Simulated MBE Wrong Answers - TORTS AND CON LAW

TORTS: As a general rule, one may use reasonable force to prevent the commission of a tort against one's property; HOWEVER, may NOT use force...
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Terms in this set (48)
TORTS: To make out a case for defamation, a plaintiff must show...that the defendant published a defamatory statement of or concerning the plaintiff that damaged his reputation. When P is public figure/public official, they must also prove that knowledge that the statement made was false or the D had reckless disregard as to its truth or falsity.CON LAW: A state law may not respect the establishment of a religion, and generally will be unconstitutional if it fails to pass any of the three following tests:(i) it has a secular purpose; (ii) its primary effect neither advances nor inhibits religion; and (iii) it does not produce excessive government entanglement with religionCON LAW: Under the Due Process Clause of the Fourteenth Amendment, the state must provide some fair process or procedure before it maydeprive a person of "life, liberty, or property."CON LAW: Fair procedure at a minimum requiresan opportunity to present objections to the proposed action to a fair, neutral decisionmaker.CON LAW: Whether a prior evidentiary hearing is required and the extent of procedural requirements is determined by weighing...(i) the importance of the individual interest involved, (ii) the value of specific procedural safeguards to that interest, and (iii) the governmental interest in fiscal and administrative efficiency.CON: Unless the law was motivated by a desire to interfere with religion, it can be applied to regulate the conduct ofsomeone whose religious beliefs conflict with the law.TORTS: For a private nuisance action to lie, the interference with the plaintiff's use or enjoyment of his land must beSubstantialTORTS: An interference with a plaintiff's use or enjoyment of his land is substantial when it is...offensive, inconvenient, or annoying to an average person in the community.CON: The power to conduct foreign relations is vested inthe PresidentCON LAW: Under the Commerce Clause, Congress may regulate:(i) the channels of interstate commerce; (ii) the instrumentalities of interstate commerce, as well as persons and things in interstate commerce; or (iii) activities that have a substantial effect on interstate commerce.CON LAW: When Congress attempts to regulate intrastate activities under the third of the preceding prongs (activities that have a substantial effect on interstate commerce), the Court will uphold the regulation if it involves economic or commercial activity as long as...there is a conceivable basis for concluding that the activity in aggregate substantially affects interstate commerce.TORTS: The prima facie case for battery act by defendant that will bring about a harmful or offensive contact to the plaintiff, intent on the part of defendant to do the act, and causation.CON LAW: Congress ______ allow a state to adopt legislation that would otherwise be invalid as an unconstitutional burden on interstate commercemayTORTS: A person who is a professional is required to exercisesuch superior judgment, skill, and knowledge as he actually possesses.TORTS: In jurisdictions following the traditional landowner liability rules, the duty owed by an owner or occupier of land to those on the land depends on...whether the person on the land is characterized as a trespasser, licensee, or invitee.TORTS: Licenseeenters on the land with the landowner's permission, express or implied, for his own purpose or business rather than the landowner's benefit.TORTS: Inviteeenters onto the premises in response to an express or implied invitation of the landowner.TORTS: A landowner owes _________ to an undiscovered dutyTORTS: A landowner owes a discovered or anticipated trespasserthe duty to warn of or make safe artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover.CON LAW: A plaintiff bringing an action in a state trial court is required toexhaust its state appellate remedies before seeking review in federal courts, even where federal issues are involved.CON LAW: Congress cannot require Article III courts torender advisory opinions or perform administrative or nonjudicial functions.TORTS: To establish a prima facie case for trespass to land, plaintiff must prove:(i) an act of physical invasion of plaintiff's real property by defendant; (ii) intent (knew with substantial certainty) on defendant's part to bring about the physical invasion; and (iii) causation.CON LAW: The President's constitutional power to pardon prisoners extends only tothose convicted of federal offenses.CON LAW: When analyzing government action based on gender, the courts will apply anintermediate standard of review and strike the legislation unless it is substantially related to an important government interest (GOV'T BEARS BURDEN)TORTS: A commercial supplier who assembles a product from components manufactured by others is subject to the same liability as the manufacturer of the defective component. To prove breach of duty, the plaintiff must show(i) negligent conduct by the defendant that leads to (ii) the supplying of a defective product.CON LAW: Congress may regulate states through the spending power by imposing conditions on the grant of money to state governments so long asthe conditions are clearly stated, relate to the purpose of the program, and are not unduly coercive (funding amounting to as much as 50% of states' total budget is coercive)CON LAW: The Fourteenth Amendment apples tothe statesTORTS: The elements of trespass to land are:(i) an act of physical invasion of plaintiff's real property by defendant, (ii) intent on defendant's part to bring about the physical invasion of plaintiff's property, and (iii) causation.TORTS: A person may interfere with the real or personal property of another when the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force, as long asthe threatened injury is substantially more serious than the invasion that is undertaken to avert it. *However, when the act is solely to benefit a limited number of people, this is considered private necessity and the defense is qualified; i.e., the actor must pay for any injury that he causes.CON LAW: A state may regulate local aspects of interstate commerce if such regulation is not in conflict with federal regulations and if:(i) the subject matter of the regulation does not require nationally uniform regulation; (ii) the regulation does not discriminate against out-of-state competition to benefit local economic interests; and (iii) any incidental burden on interstate commerce of the nondiscriminatory regulation does not outweigh the legitimate local benefits produced by the regulation.TORTS: To establish a prima facie case for intentional infliction of emotional distress, plaintiff must show:(i) an act by defendant amounting to extreme and outrageous conduct, (ii) intent on the part of defendant to cause plaintiff to suffer severe emotional distress, or recklessness as to the effect of defendant's conduct, (iii) causation, and (iv) damages-severe emotional distress.TORTS: Under the rule of contribution, any defendant required to pay more than her share of damages...has a claim against the other jointly liable parties for the excess.CON LAW: A state may outlaw commercial speech that...proposes an unlawful transaction or that is misleading or fraudulent.CON LAW: If commercial speech concerns a lawful activity and is not misleading or fraudulent, the government regulation, to be valid, must...directly advance a substantial governmental interest and must be no more extensive than necessary to serve that interest. The regulation must be narrowly drawn and there must be a reasonable fit between the legislation's end and the means chosen.CON LAW: Classifications based on income level are reviewed under....the rational basis standard and will be upheld unless they bear no rational relationship to any conceivable legitimate government interest.CON LAW: The mere fact that a governmental action has a discriminatory effect is not sufficient to trigger strict scrutiny. There must be ___________ to discriminate on the part of the government.intentCON LAW: When the law does not discriminate on its face and is not applied in a discriminatory manner, a suspect classification will be found only ifthe lawmaking body enacted or maintained the law for a discriminatory purpose.CON LAW: While statistical evidence is admissible that the law has a disproportionate impact on one class of persons, such evidence...will almost never be sufficient by itself to prove that the government had a discriminatory purpose in passing a law.