ____.

specific instances of a person's conduct; testimony about the person's reputation; testimony in the form of an opinion

If lost profits are too ____, courts may limit recovery to ____ damages (reasonable expenditures made in connection with the K).

speculative; reliance

Marital misconduct may be taken into account in many states in determining ____. The weight marital misconduct is given is dependent on the jurisdiction. Some jurisdictions consider it a factor and others give it a ____ effect.

spousal support; preclusive

A _____ law that discriminates against aliens is subject to strict scrutiny under the Equal Protection Clause.

state

Any fact, other than a prior conviction, that can be used to increase a sentence beyond the ____ must be ____, submitted to a jury, and established ____. A fact is considered an ____, as opposed to a ____, when it can increase the maximum sentence imposed.

statutorily prescribed maximum; charged in an indictment; beyond a reasonable doubt; element of a crime; sentencing enhancement

If the operating agreement of an LLC is silent as to a particular aspect of the business, ____.

statutory default provisions apply

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

The state law prohibited a particular type of speech (i.e., violent video games), and thus contained a content-based restriction subject to ____. Such regulations must be ____. A mere correlation between violent video games and violent behavior ____.

strict scrutiny; necessary to achieve a compelling government interest and narrowly tailored to meet that interest; does not constitute a compelling interest to regulate such games

Courts tend to ____ clauses relieving trustees from liability for self-dealing. Complete exculpatory clauses are ____ as contrary to ____, and limited clauses are only honored if ____.

strictly interpret; void; public policy; there is no finding of bad faith or unreasonableness

A landowner has a right to lateral support from adjoining land. When adjoining land is in its natural state (i.e., undeveloped), a landowner who excavates on his own land is _____. If the adjoining land has been improved (i.e., is not in its natural state), the excavating landowner is ____. If the improvement contributed to the collapse, then the adjoining landowner may recover only if ____.

strictly liable for any damage to the adjoining land caused by the excavation strictly liable for any damage caused by the excavation only if the land would have collapsed in its natural state (regardless of the improvement) the excavating landowner was negligent

A judicial lien creditor is a creditor who acquires a lien on the collateral by a judicial process, rather than by operation of law. A judicial lien creditor takes the property ____ but generally has priority over an ____. Even if the security interest is unperfected at the time the judicial lien comes into existence, the secured party will have priority if ____.

subject to a perfected security interest; unperfected security interest; the only reason why it was unperfected was that the secured party had not yet given value

A buyer of collateral subject to a perfected security interest generally takes the collateral ____, unless ____.

subject to that interest; the secured party has authorized its sale free of the security interest

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

A person who pays off another person's obligation that is secured by a mortgage becomes, under the doctrine of ____, the owner of not only the obligation but also the mortgage when it is ____.

subrogation; necessary to prevent the unjust enrichment of the mortgagor

The parol evidence rule does not apply to evidence of agreements between the parties ____, such as a ____.

subsequent to execution of the writing modification of the original agreement

A will may be revoked wholly or partially in three ways: by ____, by physical destruction of the will, or by ____. Physical destruction may take the form of burning any portion of the will or canceling, tearing, obliterating, or destroying a ____ of the will with the intent to revoke it. Both the act and a ____ intent to revoke must be proven to yield a valid revocation.

subsequent writings; operation of law; material portion; simultaneous

To prove a homicide, the prosecution must show that the defendant actually and proximately caused the victim's death. Actual causation can be found when there are multiple causes, and the defendant's act was a ____ in causing the death.

substantial factor

If promisor/donor knows that promise to make a gift will induce ____ and ____, promise is enforceable.

substantial reliance by promisee; failure to enforce it would cause substantial injustice

A buyer may cancel an installment contract only if nonconforming tender ____ the value of the entire contract.

substantially impairs

In order to be covered by the safe-harbor rule that depends on the fairness of the transaction, courts consider ____ fairness and ____ fairness. The ____ have the burden of establishing the fairness of the transaction.

substantive; procedural; interested directors

Lost profits, lost interests, and other losses resulting from a breach of trust are the responsibility of the trustee, and beneficiaries may ____. The trustee is also not allowed to offset losses resulting from the breach against any ____. If the beneficiaries ____ or consented to the trustee's actions, however, equity will prevent the beneficiaries from pursuing an action against the trustee. Note, though, that a beneficiary's ____ to the breach does not rise to the level of consent.

sue the trustee and seek damages or removal of the trustee for breach; gains from another breach; joined the breach; failure to object

When the district court's subject matter jurisdiction for a claim is based on the existence of a federal question, additional claims against the same party can be heard by the court through the exercise of ____ jurisdiction if the ____ test is met.

supplemental; common-nucleus-of-operative-fact

If a writing sets forth only some terms, then parties are permitted to introduce ____ (not contradictory).

supplementary extrinsic evidence of other terms that are consistent with writing

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

In a title theory state, legal title is in the mortgagee until the mortgage has been fully satisfied. Thus, the mortgagee is entitled to ____ at any time and can make ____, take rent, prevent ___, and lease out vacant space.

take possession; repairs; waste

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

In order for an LLC member to bring a derivative action on behalf of the LLC to enforce the rights of the LLC, the plaintiff must show ____.

that a demand was made or that demand would be futile

The protection of national citizenship in Clause I of the Fourteenth Amendment prevents Congress from taking away a person's citizenship without her consent, unless ____.

that citizenship was obtained by fraud or in bad faith

When the beneficiaries of a trust are a class, the share of a deceased class member is paid to ____; for a gift to surviving children, the general rule is that ____.

that class member's surviving issue; the surviving issue of a deceased child do not take unless the governing instrument provides otherwise

If an aspect of a child-support obligation may not be modified under the law of the state ____, that aspect of the obligation may not be ____.

that first imposed obligation; modified under the laws of any other state

If the dominant party in a confidential relationship is suspected of exercising undue influence on a contracting party, the dominant party has the burden of proving ____.

that the contract was fair

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

Under the unity-of-interest-and-ownership test, a plaintiff may pierce the veil of an LLC if ____.

the LLC did not have an existence independent of the members because there was such a unity of interest and ownership between the entity and the members that the failure to pierce the veil would be unjust or inequitable

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

A promoter may seek compensation/reimbursement for related expenses, but cannot compel C to pay because ____.

the acts were not undertaken at C's direction

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

If an agent discloses the existence and identity of the principal when entering into a contract, ____.

the agent doesn't become a party to the contract.

An otherwise valid deed that is signed by the agent with only the name of the principal is a valid deed if ____.

the agent had authority to sign

By appointing an agent to a specific position (e.g., VP or GM), the principal makes a manifestation to the public that ____.

the agent has the customary level of authority of that position

If an agent discloses only the existence of the principal when entering into a contract, ____.

the agent is a party to the contract

Governmental financial assistance to religious institutions is permitted if ____; used only for ____; and, when the aid is distributed among secular and religious institutions, the distribution criteria are ____.

the aid is secular in nature; secular purposes; religiously neutral

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

Although a mortgagee may bring a foreclosure action whenever a mortgage obligation is in default, the mortgagee is only entitled to collect _____ unless ____.

the amount of the obligation that is currently due and owing the mortgage contains an acceleration clause

Directors can be removed by shareholders with or without cause unless ____.

the articles provide otherwise

A person with special sensitivities can recover for a private nuisance only if ________.

the average person would be offended, inconvenienced, or annoyed

In a periodic tenancy, notice of termination must be given before ____. Thus, a periodic month-to-month tenancy can be terminated by either party with a ____. Notice that is given late is generally treated as ____.

the beginning of the intended last period of the periodic tenancy; one-month notice of termination; effective for the subsequent period

The rights of an intended beneficiary vest when ____.

the beneficiary detrimentally relies on the rights created, manifests assent to the contract at one party's request, or files a lawsuit to enforce the contract

A trust is a fiduciary relationship wherein the trustee is called upon to manage, protect, and invest certain property and any income generated therefrom for ____. The trustee holds the ____ to the trust property. The beneficiary holds ____ to the property. Should the trust be terminated, title would ____ and would vest in the beneficiaries.

the benefit of one or more named beneficiaries; legal interest or title; equitable title; merge

The issuance of stock may be authorized by ____ and/or ____.

the board of directors; shareholders

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 fit parent has a fundamental right to ____; the parent's decisions regarding third-party visitation must be given ____.

the care, custody, and control of his children; special weight

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

A child born to a married woman is presumed to be ____.

the child of that woman and her husband

"Use" immunity prohibits only the use of ____ against the witness. If the government does prosecute the witness in such a case, the government has the burden to show ____.

the compelled testimony; that the compelled testimony did not provide an investigatory lead that was helpful to the prosecution

If a defendant's duty is subject to a condition precedent, then the plaintiff has the burden of proving that ____ in order to recover.

the condition occurred

Generally, a zoning ordinance must make provisions for property with an existing nonconforming use. The right of the person currently entitled to possess the property (in this case, a lessee) can be lost in various ways, including enlargement of the nonconforming use. However, conduct by a business owner that leads to more consumers typically does not constitute an enlargement when ____.

the conduct does not involve a physical expansion of the property or the buildings on the property

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 fairness safe-harbor test, a transaction is substantively fair if ____. The transaction is procedurally fair if ____.

the corporation received something of comparable value in exchange for what it gave to the director; the process followed by the directors in reaching their decision was appropriat

If a federal court with diversity jurisdiction over an action issues a judgment, then a state court must give such judgment the same claim-preclusion effect that ____.

the courts in the state where the federal court is located would have given the judgment

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

Though a limited partner in an LLP is not personally liable for an obligation of an LLP, limited liability partnership status is generally only effective on ____ and not before.

the date that the statement of qualification is filed with the state

A financing statement for moveable collateral must be filed with the secretary of state of the state of the debtor's location. An individual debtor is located in the state in which ____. A nonregistered organization (partnership) debtor is located in the state in which ____ and, if it has more than one such place, at its ____. A registered organization (corporation) is located in the state in which ____.

the debtor maintains his principal residence; it maintains its place of business; chief executive office; it is organized

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

The taking of real-property items (e.g., unharvested crops) is not larceny when _____.

the defendant's act of severance occurs immediately before the carrying away of the real-property items

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

A criminal defendant may introduce reputation or opinion evidence of the alleged victim's character when it is relevant to ____.

the defense asserted

A delegate's acceptance of a delegation constitutes a promise to perform ____; promise is enforceable if ____.

the delegated duties; there is consideration or a consideration substitute

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

If a child is emancipated, the child has all ____; parents have ____.

the duties and obligations of an adult; no duty to support

Medical records are considered business records to the extent that ___________.

the entries relate to diagnosis or treatment

While a special use exemption may sometimes be sought as an alternative to a variance, a special use exemption requires ____.

the enumeration of the special use in the zoning ordinance as a use that can be permitted in a zone if a permit is obtained

Most courts evaluate fairness of a premarital agreement at the time of ____.

the execution of the contract

A shareholder can sue to enforce his individual right by proving ____ and ____.

the existence of funds legally available to pay a distribution; the directors' bad faith for refusing to pay the distribution

A father's right to object to an adoption can be denied if ____.

the father does not demonstrate a commitment to the responsibilities of parenthood

Although interest and costs are excluded from the amount in controversy, attorney's fees may be made part of the amount in controversy if _____.

the fees are recoverable by contract or statute

A private citizen is privileged to use force to make an arrest in the case of a felony if ____ and ____. It is a defense to make a ____ as to the identity of the felon.

the felony has in fact been committed; the arresting party has reasonable grounds to suspect that the person being arrested committed it; reasonable mistake

For expedited enforcement of a child-custody determination, a hearing is held on ____.

the first judicial day after service of the order (or on the first possible judicial day)

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

Under the UCC, an installment contract is defined as one in which _____. Parties cannot vary or contract out of this definition under the code. Payment by the buyer is due _____.

the goods are to be delivered in multiple shipments, and each shipment is to be separately accepted by the buyer upon each delivery, unless the price cannot be apportioned

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

If an agent binds a principal, but lacks authority to do so, the agent has breached ____.

the implied warranty of authority

In order to piece the corporate veil, the plaintiff must prove that ____.

the incorporation was just a formality and that C neglected corporate formalities and protocols

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

A factual impossibility occurs when, at the time of the attempt, the facts make ____ although the defendant is ____.

the intended crime impossible to commit; unaware of this when the attempt is made

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 party who has not submitted a prior motion for judgment as a matter of law may not submit such a motion after ____. After that occurs, a party may only ____ for judgment as a matter of law that it has previously made.

the jury has rendered its verdict; renew a motion

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

Parents are presumptively entitled to custody of their children in cases against third parties, except when ____.

the legal parent is unfit or parental custody would be detrimental to the child

If the parties to an illegal contract are not equally at fault, ____.

the less guilty party may recover under restitution

Generally, consequential damages for breach of warranty may be limited or excluded unless ____.

the limitation or exclusion is unconscionable

Under the common law, arson is _______.

the malicious burning of the dwelling of another

A party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state's divorce provisions even if ____.

the marriage is later found to be void

The rule of convenience provides that ____.

the membership in a class closes whenever any member of the class is entitled to immediate possession of a share of the class gift

A K is not voidable if ____ before deceived party has avoided the K.

the misrepresentation is cured

When only one of the parties is mistaken as to an essential element of the contract at the time the contract was formed, the mistaken party can void the contract only if _______.

the mistaken party did not bear the risk of the mistake

Where a mistrial is declared despite the defendant's opposition, the defendant cannot be retried unless ____. A hung jury constitutes ____.

the mistrial is due to a manifest necessity a manifest necessity

Mortgagees are considered to have "paid value" and are protected by the recording acts, unless ____.

the mortgage is not given simultaneously with a loan

There is a presumption that the child of a marriage is _____.

the natural child of the parties to the marriage

A person who is unable to understand ____ (e.g., duties and responsibilities) lacks the capacity to marry.

the nature of the marriage contract

Although expectancy damages normally are awarded in a breach-of-contract action, restitutionary damages are permitted in cases where ____.

the nonbreaching party has partially performed a below-market-price contract

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

UIFSA applies when ____.

the obligor or child resides in a jurisdiction different from the one in which the original order was issued

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

Under the uCC, a party may retract his repudiation if ____.

the other party has not canceled the contract or materially changed position

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

Parental consent for medical care must be obtained regardless of ____.

the parents' marital status except in the case of an emergency

A court may not modify a child support order rendered by a court with continuing jurisdiction in another state unless ____.

the parties (including the child) no longer reside in that state or the parties expressly agree to permit another state to exercise jurisdiction

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

Testimony that was given by an unavailable declarant at a lawful deposition is not excluded as hearsay in a civil case if ____.

the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony when it was given

Typically, with regard to a conveyance of a real property interest to a trust, the deed reflects the transfer of legal title from the grantor to the trustee (or the declaration of trust when the grantor and the trustee are the same person) and does not note ____.

the persons who hold equitable interests in the property placed in the trust (i.e., the beneficiaries)

The majority rule for proximate cause requires that ____.

the plaintiff suffer a foreseeable harm that is not too remote and is within the risk created by the defendant's conduct

An assault is ____.

the plaintiff's reasonable apprehension of an imminent harmful or offensive bodily contact caused by the defendant's action or threat with the intent to cause either the apprehension of such contact or the contact itself

A third party is liable to an undisclosed principal unless ____.

the principal is excluded by the contract terms or the principal's existence was fraudulently concealed

While federal courts generally do not exercise diversity jurisdiction over probate matters, this restriction is narrowly construed and primarily applies to _____.

the probate of a will or the administration of a decedent's estate

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

Under the common law, a preexisting duty does not qualify as consideration unless ____, or varies preexisting duty in some way.

the promisor gives something in additional to what is owed

An intended beneficiary to whom the promisee owed money (i.e., a creditor beneficiary) or an intended beneficiary to whom the promisee is under a legal obligation, may sue either ____, or ____, but only ____.

the promisor to enforce his contractual promise; the promisee on the underlying obligation; one recovery is allowed

When ____ (e.g., a statutory rape statute that protects underage females), there is no conspiracy between the protected party and the targeted defendant.

the purpose of a criminal statute is to protect a type of person

A court can remove a trustee if ____; but neither the settlor nor the beneficiaries can ____.

the purpose of the trust would be frustrated by the trustee's continuance in office; seek removal absent an express provision in the trust

A corporation is prohibited from indemnifying a director against liability due to ____.

the receipt of an improper personal benefit

If the receiving spouse cohabits with someone who is not family, then spousal support may be modified if ____.

the recipient spouse's need for the support decreases as a result of the cohabitation (not automatic)

The crime of false pretenses requires obtaining title to the property (including money) of another person through ____, when ____.

the reliance of that person on a known false representation of a material past or present fact; the representation is made with the intent to defraud

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

When an intervening force is unforeseeable, a defendant will still be liable for his acts (or omissions) if ____. If both the intervening ____ and the ____ are unforeseeable, however, the intervening cause becomes a superseding cause, and the defendant's liability is cut off by that superseding cause.

the result was nevertheless foreseeable; cause; harm

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

A PMSI in goods other than inventory or livestock prevails over all other security interests in the collateral, even if they were previously perfected, if ____.

the secured party perfects before or within 20 days after the debtor receives possession of the collateral

In a shipment K, the risk of loss passes to buyer when ____.

the seller gives possession of the goods to the carrier and makes proper contract for their shipment

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

If identified goods are totally destroyed through no fault of the seller prior to the risk of loss being shifted to the buyer, ____.

the seller is excused from performing

In a destination K, the risk of loss passes to buyer when ____.

the seller tenders the goods at the place specified in the K

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

A plaintiff may dismiss an action without court approval or the agreement of the other parties prior to ____.

the service of an answer or summary judgment motion

A trust must be funded with identifiable trust property (res), but if a trust that is invalid for lack of assets is later funded, a trust arises if ____.

the settlor re-manifests the intent to create a trust

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

There is no fundamental right to have one's name on an election ballot or to hold office through election or appointment. A state may ban all write-in candidates in both primary and general elections, as long as ____.

the state provides other reasonable means by which a candidate can get on the ballot

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 federal rules, service may be made by following state law for serving a summons in an action brought in courts of general jurisdiction in ____ or in ____.

the state where the district court is located (the forum state); the state where service is made

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

A power of appointment describes the ability of _____. The power is _____ to the donee, meaning the donee ______.

the testator (donor) to select an individual (donee) who may be given the authority to dispose of certain property under the will, similar to an agent personal cannot transfer the power to anyone else

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

An undisclosed principal is liable to a third party if ____.

the third party detrimentally changes position because of the agent without actual authority, and the principal knew of the agent's conduct and did not take reasonable steps to notify the third party

A director who engages in a conflict-of-interest transaction with his own corporation violates the duty of loyalty unless ____.

the transaction is protected under the safe-harbor rules

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

A trust terminates automatically only when ____.

the trust purpose has been accomplished

With respect to a discretionary trust, creditors have the same rights as a beneficiary if ____.

the trustee exercises discretion to pay

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

In a sale of goods contract, damages for defective tender are the difference between ____ and the ____.

the value of the goods as warranted; actual value of the tendered nonconforming goods

Robbery is larceny from the person or presence of the person by force or intimidation. The threat must be of immediate serious physical injury to ____.

the victim, a close family member, or other person present

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

A witness may examine any item (e.g., writing, photograph) to "refresh" the witness's present recollection. The witness's testimony must be based on _____.

the witness's refreshed recollection, not on the item itself (e.g., the witness cannot read from the refreshing document)

Evidence outside of the written agreement is permitted to show the settlor's intent only if ____.

the written agreement is ambiguous on its face

Under the UCC, anticipatory repudiation occurs when:

there has been an unequivocal refusal of buyer/seller to perform or when reasonable grounds for insecurity arise and the other party fails to provide adequate assurances within reasonable time (not to exceed 30 days)

Modification to a child-custody order based on a parent's relocation may be permitted if _____.

there is a legitimate and reasonable purpose for the move

A parent's sexual relationship or cohabitation can be a basis for a restriction only if ____.

there is an adverse impact on the child

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

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, or when the payment is of a different type than called for under the original contract

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

A failure to warn defect exists if ______. For the action to succeed, the failure to include the instructions or warnings must _____.

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 render the product not reasonably safe

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

A court may allow demonstrations and experiments to be performed in the courtroom. Science experiments are permitted but may be excluded if ____.

they will result in an undue waste of time or confusion of the issues

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

When there is no SS or descendant, how is an estate distributed to ancestors and remote collaterals using the combined approach?

those in a closer collateral line take to the exclusion of those in a more remote collateral line

Generally, a plaintiff can recover for negligent infliction of emotional distress only if the defendant's action causes a ____ (e.g., a heart attack). However, there is an exception to the physical-injury requirement in cases of misinforming ____.

threat of physical impact that results in some kind of bodily harm; someone that a family member has died

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

In general, due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend ____.

traditional notions of fair play and substantial justice

A public forum is a place that has been devoted to public discourse either ____ or by ____.

traditionally; governmental designation

When the trustee personally engages in a ____, a conflict of interest arises between the trustee's duties to the beneficiaries and her own personal interest.

transaction involving trust property

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 beneficiary who is shown to have exerted undue influence is _____.

treated as having predeceased the testator to the extent that the gift to her exceeds her intestate share of the testator's estate

The probable cause requirement is satisfied where, at the time that the warrant is issued, there is probable cause to believe that the ____ and, if that condition does occur, there is ____.

triggering condition will occur; a fair probability that contraband or evidence of a crime will be found in a particular place

Under the Wharton Rule, if a crime requires ____, there is no conspiracy unless ____.

two or more participants; more parties than are necessary to complete the crime agree to commit the crime

At common law, to be guilty for a conspiracy, there must have been an agreement between ____. When ____, such as when the other conspirator is a governmental agent there is no conspiracy, unless ____.

two parties only one conspirator has the intent to agree another participant is involved

The term of a board of director is ____.

typically one year, but may serve longer if terms are staggered

Shareholders can take any action that could have been taken at a meeting by ____.

unanimous written consent

A court may modify a trust if ____.

unanticipated events have caused its purposes to be frustrated by its terms

The court will generally enforce separation agreements unless it is ____ or ____. As in any contract, the parties must enter into a separation agreement ____. Courts consider factors such as time-pressure, the parties' previous business experience, and the opportunity to be represented by ____.

unconscionable; based on fraud; voluntarily; independent counsel

If only one party to a tenancy at will is expressly given the right to terminate the leasehold, the lease may, when taking into account all other circumstances, be ____. In such a case, either party ____.

unconscionable; is given the ability to terminate the lease

In order to impose the death penalty, the aggravating circumstance involved cannot be ____. A crime being "heinous or brutal" has been held ____.

unconstitutionally vague; unconstitutionally vague

To be admissible, the former testimony of an unavailable witness must be given ____ in a hearing or deposition, and the party against whom the testimony is being offered must have ____; grand jury testimony does not meet this standard because ____.

under oath; had an opportunity and similar motive to develop the testimony by direct or cross-examination; the defendant does not have the opportunity to cross-examine grand jury witnesses

A prior inconsistent statement made _____ may be admissible to impeach the declarant's credibility and as substantive evidence.

under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition

A defendant charged with felony murder may claim duress as a defense to the ____ and avoid conviction for felony murder.

underlying felony

Federal courts have original jurisdiction of all civil actions arising under the laws of the United States. In general, if the cause of action is expressly created by federal law, and federal law provides the ____, then federal question jurisdiction will exist.

underlying right

A testator must generally know and approve of the will's contents, but need not ________.

understand all provisions

A K is ____ if consideration or performance under the K is illegal.

unenforceable

Generally, a contract for the commission of a tort is ____. However, if a party to the contract is unaware of the facts ____, that party may recover under the contract if ____.

unenforceable as against public policy; that make performance of the contract tortious; the other party to the contract had knowledge of such facts

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

Imperfect self-defense occurs when the person claiming self-defense ____, such as ____. The rule reduces the charge from ____.

unjustifiably kills her attacker; when she honestly but unreasonably believes self-defense is required; murder to voluntary manslaughter

Creditors cannot reach assets in a support trust ____.

unless providing a necessity to the beneficiary (trustee can pay directly)

A document may be authenticated by evidence that it was written in response to a communication, so long as it is _____.

unlikely, based on the contents, that it was written by someone other than the recipient of the first communication

Trusts for the benefit of unborn children or to a reasonably definite class will be ____, and charitable trusts (trusts that exist for the good of the public at large) do not need ____.

upheld; individual ascertainable beneficiaries

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

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 ____ or ____, or where the payment is of a different type than called for under the original contract.

validity of the debt; the amount of the debt

Expectation damages = loss in ___ + other ___ - cost ___ - loss ___

value; loss; avoided; avoided

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

A K is ____ if it contemplates illegal conduct.

void

A contract is ____ if entered into by a person who is adjudicated mentally incompetent.

void

When a fraudulent misrepresentation prevents party from knowing character/essential term of transaction (fraud in the execution), no K is formed, and apparent K is ____.

void unless reasonable diligence would have revealed K's true terms

A contract is ____ if entered into by a person who is under guardianship, except a contracting party may recover ____.

void; the reasonable value of necessaries

If a person has no meaningful alternative such that an improper threat induced his assent to a contract, the contract is ____ when duress is through physical compulsion, and ____ in other instances.

void; voidable

A contract entered into by a person under 18 is ____.

voidable by the infant but not by the adult (except for reasonable value of necessaries)

A party who chooses to continue with a K after a condition is broken effectively ____ that condition.

waives

Evidence of a final judgment of conviction is not excluded as hearsay if the judgment ____ (but not a plea of ___), the conviction was for a crime punishable by death or imprisonment for more than one year, and the evidence is offered to prove any fact essential to sustain the judgment.

was entered after a trial or guilty plea; no contest

By giving only a special warranty deed, a seller warrants only that an encumbrance ____.

was not created on the property during her ownership

Although at common law an inter vivos transfer of an executory interest ____, today such a transfer ____.

was not permitted; is recognized as effective to pass this property 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

Under conflict-of-law principles, a marriage that is valid under the law of the place in ____ is valid elsewhere unless it ____.

which it was contracted; violates a strong public policy

The trustee is personally liable to third parties on contracts entered into and for tortious acts committed ____; a third party can seek indemnity from the trust if ____.

while acting as trustee; the trustee was acting within the scope of the trustee's duties

A shareholder who objects to a merger or acquisition, or ____, may be able to force the corporation to ____.

whose rights are materially and adversely affected by an amendment to corporation's articles; buy his stock at a fair value as determined by an appraisal

When parents share joint custody, they both must be _____.

willing and able to cooperate with respect to the wellbeing of the child

When members agree to voluntarily dissolve an entity, the entity must ____ and ____. Only after the entity's debts and obligations to ____ have been paid may the members receive a portion of the liquidated value of the LLC. Those responsible for winding up can be liable for ____.

wind up its affairs; liquidate its business; creditors; improper distributions

If no state has jurisdiction through home-state or substantial-connection jurisdiction, a court in state ____ has jurisdiction.

with appropriate connections to child

A corporate officer may be removed ____.

with or without cause at any time

If a plaintiff fails to prosecute his case and, in response to a defendant's motion, the court dismisses the action, the dismissal is ____.

with prejudice and operates as an adjudication on the merits

For purposes of a battery claim, a defendant intentionally causes the contact if he acts ____ or engages ____.

with the desire to bring about the harm; in action knowing that the harm is substantially certain to occur

Occurrence of a material breach allows nonbreaching party to ____ and to pursue ____.

withhold any promised performance; remedies for breach, including damages

When a buyer receives goods on credit, and the seller learns that the buyer is insolvent, the seller may reclaim the goods, provided a demand is made ____. Although this time limit does not apply if the seller receives assurances of the buyer's solvency within three months before the delivery of the goods, such assurances must ____.

within 10 days after the buyer's receipt of the goods; be in writing

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

A financing statement may be effective to cover after-acquired property if such property falls ____, whether ____ or ____ by the parties at the time the financing statement was authorized.

within the collateral described; mentioned; even contemplated

Once a developer has relinquished control, the association has the power to terminate ____ between the association and the developer, or an affiliate of the developer.

without penalty any contract or lease

When an action is dismissed due to the failure to timely serve process, the dismissal is ____.

without prejudice

Under the Uniform Parentage Act, maternity is determined by ____, and the husband of the mother is ____.

woman who gives birth to child; the child's father

A party whose duty is subject to a condition can waive the condition, either by ____ or ____. In general, a waiver operates to preclude a subsequent assertion of the right waived or any claim based on such right, and will be ____ once made, even in the absence of ____, or of ____ of the party in whose favor the waiver operates.

words; conduct; irrevocable; consideration; any change in position

The partnership is not terminated until the partnership business is ____. After dissolution, the partnership is bound by a partner's act that is ____ for winding up the partnership. Each partner is liable to the other partners for his share of partnership liability incurred by such post-dissolution acts. Further, although a dissociated partner loses any right to participate in the business, his ____ to bind the partnership lingers after dissociation for up to two years.

wound up; appropriate; apparent authority

Easements can terminate by ____, prescription, estoppel, ____, and abandonment. Neither a statement of intent to abandon nor non-use can extinguish an easement absent ____. An easement can only be terminated based on abandonment if the owner of the easement ____.

written release; condemnation; affirmative conduct; acts in an affirmative way that clearly shows intent to relinquish the easement right

A partner can withdraw or dissociate from a partnership at any time, even if the dissociation is ____, such as when it violates an ____. A partner who wrongfully dissociates is liable to the partnership and the other partners for ____. In addition, a dissociated partner generally does not have the right to ____ and cannot participate in ____ the business.

wrongful; express provision of the partnership agreement; damages caused by the dissociation; participate in the management or conduct of the partnership business; winding up

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.

Final Review! MEMORIZE

Set pelajaran terkait

Micro Quiz 1

intro exam 2

Ch. 26: Disorders of Blood Flow and Blood Pressure Regulation

8/1 Quiz: Retirement Plans

Chapter 14 psychology

MGT 3374 Exam Review #1

Chapter 10: Eukaryotic Cell Biology

A320 over wing exit and briefing

Financial management test 1 chapter 1

TEFL course

CCMA

Chapter 27 (Homework)

Week 14 vocabulary

Geeology II Lab - Final

Final Exams-AP GOV Units 1-4 (questions)

Lecture 4 Research Methods

Hypertension

Understanding Emerging Markets

ECO Chapter 13

leadership evolve