BAR EXAM RANDOMS

De novo

Standards of review for questions of law

Clearly erroneous

Standard of review for judge's fact-finding

Substantial evidence

Standard of review for jury's fact-finding

Abuse of discretion

Standard of review for discretionary decisions

UCC Parole Evidence

Consistent additional terms okay -- can prove course of performance, course of dealing, or trade usage

Fraud by Non-Disclosure

Occurs when duty to disclose. Duty created by relationship of trust, changed circumstances, or good faith obligation

Doctrine of prevention

Requires party to refrain from conduct that prevents or hinders the condition's occurrence

Cross claims

New party has option, but not required to file cross claim (permissive)

Class action notice

1) court will exclude people who request exclusion, 2) judgment binding on all who don't request exclusion, 3) anyone not seeking exclusion may enter an appearance

Pretrial disclosures

1) name, address, and number of people with discoverable information and subject of info

2) copy/description of documents or things re claims & defenses

3) computation of damages

4) insurance agreements

Interpleader

Plaintiff has a holding exposing her to multiple liability -- multiple claims demand the same thing/obligation (usually property, prize, insurance policy)

Third party complaint

D has 14 days after filing answer to file 3rd party complaint -- waived unless approved by court

Insufficient / immaterial defense

Party can file motion to strike insufficient & irrelevant defense within 21 days of service

Addituer

Not permitted in federal courts

Splitting claims on remand

Federal court can remand case to state once all federal claims are resolved -- leaving only state claims over which there would be no diversity jdx

Federal common law

Generally inapplicable, except

1) federal interests so significant that state law would create inconsistency or uncertainty

2) gaps in federal statutes

3) maritime, foreign relations, fed gov rights, interstate disputes

Home state defendant rule

Bars removal in diversity cases if any defendant is a citizen of the state where the case was filed

Non removable actions

1) workers compensation

2) FELA

3) VAWA

4) railroad & carrier damages

5) home state defendant

Sufficiency of evidence

Party needs to preserve claim by raising in JMOL in order to later appeal it

Public figure

Achieved great fame or notoriety OR voluntarily entered particular area of public interest / controversy

Common law forgery

Creating / altering a document with purported legal value or significant to be false with the intent to defraud

Sunlight, fresh air, view

No landowner rights to sunlight, fresh air, or view

Non mutual collateral estoppel

Party not present in first lawsuit who is seeking to bind adversary to a final judgment on an issue from an earlier case

OK unless unfairness to D and P waited to bring case to benefit from first case

Collateral order doctrine

Claim/issue can be immediately appealbanbe if too important to wait for final judgment

1) lower court conclusively determined the disputed question

2) issue is separated from & collateral to merits of the main issue of the case, and

3) issue effectively un-reviewable on appeal from final judgment

Substantial step

MPC

Guilty of attempt if they take substantial step toward committing the crime

Habeas corpus

May be brought within 1 year of exhaustion / conclusion of state remedies

Challenges legality of detention / imprisonment

Lack of PJ defense

Must be asserted in motion to dismiss or answer -- waived if not

Estoppel by deed

"After acquired title"

Even if grantor didn't have title at time of deed delivery, title automatically passes to grantee when acquired

Provided grantor asserts quality of title conveyed in the deed

Assumption of risk

N/A to intentional torts

Gratuitous assignment

Transfer of contractual rights from one party to another w/o consideration (contract gift)

Valid & binding

Irrevocable once obligor performs

Reasonable reliance to her detriment = estopped from revocation

Deed execution

Signed by seller / transferor

Delivery

Proven intent to pass title (even if the document is never physically given to the grantee)

Jury trials (states)

Criminal cases -- right for serious offenses

Civil cases -- not constitutionally obligated, varies by state

Jury trial (federal)

Criminal cases -- right for serious offenses. Usually those punishable by more than six months imprisonment

Civil cases -- AIC exceeds $20 and cases involves legal (not equitable claims)

Pleading with particularity

1) capacity / authority to sue (if required for jdx)

2) fraud, mistake, condition of the mind

3) conditions precedent, if denying condition occurred

4) time & place (when essential to claim. fraud, mistake, claims w specific facts critical)

5) special damages

Line ups & 6th

Defendant has absolute right to counsel during entire line up procedure

Property interest re employment

Public employees only have a property in interest in their jobs if:

1) tenure

2) terminated during fixed-term contract, or

3) express / implied understanding that they will only be terminated for cause

Corroboration

Evidence needs corroboration when it's:

1) accomplice testimony

2) confession

3) fraud

4) oral contracts

5) statemnets against interest

Settlement offers

Statements & admissions re settlement offer are not admissible and can't be severed from offer

Right to retrieve

If there is oral evidence that a grantor, in instructions to a third party, retained the right to retrieve the deed -- no delivery

Larceny & movement

Property doesn't have to be actually removed from owner's premises -- just needs to be moved from its customary location

Part performance (oral land sales)

Performing party can exempt SOF when unequivocal evidence of the existence of the contract. exempted if shows 2/3:

1) payment in full / part

2) taking possession

3) making substantial improvements

Final pretrial conference

Order may only be modified to prevent manifest injustice

Rents & cash dividends

UPIA

Allocated to trust income & distributed to trust income beneficiary

Conviction against the weight of the evidence

Sufficient evidence to support conviction but appeals court disagrees with jury's findings

Double jeopardy doesn't bar retrial

Regulatory takings test

1) economic impact of regulation

2) extent of interference with expectations around owning property

3) character of government action

Prior bad acts

Generally inadmissable to prove character or acting in conformance with that character on a particular occasion

Prior bad acts, uncharged crime exceptions

MIMIC, S/A or child molestation, impeachment

Fault grounds

Desertion, adultery, impotence, cruelty, felony conviction, intoxication / drug use

UPAA & unenforceable

Premarital agreement unenforceable when

1) unconscionable at time of signing, and

2) lack of adequate disclose

(even if voluntary!)

Voluntariness (prenup)

Uses contract law standards -- fraud, duress, pressured timing not dispositive but is relevant

Procedural fairness factors (prenup)

1) fullness of net worth disclosure

2) availability of independent counsel or knowing & voluntary waiver

3) timing of agreement's presentation -- needs sufficient time pre wedding

4) bargaining power, financial & legal knowledge

Government employee speech

If not re official duties & it's a matter of public concern, courts balance right as citizen vs government interest as an employer in efficient performance of the public service (AKA: cool if doesn't interfere w duties)

Spending relevance

No requirement that Congress' spending be in any way related to what's taxed

Thirteenth Amendment (abrogation)

Congress can pass legislation that is necessary & proper for abolishing all badges and incidents of slavery in the US

Officers with administrative powers

Article III, Section 2

Executive officers with administrative powers must be appointed by POTUS (and usually w senate confirmation)

Congressional monitoring of federal agencies

Typically requires legislation that is approved by both houses & POTUS

Property power

Article IV, Section 3

Congress has the power to make all necessary rules & regulations concerning the property of the U.S.

State tax

State tax valid if non-discriminatory and doesn't directly apply to the federal government

Habeas writs (federalism)

Only federal courts can issue habeas writs for people in federal custody

Article III

Constitutional basis for Supreme Court's OG JDX

Case or controversy considerations

Standing, ripeness, mootness, political question

Judgment liens & BFPs

Majority rule that party who obtains judgment lien is not. BFP (didn't pay value for the judgment)

BFP

Person who acquires property in good faith, for value, & w/o notice of prior claims or defects

Liability & mortgage assumptions

If buyer assumes mortgage, both she and OG debtor are personally liable for the mortgage debt

Doctrine of equitable conversion

If property is destroyed before date set for closing, buyer deemed owner & bears risk of loss

Deed in lieu of foreclosure

Mortgagor deeds collateral back to lender

Serves as release of all obligations (avoids foreclosure)

Doesn't extinguish junior liens

Fair housing act

Requires landlord to make reasonable accommodations for disability

N/A when LL occupies unit in building with 4 or less units

Restraints on alientation

Generally void for fee simple & right to dispose property by will/intestacy

OK for life estate

Absolute restraints void (even for limited amount of time)

Equitable servitude

Promise concerning the use of land that benefits & burdens the OG parties and their successors

Hardship variance

Granted when owner suffers hardship due to way land is currently zoned & variance protects the public interest

N/A to self-created hardships

Deed requirements

Indication that it's a deed

Description of the property involved

Signature of individual or entity that's transferring the property

Info regarding who's taking the property

Equitable servitude enforceability

Enforceable when

1) intent for restriction to be enforceable by subsequent grantees

2) subsequent grantees had notice of servitude, and

3) restriction touches & concerns land

Taxes for life tenants

Life tenant is responsible for all carrying expenses of real estate (taxes, interest, etc.)

RAP & reverter

Possibility of reverter vests upon creation so it's not subject to the RAP

Equity right of redemption

Debtor redeems by paying everything due under the mortgage before foreclosure

Statutory right of redemption

Debtor redeems by paying full purchase price within specified time period

Life tenant responsibilities

Pay taxes, interest on the mortgage, make repairs if using / making profit off land -- liable for the benefit they're getting

Right of entry

Only goes with fee simple subject to condition subsequent

Must be expressly reserved

Possibility of reverter

Only goes with fee simple determinable

Contigent remainder

Person is unborn, unascertained, or uncertain to vest due to condition

Vested remainder

Remainderman is ascertained & remainder is certain to become possessory

Serving JT

Give it away, contract of sale, actual judicial sale by creditor, granting mortgage (title theory) BUT NOT BY WILL

Constructive eviction

1) LL causes injury

2) substantial interference with T's use/enjoyment of property

3) tenant abandons

Fixtures

Passes with real property -- focus on intent to make fixture

1) damage removal would cause

2) adaption of item to realty

3) manner in which it's attached

4) nature of item

Adverse posession

Continuous, hostile, actual, open, notorious, exclusive, statutory period

Merger doctrine

Covenants in a contract of sale merge into the deed at closing

Contract merges with deed & buyer can only sue on the deed

Joint tenancy requirements

Time, title, possession, interest

Security deposits

LL must use deposit only for unpaid rent, damages, or other agreed purposes

Obligation to return the remaining balance within the statutory timeframe

Restrictive covenant

Restrictive covenants enforceable when in writing (SOF), original parties intended to bind successors, covenant touches and concerns the land, successors have notice

Privileges & immunities scrutiny

Substantial justification and no less restrictive means

Commercial speech

Lawful and non-misleading or false, substantially advance the government interest, be directly related to that interest, and not more extensive than necessary to achieve the interest

Substantial performance (contracts)

Whether party will suffer if found to be material breach, ability to cure in reasonable time in alignment w contract, adequate compensation, willful or bad faith or just negligent/innocent, party deprived of benefit

Parole evidence exceptions

Condition precedent, invalidity, collateral agreements, explain or interpret ambiguities, subsequent agreements, supplemental terms

Merchant confirmation memo

Sufficient writing, confirms the oral agreement, sent in reasonable time, receiving merchant has reason to know its contents

Hypotheticals

Hypo that doesn’t include all clearly significant facts at issue in a case are irrelevant

Rationale → all facts necessary to reliabily answering the hypothetical

Employee statements

Statements by an agent or employee concerning any matter within the scope of her agency, made during the relationship, are admissible against the principle

Recorded recollection

Admissible when witness

1) made a record

2) based on firsthand knowledge

3) when the matter was fresh in the witness’s memory which accurately reflected the witness’s knowledge, and

4) witness has insufficient recollection at trial

May be read into evidence, but not offered as exhibit unless done by opposing party

Authentication standard

Whether there is sufficient evidence to support a finding that evidence is what proponent claims it to be

Co conspirator statements

Admissions of conspirator (made to third party in furtherance of active conspiracy) admissible against co conspirators