Bar Exam 2024

When a person is in federal custody, which court can only issue a writ of habeus corpus?

When a person is in federal custody, which court can only issue a writ of habeus corpus?

Federal courts can only issue a writ of habeus corpus to challenge that person’s detention.

State courts are prohibited from challenging the legality of a person held in federal custody under the Supremacy Clause.

Under the UCC, how can a seller accept an offer (such as a purchase order)? When is acceptance effective? When can a contract be modified? Remedy for a breach?

By shipping or promising to ship the ordered goods.

Acceptance by shipment is effective immediately and creates a contract with terms identical to those of the offer.

Once created, the contract cannot be modified unless both parties agree.

If either party breaches, the other party can recover consequential damages (lost profits).

To be liable for negligence, what must the defendant breach?

A plaintiff generally has no affirmative duty to act, when does he have to act?

A duty owed to the plaintiff.

A defendant has a duty when: (1) the defendant’s conduct created a reasonably foreseeable risk of harm to the plaintiff, or (2) the defendant and plaintiff share a special relationship.

Evidence is admissible only if it is…? Define that word.

Relevant = tends to make a material fact more or less probable than it would be without the evidence.

Relevance = probative + material

What is original subject matter jurisdiction and how is it met?

Original subject matter jurisdiction means a federal courts authority to hear a type of dispute.

It is met when a dispute falls within either:

1. Federal Question Jurisdiction - meaning the dispute arises under the US Constitution, a treaty, or a federal law; or

2. Diversity Jurisdiction - meaning the opposing partys are citizens of different states and the amount in controversy exceeds $75,000.

What is supplemental jurisdiction and when can it be exercised and when may it not be permitted?

Supplemental jurisdiction is used when only some claims fall within the court’s original subject matter jurisdiction, and these supplemental claims are so related to the original claim that they form part of the same case or controversy - i.e., share a common nucleus of operative facts.

Supplemental may not be permitted if:

1. The claim raises a novel or complex issue of state law;

2. If the original claim has been dismissed;

3. The claim substantially predominates over the claim; or

4. In exceptional circumstances, there are other compelling reasons.

What are the essentail contract terms at CL?

1. Parties

2. Subject Matter

3. Price

4. Quantity

5. Duration

6. Time for each party’s performance

All must be covered in a contract to be valid and enforceable at CL.

How does the 1st Amendment apply to the rights of the press?

It protects the right of the press to publish lawfully obtained and truthful information about matters of public concern.

However, that right does not shield the press from generally applicable laws because the press is afforded the same protection under the 1st Amendment as the general public.

A child who engages in a dangerous activity normally undertaken by adults is susceptible to what standard of care?

An adult standard of care.

In other words, the child’s conduct will then be measured against that of an ordinary, reasonable adult under the circumstances.

What does the federal inadvertent waiver rule apply to? The disclosure of such communications does not waive the AC privilege or WP protection in a federal or state proceeding if?

The rule applies to:

1. communications covered by the AC privilege; and

2. information protected under the WP doctrine.

The disclosure of such communications or information does not waive the AC privilege or WP protection in a federal or state proceeding if:

1. The disclosure was made in a federal proceeding or to a federal agency;

2. The disclosure was inadvertent;

3. The privilege holder took reasonable steps to prevent disclosure; AND

4. The privilege holder promptly took reasonable steps to rectify error.

A covenant is called an equitable servitude when what happens?

It is enforced by an injunction.

An equitiable servitude will run to the successor’s in interest if what 4 elements are met?

1. The covenant is in writing;

2. The promising parties intended for the restriction to be enforceable by and against successors;

3. The covenant touches and concerns the land;

4. If the person against whom the covenant is to be enforced is a purchaser who has notice of the covenant, usually from a recorded deed.

When can a defendant remove a case from state to federal court?

If the suit falls within the federal court’s original SMJ - i.e., either FQJ or DJ is met.

What is the forum-defendant rule for removal? What is the exception?

AKA the home court advantage rule - prohibits removal when:

1. SMJ arises solely from DJ; and

2. A defendant is a citizen of the state in which the case was filed.

Exception:

1. This rule does not apply - i.e., removal is improper - when SMJ also arises from FQJ.

When is expert testimony admissible?

1. If it helps the trier of fact understand the evidence or determine a fact in issue - i.e., relevant; AND

2. Is based on sufficient data/facts and the product of reliable principles/methods reliably applied by the expert - i.e, reliable

At CL, if an employee’s salary is not covered in a contract and not sufficiently certain and definite, what happens to the contract?

The contract fails for indefiniteness and is unenforceable.

When does the best evidence rule apply?

When a witness relies on a document’s contents while testifying or when the contents of a document are at issue.

What does the best evidence rule require and what is the one exception?

It requires that a document's original or reliable duplicate be produced to prove its contents.

Exception: A party may prove the contents of a document through testimony if:

1. All originals are lost or destroyed; AND

2. The loss or destruction was not a product of the party’s bad faith.

What are the elements for tortious interference with a contract?

1. A valid contract existed btw a plaintiff and 3rd party;

2. The defendant knew of that contractual relationship;

3. The defendant intentionally and improperly interfered with the contract’s performance; AND

4. That interference caused the plaintiff pecuniary loss ($$).

Under the Federal Rules, is a defendant required to waive service of process by returning a signed waiver request?

No, the defendant is encouraged but not required.

If a defendant does not do so, then the plaintiff must properly serve process before the defendant must respond to the complaint.

Under the Federal Rules of Evidence, what must tangible evidence need to be before it can be admitted to trial?

Authenticated

When, under the FRE’s is a photograph properly authenticated?

By having a witness with personal knowledge of the thing depicted testify that the photograph fairly and accurately depicts that thing.

Where can a district court transfer venue for the convenience of the parties and witnesses?

To any judicial district where:

1. The suit could have been originally brought; or

2. To which all parties have consented

Can Congress play a direct role in the removal of federal officers?

Yes, but only by exercising its power of impeachment b/c otherwise it would violate the separation of powers.

The President has the authoity to remove federal officers.

What is an equitable mortgage?

An equitable mortgage is created when an absolute deed - i.e., free of any encumbrances and transfers unrestricted title to property - is given with the intent to secure a debt.

What must a TRO contain in order to be valid?

1. The reasons why it was issued;

2. A reasonable description of the prohibited commanded acts; AND

3. Its specific terms.

When can a lay witness testify as to his/her opinion?

If that opinion is:

1. Rationally based on the witness’s perception;

2. Helpful to clearly understand the witness’s testimony or to determine a fact in issue; AND

3. Not based on the scientific, technical, or other specialized knowledge that an expert witness would require.

Define CL Solicitation

The defendant:

1. enticed, encouraged, or commanded another to commit a crime; AND

2. had the specific intent that the person commit that crime.

Define hearsay

An out of court statement being offered to prove the truth of the matter asserted.

What is the rule against hearsay?

It bars admission of out of court statements offered to prove the truth of the matetr asserted unless an exlcusion or exception applies.

What are principal federal officers?

Someone who is:

1. Supervised solely by the President and must be appointed by the President with the advice and consent of the Senate.

What is the general rule to preserving an error on appeal for jury instructions? What is the exception?

To challenge an error in jury instructions on appeal, a party generally must object at trial to preserve that appeal.

Exception:

1. If a party fails to object at trial, the challeneged error can still be reviewed on appeal for plain error - i.e., an obvious error that substantially affects the rights and fairness of judicial proceedings.

What is a express and implied condition precedent in contracts?

An express condition is when the parties explicitly agree to the condition.

An implied condition is when the parties fail to include the condition explicitly, but it is deemed part of the contract due to the nature of the agreement or a requirement of law.

What does the dormant commerce clause bar states from doing?

Enacting nondiscriminatory regulations that unduly burden interstate commerce when the regulation’s burden on interstate commerce clearly exceeds its benefits.

How is an option contract formed by detrimental reliance?

Under the doctrine of promissory estoppel, an offer is binding as an option contract and an offer is irrevocable for a reasonable period of time if:

1. The offeror reasonably expected to induce reliance on the offer before acceptance;

2. The offeree reasonably relied on the offer; AND

3. That reliance caused the offeree to suffer substantial detriment.

When is extrinsic evidence admissible of a prior inconsistent statement and for what purpose?

It is admissible for impeachment only if:

1. the witness has a chance to explain or deny, and the opposing party can question the witness about, that statement; or

2. justice so requires.

Under the state action doctrine when is a private actor considered a governemnt actor?

1. The private actor performs a traditional and exclusive government function; or

2. The government is slightly involved in the private actor’s activites, which is more than simply funding, licensing, or granting a franchise.

What is an easement appurtenant?

An easement appurtenant is transferred with the land to which it relates, so the benefit is transferred automatically with the dominant estate and the burden is automatically transferred with the servient estate.

Easements are presumed to be appurtenant unless there are clear facts to the contrary.

When is a defendant privileged to use reasonable force to protect an individual from self-harm?

When:

1. The individual is unable to understand the nature and consequences of his actions; AND

2. The defendant reasonably believes that the individual is about to commit an act likely to cause death or serious bodily harm.

What are the federal rules for jury verdicts?

The jury must consist of at least 6 members and no more than 12.

The jury verdict must be unanimous and returned by at least 6 jurors unless the parties stipulate otherwise.

What is anticipatory repudiation?

It occurs when a contracting party clearly and unequivocally communicates through words or conduct to the other party that it will not perform.

When does the assumption of risk defense apply to negligence liability?

Applies to traditional CL jurisdictions, and applies if the plaintiff:

1. knew about the risk of harm; AND

2. voluntarily accepted that risk

In a federal diversity action, which law must a court apply?

The court must apply federal law to determine procedural issues and state law to substantive issues.

To determine which state’s substantive law applies, a federal court must apply the choice of law rules of the state in which it sits - KLAXON

When is a prior consistent statement not hearsay?

If it:

1. Was made by a declarant who has testified and is subject to cross-examination; AND

2. is offered to rebut a charge of fabrication or imporper influence or to rehabilitate the declarant’s credibility when attacked on other grounds.

When is an activity abnormally dangerous?

When:

1. it is uncommon in the community; AND

2. it present a forseeable and highly significant risk of physical harm that cannot be mitigated by reasonable care.

Define promoters in corporations

People who enter into contracts securing capital to bring their corporation into existence

What is the liability of promoters and the exceptions to liability?

Promoters are personally for a contract entered into pre-incorporation, even after the corporation comes into existence.

Exceptions that relieve the promoter of liability:

1. Novation - the corporation and the third party contract agree to substitute the corporation for the promoter.

2. Adoption - the corporation takes the benefits of the contract

In order to be incorporated, what must a corporation file?

articles of incorporation with the state

What is an ultra vires act?

Occurs when a corporation has a narrow purpose and acts outside the scope of that purpose.

Also means that a shareholder can file a suit to enjoin the action or take action against the officer, director, or employee who engaged in the act.

A good faith attempt to incorporate can still invoke corporate protections if?

1. De facto corporation - attempted to incorporate and ran business believing it was incorporated.

2. Corporation by estoppel - a third party entered into a contract with the corporation as though it was properly incorporated; the third party is estopped from asserting that the corporation was not formed appropriately

The corporation is required to hold an annual __________ meeting for the primary purpose of electing ________.

shareholders; directors

What rights to shareholders have in a corporation?

1. Right to inspect corporate records

2. Right to vote

3. Power to amend corporate bylaws

4. Power to enter into shareholder agreements

5. Right to sue the corporation

6. Fiduciary obligations

What is a direct action by a shareholder?

The shareholder sues the corporation for their own benefit - usually arises when the shareholder is denied voting rights, the board failed to declare a dividend, or the board failed to approve or deny a merger.

What is a derivative action by a shareholder?

This is when the shareholder is suing on behalf of the corporation against a director or an officer.

If successful, all the recovery goes to the corporation.

Who has standing to bring a derivative action?

A person has standing to bring a derivative so long as they are a shareholder at the time of the bad act or omission and at the time the action is filed.

What must the shareholder do in order ti secure a derivative action?

The shareholder must make a demand upon the board of directors - once that demand is made, the board has 90 days to act before filing a derivative action.

What is the main exception to the derivative action?

Futility exception - a shareholder does not need to make a demand upon the board if it would be futile.

In general, are shareholders personally liable for corporate acts?

No, but a court may “pierce the veil” and hold shareholders personally liable under the following circumstances:

1. Undercapitalization of the corporation at the time of formation;

2. Disregard of corporate formalities (not holding annual meetings or holding votes);

3. Use of corporate assets as a shareholder’s own assets;

4. Self-dealing with the corporation;

5. Siphoning corporate funds or stripping assets

What is a controlling shareholder?

Someone who owns more than 50% of a corporation or otherwise controls voting power

How may a board of director be removed?

Breach of fiduciary duty or without cause.

In order for the directors to adequately vote on an issue, what must occur?

Must have a quorum of directors present to hold a vote (generally a majority)

Must have presence—can include phone call so long as the director can hear and participate

What are the rules for special meetings?

1. Notice of at least 2 days before the meeting

2. Date, time, and place of the meeting;

Special rule:

A director who did not receive proper notice can object, but, if the director attends the meeting and fails to object to lack of notice, the objection is waived.

What are the director’s two duties to the corporations and shareholders?

Duty of Care

Duty of Loyalty

What must a director do to satisfy the duty of care?

1. Must act as an ordinarily prudent person;

2. Must investigate and ask questions;

3. Can rely on reports and outside experts; and

4. abide by the business judgment rule.

What is the business judgment rule?

A rule that protects a director from liability for breaching the duty of care if he acted in good faith - A rebuttable presumption that a director reasonably believed his actions were in the best interest of the corporation.

To overcome the business judgment rule, what must be shown?

1. The director did not act in good faith;

2. The director was not informed to the extent reasonably necessary;

3. The director did not show objectivity and had a material interest in the decision;

4. The director failed to timely investigate after being alerted to a significant matter;

5. Any other failure to act as a reasonable director

What must a director do to satisfy their duty of loyalty?

1. Act in the best interest of the corporation;

2. Refrain from self-dealing;

3. Refrain from usurping a corporate opportunity.

How can a director be protected against self-dealing?

Safe harbor rules - a director may be protected if the transaction:

1. The interested director discloses all material facts to the board of directors and receives approval by a majority of disinterested board of directors;

2. The interested director discloses all material facts to shareholders and receives approval by a majority of disinterested shareholders; or

3. The transaction is fair to the corporation substantively and procedurally

What are the remedies available when a director engages in self-dealing?

The transaction can be enjoined or rescinded and the corporation can seek damages from the interested director

What does usurping a corporate opportunity mean and what is the exception?

Taking an opportunity that the corporation would be interested in without offering it to the corporation first.

Exception:

1. However, If the corporation declines the opportunity, the director may take it without violating the duty of loyalty.

What do officers of a corporation do and what are the three typical officers?

1. Run day to day operations and act as agents of the corporation; and

2. President, Secretary, and Treasurer

What are the similarities between an agent and corporation officers?

Just like an agent, an officer can act with actual express authority, actual implied authority, and apparent authority.

How does a corporation terminate/dissolve?

1. Voluntarily

2. Winding up - corporation exists for the limited purpose of winding up its affairs and liquidating its business

What is the order of distribution when a corporation is liquidated?

1. Creditors of the corporation

2. Shareholders of stock with preferences in liquidation

3. Other remaining shareholders of stock

Why are LLC’s created?

Because they have the tax advantages of a partnership and the limited liability of a corporation

How do you form an LLC?

File articles of organization

True or False: LLC’s can be both member-managed or manager-managed.

True

What is the liability of members of an LLC?

Members are generally not liable for LLC obligations unless there is piercing of the corporate veil wherein members can be liable for LLC obligations.

What duties to the members of an LLC owe to one another?

fiduciary duties (loyalty and care) to the members and the LLC

What must a member of an LLC do to comply with the duty of loyalty?

1. Must account to the LLC for any profit or benefit;

2. Must refrain from dealing with the LLC on behalf of an adverse interest;

3. Must refrain from competing with the LLC

What must a member of an LLC do to comply with the duty of care?

1. Act reasonably subject to the business judgment rule.

Two types of member actions against the LLC?

1. Direct action - members can bring suit against LLC or other members to enforce the member’s rights; and

2. Derivative action - members may bring a derivative action on behalf of the LLC against other members or even against themselves.

How can a member disassociate from an LLC?

by providing notice (does not have to be written) at any time and for any reason

How does dissolution occur in an LLC?

1. Voluntarily - Can occur if all members agree, if there are not enough members remaining, or any other reason stated in the operating agreement.

2. Involuntarily - a member can ask for a court order to dissolve the LLC and must show that a controlling member has acted oppressively and harmed the member seeking dissolution.

3. Winding up

What does the dual soverignty doctrine permit?

It permits different states to prosecute a defendant for the same criminal act without violating the 5th Amendment double jeopardy clause.

When can a court not impose monetary sanctions under Rule 11?

A court can impose sanctions for violating Rule 11.

However, they cannot impose a monetary sanction on a party represented by an attorney for violating the provision that requires that all claims, defenses, and legal contentions be warranted by existing law or by a nonfrivolous argument for revising or establishing law.

What are the hearsay exceptions for when a declarant is unavailable?

1. dying declaration

2. former testimony

3. statement against interest

4. present sense impression

5. statement of person/family history

6. statement offered against party that wrongfully caused unavailability

When can a party amend a pleading once as a matter of course within 21 days?

Either:

1. after being served that pleading; or

2. if a responsive pleading is required, after being served with a responsive pleading or motion.

The general rule is that a principal cannot be held vicariously liable for torts by independent contractors, what is the exception?

If the independent contractor’s work involves a nondelegable duty (duties that cannot be assigned to another to avoid liability).

Examples:

1. maintain safe conditions on premises open to public

2. Safely perform activities that are abnormally or highly dangerous

What is the equitable right of redemption?

allows a debtor to avoid a foreclosure by paying the full amount of the outstanding debt

The general rule is that an advertisement is an invitation to deal. When is an advertisement an offer and when can it be revoked?

An ad is a general offer if it:

1. specifies the subject matter, quantity, price; and

2. places a reasonable limit on who may accept the offer.

A revocation of a general offer is only effective if it is publicized as heavily as the offer.

What is the difference between civil and criminal cases dealing with jurys accepting judicial noticed facts as conclusive.

Civil - must accept judicial noticed facts as conclusive

Criminal - may, not required, to accept them

What is the religious records exception to hearsay?

Out of court statements are admissible for their truth if they:

1. concern personal or family history; and

2. are in regularly kept records of religious organization

What is pure comparative negligence?

Default rule on MBE - states that a negligent plaintiff’s recovery is reduced by his or her proportionate share of fault.

What is joint and several liability?

Means that any one of mulitple tortious defendants who caused the plaintiff indivisible harm can be held liable for the plaintiff’s total amount of damages.

Can a tenant in common transfer another co-tenant’s interest or bind another co-tenant to a contract affecting the shared property?

No, the tenant in common is only free to transfer their interest to a third party

When can statements in a publication (such as a treatise) be read into evidence?

If they are:

1. called to the attention of, or relied on by, an expert witness during examination; and

2. the publication is established as a reliable authority by any party’s expert or by judicial notice.

But the publication itself cannot be offered as an exhibit.

What types of speech can be freely regulated by the government?

1. fighting words/threats;

2. inciting crime;

3. defamation;

4. obscenity

FIDO

What does a motion for summary judgment do?

Requests that the court either enter judgment without a full trial because:

1. there is no genuine dispute of material fact; and

2. the movant is entitled to judgment as a matter of law

What are the three types of personal jurisdiction and define each?

1. In personam - the power that a court has over an individual party.

2. In rem - the authority of a court to determine issues concerning rights in property, either real or personal.

3. Quasi-in-rem - determines only the interests of the parties to the action regarding property located in the forum state.