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 Third Edition

Steven L. Emanuel, J.D.

Founder & Editor in Chief, Emanuel Bar Review

Member, NY, CT, MD, and VA bars

1
Copyright © 2020 CCH Incorporated. All Rights Reserved.

Published by Wolters Kluwer in New York.

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This book is intended as a general review of a legal subject. It is not intended
as a source for advice for the solution of legal matters or problems. For advice
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4
SUMMARY OF CONTENTS

Contents
Preface

Civil Procedure
Civil Procedure Questions by Topic
Civil Procedure Answers

Constitutional Law
Constitutional Law Questions by Topic
Constitutional Law Answers

Contracts
Contracts Questions by Topic
Contracts Answers

Criminal Law and Procedure

Criminal Law Questions by Topic
Criminal Law Answers
Criminal Procedure Questions by Topic
Criminal Procedure Answers

Evidence
Evidence Questions by Topic
Evidence Answers

Real Property
Real Property Questions by Topic

5
Real Property Answers

Torts
Torts Questions by Topic
Torts Answers

6
 TABLE OF CONTENTS

Preface

CIVIL PROCEDURE
CIVIL PROCEDURE QUESTIONS BY TOPIC
CHAPTER 1
JURISDICTION AND VENUE
I. FEDERAL SUBJECT MATTER JURISDICTION
A. Federal-question jurisdiction
1. Federal-question jurisdiction generally
2. Amount-in-controversy requirement in federal-question
cases
3. Federal question as negating the relevance of whether
there is diversity
4. Does the federal question appear on the face of the
well-pleaded complaint?
5. Additional party in case, who is not a defendant or
plaintiff as to the federal-question claim
B. Diversity jurisdiction
1. Garden-variety diversity jurisdiction, between citizens
of different states
a. Complete diversity normally required
b. Circumstances under which citizenship of
defendant matters
c. Time as of which diversity must exist
d. Diversity involving corporations
e. Diversity involving trusts or estates

7
 f. Diversity involving partnerships and other
unincorporated associations
g. Diversity not relevant to state-court actions
2. Alienage jurisdiction
3. Devices to create or destroy diversity
4. Amount in controversy requirement in diversity cases
5. Federal court’s power to abstain from hearing certain
cases qualifying for diversity jurisdiction
C. Supplemental jurisdiction (“SJ”)
1. SJ generally
2. SJ where the “anchor claim” is based solely on
diversity
a. SJ asserted as to claims by an original defendant
against an original plaintiff (i.e., counterclaims)
b. SJ asserted as to a third-party claim by an original
defendant (i.e., a third-party plaintiff) against a third-
party defendant
c. SJ asserted as to a claim by third-party defendant
against anyone
d. SJ asserted as to claim by the original plaintiff
against a third-party defendant
e. SJ and the amount in controversy, when multiple
Ps’ claims are aggregated
3. SJ where the “anchor claim” raises a federal question
a. SJ for a state-law claim that’s closely related to the
anchor claim, and the state-law claim is against the
same defendant as the anchor claim
b. SJ for a state-law claim that’s closely related to the
anchor claim, and the state-law claim is against an
additional party (i.e., one is not a defendant to the
anchor claim) who is not diverse with the plaintiff(s)
4. Situations in which the court considers whether to use
its discretion to decline to exercise otherwise-available
SJ
D. Removal to the federal courts
1. Requirement that the federal court to which removal is
made would have had subject matter jurisdiction over
the action had it initially been filed in that court
2. What party or parties may remove?

8
 a. Requirement that the removing party must be a
defendant
b. Requirement that the removal not be made by a
citizen of the state where the action is pending, if no
federal question is present
3. To what court may the action be removed?
4. When should some or all claims be remanded to the
state court?
E. Time for raising objection to lack of subject-matter
jurisdiction, and waiver of such objections
II. PERSONAL JURISDICTION
A. Requirement of minimum contacts between D and the
forum state
1. The requirement of “minimum contacts” generally
2. The “purposeful availment” standard
3. The requirement that it not be “fundamentally unfair” to
require D to defend in the forum state
4. The requirement of minimum contacts with the forum
state when the suit is in federal court, and includes a
federal-question claim
5. Consent as a basis for personal jurisdiction
B. General jurisdiction — special requirements for
1. General jurisdiction based on residency
2. General jurisdiction based on presence in the forum
state at the time of service
C. Specific jurisdiction — requirements for
1. Minimum contacts always required
D. In Rem and Quasi in Rem jurisdiction
E. How to raise a challenge to the lack of personal
jurisdiction
1. Motion to dismiss for lack of personal jurisdiction under
Rule 12(b)(2)
a. Preservation of right to appeal denial of the
dismissal motion
F. Special procedural contexts raising the issue of
personal jurisdiction
1. Class actions
2. Situations where nationwide service of process may be
authorized

9
III. SERVICE OF PROCESS AND NOTICE
A. Service of Process
1. Methods of accomplishing service
a. Service on an individual
b. Service on a corporation
2. Territory within which service may be made — use of
the local state long-arm to determine where and how
service may be made in a federal-court action
3. Territory within which service may be made — third-
party claims
4. Deadline for objecting to improper service
5. Request by plaintiff that defendant waive service
B. Notice
1. Constitutional requirements as to
IV. VENUE
A. Venue generally
1. Districts in which venue is proper
B. Forum non conveniens — dismissal based on
1. Requirements for dismissal based on forum non
conveniens
2. Use of forum non conveniens dismissal when
alternative forum is a non-U.S. jurisdiction
C. Transfer for convenience
1. To judicial district where the action “might have been
brought”
a. No transfer to state court
2. Significance of forum-selection clause
D. Procedure for asserting venue-related objections

CHAPTER 2
LAW APPLIED BY THE FEDERAL COURTS
I. STATE LAW IN FEDERAL COURT (INCLUDING ERIE v.
TOMPKINS PROBLEMS)
A. Situations in which the state law in question is
“substantive,” so that Erie applies
1. Use of state-law conflict-of-law principles in a federal-
court action

10
 2. State procedural rules that nonetheless reflect a strong
state substantive policy
3. State procedural rules that are outcome-determinative
B. Situations in which the state law in question is purely
procedural, so that Erie does not apply

CHAPTER 3
PRETRIAL PROCEDURES
I. PRELIMINARY INJUNCTIONS AND TEMPORARY
RESTRAINING ORDERS
A. Preliminary injunctions
1. Requirements for granting
B. Temporary restraining orders
II. PLEADINGS
A. Pleadings generally
1. The complaint
a. The “plausibility” standard for pleading a cause of
action
b. Pleading special matters (e.g., fraud)
2. The answer
a. Defenses that are “affirmative defenses”
b. Defenses that are not affirmative defenses
c. When and how to present defenses — “in the
responsive pleading” vs. by motion
d. Deadline for raising certain defenses
3. The reply
4. Third-party practice
5. Requirement that the Real Party in Interest be named
in the complaint
B. Amended and supplemental pleadings
1. Deadline for amending as of right
2. Waiver of the right to amend a pleading
3. Situations in which the amended pleading relates back
to the date of the original pleading
III. RULE 11
IV. JOINDER OF PARTIES AND CLAIMS, INCLUDING CLASS
ACTIONS

11
 A. Joinder of parties
1. Joinder of plaintiffs
2. Joinder of defendants
a. Persons who must be joined if feasible
3. Intervention
4. Interpleader
B. Joinder of claims, generally
1. Counterclaims
a. Compulsory counterclaims
b. Permissive counterclaims
C. Class actions
1. Requirements for case to be certified as a federal class
action
2. Interlocutory appeals of trial court orders granting or
denying class action certification
V. DISCOVERY, DISCLOSURE AND SANCTIONS
A. Discovery generally
1. The parties’ Rule 26(f) discovery planning conference
2. The scope of discovery, generally
3. Earliest time at which discovery is permitted
4. Various types of discovery
a. Interrogatories
b. Depositions
c. Orders for medical examinations
B. E-Discovery
C. Documents that are non-discoverable on account of
privilege or work-product immunity
1. Privilege
2. Work-product immunity
D. Automatic disclosure
1. Where automatic disclosure is or isn’t applicable
2. Exception for material to be used at trial, but “solely for
impeachment”
E. Sanctions for conduct regarding pleadings or
discovery
VI. ADJUDICATION WITHOUT A TRIAL
VII. PRETRIAL CONFERENCE AND ORDER
A. The Pretrial conference

12
 1. Deadline for holding the pretrial conference

CHAPTER 4
JURY TRIALS
I. RIGHT TO A JURY TRIAL
A. The Seventh Amendment right to a jury trial
1. Trial of legal and equitable claims in same case so as
to protect the right to a trial jury
2. Use of additur or remittitur as violation of Seventh
Amendment right to a jury trial
B. The need to make a demand for a jury trial
1. Deadline for making the demand
II. SELECTION AND COMPOSITION OF JURIES
A. Number of jurors
1. Minimum number of jurors at start of trial
2. Minimum number of jurors needed when the verdict is
rendered
B. Unanimity of jurors in reaching a verdict
C. Jury selection
1. Excuse of prospective juror for cause
a. Excuse generally
b. Excuse on account of juror bias
2. Excuse of prospective juror by means of peremptory
challenge
III. REQUESTS FOR AND OBJECTIONS TO JURY
INSTRUCTIONS
A. Requests for jury instructions
B. Objections concerning jury instructions
1. Need to make objection in order to preserve issue
a. Exception where court has rejected the request in a
definitive ruling
2. Deadline for making objection
3. Plain error exception when objection deadline is
missed

CHAPTER 5
MOTIONS

13
I. PRETRIAL MOTIONS
A. Motions addressed to face of pleadings
1. Motions for judgment on the pleadings
2. Motions to strike from a pleading
B. Motions to dismiss, under Rule 12(b)
1. Waiver of certain defenses by failure to raise them in a
timely way
C. Motions for summary judgment
1. Summary judgment motions generally
2. Burden imposed on movant
a. Burden imposed on movant, generally
b. Burden imposed on movant, where witness
credibility is at issue
3. Burden imposed on nonmovant
a. The burden on the nonmovant, generally
b. The burden when facts are unavailable to the
nonmovant
II. MOTIONS FOR JUDGMENT AS A MATTER OF LAW
(“JML”)
A. Pre-verdict JML motions (a/k/a “motion for directed
verdict”)
1. Standard for granting a JML motion, under FRCP 50(a)
(1)
2. Deadline for making the JML motion
B. Post-verdict motion for JML (a/k/a Judgment
Notwithstanding the Verdict or “JNOV”)
III. POSTTRIAL MOTIONS
A. Motions for a new trial
1. Standard for granting the new-trial motion
2. Deadline for making the motion
3. Motion for new trial on some (rather than all) of the
issues
4. Remittitur as a substitute for granting a new trial
B. Motions for relief from judgment

CHAPTER 6
VERDICTS AND JUDGMENTS

14
I. DEFAULTS AND DISMISSALS
A. Default judgments
1. Default judgments generally
2. Proper service as a pre-condition to a default judgment
3. Notice requirements for entry of default judgment
4. Entry of the default judgment by the clerk vs. by the
judge
B. Dismissals
1. Voluntary dismissals
a. Time within which the dismissal motion must be
made
b. The two-dismissal rule
II. JURY VERDICTS — TYPES AND CHALLENGES
III. JUDICIAL FINDINGS AND CONCLUSIONS
A. Requirement that judge make findings of fact and
conclusions of law
IV. EFFECT OF JUDGMENTS
A. Which jurisdiction’s preclusion rules apply
1. First judgment is by a state court
2. First judgment is by a federal court
B. Claim preclusion (a/k/a merger and bar)
1. The requirement that the “same claim” be present in
the second suit
a. Personal-injury claim and property-damage claim
arising out of the same transaction
b. The requirement that the plaintiff have been able to
seek the same remedy in the first action as he is
seeking in the second action
c. The requirement that the party seeking the benefit
of claim preclusion (or that party’s privy) in the
second action must have been a party to the first
action
2. The requirement that the judgment in the first action be
valid and final in order to have claim-preclusive effect
on the second action
C. Issue preclusion (a/k/a collateral estoppel)
1. The requirement that the issue have been “actually
litigated”

15
 D. “Mutuality” in both Claim and Issue Preclusion
E. What is included in the prior “judgment” for purposes
of the preclusion rules?

CHAPTER 7
APPEALABILITY AND REVIEW
I. AVAILABILITY OF INTERLOCUTORY REVIEW
A. Situations in which interlocutory review (review
without a final judgment) is or may be available
1. Orders involving injunctions
2. Situations involving the “collateral order” doctrine
(including orders granting or denying claims of civil
immunity)
3. Judges’ discretion to allow an interlocutory appeal
II. THE FINAL JUDGMENT RULE
A. The final judgment rule generally
B. Situations in which appeal is allowed despite the lack
of a final judgment
C. Situations in which appeal is not allowed because
there is no final judgment, and no exception to the
requirement of a final judgment applies
1. Temporary restraining orders
2. Grants or denials of motions for summary judgment
a. Denials of summary-judgment motions, generally
b. Grants of partial summary judgment
3. Miscellaneous situations
III. DEADLINE FOR FILING NOTICE OF APPEAL
IV. THE SCOPE OF REVIEW
A. Review of bench trials
1. The “clearly erroneous” rule
B. Review of jury trials
CIVIL PROCEDURE ANSWERS

CONSTITUTIONAL LAW
CONSTITUTIONAL LAW QUESTIONS BY TOPIC

16
 CHAPTER 1
THE SUPREME COURT’S AUTHORITY AND
THE FEDERAL JUDICIAL POWER
I. THE SUPREME COURT’S AUTHORITY AND THE
FEDERAL JUDICIAL POWER
A. Supreme Court review of state court decision
1. “Independent and adequate state grounds”
a. Violations of both state and federal constitutions
B. Supreme Court’s jurisdiction
II. CONGRESS’S CONTROL OF FEDERAL JUDICIAL
POWER
A. Limits on judicial power imposed by Congress

CHAPTER 2
POWERS OF THE FEDERAL GOVERNMENT;
THE SEPARATION OF POWERS
I. POWERS OF THE THREE FEDERAL BRANCHES
A. Powers of the three branches
1. Congress’s powers
a. Federal property
2. President’s powers
a. Status as CEO of the U.S., and power to issue
“Executive Orders”
b. Power to issue pardons
3. The federal judiciary’s powers
II. THE FEDERAL COMMERCE POWER
A. Does the activity in question “substantially affecting”
commerce?
B. The Tenth Amendment as a limit on Congress’s power
1. Tenth Amendment not a source of state authority
III. THE TAXING AND SPENDING POWERS
A. The taxing power
1. The taxing power generally
2. Validity of tax that has a regulatory purpose or effect

17
 a. Adverse economic consequences no problem
b. No relation needed between activity taxed and how
funds are spent
B. Spending power
1. Spending to achieve general welfare
C. The taxing and spending powers taken together
IV. THE WAR, TREATY AND FOREIGN AFFAIRS POWERS
A. The treaty power
V. THE SEPARATION OF POWERS
A. Separation of powers generally
1. President can’t make the laws
a. Delegation by Congress to the Executive Branch
2. Presidential Commissions
3. The veto power, and Congress’s power to override it
4. Appointment and removal of executive personnel
5. Congress’s power to regulate executive branch
members’ job performances

CHAPTER 3
TWO LIMITS ON STATE POWER: THE
DORMANT COMMERCE CLAUSE AND
CONGRESSIONAL ACTION
I. THE DORMANT COMMERCE CLAUSE
A. Dormant Commerce Clause generally
1. As a prohibition on protectionism
2. As a prohibition on unduly burdensome regulations
3. As a prohibition on discrimination against foreign
commerce
II. CONGRESSIONAL PRE-EMPTION AND CONSENT; THE
SUPREMACY CLAUSE
A. The Supremacy Clause and federal pre-emption
1. Direct conflict
a. Where Congress forbids and the state allows
b. Conflict between federal and state aims
2. Congressional pre-emption
a. Where there is federal occupation of the field

18
 i. Pre-emption of state common law
3. Where there is no conflict between the federal and
state schemes
B. Consent by Congress to the state regulatory scheme

CHAPTER 4
INTERGOVERNMENTAL IMMUNITIES;
INTERSTATE RELATIONS
I. TAX AND REGULATORY IMMUNITIES
A. Several types of immunities
1. Federal immunity from state regulation
II. THE FULL FAITH AND CREDIT CLAUSE
A. Effect of Clause
1. Obligation of second state to enforce collection of
money judgment issued by first state
2. Where first state’s judgment constitutes an error of law

CHAPTER 5
THE DUE PROCESS CLAUSE
I. SUBSTANTIVE DUE PROCESS — ECONOMIC AND
SOCIAL WELFARE REGULATION
A. Economic and social welfare regulation
1. Easy test to satisfy
II. SUBSTANTIVE DUE PROCESS — REGULATIONS
AFFECTING FUNDAMENTAL RIGHTS
A. Abortion
1. Requirement of parental consent where patient is a
minor
2. Public funding of abortion
III. PROCEDURAL DUE PROCESS
A. Process required
1. Stage at which hearing must be provided

CHAPTER 6

19
 EQUAL PROTECTION
I. ECONOMIC AND SOCIAL LAWS — THE “MERE
RATIONALITY” TEST
A. Applies where government makes a classification
B. Non-suspect, non-fundamental rights (economic and
social legislation)
1. “Grandfather clause” as rational classification
2. Non-suspect classes
a. Status as convicted criminal
II. SUSPECT CLASSIFICATIONS, ESPECIALLY RACE
A. Classifications based on race
1. Requirement that discrimination be purposeful
a. Peremptory jury challenges
III. MIDDLE-LEVEL REVIEW (GENDER, ILLEGITIMACY AND
ALIENAGE)
A. Classifications based on gender
IV. FUNDAMENTAL RIGHTS
A. Voting rights
1. Fifteenth Amendment
B. Ballot access
1. Where ballot restriction may be unfair to new parties or
independent candidates
C. Necessities
1. Education as a necessity

CHAPTER 7
MISCELLANEOUS CLAUSES
I. THE “TAKING” CLAUSE
A. The “Taking” Clause generally
1. Taking vs. regulation
II. EX POST FACTO LAWS
A. Constitutional prohibition
1. Applies to penal regulations only
III. BILLS OF ATTAINDER

20
 CHAPTER 8
THE “STATE ACTION” REQUIREMENT;
CONGRESS’S ENFORCEMENT OF THE CIVIL
WAR AMENDMENTS
I. STATE ACTION
A. “State involvement” doctrine
1. Entanglement or entwinement as a form of state
involvement
II. CONGRESSIONAL ENFORCEMENT OF CIVIL RIGHTS
A. Congress’s power to reach private conduct
1. Thirteenth Amendment
a. “Badges of slavery”

CHAPTER 9
FREEDOM OF EXPRESSION
I. GENERAL THEMES
A. Analysis of content-based government action
1. “Viewpoint neutrality” not enough
II. TIME, PLACE AND MANNER REGULATIONS
A. Three-part test for time, place and manner regulations
III. DEFAMATION AND INVASION OF PRIVACY
A. Other state-law tort claims as possible First
Amendment violation
IV. OBSCENITY
A. Regulating secondary effects of adult speech
1. Regulation of red-light districts
V. FREEDOM OF ASSOCIATION, AND DENIAL OF PUBLIC
BENEFITS OR JOBS
A. Denial of public benefit or job
1. Denial of license
2. Speech critical of superiors or otherwise inappropriate
a. Where speaker is in a non-policy-making role

21
 b. Where speech interferes with speaker’s job
performance
VI. SPECIAL PROBLEMS OF THE MEDIA
A. Media’s right of access to government-held
information

CHAPTER 10
FREEDOM OF RELIGION
I. THE ESTABLISHMENT CLAUSE
A. Three-part test
1. Incidental benefit to religion not fatal
II. THE FREE EXERCISE CLAUSE
A. Generally-applicable laws
1. State need not tolerate serious impairment of important
state interest

CHAPTER 11
JUSTICIABILITY
I. STANDING
A. Cases not based on taxpayer or citizen status
1. Requirement of an “injury in fact”
B. Third-party standing
II. RIPENESS
A. A reasonable probability of harm required
III. THE ELEVENTH AMENDMENT AND SUITS AGAINST THE
STATES
A. The Eleventh Amendment generally
1. Congress can’t override
a. Exception for Congress’s use of power to enforce
the post-Civil-War amendments
CONSTITUTIONAL LAW ANSWERS

22
 CONTRACTS
CONTRACTS QUESTIONS BY TOPIC
CHAPTER 1
OFFER AND ACCEPTANCE
I. VALIDITY OF PARTICULAR KINDS OF OFFERS
A. Public offers and advertisements
II. THE ACCEPTANCE
A. Method of acceptance
1. Offer invites either promise or performance
a. Acceptance by shipment of non-conforming goods
b. Accommodation shipment
2. Notice of acceptance of unilateral contract
III. ACCEPTANCE VARYING FROM OFFER
A. UCC view
1. “Additional” term in acceptance
a. Both parties are merchants
i. Does the proposed term materially alter the
contract?
2. Contract by parties’ conduct
a. “Acceptance by conduct” can occur in non-UCC
contracts
IV. DURATION OF THE POWER OF ACCEPTANCE
A. Irrevocable offers
1. “Firm offers” under the UCC
a. Effect of firm offer if not by a merchant
2. Part performance or detrimental reliance
a. Where offer was for a unilateral contract

CHAPTER 2
CONSIDERATION
I. THE BARGAIN ELEMENT
A. Promises to make gifts
1. Existence of condition

23
 a. Mixture of bargain and gift
II. THE “DETRIMENT” ELEMENT
A. Generally
1. Motives irrelevant
B. Pre-existing duty rule
1. Modification to contract terms
a. Where modification is a response to unanticipated
circumstances
2. Duty owed to third person rather than to promisor
3. Agreement to accept part payment of debt
a. Disputed debt
b. Cashing of check tendered as settlement
4. Other settlements
III. ILLUSORY, ALTERNATIVE AND IMPLIED PROMISES
A. Implied promises
IV. REQUIREMENTS AND OUTPUT CONTRACTS
A. Requirements and output contracts generally
1. UCC approach
a. Obligation to behave in good faith in setting output
or requirements

CHAPTER 3
PROMISES BINDING WITHOUT
CONSIDERATION
I. PROMISSORY ESTOPPEL
A. Possible applications
1. Promise to perform business service
a. Promise to make a loan

CHAPTER 4
MISTAKE
I. MUTUAL MISTAKE
A. Three requirements for avoidance
1. Allocation of risk by parties

24
II. REFORMATION AS REMEDY FOR ERROR IN
EXPRESSION
A. Generally
1. Reformation not a remedy for underlying disagreement
about deal

CHAPTER 5
PAROL EVIDENCE AND INTERPRETATION
I. TOTAL AND PARTIAL INTEGRATIONS
A. The parole evidence rule generally
II. SITUATIONS WHERE PAROL EVIDENCE RULE DOES
NOT APPLY
A. Existence of a condition on effectiveness of contract
III. INTERPRETATION
A. Extrinsic evidence in the case of ambiguous terms
IV. TRADE USAGE, COURSE OF PERFORMANCE, AND
COURSE OF DEALING
A. Used to interpret even a complete integration

CHAPTER 6
CONDITIONS, BREACH, AND OTHER ASPECTS
OF PERFORMANCE
I. EXPRESS CONDITIONS
A. Satisfaction of a party
B. Need to check whose duty was conditional
1. Right to waive condition
a. Waiver by receiving and keeping benefit
II. CONSTRUCTIVE CONDITIONS
A. Waiver of constructive condition
III. SUBSTANTIAL PERFORMANCE
A. Material breach in contracts for the sale of goods
1. “Perfect tender” rule under the UCC
a. Rule not applied very strictly

25
 2. Right to cure lack of perfect tender
IV. EXCUSE OF CONDITIONS
A. Where a party hinders the occurrence of a condition
1. Implied promise of cooperation

CHAPTER 7
ANTICIPATORY REPUDIATION AND OTHER
ASPECTS OF BREACH
I. ANTICIPATORY REPUDIATION
A. What constitutes repudiation
1. Statement of grudging willingness to perform
II. OTHER ASPECTS OF REPUDIATION
A. Retraction of repudiation
1. Final acts
a. Cancellation followed by new contract with
someone else
B. Special UCC rules
1. Party has choice of remedies

CHAPTER 8
STATUTE OF FRAUDS
I. SURETYSHIP
A. Main purpose rule
II. SATISFACTION BY A MEMORANDUM
A. UCC
1. Confirmation as sufficient memorandum

CHAPTER 9
REMEDIES
I. EQUITABLE REMEDIES
A. Two types
1. Specific performance as remedy
B. Limitations on equitable remedies

26
 1. Requirement that money damages be inadequate
remedy
2. Difficulty of enforcement
a. Personal service contract
II. EXPECTATION DAMAGES
A. Formula for calculating
1. Breaching supplier of services
B. “Reasonable certainty”
1. Profits from a new business
C. Breaching seller of property
III. SUITS IN QUASI-CONTRACT
A. Breaching plaintiff
1. Construction cases
a. Lesser of “cost to owner” and “change in value to
owner”
2. UCC gives partial restitution to breaching buyer
a. Exception for actual damages proved by seller
IV. LIQUIDATED DAMAGES
A. Reasonableness of estimated amount
V. DAMAGES IN SALES CONTRACTS
A. Where goods not accepted
1. Seller’s damages for breach
a. Lost profits
i. “Lost volume” seller

CHAPTER 10
CONTRACTS INVOLVING MORE THAN TWO
PARTIES
I. ASSIGNMENT
A. Contract terms prohibiting assignment
B. Assignee vs. obligor
C. Rights of successive assignees of the same claim
II. DELEGATION OF DUTIES
A. Delegatee’s liability
1. Assignment of “the contract”

27
 a. Delegator remains liable
III. THIRD-PARTY BENEFICIARIES
A. When beneficiary may sue
1. Intended beneficiaries may sue
2. Incidental beneficiaries may not sue
B. Discharge or modification by the original parties
C. Defenses against the beneficiary
1. Promisor may invoke conditions to his duty

CHAPTER 11
IMPOSSIBILITY, IMPRACTICABILITY, AND
FRUSTRATION
I. IMPOSSIBILITY OF PERFORMANCE
A. Three classes
1. Destruction of subject matter
2. Supervening illegality
II. IMPRACTICABILITY
A. Modern view of impracticability
1. Allocation of risk by parties
a. Implicit allocation
i. Risk of technological breakthrough
ii. Foreseeability and relative expertise
III. FRUSTRATION OF PURPOSE
A. Factors to be considered
1. Foreseeability
a. Allocation of risk by parties
IV. RESTITUTION AND RELIANCE WHERE THE PARTIES
ARE DISCHARGED
A. Restitution
1. Time for measuring benefit

CHAPTER 12
MISCELLANEOUS DEFENSES
I. MISREPRESENTATION

28
 A. Non-disclosure
1. Failure to correct other party’s basic mistake
II. UNCONSCIONABILITY AND ADHESION CONTRACTS
A. Unconscionability
1. Remedies for unconscionability
CONTRACTS ANSWERS

CRIMINAL LAW AND PROCEDURE

CRIMINAL LAW QUESTIONS BY TOPIC
CHAPTER 1
ACTUS REUS AND MENS REA
I. ACTUS REUS
A. Omissions
1. Existence of legal duty
a. Special relationship
II. MENS REA
A. “Knowingly”
1. Knowledge of attendant circumstances
2. “Practically certain” standard for unintended effects
B. “Recklessly”
1. Must be aware of risk
C. Strict liability
1. Factors affecting whether offense can be a strict
liability offense
D. Vicarious liability
1. Constitutionality
a. Where D has no control over offender

CHAPTER 2
RESPONSIBILITY
I. THE INSANITY DEFENSE
A. Tests for insanity
1. M’Naghten “right from wrong” rule

29
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