Con Law

What are three (3) requirements for valid regulation of truthful commercial speech?

EBP

The regulation will be upheld only if it:

- serves a substantial government interest;

- directly advances that interest; and

- is narrowly tailored to serve that interest.

Con Law

State provides full prescription drug coverage to all citizens but does not cover a drug only taken by women.  Is this gender based discrimination?

EBP

Con Law

Are legitimacy classifications suspect, quasi-suspect, or neither?

What is the standard of review?

EBP

Legitimacy is a quasi-suspect classification.

Intermediate scrutiny applies: must be substantially related to an important government interest.

Con Law

Can zoning be used to curtail adult entertainment establishments without violating the First Amendment?

EBP

Yes.  Zoning may limit the size and location of adult establishments if the regulation is designed to reduce the secondary effects of such businesses (e.g., rise in crime rates, drop in property values, etc.).

However, regulations may not ban such establishments altogether.

Property

Every lease has an implied covenant of quiet enjoyment.  What are three (3) ways this covenant may be breached?

EBP

1.  Actual Eviction

2.  Partial Eviction

3.  Constructive Eviction

Property

What type of leases (residential, commercial, or both) are subject to an implied warranty of habitability?

In the event of breach, what may the tenant do?  [Hint: 4 things]

Residential leases only.

In the event of breach, tenant may:

1. terminate the lease

2. make repairs and offset the cost against rent

3.  abate the rent to an amount equal to the fair rental value in view of the defects

4.  remain in possession, pay full rent, and sue for damages

Contracts

Define "contract price" damages. 

Contract price damages are a sellers remedy under Article 2. 

Contract price damages equal the contract price, if the seller is not able to resell the goods. 

Criminal Law

What type of writings are involved when dealing with the crime of forgery?

EBP

Contracts

When will a liquidated damages clause be upheld?

EBP

Liquidated damages clauses will be upheld if:

-  the damages were difficult to estimate in advance; and

-  are a reasonable forecast of probable damages; and

-  they do not operate as a penalty.

Contracts

What is the exception to the general notion that Article 2 will fill most gaps with reasonable terms?

EBP

Contracts

When will an advertisement constitute an offer?

EBP

When the ad specifies both:

- a quantity term; and

- who can accept it.

Criminal Law

How does false pretenses differ from larceny by trick?

EBP

False pretenses differs from larceny by trick in what is obtained. 

If the defendant obtains only possession, the offense is larceny by trick. 

If the defendant obtains title, the offense of false pretenses has been committed.

Contracts

What form of liquidated damages clause do courts prefer?

EBP

Evidence

Define "admission by party opponent".

Statement or act that amounts to a prior acknowledgement by one of the parties of one of the relevant facts. 

-  Not hearsay under the FRE;

-  Need not be against declarant's interest at the time it was made;

-  May be in the form of an opinion;

-  Personal knowledge is not required; and

-  May be predicated on hearsay.

Con Law

What is the test used in Establishment Clause cases not involving a sect preference?  (e.g., state gives $1,000 to fund a sculpture garden containing religious and secular works of art)

EBP

The action is valid under the Establishment Clause if:

-  it has a secular purpose;

-  its primary effect neither advances nor inhibits religion; and

-  it does not involve excessive government entanglement with religion

*Criminal Law*

Define the mental state of "specific intent". 

Is it a common law or MPC mental state?

EBP

When the crime requires not just the desire to act, but also the desire to achieve a specific result. 

This is a common law mental state.

Criminal Law

What are the eleven (11) specific intent crimes?

EBP

1.  Assault

2.  1st Degree Premeditated Murder

3.  Larceny

4.  Embezzlement

5.  False Pretenses

6.  Robbery

7.  Forgery

8.  Burglary

9.  Solicitation

10.  Conspiracy

11.  Attempt.

Criminal Law

Does solicitation merge into the completed crime?

EBP

Criminal Law

Defendant decides to burn down A's house.  He pours gasoline on B's porch mistakenly believing it is A's.  Police are able to stop him right before he drops the match on the gas.  On charge of attempted arson, what result?

EBP

Convicted.  It is irrelevant that Defendant had the wrong house. 

An attempt has two elements: (1) the specific intent to commit the target crime [here D intended to burn down a house, which is the crime of arson], and (2) an overt act in furtherance of the crime [here he poured gasoline on the porch]. 

Thus, both elements are met and Defendant should be convicted of attempted arson.

Criminal Law

How do you interpret a statute that states a culpable state of mind but does not say to which element of the offense it applies?

EBP

Apply it to every material element of the offense. 

Explanation:  when a statute establishes a culpable state of mind without indicating to which material element(s) of the offense it is to apply, the statute will be interpreted as requiring that state of mind for every material element of the offense (e.g., even dollar amounts!)

Contracts

Define "lost profit" damages. 

Is it a form of seller's or buyer's damages?

EBP

Lost profit damages = lost profit, if seller is a lost volume dealer.

It is a form of seller's damages under Article 2.

Evidence

Does the statement against interest hearsay exception require the declarant to be unavailable to testify?

EBP

Yes.  A statement against interest is admissible, even if hearsay, only if the declarant is unavailable to testify. 

Remember: for EXCEPTIONS the correct answer will say "hearsay but admissible."

Contracts

Define "market damages" as applied to sellers.

EBP

Under Article 2, market damages equal:

contract price (-) market price, if seller does not resell in good faith or does not resell at all.

Contracts

Define "loss in value" damages.

Are they a form of seller's or buyer's damages?

EBP

value as promised (-) value delivered, if buyer keeps non-conforming goods.

Loss in value is a form of buyer's damages under Article 2.

Contracts

What are "incidental damages" and who is entitled to them (seller, buyer, or both)?

EBP

Incidental damages are:

-  cost of transporting or caring for goods after breach; and

-  costs associated with arranging a substitute transaction.

Available to both the buyer and seller.

*Criminal Law*

Define the mental state of "malice", and state whether it is a common law or MPC mental state.  

EBP

Malice:  when a Defendant acts intentionally or with reckless disregard of an obvious or known risk.

This is a common law mental state.

Agency

When will a principal be liable for the torts committed by an agent?

CICW

Two-Part Test:

(1)  Principal-Agent relationship exists; and

(2)  tort committed by agent within scope of that relationship. 

Note: To determine whether principal-agent relationship exists, remember the ABC's....Assent, Benefit, and Control.

Property

Is there a right of survivorship in a tenancy in common?

StudySmart

Agency

Define the ABC's of principal-agent relationship existance for vicarious liability purposes.

CICW

Assent: an informal agreement between the principal (who has capacity) and the agent.

Benefit: agent's conduct must be for the principal's benefit.

Control:  principal must have the right to control the agent by having power to supervise performance.

Agency

What are the three (3) factors used to determine whether act was within scope of principal-agent relationship?

CICW

Was conduct "of the kind" agent was hired to perform?

Did the tort occur "on the job"? (i.e., frolic v. detour)

Did the agent intend to benefit the principal?

Agency

What is the difference between a "frolic" and a "detour"?

CICW

Frolic:  a new and independent journey (result: outside scope of agency relationship).

Detour:  a mere departure from an assigned task (result: within scope of agency).

Contracts

What are the four (4) exceptions to the mailbox rule?

(1)  Offer provides otherwise (i.e., offer states that acceptance is only valid upon receipt)

(2)  Irrevocable offer.

(3)  Offeror relies on overtaking rejection.

(4)  Rejection sent first.

Con Law

Under rational basis standard, who has the burden of proof and what must they show?

EBP

The party challenging the constitutionality of the law has the burden of proof. 

They must show that the law has no rational basis.  The statute will be presumed constitutional unless a clear showing of arbitrariness and irrationality is made.

Con Law

What is the standard for age based discrimination?

EBP

Contracts

As between merchants, when do additional terms proposed by the offeree in an acceptance become part of the contract?

EBP

Between merchants, additional terms in the offeree's acceptance automatically become part of the contract, unless:

-  they materially alter the original terms of the offer (e.g., they change the party's risk or remedies available); or

- the offer expressly limits acceptance to the terms of the offer; or

-  offeror objects to additions within a reasonable time.

Criminal Law

A and B conspire to commit a crime and then see it through.  What result?

EBP

Majority Rule:  conspirators may be convicted of both the criminal conspiracy and the crime they committed pursuant to the conspiracy. 

In other words, conspiracy does not merge.

Contracts

How is "promissory estoppel" characterized under the Second Restatement?

EBP

Contracts

How is "merchant" defined under Article 2?

EBP

Under Article 2, a "merchant" is:

-  one who deals in the type of goods involved in the transaction; or

-  who through his occupation has specialized knowledge of the business practices involved.

Contracts

Offeror dies after offeree begins performance on a unilateral contract.  What result?

EBP

Agency

Two ways a person can be disqualified from being an agent?

CA

1.  Representing both parties (unless both fully advised and agree to dual representation).

2.  Not licensed.

Contracts

How much can plaintiff recover under quasi-contract, where suing on the contract is barred by the statute of frauds?

EBP

Contracts

When is indirect revocation effective to terminate an offer?

EBP

Indirect revocation is effective to terminate an offer where:

-  the offeror engages in conduct that indicates he's changed his mind; and

-  the offeree is aware of the conduct.

Contracts

What happens when an offer does not contain a price term?

EBP

Depends on the applicable law.

Common Law:  too indefinite to constitute a valid offer

Article 2:  OK, Article 2 will fill the gap with a reasonable price.

Con Law

City ordinance is challenged which provides that all viewpoints must be allowed to participate in parades organized by private organizations.  What result?

EBP

Violates First Amendment rights of parade organizers.

Explanation:  The First Amendment right to freedom of speech includes the right to refrain from speaking or endorsing beliefs with which one does not agree.  In keeping with this principal, the SCOTUS has held that government may not require private parade organizers to include in their parade other groups that have messages with which the organizers disagree.

Contracts

What happens when an acceptance varies the terms of the offer?

EBP

Common Law:  it operates as a rejection.  "Mirror Image Rule"

Article 2:  does not prevent acceptance. (Policy: to facilitate contract formation).

Contracts

Define "market damages" as applied to buyers.

EBP

Market damages are a type of buyer's damages under Article 2.

market price (-) contract price, if buyer doesn't cover in good faith or doesn't cover at all.

Evidence

What is the standard for "relevance"?

EBP

Contracts

What are the four types of seller's damages under Article 2?

EBP

1.  Resale damages [usual measure]

2.  Market damages

3.  Lost profit

4.  Contract price

Con Law

What forms of commercial speech may be burdened?

EBP

Commercial speech that is:

-  proposing unlawful activity; or

-  misleading or fraudulent

Con Law

What is the standard fo regulations restricting pre-viability abortions?

EBP

Criminal Law

Give four (4) examples of general intent crimes?

EBP

Battery

Rape

Kidnapping

False Imprisonment

Property

What are the only four (4) categories of negative easements?

EBP

LASS

Light

Air

Support

Stream water from an artificial flow

Property

What are the methods for creating an affirmative easement?

EBP

PING

Prescription

Implication

Necessity

Grant

Property

What are T's entitlements when the implied warranty of habitability is breached?

EBP

MR3

Move

Repair

Reduce

Remain

Contracts

Define "cover damages"

EBP

They are a type of buyer's damages under Article 2.

cover price (-) contract price, if buyer covers in good faith.

Con Law

Gender classifications are suspect, quasi-suspect, or neither?

What is the applicable standard?

Who bears the burden?

EBP

Quasi-suspect classification

Intermediate scrutiny applies:  must be substantially related to an important government purpose or they will be held to violate Equal Protection.

Government bears burden of showing an "exceedingly persuasive justification" for the discrimination.

Criminal Law

When will abandonment be a defense to an attempt charge under the M.P.C.?

EBP

Under the modern M.P.C. approach, a complete and fully voluntary abandonment of the crime is a defense to an attempt charge. 

The abandonment must not be a temporary abandonment of the criminal purpose nor simply to find a different victim.

Con Law

What is the current iteration of the "clear and present danger" test?

EBP

The current "clear and present danger" test provides that a state cannot forbid advocating the use of force or violation of law, unless such advocacy is:

-  directed to producing or inciting imminent lawless action; and

-  likely to produce such action.

Criminal Law

What is another way to satisfy the intent to permanently depriving (aka "intent to steal") requirement for larceny?

EBP

Evidence

Wife sends a postcard to her husband.  Is it protected by the husband-wife privilege?

EBP

No.  Under the husband-wife privilege, confidential marital communications cannot be disclosed. 

However, since the means of communication was by a postcard, which could be read by anyone, there is no expectation of privacy, and the privilege is lost. 

Evidence

What is the difference between the Federal Rule on dying declarations and the traditional rule?

EBP

Federal Rule:  Homicide prosecution or civil action.

-  declarant believed his death was imminent (he need not actually die); and

-  the statement concerned the cause or circumstances of what he believed to be his impending death.

Traditional Rule:  Homicide prosecutions.

-  required the declarant to actually die of the injury.

Criminal Law

Under the common law, can one burglarize a detatched garage?  Why or why not?

EBP

Criminal Law

Define "recklessly"

Is it a common law or MPC mental state?

EBP

Property

What are the three (3) types of waste?

EBP

1.  Voluntary (affirmative) waste

2.  Permissive waste

3.  Ameliorative waste

Property

What are the elements of constructive eviction?

EBP

SING

Substantial Interference due to L's actions or failure to act.

Notice:  T must tell L about the problem, and L must fail to respond adequately.

Goodbye:  T must leave within a reasonable time after L fails to fix it.

Criminal Law

How many MPC mental states are there?  Name them.

EBP

There are five (5):

-  Purposely

-  Knowingly

-  Recklessly

-  Negligently

-  Strict Liability

Con Law

Are legitimacy classifications suspect, quasi-suspect, or neither?

What is the standard of review?

EBP

Legitimacy is a quasi-suspect classification.

Intermediate scrutiny applies:  must be substantially related to an important government interest.

Con Law

Can zoning be used to curtail adult entertainment establishments without violating the First Amendment?

EBP

Yes.  Zoning may limit the location or size of adult establishments if the regulation is designed to reduce the secondary effects of such businesses (e.g., rise in crime rates, drop in property values, etc.).

But, regulations may not ban such establishments altogether.

Contracts

Define "resale damages"

EBP

This is the usual measure of seller's damages under Article 2.

contract price (-) resale price, if seller resells in good faith.

Property

What are the three (3) duties a tenant owes?

EBP

1.  Duty to Repair  (Doctrine of Waste)

2.  Duty to not use premises for illegal purposes.

3.  Duty to pay rent.

Criminal Law

What is the temporal requirement for the use of force in a robbery?

EBP

Evidence

Prior inconsistent statement given under oath at trial or deposition:  hearsay "exception" or "exemption"?

Unavailability required?

Exemptions

No, unavailability is not required.  In fact, this exemption applies only to a declarant who is now testifying at trial.

Evidence

Former testimony "exception" or "exemption"?

Unavailability required?

Exception

Yes, unavailability required.

Contracts

Define "consequential damages". 

Who is not entitled to them?

EBP

Consequential damages are damages that are special to this plaintiff and were reasonably forseeable by the breaching party at the time of the contract.

They are not available to a seller under Article 2.

Con Law

If the government is acting in a parens patriae capacity may it enact laws that would, in other circumstances, violate equal protection?

EBP

Contracts

Explain the firm offer rule?

EBP

In a sale of goods, if a merchant promises in a signed writing to keep an offer open, then the offer is irrevocable. 

Note: consideration is not required.

Note: almost every business person is a merchant under Art. 2's broad definition.

Contracts

What are the four (4) situations where an offer cannot be revoked?

EBP

1.  Option:  a promise to keep an offer open that is paid for.

2.  Foreseeable reliance before acceptance:  e.g., subcontractor submits a bid to contractor that contractor relies on in computing his own bid. 

3.  Starting to perform a unilateral contract.

4.  Firm offer under Article 2.

Evidence

What are the five (5) important exceptions to the hearsay rule that condition admissibility on the present unavailability of the declarant to testify?

EBP

1.  Former testimony

2.  Statements against interest

3.  Dying declarations

4.  Statements of Personal or Family History

5.  Statements offered against party procuring declarant's unavailability

Property

What are the issue(s) in an unlawful detainer proceeding?

EBP

Property

What is the difference between a "security deposit" and a rent deposit denominated a "bonus"?

A landlord is not permitted to retain a security deposit beyond the damages actually suffered.

Howevere, if a rent deposit is denominated a bonus the landlord can retain it after the tenant is evicted.

Evidence

Prior consistent statement offered to rebut a charge of recent fabrication or improper influence or motive "exception" or "exemption"?

Unavailability required?

CICW

Exemption

No, unavailability is not required.  In fact, this exemption requires the declarant to be testifying at the trial.

Property

Leased premises are destroyed without the fault of either the landlord or the tenant, what result?

EBP

In the absence of lease language or a statute to the contrary, neither party has a duty to restore the premises, but tenant has a duty to continue paying rent. 

In most states, statutes or case law now give the tenant the option to terminate the lease, even where the lease contains an express covenant to repair.

Property

The tenant is liable for all ordinary repairs, excluding ordinary wear and tear.  What must the tenant do when this duty is shifted to the landlord either by lease or statute?

EBP

Property

What does it mean to say covenants in leases are generally "independent"?

EBP

"Independent" means that if one party breaches a covenant, the other party can recover damages, but must still perform his promises and cannot terminate the landlord-tenant relationship. 

Note:  The doctrines of actual and constructive eviction and the implied warranty of habitability are exceptions to this rule.

Evidence

Murder prosecution.  Defendant admits to shooting the victim but pleads insanity.  Prosecution witness testifies he saw defendant shoot the victim.  Relevant under FRE?  Relevant under California evidence?

CICW

FRE = Yes

California Evidence = No, it is not in dispute, thus California law says that it is irrelevant.  Remember: California adds to the relevance definition: the fact of consequence must also be in dispute.

Side note:  How would we handle this under FRE?  It would not be a relevance objection, so we would have the court balance its probative value and likely determine that it is a "waste of time".

Contracts

Six factors that courts look at to determine materiality of breach?

EBP

1.  the amount of benefit the non-breaching party received.

2.  Adequacy of damages remedy.

3.  Extent of part performance by breaching party.

4.  Hardship to the breaching party.

5.  Whether the breaching party's behavior was negligent or willful.

6.  Likelihood of the breaching party's completing performance.

Evidence

When will silence almost never be considered an admission?

EBP

Criminal Law

What are the two (2) examples of common law malice crimes?

EBP

Murder

Arson

Evidence

Under the FRE, when may one impeach a witness with prior felony convictions?

CICW

Conviction for felony involving false statement:  all felonies involving false statement (e.g., perjury, forgery, fraud) are admissible...no balancing of unfair prejudice against probative value unless conviction or release from prison (whichever is later) more than 10 years old.

Conviction for felony not involving false statement:  May be admissible but court must balance.

Evidence

Under FRE, if conviction is otherwise admissible under the rules, but is more than 10 years old (dated from conviction or release from prison, whichever is later), what result?

CICW

Evidence

Under federal law, when may you impeach with prior misdemeanor convictions?

CICW

Misdemeanors involving false statement:  All misdemeanors involving false statement are admissible...there is no balancing of unfair prejudice against probative value except for old convictions. 

Misdemeanors not involving false statement:  All are inadmissible to impeach.

Evidence

Under federal law, is non-conviction misconduct bearing on truthfulness admissible or inadmissible?

CICW

Admissible in civil and criminal cases, subject to balancing; must be act of lying;

extrinsic evidence inadmissible, but may ask witness about her misconduct on cross. 

Criminal Law

Due process requires that a criminal statute not be vague.  What must there be for a criminal statute to not be void for vagueness?

CMR

There must be (i) fair warning (i.e., a person of ordinary intelligence must be able to discern what is prohibited), and (ii) no arbitrary and discriminatory enforcement.

Criminal Law

What two (2) substantive limitations does the Constitution place on both federal and state legislatures?

CMR

1.  No ex post facto laws.

2.  No bills of attainder.

Evidence

What is the rule for subsequent remedial measures under the FRE?

Evidence

What are (7) purposes for which character evidence will be allowed under FRE 404(b)?

MIMIC OK

Motive

Intent

Mistake, absence of

Identity

Common plan or scheme

Opportunity

Knowledge