MBE Bar Exam - Mixed Topics

States can regulate where congress has not, but CANNOT
- discriminate against out of state interests to protect local interests,
- unduly burden interstate commerce
= balancing test for undue burden - any effect on interstate commerce will suffice, even if wholly intrastate regulation; presence of less restrictive alternatives, and
- regulate wholly extraterritorial activity (can be by aggregate effect)

Complete Auto Test
requires - nexus, fair apportionment, nondiscrimination, reasonable relation to thing taxed

Government can overcome violation IF - an important local interest is served, and no other nondiscriminatory means are available to serve that interest

Exceptions
- state as market participant exception
- traditional government functions
- subsidies
- when congress expressly permits action with federal legislation

States may regulate where congress does not
- does NOT give plenary power to allocate public funds

Adequate and Independent State Grounds
- if ANY independent state ground exists that may be decided, federal court will abstain

Laws that intentionally target religious acts = strict scrutiny
neutral laws with mere disparate impact = rational basis

There can be no laws favoring religion.
Lemon Test =
- is there a secular purpose?
- does the primary effect neither advance nor inhibit religion?
- does it result in excessive government entanglement with religion?

Agreement that an existing claim be discharged in the future by rendering substitute performance (agreement on a pre-existing duty)
there is no satisfaction until payment or performance

Additional or different terms become part of the contract UNLESS
- acceptance expressly limited acceptance to terms of the offer
- offeror object to added/different terms within a reasonable time, or
- the terms materially alter the contract

Bilateral = exchange of promises
unilateral = offer and performance

Irrevocable option contracts

May reject non-conforming goods (that substantially impairs value if installment contract)
BEFORE acceptance
notify seller of rejection,
opportunity to cure (if seller reasonably believed would accept and is able to cure, buyer need not accept cure)
cannot use goods
hold goods for seller pick up (no duty to return them)

Negligence - failure of duty (duty to warn, duty of care)
strict liability - manufacturing or design defect
- ALL parties in chain of distribution liable
- privity not required (foreseeable plaintiff standard)
- defect need only have existed when product left defendant party's hands, and defendant was in the business of selling the product

Strict liability
- liable for ANY harm,
- even if not caused by defendant and defendant ultimately used reasonabe care
- even if harm is caused by an unforeseeable cause or by nature

Out-of-court statement introduced to prove the truth of the matter asserted
(analyze whether statement offered to prove its assertion)