Con Law
In terms of the Dormant Commerce Clause - what is the standard of review for facial discrimination between in state and out of state actors? What are two exceptions when a state may discriminate on Dormant Commerce Clause Grounds?
Strict scrutiny (Compelling state interest ... narrowly tailored)
1) Authorized by Congress
2) State is an active participant in the market
A person who _______ is an accomplice.
!) assists or encourages the principal with
2) the intent that the crime is committed
What are the major intentional torts, and what are there elements?
1) Battery - intent to cause a harmful or offensive contact or knowledge contact will result, and contact occurs.
2) Assault - intent to cause reasonable apprehension of an immediate battery, and fear occurs.
3) False imprisonment - intentional confinement of the victim to a confined area, and the victim knows of confinement or is injured.
4) Intentional infliction of emotional distress - intentional or reckless act amounting to extreme and outrageous conduct that causes the P severe mental distress.
The three types of Subject Matter Jurisdiction
Federal Question: case arises from Constitution, laws, or treaties of the US
Diversity: amt in controversy over $75k, no plaintiff is a citizen in the same state as the defendant
Supplemental: claims that would otherwise fall outside the court’s og jx arising from the same case/controversy as claims w/in the court’s og jx
How can you validly assign the benefit of a contract to another person?
Does not need ti be in writing. Consideration is not required for an assignment; a gratuitous assignment is effective. The absence of a writing or consideration may allow the assignor (the debtor) to revoke an assignment, but will not prevent the assignee from enforcing it against the obligor.
What are the 5 fundamental rights for equal protection purposes? What standard applies for laws infringing on these rights?
(1) vote
(2) access the ballot as a political candidate
(3) travel to another state
(4) marry, procreate, and live as a family unit
(5) access the courts to obtain justice
Strict scrutiny: narrowly tailored to a compelling governmental interest
Explain the levels of homicide.
Second-degree murder (homicide with malice aforethought - may be from intent-to-kill, intent-to-cause serious bodily-harm, depraved-heart murder, or felony murder).
First-degree murder (murder with premeditation and deliberation, felony murder, or acts executed from plotting).
Voluntary manslaughter (intentionally killing mitigated by heat of passion from adequate provocation).
Involuntary manslaughter (reckless or negligent homicide, misdemeanor manslaughter).
What are the invasion of privacy torts, and what are there elements?
1) Intrusion into seclusion (unreasonably intrusion into P's seclusion).
2) Appropriation (use of P's image or likeness for D's commercial advantage).
3) Public disclosure of private facts (unreasonable disclosure of private facts about a plaintiff to the public).
False light (P portrayed in a false light).
A state has personal jurisdiction over a party when...
(1) the state’s own law authorizes
jurisdiction under the circumstances
(2) the exercise of jurisdiction is fair and just to the defendant under the Due Process Clause of the Fourteenth Amendment.
The traditional grounds for personal jurisdiction include a defendant’s domicile, presence in the state when served, consent, or waiver.
What is an accord?
An accord substitutes the original agreement with new one. A valid accord, taken alone, does not discharge the prior contract. It merely suspends the right to enforce it in accordance with the terms of the accord contract. "Satisfaction" discharges not only the accord agreement but the original contract as well.
What types of activity do the Free Exercise Clause and Establishment Clause prohibit?
Free Exercise: gov't cannot punish conduct merely because it is religious (intentionally interferes with religion)
Establishment: gov't cannot have "sect preference". If the regulation is not neutral with regard to religion, strict scrutiny applies. Ct will also ask if the gov't action accords with history and faithfully reflects the understanding of the Founding Fathers.
Name and explain the elements of the five major theft crimes.
Larceny - taking, and carrying away, of the property, of another, with the intent to permanently deprive.
Embezzlement - fraudulent conversion, of the property of another, by one who is already in lawful possession.
Robbery - larceny plus the use or threat of force, from the person of the victim.
False Pretenses - false representation, causes the victim to pass title, to the defendant, who knows representation to be false, and intends to defraud.
Larceny by Trick - obtains possession, o the personal property, of another, by means of a representation, he knows is false at the time he takes possession.
Explain the trespass torts (land, chattels, and conversion).
Land - intentional act that causes a physical invasion of the P's land.
Chattels - intentional act by the D that interferes with the P's chattel causing harm.
Conversion - intentional act by the D that causes the destruction of or a serious and substantial interference with the P's chattel.
Venue is proper...
1. in a district in which any defendant resides, if all defendants reside in the same state
2. in a district in which a substantial part of the events giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated
3. if there is no district in which an action may otherwise be brought, a district in which any defendant is subject to the court’s personal jurisdiction.
How can you modify a contract under common law and Article 2?
common law = requires new consideration
Article 2 = if sought in good faith, does not need new consideration. good faith is a legitimate commercial reason for the modification
Regulatory Takings test
Reg denies property owner all economically beneficial or productive use of the property or restricts its use in a way that doesn't destroy its value but constitutes a taking under the totality of the circumstances test.
totality of the circumstances test factors:
effect on property value, owners reasonable investment backed expectations regarding the property's use, character of government action
What are the inchoate crimes and their elements?
Solicitation - enticing another to act. Complete at time of solicitation. No agreement needed. Can merge.
Attempt - bring about a criminal result. Complete when elements are fulfilled. Can merge.
Conspiracy - agreement between two or more persons to commit a crime. Complete when there is an agreement and overt act. Does not merge.
Explain the land possessor liability (to whom the duty is owed, and the standard of care).
Invitees - on land for business or land is held open to the public. Is owed reasonable care and warning of latent known hazards on the land with a duty to inspect and make safe.
Licensee - on land with owner's permission. Is owed reasonable care, but no duty to inspect.
Trespasser - enters land without permission. If unknown - no duty of care. If known, reasonable care from injuries. If frequent - elevated. If children - reasonable care in respect to artificial conditions.
Valid Service Methods and Servers
The process server must be at least 18 years old and not a party to the case.
methods to serve:
state law: follow the state law methods where the federal court is located or where service is made agent: deliver a copy of the summons and complaint to an agent appointed by defendant or law
individual: deliver a copy of the summons and complaint to the individual personally
dwelling: leave a copy of the summons and complaint at the individual’s dwelling or usual place of abode w/someone of suitable age and discretion who lives there.
What is the Parol Evidence Rule? Exceptions?
When parties intend that a writing is the final expression of their bargain, no prior or contemporaneous expressions are admissible to vary the terms of the writing.
Exceptions:
A state violates the Privileges and Immunities clause when? What level scrutiny applies?
law discriminates against out-of-staters, usually involving fundamental rights or important economic activity (ability to earn a living)
law must be necessary to achieve important gov't purpose
When is self defense OK? How much force?
Reasonable belief that the defendant is in imminent danger of unlawful bodily harm, he may use a proportional amount of force in self-defense that is reasonably necessary to prevent such harm, unless he is the initial aggressor.
Name strict liability torts.
Wild animals;
Abnormally dangerous activities;
Strict Products Liability (Manufacturing Defect, Design Defect, or Inadequate Warnings).
When may these pre-answer motions be raised:
-lack of subject matter jurisdiction
-improper venue or lack of personal jurisdiction
-failure to state a claim or join a party
-may be raised at any time, even on appeal
-waived if not raised by motion or answer (whichever comes first)
-may be raised any time before or at trial
6 types of contracts subject to the SOF
suretyship or guarantee contracts
contracts transferring the interest of land
contracts incapable of being performed in one year
contracts for the sale of goods of $500 or more
executor-administrator contracts
contracts in which part of the consideration is marriage