Term
Civil Procedure:
What are questions that are generally considered procedural and controlled by the law of the forum state? |
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Definition
1. proper court to bring an action
2. form of the action to be brought
3. sufficiency of the pleadings
4. effect of splitting the cause of action
5. Proper or necessary parties to an action
6. counterclaims
7. venue
8. right to a jury trial
9. service of process
10. rules of discovery
11. burden of proof
12 trial procedure
13. methods of enforcing a judgment
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Term
Civil Procedure
Klaxon Principle
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Definition
Which state's law should a federal court use in diversity cases?
Federal courts in diversity should use the state court choice of law rules. A NY Federal court should apply whatever state substantive law the NY state court would apply to the case.
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Term
Civil Procedure
When does the Erie problem come up? |
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Definition
| Comes up when there is a state law claim in Federal Court on Diversity Jurisdiction |
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Term
Civil Procedure
Multiparty Multiforum Trial Jurisdiction Act 2002
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Definition
single accident where 75 people die in a discrete location, only one P need be of diverse citizenship from 1 D for federal court to have diversity jurisdiction.
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Term
Civil Procedure
What is abstention? |
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Definition
Federal courts with subject matter jurisdiction are required to adjudicate the controversy despite a pending state court.
but they can abstain if:
- resolution of state law issue by the state court eliminates the need for federal case
- complex state regulatory scheme of great importance
- contempt of court or criminal activity
- parallel proceedings that go beyond mere waste of judicial resources
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Term
Civil Procedure
What is Pullman Abstention? |
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Definition
One of the exceptions that allows Federal Courts to abstain from hearing a case when the
Resolution of a state law issue by the state court would eliminate the need for the federal court to decide a federal constitutional issue |
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Term
Civil Procedure
What is Younger abstention? |
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Definition
| The state action involves punishment of an individual for criminal activity or for contempt of court, or the imposition of a civil fine, and the federal court is asked to enjoin such activity. |
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Term
What is federal common law? |
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Definition
Federal common law is created when there is no applicable federal statute or constitutional provision.
The court must resort to source materials of the common law.
Used with Erie doctrine to apply federal law (e.g., a federal question claim of procedural issue in diversity cases) |
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Term
Civil Procedure
What are the general choice of law rules? |
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Definition
Tort: law where the injury occurred applies
Contract: law where the K was executed applies
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Term
Civil Procedure
What are examples of substantive law?
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Definition
1. elements of a claim or defense
2. statutes of limitations or tolling provisions
3. burden of proof
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Term
Civil Procedure
What are examples of procedural law?
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Definition
1. judge-jury allocation
2. assessment of attorney's fees
3. equitable v. legal |
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Term
Civil Procedure
What is a Directed Verdict?
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Definition
Judgment as a matter of law
One a party has been fully heard on an issue at a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party of the court finds that there is insufficient evidence for a jury reasonably to find for that party |
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Term
Civil Procedure
What are tolling provisions?
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Definition
| SCOTUS has indicated that state statutes of limitations and the rules for tolling state statutes of limitations are substantive in nature and are thus applicable in diversity. |
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Term
Civil Procedure
What is the 7th Amendment? |
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Definition
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Term
Civil Procedure
What is remittitur? |
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Definition
| If the court determines that a verdict was excessive, then the court may offer a reduction of the verdict, known as remittitur, and grant a new trial on the condition that the remittitur is not accepted. |
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Term
Civil Procedure
What is the bulge provision? |
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Definition
| A federal court has personal jurisdiction over a party who is served within a US judicial district and not more than 100 miles from where the summons is issued, even if state law would otherwise not permit such service. |
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Term
Civil Procedure
What is res judicata? |
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Definition
| The doctrine of claim preclusion provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in subsequent action. |
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Term
Contracts:
What is the pre-existing duty rule? |
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Definition
Doing what you are already legally obligated to do it not new consideration for a new promise to pay you more to do merely that. Under common law, new consideration is required for modification.
Exceptions:
- addition to or change in performance
- unforeseen difficulty so severe as to excuse performance
- third party promise to pay |
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Term
Contracts
What is an accord? |
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Definition
An agreement by the parties to an already existing obligation to accept a different performance in satisfaction of the existing obligation
If the new agreement(accord) is performed (satisfaction), then performance of the original obligation is excused.
If the accord is not performed, then the other party can sue on either the original obligation or the accord |
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Term
Contracts
Damages: What are compensatory damages?
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Definition
Economic losses (special damages), e.g., medical expenses, lost earnings
Non-economic damages (general damages), e.g., pain and suffering, permanent disfigurement
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Term
Contracts
What are nominal damages? |
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Definition
These are awarded if P has no actual injury
They serve to establish or to vindicate P's rights |
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Term
Contracts:
What are punitive damages? |
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Definition
Awarded to punish the D
1st rule: P must have been awarded compensatory or nominal damages first
2nd rule: D's type of fault must be greater than negligence
3rd rule: awarded in an amount relatively proportionate to actual damages |
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Term
Contracts
What is a constructive trust?
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Definition
Imposed on improperly acquired property to which D has title
D serves as "trustee: and must return property to P |
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Term
Contracts
Shipment, Destination Ks
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Definition
Shipment: seller completes obligation before delivery is complete.
Destination: The seller does not complete its delivery obligation until the goods arrive where the buyer is |
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Term
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Definition
FOB followed by a city where the seller is or where goods are = SHIPMENT
FOB followed by any other city = DESTINATION |
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Term
Contracts:
After the K has been entered into, goods are lost or damages without the fault of the buyer or seller, which party has the risk of loss?
No agreement, and no breach |
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Definition
Merchant Seller: risk shifts to the buyer on the buyer's receipt of the goods
Non-Merchant Seller: when he or she tenders the goods (told the buyer where the stuff is and how to get it)
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Term
Contracts
Who bears the risk of loss, when delivery is by a common carrier other than the seller? |
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Definition
| Risk of loss shifts from the seller to the buyer at the time that the seller completes its delivery obligations. |
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Term
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Definition
| If acceptance contains terms that are additional to or different from those in the offer, the conflicting terms in both the offer and acceptance are knocked out of the K and replaced by UCC gap-filler provisions. |
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Term
Criminal Law
What is voluntary manslaughter? |
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Definition
Adequate provocation ONLY
sudden intense passion
provoked
no time to cool off
did not cool off |
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Term
Criminal Law
Misdemeanor manslaughter |
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Definition
| Killing someone while committing a misdemeanor or an unenumerated felony. |
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Term
Criminal Law
What are the two types of assault? |
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Definition
1. As an attempted battery (specific intent)
2. as a threat (general intent) |
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Term
Criminal Law
What are the specific intent crimes? |
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Definition
1. Solicitation
2. Conspiracy
3. Attempt
4. First degree murder
5. Assault
6. Larceny
7. Robbery
8. Burglary
9. Embezzlement
10. False Pretenses
11. Forgery |
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Term
Criminal Law
What are general intent crimes? |
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Definition
Battery
Kidnapping
Rape
False Imprisonment
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Term
Criminal Law
Insanity tests |
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Definition
M'Naughten: at the time of conduct, D lacked ability to know wrongfulness of his actions and understand the nature and quality of his actions
Irresistible Impulse: lacked capacity for self-control and free choice
Durham: D's conduct is product of mental illness
MPC: D lacked capacity too appreciate the criminality of his conduct, conform his conduct to law. |
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Term
Criminal Law
What are the intents for murder? |
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Definition
1. intent to kill
2. intent to do serious bodily harm
3. depraved heart/highly reckless murder
4. felony murder
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Term
Criminal Law
Conspiracy, MPC
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Definition
Under the MPC unilateral approach, D can be convicted of conspiracy regardless of whether the other parties have all been acquitted or were feigning agreement
v.
Traditional view: the acquittal of all persons with who a D is alleged to have conspired precludes conviction of the remaining D |
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Term
Criminal Procedure
What is Grant of Immunity (use and derivative use)?
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Definition
Cannot use to convict you
We can prosecute you based on evidence we can show we had before the immunity grant
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Term
Criminal Law
What are the model penal code analysis standards of fault? |
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Definition
Purposely
Knowingly
Rechlessly
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Term
Criminal Law
What is the imperfect self defense? |
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Definition
| Murder may be reduced to voluntary manslaughter even if the D started the altercation or the D unreasonably but truly believed in the necessity of using deadly forced in defense of himself or others. |
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Term
Criminal Law
What is the Wharton Rule? |
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Definition
| Where 2 or more people are necessary for the commission of the substantive offense, there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime. |
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Term
Criminal Law
What is the Pinkerton rule? |
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Definition
| A conspirator can be convicted of both the offense of conspiracy and all substantive crimes committed by any other co-conspirators acting in furtherance of the conspiracy. |
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Term
Evidence:
When is character evidence admissible in civil cases?
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Definition
When character is in issue
1. Defamation
2. Negligent entrustment
3. Child custody disputes
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Term
Evidence:
What is the best evidence rule? |
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Definition
Applies only where evidence offered to prove the contents of a writing (any tangible collection of data). This happens when:
1. Case turns on contents of legal instrument
2. Knowledge obtained from writing |
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Term
Real Property
What future interests does RAP apply? |
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Definition
1. contingent remainders
2. executory interests
3. certain vested remainders subject to open |
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Term
Real Property
What future interests create in the grantor? |
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Definition
possibility of reverter: accompanies FSD
right of entry, power of termination: FSSCS
Reversion: grantor transfers an estate of lesser quantum that she started with |
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Term
Real Property
What future interests are held in transferees? |
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Definition
Vested Remainder
Contingent Remainder
Executory Interest |
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Term
Real Property
What is the difference between a vested remainder and a contingent remainder? |
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Definition
Vested: if it is both created in an ascertained person and is not subject to any condition precedent
Contingent: created in an unascertained person or is subject to a condition precedent |
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Term
Real Property
Easement Types |
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Definition
Perscription: use that is continuous, open and notorious, actual under a claim of right that is hostile for statutory period
Implication: implied from prior use, at time land is severed, a use of one part existed from which it can be inferred that an easement permitting its continuation was intended
Necessity: division of a tract deprives one lot |
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Term
Real Property
What is subrogation |
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Definition
| Person who pays off another person's mortgage obligation may become the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment. |
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Term
Real Property
What is the riparian doctrine? |
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Definition
| water belongs to those who own the land bordering the watercourse |
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Term
Real Property
Prior appropriation doctrine |
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Definition
| the water belongs initially to the state, but the right to divert and use it can be acquired by an individual, regardless of whether or not he happens to be a riparian owner. |
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Term
Torts
What are Independent Intervening forces? |
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Definition
Negligent acts of a third person
Crimes and intentional torts of third persons; and
Acts of god |
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Term
Torts
What are superseding forces? |
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Definition
| They break the causal connection between D's initial negligent act and P's ultimate injury. D is not liable |
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Term
Real Property
What is Shelley's rule? |
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Definition
the present and future interests merge giving A an FSA
O conveys to A for life, then on A's death, to A's heirs.
A is ALIVE |
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Term
Constitutional Law:
What is the privileges and immunities clause?
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Definition
No state may deny citizens of other states privileges and immunities it gives its own citizens
ONLY applies when state discriminating against out of staters
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Term
Constitutional Law
Dormant Commerce Clause |
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Definition
State and local laws are unconstitutional if they place undue burden on interstate commerce
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Term
Wills:
What are Mortmain acts?
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Definition
In some jx, the proportion of the estate that a testator who is survived by a spouse parent, or child may leave to charity is statutorily limited.
IN orders a will that bequeaths property to charity may be required to have been executed more than specified length of time before the testator's death in order to be effective. |
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