Bar Prep Rules Flash Cards

Rational Basis review

Plaintiff must prove the law is not rationally related to any interest

Objections to Jury instructions

Must be made before closing arguments and before instructions are read to the jury

Assumption of Risk

Plaintiff must be subjectively aware of the risk and knowingly expose themselves to it.

Res ipsa requires

an Injury not one that would ordinarily occur without negligence,

more likely than not it was defendants negligence,

plaintiff not responsible for injury causing event

Spousal Privilege

Spouse cannot be forced to testify against their spouse,

Lost when divorced,

Testifying witness can only invoke

Parol Evidence rule exceptions

- Clarifying ambiguities

- Invalidating the contract

- Proving Condition Precedent

- Collateral Agreements

- Fixing typos

- Subsequent Modification

Affectation Doctrine

Congress may regulate an activity solely within the state so long as it is an economic activity and has a substantial effect on interstate commerce

Government Regulation of Commercial speech

is constitutional if;

serves a substantial government interest

directly advances that interest, and

is not more extensive than necessary

Part performance Exception to SOF for land sale

Must prove 2 of 3; payment all or in part, taking possession, making substantial improvements

Criminal Assault

Criminal assault is the; attempt to commit battery, or intentionally causing the victim to fear an immediate battery

Ex Post Facto elements

Law; makes criminal an act that was not a crime when committed, prescribes greater punishment for a crime after its commission, decreases the amount of evidence required for conviction, extends the limitations period for a crime for which the applicable limitations has already expired

Interpleader

Defendant brings all interested parties into the suit to avoid potential double liability

Impleader

Brings a third party defendant into the suit where that party may share liability.

Law that regulates conduct but incidentally regulates speech is constitutional if

The Regulation furthers important government interest, is unrelated to speech and burden on speech no greater than necessary

anti-commandeering doctrine

prohibits the federal government from using an enumerated power to force a state to pass a law or use a state official to administer a federal program

Principal Place of Business

State where corporation has its nerve center, or where high level officers direct, control, and coordinate the corporations activities

Predominant Purpose Factors

Language of the contract,

nature of suppliers business,

relative values of goods versus the service

Purchaser assumes the mortgage

Purchaser is personally liable for the debt when purchaser assumes the mortgage

Purchaser takes property subject to mortgage

Purchaser is not personally liable for the debt when it takes property subject to mortgage

Unforseen Difficulties Doctrine

a promise at modern law, despite no new consideration will be enforceable where circumstances arise not reasonable anticipated to the parties at time of contracting

Age Discrimination

Plaintiff must show that law serves no legitimate government interest or not rationally related to any legitimate interest

Conditions on Federal funds

spending serves the general welfare, condition unambiguous, not unconstitutional action, not coercive amount of money

Dormant Commerce Clause

When state law discriminates against other states, state must show; law serves compelling state interest and narrowly tailored to serve that interest

If law not discriminatory, plaintiff must prove; the burden imposed outweighs the local benefits

Commercial speech regulation

Serves a substantial government interest

Directly advances that interest

no more extensive than necessary

Strict Scrutiny

Government must prove law is necessary to achieve a compelling government interest

Intermediate Scrutiny

Government must prove law is substantially related to an important government interest

Motion for Summary Judgement

Can be made at any time up until 30 days after the close of all discovery

Minimum Contacts

- Defendant must establish minimum contacts

- claim must relate to that minimum contact

- Exercise of jurisdiction must not offend traticitional notions of fair play and substantial justice

Ways to obtain Personal Jurisdiction

Residency, Consent, Service, Minimum contacts, or substantial business.

substantial business

If defendants actions in the forum state is so signifigant that the company is essentially at home there.

Joinder is Required when

complete relief among existing parties cannot be accorded without joinder

When nonparty has interest in subject matter of the suit and disposing of action without nonparty would impede interest or create substantial risk of inconsistent obligations.

When Joinder is required but not feasible.

Interest to be considered when deciding to dismiss or continue include;

Plaintiffs interest in access to its chosen forum,

defendants interest in avoiding conflicting obligations or duplicative litigation,

interest of absent party,

interest in meaningful judicial resolutions,

Special relationship liability

When the defendant derives economic benefit or when the defendant occupies a position of power over plaintiff. Defendant has affirmative duty to protect the plaintiff

Contributory Negligence does not bar recovery from

Intentional torts, recklessness, or strict liability.

Product Defect

Defendant must prove that

product was dangerously defective and

Defect would have been discovered with exercise of reasonable care

Attractive nuisance doctrine

Landowner owes a duty to foreseeable trespassing children when he knows or reasonably should know of an unreasonably dangerous artificial condition on the property.

Deceit

- Defendant made false representation

- knowledge or belief that representation is false

- intention to induce plaintiff to act or refrain from acting in reliance of representation

- justifiable reliance on the representation

- damage to plaintiff resulting in the reliance

Criminal Duress Defense

Where the defendant reasonably believes that the only way to avoid serious bodily injury or death is to engage in unlawful conduct. Not a defense to murder.

Involuntary Manslaughter

The unintentional killing of another without malice by recklessness or criminal negligence.

Recklessness

a conscious disregard of a known risk that his actions would likely result in death or serious bodily injury

Criminal Negligence

where an ordinary person would have been aware that his conduct created an unreasonable risk of death or serious bodily injury.

Accomplice Liability

Assist in commission of crime

has intent that principal commit the offense charged

Waiver of Miranda Standard

Knowingly, intelligently, and voluntarily

Due Process - In Person line ups

An identification violates due process when, police arrange an unnecessarily suggestive identification procedure, and that procedure creates a substantial likelihood of misidentification.

Congress Power to tax

- Raise revenue to provide for defense and welfare

- regulate activities that congress has the power to regulate

- lay taxes that have regulatory effect as long as they raise revenue

Marital Privilege

Confidential communications that were made during marriage,

Survives Divorce

Either spouse has power to invoke

Mutual Mistake

Can operate as a contract defense when;

there was a mistake,

that mistake is material and the heart of the issue,

both parties had the same mistaken belief

Parol Evidence Rule

Blocks evidence of oral agreements made prior to or at the same time as the written agreement with but not included in a fully or partially integrated contract

Unilateral Contract

A contract where an offer is made and the contract is formed and completed by performance.

Preexisting Duty Rule

Promisor cannot provide consideration where that consideration is a duty the promisor is already obligated to perform

Classes suspect to Strict Scrutiny

- Race

- Alienage

- National Origin

- Voting

- Travel

- Privacy

- First amendment

- Family Rights

Classes suspect to Intermediate Scrutiny

- Gender

-Illegitimacy

Commerce Clause

Congress may regulate channels, instrumentalities, and activities that substantially effect commerce

Conduct Regulation that incidentally burdens speech

Government must show;

regulation furthers an important government interest, is unrelated to suppress of speech, and

restriction on speech is no greater than is essential

Obscene Speech

appeals to prurient interest,

depicts or describes sexual conduct in patently offensive way ,

the work taken as a whole lacks artistic value

Commercial Speech

Commercial speech is protected if it is not false or deceptive or relate to unlawful activity.

Time, Place, and Manner Restrictions test

Constitutional if;

Content Neutral,

Narrowly tailored to serve significant government interest,

and leaves alternative channels for communication

Intervention as of Right

Intervention as of right if;

Nonparty has a substantial interest in the subject matter of the litigation.

Disposing of the action may impair ability to protect that interest

Partys interest not adequately represented by existing partys

Permissive Intervention

Nonparties claim shares a common question of law or fact

Easement implied by prior use

common ownership

in existences at the time of the severance

Prior use must have benefited the other portion of land

use was apparent

necessary for the proper and reasonable enjoyment of dominant tract

Easement Implied by necessity

common ownership

strict necessity for easement at time of severance

Supplemental Jurisdiction

Allows federal court to hear claims it does not have jurisdiction over if claims arise out of the same transaction or occurence

Elements of a TRO or preliminary injunction

Likelihood of success on the merits

irreparable harm to the plaintiff
balance of harms
public interest

Cross claim

claim against a party who is not an opposing party

Invitee Standard

Duty to;
Inspect premises

make safe for protection of invitees who inter

Licensee standard

Duty to:

Warn of dangerous conditions which are known to possessor

Known trespasser

Duty to:

Warn of dangerous conditions known to possessor

Admissibility of Offers to Settle

Can be used as a prior inconsistent statement for impeachment purposes

When a preliminary hearing must be heard outside the jury

Involves admissibility of confession

Defendant is witness in criminal case and so request

Justice so requires

Right of Redemption

A mortgager may redeem his property at any time after default and before foreclosure

Duty to pay mortgaged property

The person who holds the remained if liable for the principal of the debt