MBE Flashcards
intentional infliction of emotional distress ( business conduct) - to maintain a claim for intentional infliction of emotional distress, a plaintiff must show that the defendant acts amounted to extreme and outrageous conduct, causing the plaintiff severe emotional distress, an...
intentional infliction of emotional distress ( business conduct) - to maintain a claim for intentional
infliction of emotional distress, a plaintiff must show that the defendant acts amounted to extreme and
outrageous conduct, causing the plaintiff severe emotional distress, and that the defendant either
intended to cause or was reckless in causing the emotional distress. Extreme methods of business
conduct, including extreme methods of debt collection has been characterized as actionable outrageous
conduct.
the separation of powers ( article 1 section 8) - article 1 section 8 of the Constitution gives Congress
the power to spend to provide for the common Defense and general welfare. This spending may be for
any public purpose. Through the spending power, Congress may regulate state action by imposing
reasonable conditions on the grant of money to state or local governments. By accepting the grant from
the federal government the entity finds itself to adhere to the conditions placed on the grant by
Congress.
Negligence (Generally) - In every act, a person owes a duty of reasonable care to avoid the harm which
could foreseeably result from his negligence.
Negligence (NIED) - the duty to avoid negligent infliction of emotional distress is breached when
defendant creates a foreseeable risk of physical injury to plaintiff either by causing a threat of physical
impact that leads to emotional distress or directly causing severe emotional distress that by itself is
likely to result in physical symptoms.
relevancy and reasons for excluding relevant evidence #1 - if evidence is relevant to the issue of
whether the defendant would have had an incentive to commit a crime it can be admitted under the
rules of evidence.
Robbery (intent) - a conviction for robbery requires the specific intent to deprive the victim of his
property.
ownership - when land is acquired by a life tenant subject to an outstanding indebtedness, the life
tenant is obligated to pay only the interest on encumbrances to her land, and the remainder men are
obligated to pay the principal. If a mortgage forecloses upon a property it will destroy all junior estates.
, constitutional protection of accused persons - evidence generally will not be suppressed where police
reasonably held a good-faith belief that their actions leading to its discovery were authorized by a valid
warrant.
privileges and other policy exclusions - if the witness and defendant are married at the time of trial,
the witness cannot be placed in contempt for refusing to testify against the defendant. The rationale for
the rule is to preserve marital harmony, which would otherwise be damaged by one spouse testifying
against the other.
individual rights - restrictions based on the alien status of a citizen are unique in that the federal
government has broad power to create such restrictions, but alienage discrimination imposed by the
states is subject to strict scrutiny under the equal protection clause.
relevancy and reasons for excluding relevant evidence - a trial judge has discretion to exclude evidence
if it's probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.
ownership ( tenancy in common ) - a tenant in common may bring an action to partition the property.
Partitioned in kind, in which there is a physical division of the common property, is preferred; however a
partition by sale is allowed one a fair and equitable physical division of the property is impossible.
individual rights and race - race is an inherently suspect classification under the equal protection
clause, and therefore a government action based on race will be subjected to strict scrutiny and struck
down unless the state can demonstrate that the action is necessary to achieve a compelling government
interest. Government action that merely has a discriminatory effect, however, will not trigger this level
of analysis. There must be some degree of intent on the part of the government to discriminate. If
discriminatory intent cannot be shown, the rational basis standard of scrutiny will apply, and the action
will be upheld if the government can show that its actions are rationally related to any government
interest. The courts will be particularly cautious in finding race-based discriminatory intent in the
government's drawing of voting districts, and thereby subjecting to the government's actions to strict
scrutiny and likely having those actions overturned. Therefore a plaintiff must show that race was the
predominant factor motivating the Legislature's decision to place a significant number of voters within
or without the district.
, a time place and manner regulation subject to intermediate scrutiny - The government must show that
the law serves an important objective, not involving the suppression of speech, that the law is narrowly
tailored, and there remain ample alternative means of communication.
the relation of nation and states and federal system - most governmental power is concurrent,
belonging to both the states and the federal government. When both the states and the federal
government passed legislation on the same subject, the supremacy clause of the Constitution provides
that the federal law is supreme, and conflicting state law is rendered void. A conflict can result if there is
an actual, explicit conflict between the state and federal laws, if the state action interferes with the
achievement of federal objective, or if the state legislated upon the matter after Congress took action
demonstrating an intent to preclude any state or local legislation.
constitutional protection of accused persons - Use and derivative use immunity sufficiently protects
the constitutional privilege against self-incrimination in the situation of compelling production of a
person's diary in a criminal case.
title- notice recording act that protects bona fide purchasers that purchase land without notice of a
prior interest - in the majority of jurisdictions, a judgment creditor is not considered a bona fide
purchaser and is not protected by the recording act.
Strict liability products liability - strict products liability only applies to sellers if they are commercial
suppliers of the type of goods that the defective product belongs to.
First Amendment - a law that restricts speech may be facially invalid under the First Amendment if it is
substantially vague or overbroad. A vague law is one in which people of reasonable intelligence would
not know what is prohibited, and an overbroad law is one that encompasses substantially more speech
than necessary.
fourth amendment ( in regard to hotel dwellings) - the fourth amendment protects a person's
expectation of privacy in their dwelling, including their temporary hotel room dwelling. Absent exigent
circumstances, which were not present in this fact pattern, the fourth amendment would require the
officers who have obtained a war it before entering the hotel room.
intentional torts - there is evidence supporting compensatory damages ( emotional distress, the
removal of the faucets) and punitive damages ( malicious intent, ill will). Because the lease is still in
effect and the trespasses are repeated an ongoing, injunctive relief should also be available.
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