Crim Law/Pro
$100 – You’ve Been Burglarized – Elements of Burglary – Card #37
Question: For $100, walk me through the elements of burglary.
Answer: (1) Breaking, (2) Entering, (3) Of another (4) At Nighttime (Common law only) (5) With the intent to commit a felony therein at the time of the breaking and entering.
Bonus Note: The felony need not be completed. Intent acquired after entering is insufficient.
$100 – Those Look Like International Shoes To Me – Card #4
Question: On the bar exam, case names don’t matter, but for the purposes of this question think back to International Shoe, and for $100, fill in the blanks. To be constitutionally subject to personal jurisdiction, a defendant must have such ________ with the forum state such that exercising jurisdiction does not offend traditional notions of ______ and __________.
Answer: minimum contacts; fair play; substantial justice;
Bonus Note: When thinking about minimum contacts, look at purposeful availment and foreseeability. When looking at fair play and substantial justice, look at relatedness of the contacts and the claim, convenience (is D severely disadvantaged?), and the forum state’s interests.
$100 – Your Honor, This Case is Moot – Or Is It? – Card #4
Question: To be justiciable in federal court, a case must contain a ripe claim and a live controversy – that is, it cannot be moot. A live controversy must exist at all stages of review. If circumstances causing P’s harm cease to exist after the start of the lawsuit, the case must be dismissed as moot. There are three exceptions to mootness. Name 2 of the 3 of them for $100.
Answer: (1) Wrongs capable of repetition but evading review , (2) Voluntary Cessation by D, (3) Class action lawsuits (only one member of the class must have an ongoing injury).
$100 – Something’s Not Right About This Delivery – Card #21
Question: How does a buyer properly reject imperfectly tendered goods under the UCC?
Answer: (1) Notify seller of rejection in a reasonable time, (2) Hold the rejected goods using reasonable care, and (3) Give seller reasonable time to arrange for removal of goods. If no info regarding removal, buyer can return goods, store goods, or resell the goods for seller.
$100 – But She’s My Wife! You Can’t Make Her Testify! Card #24
Questions: True or false?
(1) A witness may refuse to testify against a spouse during marriage.
(2) The witness and the witness’s spouse both hold this privilege, known as the spousal testimonial privilege.
(3) The spousal testimonial privilege applies in both criminal and civil actions.
(4) The marital communications privilege applies in both civil and criminal proceedings, and privileges confidential communications made during marriage during a alter proceeding.
(1) A witness may refuse to testify against a spouse during marriage. TRUE
(2) The witness and the witness’s spouse both hold this privilege, known as the spousal testimonial privilege. FALSE – it is only held by the witness.
(3) The spousal testimonial privilege applies in both criminal and civil actions. FALSE – it only applies in criminal actions.
(4) The marital communications privilege applies in both civil and criminal proceedings, and privileges confidential communications made during marriage during a alter proceeding. TRUE – and this privilege can be invoked by either the witness or the witness’s spouse, even after divorce. There are exceptions for suits between the spouses, co-defendant lawsuits, and suits in which one spouse has done harm to a child.
$100 – The TTIP of the Tenancy Iceberg – Card # 15
Question: To create a joint tenancy, four conditions must exist concurrently.
Answer: TTIP! (1) Time – must take at the same time, (2) Title – must receive their conveyance through the same instrument, (3) Interest – must take equal, identical interests, and (4) Possession – must have equal rights of possession.
$100 – Negligence You Say? No! Negligence Per Se – Card # 25
Questions: For an admittedly tough $50, define/Discuss what Negligence Per Se is. Next, for another $50, if a plaintiff establishes negligence per se, what element of the negligence claim has the plaintiff established?
Answers: An existing statue may establish a duty of care, in which case the specific duty imposed by the statute will replace the general common law duty of care.
Breach of duty.
$200 – Murder Mystery – Card #26
Question: Murder is the unlawful killing of another with malice aforethought. Malice aforethought arises when no mitigating facts (such as facts showing adequate provocation for example) reduce the killing to a lesser crime and the defendant kills with one of four mental states. Provide each of these 4 mental states for $50 each.
Answer: (1) Intent to Kill, (2) Intent to Inflict Great Bodily Injury, (3) Depraved/Malignant Heart, and (4) Felony Murder – which is a killing caused during attempt or commission of an inherently dangerous or statutorily enumerated felony.
$200 – Have we found a proper venue? – Card # 16
Question: Venue involves the determination of the judicial district in which P may bring a suit. For most civil actions in federal court, there are three venue rules that will help you determine whether venue is proper. State as many of the rules as you can.
Answer: (1) Venue is proper in any district where any D resides if all Ds reside in the same state,
(2) Venue is proper in any district in which a substantial part of the claim arose or in which a substantial part of property that is subject to the action is situation, or
(3) If no district in the U.S. can satisfy (1) or (2), then any district in which any D is subject to PJ.
$200 – But Officer, I Have a Right to Speak Here, It is a Public Forum After All – Card #44
Question: Public forums are government property that the government is constitutionally required to make available for speech like a sidewalk or a park. If the government wants to restrict speech in a public forum, the regulation will only be upheld if it meets 3 criteria. Identify 2 of the 3 criteria for $100 each.
Answer: (1) It must be content neutral and only regulate time/place/manner, If the restriction is content-based, strict scrutiny is invoked. (2) Narrowly tailored to serve an important government purpose, and (3) Leave open adequate, alternative channels of communication (which is less than the least-restrictive alternative).
$200 – It is Written. The Deal is Done! – Card #15
Question: For $50 each up to $200, identify the types of contracts that fall within the SOF.
Answer: (1) Marriage K’s, (2) Service K’s that can’t be performed within a year, (3) land-related K’s, (4) Executor promises, (5) Guarantees, and (6) Sales of goods of over $500.
$200 – But I Was Just Trying to Help! – Card #3
Question: There are situations in which relevant evidence will be excluded on public policy grounds. Name up to 4 such situations for $50 each. If you can, provide a brief definition just for “fun.”
Answer: (1) Liability Insurance, (2) Subsequent Remedial Measures, (3) Settlements, Offers to Settle, and Plea Bargaining, (4) Offers to Pay Medical Expenses
$200 – Overcoming Adverse Possession – Card #44
Question: Under certain circumstances, a trespasser may acquire title to another’s property without compensation. For $50 each, name four such requirements.
Answer: (1) Continuous for the Statutory Period (ordinary use of property),
(2) Open and Notorious (conspicuous such that true owner would know what was going on if he inspected the property,
(3) Actual and Exclusive (possess to the exclusion of others, and
(4) Hostile (without the owner’s permission).
$200 – Take Care of Your Property! – Card #27
Questions:
For $50, who is a licensee?
For another $50, who is an invitee?
$50 True or False: As to known dangerous conditions on his property, a landowner had a duty to warn or make his property safe for both invitees and licensees.
$50 True or False: A landowner has a duty to inspect his property for licensees.
Answers: A licensee is one who enters land with owner’s permission for his own purpose or business and not for the landowner’s benefit. This includes relatives, friends, and social guests.
In contrast, an invitee is one who enters land held open to the public or who enters with owner’s permission to confer a commercial benefit such as a store patron or a concertgoer.
True. False.
$300 – The Dangerous Doctrine of Merger – Cards #9, 10, 11, and 13
Questions: Here, we will briefly examine the issue of when an inchoate, or incomplete, offense merges into the completed offense. For $100 each, answer each of the following questions?
Solicitation is the inciting, urging, or otherwise asking another to commit a crime with the intent that they commit the crime. Does the crime of solicitation merge with the completed offense? Yes.
Attempt is an act done with the intent to commit a crime, that constitutes an overt or substantial step towards committing the crime but falls short of completing the crime. Does the crime of attempt merge with the completed offense? Yes.
Conspiracy is an agreement between two or more people to commit a crime. Does the crime of conspiracy merge with the completed offense? No.
Answers: Yes, Yes, No.
$300 – I Could Swear This Issue Has Already Been Decided – Card #61
Question: Issue preclusion, formerly known as collateral estoppel, prevents relitigation of particular issues of fact or law that have been actually litigated and previously determined. Issue preclusion typically has four elements. Name as many of them as you can.
Answer: (1) Final Judgment on the Merits, (2) Same Issue, (3) Issue essential to judgment, and (4) Asserted against actual party to previous case.
Bonus Note: There are two views as to who may assert issue preclusion. The traditional view is that of mutuality, which requires the party asserting issue preclusion to have been a party to the previous litigation. The modern view is that of non-mutuality, wherein any party may raise issue preclusion.
$300 – Let’s Scrutinize This Here Law – Card #24
Question: Courts use three tests to analyze the constitutionality of government acts under Substantive Due Process and Equal Protection. $50 each for naming the three levels of scrutiny and $50 more for correctly stating the language that defines each level.
Answer: (1) Rational Basis – A law will be upheld if it is rationally related to a legitimate government purpose.
(2) Intermediate Scrutiny – a law will be upheld if it is substantially related to an important government purpose.
(3) Strict Scrutiny – a law will be upheld if it is necessary to achieve a compelling government interest.
Bonus Note: Who has the burden of proof with each level?
Rational Basis = Challenger; Intermediate and Strict Scrutiny= Government.
$300 – It’s in the Mail – Card #9
Questions: For $100 each, when is each of the following effective? If you are aware of any nuances or exceptions, feel free to point them out.
- Offers
- Acceptance
- Revocation
Offers: Upon Receipt
Acceptance: Upon Dispatch (unless it’s an option K, then its upon receipt; or unless offer says otherwise)
Revocation: Upon Receipt – the mailbox rule does not apply.
Bonus Note: If offeree sends both a rejection and an acceptance, the first to arrive is controlling.
$300 – He Did it Before and He Will Do It Again – Card #9
Questions: In civil and criminal cases, specific instances of D’s bad conduct are inadmissible to prove character (i.e., action in conformity with such character), but admissible to prove other things. There are 5 common non-character uses of prior acts evidence. We often use a pneumonic to help us remember those 5 uses. For $50 provide the mnemonic and for $50 each, the five uses.
Answers: MIMIC – Motive, Intent, Mistake, Identity, and Common Plan or Scheme
$300 -You Defeased My Fee! – Card #1
Question: A fee simple estate is of potentially infinite duration and can be terminated upon the happening of a specified event. For $50 each, first name the three types of defeasible fees. Hint: they all start with the words “Fee Simple”. For $50 more, name each of the future interests associated with each of the defeasible fee types.
Answers: (1) Fee Simple Determinable --> Possibility of Reverter (automatically reverts back to grantor upon the happening of a specified event)
(2) Fee Simple Subject to Condition Subsequent --> Right of Entry (grantor retains power to terminate the grantee’s estate but must take action to terminate)
(3) Fee Simple Subject to Executory Interest --> Executory Interest (property automatically transfers to a third party upon the happening of a specified event)
$300 – Whose Fault is it Anyways? – Card #32
Questions: For $100, define or explain comparative negligence. For another $100, contrast that with contributory negligence. For the last $100, explain the last clear chance rule, which arises in the context of contributory negligence.
Answers: Comparative negligence: D can establish that P’s injuries are at least partially the result of P’s own negligence. Court apportions fault between P and D and reduces P’s damages accordingly. Pure: P can recover even if more than 50% at fault. Partial/Modified – P must be less than 50% at fault.
Contributory Negligence: P is barred from recovery if D establishes that P’s negligence contributed to her injuries.
Last Clear Chance: P can rebut D’s contributory negligence claim by alleging D had last clear chance to avoid the injury-causing accident.
Bonus Note: The applicability of the defenses arises under state law and the MBE will usually tell you which standard is in play. If no standard is provided, assume comparative negligence applies.
$400 – Dude, It’s Not My Car – Card #51 (Card #50 provides supplementary rules)
Questions: First, for $50, when a police officer stops or pulls over the car, must the stop be based on probable cause or reasonable suspicion? Next, for $50 each, if the police officer reasonably believes there are weapons in the vehicle, may he (A) search the passenger compartment? (B) The passengers themselves? (C) The trunk?
Switching gears to police checkpoints, a police checkpoint, or roadblock, stops cars without individualized suspicion, like a DUI checkpoint. For $100 each, identify two of the requirements of a valid police checkpoint.
Answers: Reasonable suspicion. Also, pretextual stops are those made with an ulterior motive and are legal as well. (A) Yes (B) Yes (C) No. (1) Stops cars using a neutral, articulable standard (like every fourth car), and (2) Serves purposes related to automobiles and their mobility.
Example: DUI checkpoints relate to road safety, but drug checkpoints are insufficiently related to driving and are unconstitutional.
$400 – Personally, I don’t know if you have jurisdiction – Cards #1 and 3
Question: Personal jurisdiction involves the court’s ability to exercise authority over parties or their property. Courts look to fairness as their guiding light, but jurisdiction must be authorized both constitutionally and statutorily. To determine whether personal jurisdiction has been statutorily authorized, we look to applicable state law. Most state statutes grant in personam personal jurisdiction for a few different reasons. For up to $400, identify as many of these jurisdictional hooks as you can.
Answer: (1) Service of Process (personal service in the forum state);
(2) Domicile (D is domiciled in the forum state and maintains permanent home there);
(3) Consent (D consents, either explicitly or impliedly, to the court’s jurisdiction); and
(4) Long-Arm Statute (D’s act falls within the long-arm statute, which specifies when state courts can exercise jdx).
$400 – I Think We Have Established You Can’t Establish My Religion for Me – Card #40
Questions: Under the First Amendment, religious protections are protected under the Free Exercise Clause and the Establishment Clause. In this question, we are talking about the Establishment Clause. For $100, if the government discriminates against a specific religion or sect, as opposed to religion in general, what level of scrutiny applies in that situation?
And for another, $100, if the government restricts or burdens religion without discriminating against a specific faith or group, what test do we apply?
Recite the three elements of the Lemon test. 2 out of 3 for $200.
Answers: Strict scrutiny. Lemon test. (1) There is a secular purpose behind the act, (2) The acts primary effect neither advances nor inhibits religion, and (3) The act does not create excessive entanglement with religion.
$400 – Is it the Common Law or the UCC? – Card #3
Questions: Explain what you know about the distinctions in these four areas.
(1) Contract Acceptance
(2) Option Contracts
(3) Contract Modification
(4) Tender of Performance
(1) Contract Acceptance: Common law – mirror image; UCC – if both parties are merchants, additional terms become part of the K unless they materially change the offer or the offeror objects.
(2) Option Contracts: Common law – requires reconsideration or reliance; UCC – no consideration required for a merchant’s firm offer.
(3) Contract Modification: Common law – consideration usually required; UCC – no consideration required.
(4) Tender of Performance: Common law – substantial performance; UCC – perfect tender.
$400 – I heard Donny told Erica he heard Matt say something just before Sam died last year – Cards #28 and 35
Questions: Define hearsay. What are the 3 things an attorney must show to have a dying declaration admitted in court?
Answers: Hearsay is an out of court statement offered to prove the truth of the matter asserted. It is generally admissible, subject to exceptions and exemptions.
(1) Declarant currently unavailable, (2) Statement made under belief of impending death, (3) The statement was made regarding the causes or circumstances surround the belief of impending death.
Bonus Note: Only available in civil and homicide cases.
$400 - The Ark of the Burdened Covenant? – Cards #40 and 41
Question: A successor in interest to an estate burdened by a covenant will be bound to that covenant if certain conditions are satisfied. Look WITHN yourselves for $100 per condition with a maximum of $400.
Answer: (1) Writing, (2) Intent, (3) Touches and Concerns the Land, (4) Horizontal and Vertical Privity, and (5) Notice.
Bonus Note: Name which of these is are required for the benefit of a covenant to run with the land? (1) Writing, (2) Intent, (3) Touches and Concerns the Land, (4) Vertical Privity. So Horizontal Privity and Notice are NOT required.
$400 – The Bar Exam is Causing Me Emotional Distress – Cards #5 and 6
Question: What are the four elements of an IIED claim?
Answer: (1) Extreme and Outrageous conduct by D (exceeds bounds of decency), (2) Severe Emotional Distress in P (physical symptoms not necessary), (3) Intent or Recklessness, and (4) Causation.
Bonus Note: Tell the story of a Bystander claim using Card #6 to describe how rare it would be.
$500 – Stop! You’ve Been Seized – Card #43
Question: Searches and seizures of evidence must be reasonable under the Fourth Amendment, which requires a search warrant unless one of six exceptions applies. Name as many of these six exceptions as you can for $100 each, maximum of $500.
Answer: (1) Search Incident to Legal Arrest (SILA), (2) Plain View Search, (3) Automobile Search, (4) Valid Consent to Search, (5) Exigent Circumstances, (6) Stop and Frisk.
Bonus Note: When evaluating the validity of the search or seizure on a bar exam essay, ask yourself:
(1) Has there been government conduct constituting a search or seizure?
(2) Does the individual searched have standing to challenge the validity of the seizure?
(3) If there was a search or seizure, did the government have a warrant?
(4) If not, did one of the six exceptions we mentioned above apply?
$500 – Due Process Requires You to Serve me with Process – Card #20
Question: Under FRCP 4, there are five proper methods of service. For $100 each, name them.
Answer: (1) Personal Service, (2) Substituted Service (leave with 3rd party at D’s usual abode), (3) Service upon D’s Authorized Agent, (4) Mail (if service has been waived), (5) Any method authorized by state law.
Bonus Note: If D waives service, how many extra days do they get to answer the complaint? 60 from date the waiver request was sent.
$500 – You Think All Speech Was Created Equal? That’s Obscene! – Card #50
Question: The government may regulate obscenity, which has been deemed a lesser-protected category of speech. What are the three elements of the test for obscenity? $400 for 2 parts and $500 for all 3.
Answer: (1) It appeals to prurient interests (average person/community person standard), (2) It is patently offensive in its sexual portrayal (community standard), (3) Taken as a whole, the material lacks serious literary, artistic, political or scientific value (national standard).
$500 – That’s Not What I Ordered! – Card #41
Questions:
(1) If seller breaches and buyer keeps goods, what is the measure of damages under the UCC?
(2) If seller breaches and either keeps goods or buyer returns goods, what is the measure of damages under the UCC?
(3) Breach by Buyer and Buyer has goods?
(4) Breach by Buyer and Seller has goods?
Answers:
(1) FMV of perfect goods that should have been delivered MINUS FMV of what was delivered.
(2) FMV of goods at the time of breach MINUS the contract price OR Buyers cost of covering/replacing the goods MINUS the contract price, whichever is higher.
(3) Contract Price.
(4) Contract Price MINUS market price at the time of delivery, or contract price MINUS resale price plus provable lost profits.
$500 – Must the Witness be Unavailable? Card #31
Question: There are five exceptions to the hearsay rule that require the unavailability of the declarant. For $100 each, name them.
Answer: (1) Former testimony, (2) Statements Against Interest, (3) Dying Declarations, (4) Statements of personal history or family history, and (5) Statements offered against party procuring declarant’s unavailability.
$500 – For the Record – Cards #52, 53, and 54
Questions: To begin, for $100, do your best to define a Bona-Fide Purchaser, or BFP.
Next, for another $100, what are three ways that BFP can be charged with notice?
For another $100, what is the Shelter Rule?
For $200, tell me whether the following paragraph reflects a “Notice Statute” or a “Race-Notice Statute”:
“No conveyance or mortgage of an interest in land shall be valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded.”
Answers: A BFP purchases property for value without notice of a prior conveyance. This applied to mortgagees, but not donees or devisees, unless the Shelter Rule applies.
(1) Actual, (2) Inquiry, (3) Record.
Shelter Rule: One who takes from BVP would prevail against any interest the transferor-BVP would prevail against, even if transferee had actual notice of the prior conveyance.
This is an example of a race-notice statute. Under a race-notice statute, the first subsequent BFP to record prevails. In contrast, under a notice statute, a subsequent BFP always prevails.
$500 – I Can’t Believe You Said That! – Card #15
Question: What are the five elements of a defamation claim? $100 for each element.
Answer: (1) Defamatory Statement, (2) Concerning P, (3) Publication (statement must be intentionally or negligently made to a third person), (4) Harmful to P’s Reputation, and (5) Falsity and Fault (only required if statement is matter of public concern or a public figure/official).