Bar Prep FINAL EXAMS 2022

Bar Prep FINAL EXAMS 2022 NIED ans: 1) No direct physical trauma 2) Negligence occurred under some standard of care AND π was in zone of danger and exhibited subsequent physical manifestations of distress ALSO recovery in bystander situation where a close family member was a witness to the injury Murder ans: 1) Intent to kill 2) Intent to inflict great bodily injury 3) Highly reckless indifference to human life (depraved heart) 4) Intent to commit felony (Burglary, Arson, Rape, Robbery, Kidnapping) M'Naghten Rule ans: At the time of his conduct, ∆ lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions Arson ans: The malicious burning of the dwelling of another Malice ans: Reckless disregard for an obvious or high risk that a particular harmful result will occur Burglary ans: The breaking and entering into the dwelling of another at night with the intent to commit a felony therein Robbery ans: The taking of the personal property of another from the other's person or presence by force or by threats of immediate death or physical injury with the intent to permanently deprive False Pretenses ans: Obtaining title to the personal property of another through a knowing (intentional in some jdx) misrepresentation of past or present fact with the intent to defraud Larceny ans: The taking and asportation of the personal property of another without consent or with consent obtained by fraud with the intent to permanently deprive Voluntary Manslaughter ans: Provocation adequate if: 1) Would arouse sudden and intense passion in an ordinary person 2) ∆ was in fact provoked 3) Not sufficient time for the ordinary person to cool off 4) ∆ did not cool off Assault (Crim) ans: 1) Attempt to commit a battery 2) Intentional creation of reasonable apprehension in another of imminent bodily harm Battery (Crim) ans: An unlawful application of force to the person of another resulting in either bodily injury or offensive touching Materiality of Breach ans: 1) Adequacy of compensation 2) Amount of benefit received 3) Extent of part performance 4) Hardship to breaching party 5) Negligent or willful behavior 6) Likelihood that breaching party will perform Discharge by Novation ans: 1) Prior valid contract 2) Agreement between parties 3) Immediate extinguishment of contractual duties between original parties 4) New and valid contract Conspiracy ans: 1) An agreement between two or more person 2) Intent to enter into the agreement 3) Intent to achieve the unlawful objective of the agreement 4) (maj) Overt act in furtherance *Mere preparation sufficient **Liability for co-conspirators if crimes committed in furtherance of conspiracy and foreseeable Factual Causation ans: But for the ∆'s action π would not have been hurt Multiple ∆s: - Mingled Causation-substantial factor test - Unascertainable Cause- burden on π to show each ∆ was factor then burden to ∆s to show not cause Proximate Cause ans: Natural and probable consequences Liability is fair when: 1) Intervening medical negligence 2) Intervening negligent rescue 3) Intervening protection/reaction 4) Subsequent disease/accident Requirements for Informal Rulemaking (Fed) ans: 1) Notice 2) Right to Participate (right to submit written data or arguments but no right to hearing) 3) Promulgation (concise general statement of basis and purpose, must have 30 days before implementation) Main Test for Distinguishing b/t Employee and IC ans: Extent of the principal's control the manner and method of agent's performance Exceptions to Right of Judicial Review ans: 1) Standing 2) Statute of Limitations 3) Finality of agency decision 4) Exhaustion of agency remedies 5) Ripeness Federal Evidence Admissibility Standard (Admin) ans: Any reliable, probative, or substantial evidence Oregon Evidence Admissibility Standard ans: Allowed if relied upon by reasonably prudent persons in the course of their serious affairs Issue Trio ans: Void for vagueness Overbreadth Unduly Discretionary Discharge by Frustration ans: 1) Supervening act/event leading to the frustration 2) Parties did not reasonably foresee at the time of formation 3) Purpose of K completely or almost completely destroyed 4) Purpose of K realized by both parties at time of formation Mutual Mistake ans: 1) Mistake concerns a basic assumption on which the contract was made 2) Material effect on the agreed-upon exchange Strict Liability- Injuries by animals ans: Domesticated animals- No strict liability unless prior knowledge of vicious propensities Trespassing Livestock- SL Wild Animals- SL even with precautions Rule ans: Statement of general applicability and future effect prescribing or interpreting law, policy, or procedure Oregon Service of Process Methods ans: **Notice must be reasonably calculated to apprise ∆ of the suit and give reasonable chance to defend Abode (14+ and first class mail) Mail (First class and evidenced) Office (Someone w/ app. auth. + 1st class mail) Personal Entity Federal Service of Process Methods ans: Abode (13+) Waiver (60 days to respond instead of 21) Agent State Personal Strict Liability (Products) ans: 1) Commercial Seller/Merchant 2) π shows product is defective - Manufacturing defect - Design defect * alternative version that is economical, safer, prac. 3) In defective condition when it left seller's control 4) Foreseeable use/misuse Strict Liability (Ultrahazardous Activities) ans: Activity cannot be made safe Poses foreseeable risk of severe harm Uncommon in area where conducted ** Risk remains with reasonable care Defenses to Felony Murder ans: 1) Cannot be convicted of underlying felony 2) Killing was of a co-felon 3) Reached a place of temporary safety 4) Felony independent of killing 5) Death was not foreseeable Removal of Trustee ans: 1) Lack of cooperation between co-trustees 2) Unfitness, unwillingness, or persistent failure to administer 3) Serious breach of trust 4) Substantial change in circumstances Incorporation by Reference ans: 1) Writing in existence at time of execution 2) Writing sufficiently described 3) Will manifests intent to incorporate 5 Elements for Express Trust ans: 1) Settlor with capacity to convey 2) Present intent to create trust 3) Competent trustee with duties 4) Definite beneficiary 5) Same person is not sole trustee and sole beneficiary **Also must be funded with res and for a valid purpose (note: if living trust, can be funded later as long as accompanied by reaffirmation of intent to create trust) Prudent Investor Standard ans: Trustee must exercise reasonable skill, care, and caution with investing and managing trust assets *Look at entire portfolio and overall strategy Standard of Care for Child ∆s ans: Held to the standard of a child of like age, education, intelligence, and experience *Except if engaged in adult activity - reasonable person standard False Imprisonment ans: 1) Act or omission by ∆ that confines or restrains π 2) To a bounded area 3) Intent 4) Causation *π must be aware of confinement and cannot have reasonable means of escape Powers of Appointment ans: Authority to designate who shall take 1) General: exercisable in favor of the donee himself, his estate, or his creditors 2) Specific: donee cannot exercise in favor of himself, his estate, or creditors. Limited class Statement by DV Victim (Oregon) ans: Admissible if: 1) Made by victim w/in 24 hours 2) Recorded electronically or in writing OR made to corrections officer, police officer, EMT, or firefighter 3) Sufficient indicia of reliability Tax Burden for Con Law ans: 1) Activity taxed has a substantial nexus to the taxing state 2) Tax is fairly apportioned 3) Tax fairly relates to services provided by the state Privileges and Immunities ans: Protects against discrimination by a state in favor of its own citizens - State must show substantial justification for the discriminatory treatment Prior Restraint ans: Must be narrowly tailored to achieve a compelling or at least significant government interest Evidence Exclusions for Policy Reasons ans: Medical Tx Settlement Liability Insurance Subsequent Remedial Measures Withdrawn Guilty Pleas Independently Relevant Character Evidence ans: Motive Intent Mistake (Absence of) Identity Common scheme or plan Contract to Make a Will ans: Can be established only by: 1) Provisions in the will stating material portions of K 2) Express reference in will to K and extrinsic evidence proving terms 3) Writing signed by decedent evidencing K Exceptions to Fruit of the Poisonous Tree ans: Miranda violation Independent source Free will Independent discovery Knock and announce (MISFWIK) Warrant Exceptions ans: Incident to Arrest Plain view Consent Automobile Exigency Stop and Frisk Hot Pursuit Omission as Act ans: 1) Legal duty to act 2) ∆ had knowledge of facts giving rise to duty 3) Reasonably possibly to perform Agent's Duties ans: Reasonable Care Obedience Loyal Express Contractual Duties Principal's Remedies ans: Contract Remedies Action for SP Withhold Compensation Constructive Trust