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134 Cards in this Set
- Front
- Back
Nuisance - Torts |
Private - Substantial and unreasonable interference with the use and enjoyment of real property. --Not a majority, but more than one person --Must own or rent prop for standing Public - Substantial and unreasonable interference with the rights of the community at large. |
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Diversity of Citizenship - Civ Pro |
1. Amount in controversy more than $75,000 2. Each ∏must be a citizen of different state from each ∆. Diversity must be complete. --if any ∆ same state as ∏ - diversity destroyed --measured at time of suit filing --new state citizenship established by (i) physical presence in new place, and (ii) intention to remain permanently |
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Silence as Evidence (federal) |
ADMISSIBLE NONHEARSAY Under Fed. Rules of Evidence, silence in response to an accusatory statement can be considered an implied admission --party heard and understood the statement --Rsble person would have denied in same circumstances |
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Conduct as Statement - Evidence |
In general, reports of nonassertive conduct are not hearsay (even if it rises to admission by conduct e.g., threw the gun in the garbage). Assertive conduct is actions that serve as statements (nodding "yes") |
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Hearsay |
An out-of-court statement offered as evidence to prove the truth of the matter asserted |
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Exceptions to Hearsay - FRE 802 |
1. Presence Sense Impression 2. Excited Utterance 3. Then Existing Mental, Emotional, or Physical Condition 4. Statement made for Medical Diagnosis or Treatment 5. Recorded Recollection 6. Records of Regularly Conducted Activity 7. Absence or a Record of Regularly Conducted Activity 8. Public Records 9. Public Record of Vital Statistics 10. Absence of Public Record 11. Records of Religious Org. Concerning Personal or Family History 12. Certificates or Baptism, Marriage, etc. 13. Family Records 14. Record of Docs that Affect Interest in Prop. 15. Statements in of Docs that Affect Interest in Prop. 16. Statements in Ancient Docs. 17. Market Reports or other Commercial Pub. 18. Statements in Learned Treatises, Periodicals, or Pamphlets. 19. Reputation Concerning Personal or Family History. 20. Reputation Concerning Boundaries or General History 21. Reputation Concerning Character 22. Judgment of Previous Conviction 23. Judgments Concerning Personal, Family, or General History or a Boundary. |
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Burglary |
(1) Breaking and (2) Entering into the (3) Dwelling House of Another (4) During the Nighttime (5) With the Intent to Commit a Felony Therein 1. Any force to widen opening/key =constructive breaking 5. Concurrence with the B&E - success not required |
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Arson |
(1) Malicious (2) Burning of the (3) Dwelling of Another 1. Malicious can be reckless 2. ANY burning to the home structure, no matter how slight. 2. NOT just items in the house |
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Defective Product/Misuse |
A Manufacturer is liable for a defective product, even if the DF misuses it, as long as the misuse is foreseeable. |
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Exceptions to Requirement for Contract in Writing for goods valued $500 or more |
1. Specially manufactured goods unsuitable for resale in the seller's regular course of business. 2. Contracts admitted in court 3. Contracts partially accepted (enforceable to the extent of acceptance) |
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Subdivision Covenants |
When a subdivision is created with similar covenants in all deeds, there is a mutual right of endorsement (each lot owner can enforce against every other lot owner) when (i) a common scheme for development existed when sales of parcels began and (ii) notice of the covenant to the sued party. |
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Larceny |
(1) unlawful (respassory) taking and carrying away of (2) someone else's property (3) without owner's consent (4) with intent to deprive owner of property permanently |
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Repudiation of a contract - when can the non-breaching party sue? |
The non-breaching party may sue immediately or at anytime afterward. Repudiation accelerates the cause of action but does not replace the right to sue after performance is due --not a MUST sue, but a MAY sue |
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Effect of Mortgage on JTWROS |
Lien Theory State (majority rule) --A mortgage not signed by all JTs does not sever the right of survivorship, so surviving JT takes title free and clear Title Theory (minority rule) --Mortgage severs right of survivorship. JT would not take prop - it would pass to the estate subject to the mortgage |
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Multiple Counts |
Each count must possess at least one different element or Double Jeopardy will attach |
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Aspects of Citizenship - level of scruitiny |
Rational Basis - though may affect a suspect class (often alienage), gov't may restrict aspects of citizenship (voting, jury duty). |
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Domesticated Animals |
Owner not strictly liable for injuries caused, as long as owner has no knowledge that animal has abnormally dangerous tendencies (more dangerous than norm for species). |
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Which court can hear controversies between states |
SCOTUS |
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General Warranty Deed |
Covenant of Seisin: grantor has estate (or right to convey) the same as (or >) conveying (i.e., fee to fee , LE to LE). Covenant to Convey Free from Encumbrances: (except those disclosed in the deed e.g., easement). Covenant of Quiet Enjoyment: grantee will not be disturbed or dispossessed of property by claim of superior title Covenant to Defend Title: ensures defense of title against ALL claims of ALL third parties, grantor liable for resulting damages. |
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Quitclaim Deed |
Transfer of title without a covenant to defend. No claims against seller, but can use previous warranty deeds (which run with the land) to recover (max sales price of original seller) Ex: O --> A for $50K Warranty Deed A --> B for %75K Quitclaim Defect in Title discovered, B can recover $50K http://www.americanbar.org/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/2011_summer/real_property_interests_deeds.html |
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Statements to impeach a witness's credibility |
Any party, including the party that called the witness, may attack the witness’s credibility. However, extrinsic evidence of a prior inconsistent statement may not be used to impeach on a collateral matter (no trail-within-a-trial) |
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Duty of Land Owner to Tresspassors |
Trespasser (T) - Refrain from willful, wanton, reckless, or intentional misconduct. No duty to undiscovered T. Once discovered, warn or protect from concealed, dangerous, artificial conditions. |
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Three types of visitors on land |
Tresspasser Invitee Licensee |
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Duty of Land Owner to Invitee |
Either public invitee (biz) or business visitor (private). Duty of rsble care to inspect the prop, discover unrsbly dangerous conditions, and protect invitee from them, but not beyond the scope of the intended visit (e.g, retail area v. back storeroom). Not liable if rsble inspection and no danger discovered (tree limb infested) |
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Duty of Land Owner to Licensee |
Enters w/ express or implied permission; social guests, tolerated (kids cutting thru) and emergency personnel. Correct or warn of concealed dangers, either known or SBK or SBObvious. No duty to inspect for dangers.. Must use rsble care for activities on the land. |
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Installment K |
Can only reject when nonconforming shipment SUBSTANTIALLY IMPAIRS value of installment and cannot be cured. W/ adequate assurance of cure, buyer must accept. Payment due on delivery To cancel whole K, nonconforming must subs. impair entire value of K |
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Attempt Crimes |
Requires specific intent to engage in the behavior or cause the harm Merge on completion of crime |
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Long Arm Statute |
Allows for a state court to obtain personal jurisdiction over an out-of-state defendant on the basis of certain acts committed by an out-of-state ∆, provided that the ∆has a sufficient connection with the state. (e.g., does business, uses state roads) |
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Lack of Intent on part of Offeror |
Objective standard; The offeror's lack of intent to make offer is not a defense if the offeree can rsbly interpret the communication as an offer |
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Anti-Lapse Statute |
If devise to a party who predeseases and who has issue (children, etc), prop will pass to them |
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Lapse |
Devise of prop can fail (lapse) if beneficiary predeceases testator AND no alternate beneficiary named. --lapse gift traditionally becomes part of residual |
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Merchant Seller's Risk |
When seller of goods is a merchant, the risk of loss remains with seller until goods delivered to buyer. However, when goods are identified at K formation & buyer then repudiates, seller may treat risk of loss as resting on buyer. |
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Assumption of Mortgage |
Buyer is personally liable at default for the loan (plus threat of foreclosure). If "subject to the mortgage," only the property remains at risk of FC at default- buyer not personally liable. Seller (original mortgagor) remains liable in both cases without a novation from the bank. |
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Effect of Opinion for Express Warranty |
Although most statements made by seller to buyer about goods creates an express warranty, the statement must be a promise or affirmation of fact, not opinion or puffery. |
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Time limit to reclaim goods from insolvent buyer |
10 days EXCEPTION --if seller receives written assurances of solvency within 3 months before delivery |
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Defense of Others |
is permitted upon rsble belief that defended party would be entitled to use self defense --proportional force |
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Race Notice Race/Notice |
Race - first to file wins Notice - BFP will win if no notice Race/Notice - First to file if no notice |
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Mortgage Modification - Effect on Lienholder Position |
A Mortgagor who holds senior position and subsequently adds another loan to borrower thru modification prejudices the junior mortgage by creating greater risk that value of prop would not be sufficient to cover junior. Thus senior loses the priority of the amended portion of the loan in the case of FC deficiency. |
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Strict Liability |
Abnormally Dangerous Activities (blasting, mining, etc) Animals - Wild --injury by fearful reaction or by animal (in its manner) strictly liable Defective or Dangerous Product --commercial supplier of defective product is strictly liable for personal or prop injury |
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Transferred Intent - Torts |
Any intent proved for Assault, Battery, False Imprisonment, Trespass to Land, or Trespass to Chattels will transfer automatically to all other "Fab 5" torts. e.g. ∆tries to scare ∏, accidentally injures him; assault intent transferred to the battery |
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Abatement |
Permits reduction or elimination of devise when assets of estate insufficient to pay all debts and satisfy all devises. General devises (money) sacrificed to save specific devises (house, named painting, etc). |
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Statute of Frauds required when... |
MSOUR Marriage Surety Over one year UCC Real Property |
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Duress (K) |
When a person enters into a contract in response to an improper threat that deprives person of meaningful choice. --Threat of criminal prosecution ALWAYS improper (guilt notwithstanding) |
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Easement - Dominant Estate |
An easement is only valid for a dominant estate. Any subsequent property acquired by easement beneficiary is not included in easement. |
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Parol Evidence Rule |
Prevents a party to a written K from presenting prior extrinsic evidence of negotiations so long as the K is a total integration of agreement. Exception - Condition precedent that challenges formation of K (I won't use your service if I can't get the loan) |
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Incidental Beneficiaries (K) |
--have no standing --have no vested rights --no "4th party beneficiary" (from party to intended 3rd party beneficiary who then makes a new party a beneficiary) |
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Tenants-in-common; who pays what? |
TIC without agreement to contrary do not generally pay rent to other TIC's for use of property. Usually all share operating expenses (taxes, mortgage interest), but if a TIC has exclusive use, can only be reimbursed the amount in excess of fair rental value. |
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Rules against Perpetuity Lease Exception |
First Option in lease does not trigger RAP |
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Four Unities for Joint Tenancy w/ Rights of Survivorship |
PITT Possession Interest vest Title Time |
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Effect of Inter Vivos Conveyance in JTWROS |
JTs act together - JTWROS preserved for remainder of interest still owned by JTs. New party TIC with JTs. JT acts unilaterally - JTWROS severed creating TIC for that interest. Other JT interests unaffected. |
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Res Ispa Loquitur |
In the absence of direct evidence, negligence may still be rsbly inferred if the instrument that caused the damage was in the exclusive control of the ∆ and the injury was not caused by the ∏. (there is no other way this could have happened) |
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Anticipatory Repudiation and Leases |
Leases cannot be repudiated ahead of time. The liability comes due per the terms of the lease. Therefore, the ∏cannot collect full damages until the lease term is over. |
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Damages for Promissory Estoppel |
Reliance only (example - aunt offers niece $50K broach if she flies up to get it. Niece buys plane tix. Aunt dies and will devises broach to someone else. Niece can sue for plane tix, not the broach.) |
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Plaintiff's Defense of Contributory Negligence |
Contributory negligence is generally a complete bar to recovery of damages, however, under the "last clear chance" doctrine, may completely shift damages back to the ∆for failure to avoid injuring ∏. |
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Effect of Bid Withdraw in Auction |
Acknowledgement by auctioneer of a higher bid serves to reject the lower bid. Withdraw of higher bid therefore does not reinstate lower bid. No bid is accepted until the gavel falls. |
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Assignment (K) |
of rights due in a contract |
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Delegation (K) |
of duties in a contract |
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Novation (K) |
One party releases the other party of all liability (and benefits) under a contract. Creates new agreement and extinguishes the old K. |
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Consent to Search |
Generally a bar to the Exclusionary Rule if valid consent is given by a person with apparent authority to give consent. But can be extended too far. Person giving consent (e.g., parent) may let officers into house, then teen's room, but a teen's locked suitcase may be invalid (no key=no apparent authority) |
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Robbery |
Larceny from a person by violence or intimidation. Specific intent to deprive owner of property. |
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CUT AND PASTE |
Plaintiff - ∏ Defendant - ∆ |
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Some general 1st Amendment Issues |
--1st amend. rights are made enforceable thru a state through the 14th amend. --State actor required (significant involvement) --incorporated status not enough |
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When do Third Party Beneficiary (TPB) rights vest? |
Rights vest when TPB learns of the initial contract and (i) assents to it or (ii) materially changes position in justifiable reliance on it or (iii) brings suit on it. |
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Best Evidence Rule |
Production of the original document when attempting to prove the contents therein. However, if original destroyed or lost in good faith |
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Imperfect Self Defense Doctrine |
In states that recognize it, murder is reduced to voluntary manslaughter when a ∆ unreasonably, but honestly, believed the necessity to respond w/ deadly force. |
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Effect of Merger on Easement |
Generally, when a two estates become owned by the same party and merge into one property, earlier easements are extinguished and not revived if the property is ever split again. |
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Privileges and Immunity Clause |
Article IV of the USC. Triggered when state laws discriminate against out-of-state residents' right too earn a living. |
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Assertive Conduct |
Actions that function as statements (nodding "yes"), actions that communicate a thought |
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Effect of Life Estate Ending |
Any interests tied to that LE also end, such as a lease. |
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Battery - Tort |
(i) Intentional (ii) Harmful or offensive touching to ∏'s person (iii) and causation Reasonable Person test ∏'s awareness not required (sleeping) TRANSFERRED INTENT (Fab 5) |
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Oral modification of oral contracts |
If an oral contract is legal (does not violate the SOF), then the modification is valid unless the modification causes the contract to now require SOF compliance. (i.e. Agree to buy a car for $300 dollars, so no UCC or SOF. Orally modify to $400, ok. Orally modify to $600, not ok - now needs to be in writing to comply with UCC/SOF) |
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Common Law Murder |
Killing another human being with malice aforethought. Malice can be shown by 1. Intent to kill 2. Intent to cause great bodily harm 3. Depraved heart - reckless indifference to value of human life, or wanton and reckless disregard for human life 4. Felony-murder; felony not causation, but proximate (but for) cause. Under common law, 5 enumerated felonies - BARRK - Burglary, arson, rape, robbery and kidnapping. |
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False Imprisonment - Tort |
(i) Intent (ii) to confine or restrain ∏ (iii) to a bounded area (iv) of which (a) ∏ is harmed by OR (b) is conscious of, (v) plus causation. Shopkeeper's Privilege: Reasonable detention (as to duration and manner). Long enough to ascertain truth TRANSFERRED INTENT (Fab 5) |
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Miranda |
Statements during custodial interrogations are inadmissible unless ∆ is first warn of right to remain silent and right to an attorney. ∆ must waive these rights knowingly, intelligently, and voluntarily (KIV). |
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Assault - Tort |
(i) Intentional (ii) causation of (iii) reasonable apprehension of (iv) imminent (v) harmful or offensive touching to ∏'s person. TRANSFERRED INTENT (Fab 5) |
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Five Unities for Joint Tenancy in the Entirety |
PITTM Possession Interest vest Title Time Marriage |
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Search Incident to Lawful Arrest |
Search incident to (lawful) arrest (SITA, Chimel rule) allows police to perform warrantless search of arrested person, and the area within the arrestee’s immediate control, in the interest of officer safety, the prevention of escape, and the destruction of evidence. |
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Automobile Search |
There is a lessened expectation of privacy in a care due to its inherent mobility and difficult in getting a timely search warrant. So with probable cause that a car contains the fruits, evidence, or instrumentalities of a crime, police may search an entire vehicle and its contents without a warrant. |
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Present Recollection Refreshed |
Witness views document (item, evidence), then testifies from memory. Document not deemed evidence (because the witness is merely testifying from memory). --Not Hearsay --No foundational requirements needed. |
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Past Recollection Recorded |
Witness views document (item, evidence), but still cannot recalls details for testimony. Document may go/be read into into evidence if: 1. It's hearsay, under this exception. 2. Witness has no/incomplete present recollection, and 3. Document was made at time in question or shortly after, and 4. based on witness's personal knowledge, and 5. made or adopted by witness, who must verify the document was true when made, and 6. Document must be authenticated. |
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Assignment of Lease |
Total remainder of a leasehold. LL and A/or: Terminates Privity of estate (POE), Privity of Contract (POC) remains. LL and A/ee: Creates POE. No POC created. (would create POC if A/ee assumes the lease) |
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Sublet of lease or sublease |
Partial remainder of a leasehold. LL and A/or: POE or POC remain. LL and A/ee: No POE or POC created. A/or & A/ee: POE or POC created. |
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Federal venue in diversity actions |
Proper (i) in district where any ∆ resides if all ∆s reside in the same state, and (ii) the district where a substantial part of the event/omissions giving rise to case occurred. Venue not based on residency of ∏. |
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FRE 404(b) - prior bad acts |
permissible to use evidence of a criminal ∆'s prior bad acts to: 1. establish a motive for committing the crime, 2. help ID ∆ as perpetrator, or 3. show opportunity to commit the crime. NOT admissible to help prove∆'s propensity to act in a manner consistent with a character trait (unless used to impeach if addresses witness's character for truth and veracity). |
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State Police Power |
Right of states to pass laws for the health, safety and welfare of it's citizens, but not in areas reserved to the federal gov't or preempted by federal legislation, and cannot unduly restrain interstate commerce. |
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Voluntary Manslaughter |
Intentionally killing another person in the heat of passion and in response to adequate provocation. |
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Involuntary Manslaughter |
Unintentional killing that results from recklessness or criminal negligence |
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General Remedy for a Real Property K |
Specific Performance |
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Federal Venue in Diversity is proper... |
(1) in the district where any ∆ resides if all∆s reside in the same state and (2) the district where a substantial part of events or omissions giving rise to the claim occurred. |
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Rule 11 |
By presenting a document to the court, a lawyer certifies her belief that the document is (1) not presented for an improper purpose, (2) non frivolous, (3) Factual assertions (or denials of such) have evidentiary support (or, in good faith, will) |
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Proper Recording of an instrument (deed, security, etc) gives what presumption in future claims? |
Constructive Notice |
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Character Evidence |
Not allowed to prove that a party acted in conformity with those traits on a particular occasion. |
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General, the US Constitutional challenges are ___________ against a private company. |
Inapplicable |
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A complete defense against libel or slander is... |
that the statement is the truth. |
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Specific Performance |
An equitable remedy available when the legal remedy is inadequate. Often seen in specially manufactured goods, one-of-a kind items, and real property. |
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Effect of Pardon on Bringing in Convictions as Evidence |
Conviction cannot be used as impeachment purposes, as long as (1) the action was on finding of innocence, or (2) or witness not subsequently convicted of another felony. |
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Right of Counsel for pre-indictment witness identification (lineup) |
No right of counsel required. Only for post-indictment |
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Specific Jurisdiction |
When a cause of action arises out of or closely related to a ∆contact with the forum state, jurisdiction is appropriate, even if the contact is the sole connection with forum state. |
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Evidence- Forfeiture by Wrongdoing |
Party who intends and makes someone "not available" to testify forfeits all rights to object to the subsequent hearsay. |
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Larceny by Trick or False Pretense |
LBT = possession FP = Title |
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Warrants and Anonymous Tips |
Warrants based solely on anon. tips with no further independent corroboration of probable cause are invalid. |
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Warrants and Informants |
Reliable and known informants can serve as probable cause for a warrant. |
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Burden in Criminal Cases |
The state cannot force a ∆to disprove an element of a criminal charge. Rather, the prosecution must prove the elements of the crime beyond a reasonable doubt. The burden would shift to the∆ in an affirmative defense, but still not for the elements of the crime, only for the elements of the defense. |
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Rational Basis Review |
Law must be rationally related to a legitimate state interest. --No protected class --No fundamental rights |
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Sctrict Scrutiny |
Law must be narrowly tailored (least restrictive means) to serve a compelling state interest. --Protected Class --Fundamental Rights |
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Intermediate Scrutiny |
Law must further an important government interest by means that are substantially related to that interest. --Quasi-Suspect (gender) |
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"Plain-Feel" Doctrine |
If during a legal pat-down an officer feels an object that has physical characteristics that make it immediately obvious that it is a weapon, contraband, or evidence of a crime. |
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Ex Post Facto |
With retroactive effect |
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May a jury member testify to a mental process concerning a verdict? |
No. Even when the mental process was based on a misunderstanding of the law. |
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Privileges and Immunity Clause |
Non-resident citizens are protected against discrimination against fundamental rights or essential activities, including the pursuit of employment, transfer of property, access to state courts and engaging int the political process. --Article IV of US Constitution |
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Exception to 3rd Party Standing |
When a "special relationship" exists. |
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Timeline to Submit Answer to Complaint (FRCP) |
21 days after complaint, or 14 days after amended complaint served (unless 21 day deadline is later) |
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Equals protection, 14th Amendment |
No state shall deny to a person equal protect under the law |
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Timeline - Demand for Jury Trial (FRCP) |
withing 14 days of the last pleading |
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Due Process, 14th Amendment |
Cannot get a worse sentence on retrial for successful appealing in the first place (no retaliatory punishment for exercising rights) |
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Classification of Legacies, Devises & Bequests |
1. Specific 2. General 3. Demonstrative 4. Residuary |
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Specific Devises |
Can be distinguished with reasonable accuracy from other property in testator's estate. e.g., My car to the gardner |
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General Devises |
Can be satisfied from general assets of this estate. e.g., $50,000 to my hairdresser |
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Demonstrative Devise |
A pecuniary gift that identifies a particular fund or asset as source of payment. Will fund as a general devise if the source is inadequate to fund the devise. e.g., $20,000 from my Mircosoft Stock. If testator sold the stock before death, $20K from general estate funds. |
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Residuary Devise |
Leftover of estate after general, specific and demonstrative legacies satisfied. |
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Lapse |
If a beneficiary predeceases testator, and absent an alternate disposition, the gift fails and goes to the residuary. |
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Anti-Lapse |
Statutory alternate disposition of lapsed bequests and devises. Absent a contrary intent evidenced in a will, beneficiaries descendants take per stirpes. |
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Execute Will - Formailities |
A writing that the testator signs at the end with present testamentary intent in the joint presence of two attesting witnesses. |
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Holographic Will |
Entirely handwritten will by testator. Not legal in Florida, even if validly executed in another state. |
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Will signature |
Must be at the end of the will. May be signed on testator's behalf in testator's presence and at testator's direction. |
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Wills - Presence Standard |
Majority - Conscious Presence --occurs within range of physical senses Minority - Scope of Vision --actually see of able to see signature Florida has not established - discuss both |
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Wills - Witness Signature |
Witness can either see the testator sign, or hear the testator acknowledge the signature. Both witness must sign in each other's presence. |
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Codicil |
Supplement to will that alters, amends or modifies will. Needs same formalities as will. |
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Will - Subsequent marriage |
Common law: testator's marriage after executed will revokes the will. Florida Law: if testator unmarried at time of will execution, will not revoked on marriage. |
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Wills - Divorce |
Divorced party in will treated as predeceased. Separation has no effect on will. In Florida, remarriage does not revalidate provisions |
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Pretermitted spouse or child - Wills |
Party receives share as if intestate. |
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Class Gift - Wills |
If a member of a class dies, only surviving members take. If anti-lapse applies, descendants of dead member can take. |
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Wills - Abatement |
When estate not sufficient to fund all debts and devises, property reduced or abated. Florida law order of pro rata abatement: (1) intestate prop (2) residuary (3) general and (4) demonstrative & specific devises. |
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Ademption |
If subject matter of specific devise is missing/destroyed, beneficiary takes nothing. |