BIG BAR ESSAYS

What is the rule for Congress commandeering state executive officers?

Congress may only exercise those powers specifically enumerated by the Constitution.

Under the 10th Amendment, all powers not assigned by the Constitution to the federal government are reserved to the states.

In theory, this gives states expansive power, but in practice, the federal government has broad power to regulate the states—as long as Congress is exercising one of its enumerated powers, Congress may regulate the states, within certain limits.

But Congress cannot “commandeer” state legislatures by commanding them to enact specific legislation or enforce a federal regulatory program.

Congress is also prohibited from conscripting a state executive officer directly.

What are the rules for Congress encouraging state action through its taxing and spending powers?

Congress may encourage state action through the use of the taxing and spending powers.

Spending power has been interpreted very broadly, but it is subject to five limitations:

1. Congress must spend for the “general welfare” (any public purpose)

2. Condition must be unambiguous

3. Condition must relate to the federal interest in a particular national project/program

4. Condition must not induce states to act in an unconstitutional manner

5. Condition may not exceed the point at which pressure turns to compulsion

What are the rules for impeaching a witness’s credibility by questioning the witness about a prior inconsistent statement?

Generally, a litigant may impeach a witness’s credibility by introducing a prior inconsistent statement so long as the inconsistency involves an issue relevant to the facts of the case.

A witness’s testimony as to lack of memory can be considered an inconsistency for which a prior inconsistent statement may be introduced.

What are the rules for admitting extrinsic evidence of a prior inconsistent statement to impeach a witness’s credibility?

Extrinsic evidence of a prior inconsistent statement may be admitted to impeach a witness’s credibility ONLY IF: the witness is given an opportunity to explain or deny the statement AND the opposing party is given the opportunity to examine the witness about it.

But the opportunity is not mandatory if justice so requires (like if the statement is discovered after a witness becomes unavailable)

What is the rule for out-of-court identifications being non-hearsay?

A previous out-of-court identification of a person after perceiving that person is non-hearsay IF: the witness is testifying at the current trial and is subject to cross-examination

What is the rule for prior inconsistent statements qualifying as non-hearsay?

Prior inconsistent statements made under oath at a trial, hearing, or deposition qualify as non-hearsay and can be admitted as substantive evidence

What is the rule for being guilty of larceny by false pretenses?

False pretenses requires: (1) obtaining title to property; (2) of another person; (3) through the reliance of that person; (4) on a known false representation of a material past or present fact; and (5) the representation is made with the intent to defraud

When do most courts find that a defendant acts knowingly/has knowledge of a particular fact? What do some states require?

Most states: when the defendant is aware of a high probability of the fact’s existence and deliberately avoids learning the truth

Some states: actual knowledge

When does one have an intent to defraud?

When they intend that the person to whom the false representation is made will rely upon it

What is the rule for adding third-party claims?

Third-party claims (impleader) are claims made by a defending party against a nonparty for all or part of the defending party’s liability on an original claim.

Impleaded claim must relate to the original claim against the defending party.