Term
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Definition
| Is the law necessary to achieve a compelling government interest? |
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Term
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Definition
| Is the law substantially related to an important government interest? |
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Term
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Definition
Is the law rationally related to a legitimate government interest?
Almost always passed EXCEPT in cases of regulating sexual orientation - Lawrence (2003), Windsor (2013) |
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Term
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Definition
Required for an equal protection violation based on racial discrimination
Disproportionate impact is not enough |
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Term
| Proving Discriminatory Purpose |
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Definition
May be:
1. Explicit on statute's face
2. Proved by history of discriminatory application
3. Proved by extrinsic evidence of purposes of those who passed the law
NOT by discriminatory impact |
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Term
| Affirmative Action in Preferential Admissions |
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Definition
Preferential admissions allowed IF necessary to achieve a diverse student body AND diversity is essential to the education
Racial preferences must be “holistic" and flexible
Quotas are not allowed
Separate tracks or procedures for minorityapplicants are not allowed
Not allowed for secondary schools (though schools may be located and attendance zones created to maximize diversity) |
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Term
| Federal government exception to classifications based on alienage |
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Definition
Congress has plenary power over citizenship and naturalization.
Federal classifications based on U.S. citizenship do not trigger strict scrutiny
Federal classifications are valid UNLESS arbitrary and unreasonable |
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Term
| Constitutional Rights of Illegal Aliens |
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Definition
| Undocumented aliens are not a suspect class. Even so, states cannot deny undocumented children public education. |
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Term
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Definition
Vote Dilution: Drawing districts to scatter minorities so that they are not crucial in any one district.
Unconstitutional if done with a discriminatory purpose
Voting Rights Act: Requires racial gerrymandering to ensure minority success by creating majority‐minority districts.
Rule: race may be a factor in drawing lines, but not the predominant or only factor
Other factors include compactness and observing local, political subdivisions. A bizarrely shaped district may be evidence of a predominant racial purpose. |
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Term
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Definition
Can, in theory, violate equal protection.
In practice, it’s never struck down
A political question (non‐justiciable) |
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Term
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Definition
Symbolic speech
Laws regulating expressive conduct upheld if:
1. They further and important interest,
2. The interest is unrelated to the suppression of expression,
3. The suppression of expression is no greater than necessary |
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Term
| Vagueness and Overbreadth |
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Definition
Vagueness: Vague laws are ones that give no clear notice of what is prohibited and thus violate due process.
Overbreadth: Overbroad laws are ones that go too far in regulating speech. These laws burden substantially more speech than necessary to protect a compelling government interest |
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Term
Regulation of speech in a public forum
1. Definition of a public forum
2. What can be regulated
3. Requirements for regulation to be constitutional |
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Definition
A public forum is a place principally reserved for speech activities (streets, parks, etc)
Only time, place, and manner may be regulated in a public forum.
Requirements for reg to be constitutional:
1. Content neutral - must be content neutral on its face and as applied
2.Alternative channels of communication must be left open
3. Must narrowly serve a significant state interest |
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Term
| Regulation of speech in a non-public forum |
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Definition
This includes all kinds of government property that is not a public forum (e.g., schools) Here, government has great power.
Basically, any REASONABLE regulation of speech will be upheld |
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Term
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Definition
| Not a traditional public forum, but the government chooses to open to the public (e.g., a municipal theater that anyone can rent) In such areas, only time, place, or manner regulations are allowed, but this is a narrow category. |
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Term
| Speech that can be regulated because of content |
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Definition
Obsenity
Incitement
Fighting words
Defamation
Commercial Speech |
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Term
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Definition
Likely to provoke an immediate breach of the peace
Must be aimed/targeted at someone, and that person might hit back. General vulgarity is not enough.
Almost always unconstitutionally regulated on the bar exam (overbroad/vague) |
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Term
| Substantive Due Process standard of review |
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Definition
Same as equal protection (scrutinies)
Strict scrutiny - govt bears burden of proof
Intermediate - never used for substantive due process
Rational basis - burden on the challenger |
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Term
| FR of Voting and Ballot Access |
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Definition
Short term (30 day) residency requirements permitted
Congress controls Presidential election req, states control all others
If the ballot access requirements become so onerous that they effectively bar access to the ballot, then they are unconstitutional. |
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Term
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Definition
If Congress has not, States can regulate interstate commerce so long as regulation does not
• Discriminate against out-of-state commerce
• Unduly burden interstate commerce, or
• Regulate wholly out-of-state activity |
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Term
| When out-of-state commerce may be regulated |
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Definition
State or local discriminatory regulation may be upheld if:
1. Important government interest—
(a) important local interest being served, and
(b) no other nondiscriminatory means available
2. Market participant—discriminate against nonresident commerce like a private business
3. Traditional government function— favor state/local government entities performing traditional government functions
4. Congressionally permitted discrimination—Must be unmistakably clear that Congress allows state regulation |
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Term
| Test for undue burden on interstate commerce |
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Definition
Balancing test
Purpose of state law against burden on interstate commerce and evaluate whether there are less restrictive alternatives
If benefits are grossly outweighed, even nondiscriminatory regulation may be struck down |
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Term
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Definition
Ds must discharge their duties
(i) in good faith,
(ii) in the best interests of C, and
(iii) with the care that an ordinarily prudent person in a like position would use in similar circumstances |
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Term
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Definition
| A rebuttable presumption that D was (i) disinterested, (ii) informed, (iii) acting in good faith, and (iv) acting in a manner that they reasonably believe to be in the best interests of the C; clear and convincing evidence required to rebut |
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Term
| Reliance Protection (Directors) |
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Definition
if D reasonably believes them to be reliable and competent, D can rely on information and opinions of:
(1) officers, (2) employees, (3) experts retained by corporation, or (4) committees of which D is not a member |
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Term
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Definition
| requires D to act in a manner that D reasonably believes is in the best interest of C |
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Term
| Safe harbor protections (duty of loyalty) |
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Definition
1. Disclosure of all material facts and
2. Majority approval by BD or SHs without a conflicting interest
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Term
| Usurpation of corporate opportunity |
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Definition
Line-of-business test
adopted in Ohio; D cannot usurp an opportunity when:
1. Knowledge of opportunity was gained by D in a fiduciary capacity to C;
2. The opportunity was within the line of C’s business;
3. The opportunity would have been advantageous to C; and
4. C would have been able to accept the opportunity. |
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Term
| Competition with Corp (Directors) |
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Definition
| D who engages in a business venture that competes with C has breached the duty of loyalty |
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Term
| Failure to hold shareholder meetings |
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Definition
| Meeting requirements—failure to hold meetings does not affect C existence or invalidate C business |
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Term
| Timing requirements of shareholder meetings |
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Definition
Annual—required to be held each year at (i) a time and place specified in the articles or regulations, or (ii) if not stated, the first Monday of the fourth month after the close of C’s fiscal year
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Term
| Shareholder Meetings - notice requirements and waiver of notice |
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Definition
Voting SHs must be
(1) notified of the time, place, and purpose of the meeting and
(2) notification must take place 7–60 days before the meeting, unless the articles or regulations provide otherwise
SH may waive notice either (1) in writing or (2) by attending the meeting |
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Term
| Shareholder approval - what decisions require it and by how much? |
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Definition
SH approval required for fundamental corporate changes
Fundamental changes require an affirmative vote of two-thirds of all shares with voting power
Articles may change this number, but cannot require less than a majority
Non-fundamental changes may be approved by majority vote when a quorum is present |
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Term
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Definition
| Voting power—each share of stock is generally entitled to one vote, but C can create classes of stock with greater voting power or that cannot vote; a SH is generally entitled to vote shares not paid in full as long as a payment installment is not overdue |
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Term
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Definition
| If articles and regulations silent, the SHs present at a shareholders’ meeting constitute a quorum for that meeting |
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Term
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Definition
| SHs can cumulate votes to allow minority SHs to elect representatives to the BD, unless the articles state otherwise • |
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Term
| Shareholder rights to inspect records |
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Definition
| a SH or SH’s agent with a proper purpose has the right to (1) inspect and (2) copy corporate records upon written notice; if denied, SH should seek an injunction forcing the C to provide the records |
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Term
| Annual financial statements |
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Definition
| Ohio requires all Cs to furnish SHs with an annual financial statement |
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Term
| Creation of an Agency Relationship |
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Definition
Power to bind—may be expressed orally or in writing, implied by the principal’s (P’s) conduct, or misinterpreted by a third party
Existence of a relationship
• P manifests assent to an agent (A)
• A acts on P’s behalf
• A’s actions are subject to P’s control, and
• A manifests assent or otherwise consents |
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Term
| Principle's control over an agent's work |
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Definition
| P has the right to control the result or the ultimate objectives of A’s work |
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Term
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Definition
1. Employee—the work is integral to that of P, and the tasks are completed under P’s direction
2. Independent contractor—not subject to P’s control regarding the physical conduct of A’s performance
3. Gratuitous agent—doesn't prevent creation of an agency relationship, but does prevent an enforceable contract
4. Trustee—subject to the control of the settlor or beneficiary
5. Subagent—a person appointed by A to perform the functions that A has agreed to perform for P |
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Term
| Express Actual Authority (Agency) |
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Definition
Specific, detailed terms and instructions (oral or written)
Intent—P’s manifestation must cause A to believe that
1. A is doing what P wants (subjective standard) and
2. A’s belief must be reasonable (objective standard) Dissent—P must give clear notice if P disagrees with A’s actions |
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Term
| Implied Actual Authority (Agency) |
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Definition
Allows A to take whatever actions are properly necessary to achieve P’s objectives, based on A’s reasonable understanding of the manifestations and objectives of P
o Custom—absent contrary instructions, A has implied authority to act within accepted business customs or general trade usage within an industry
o Acquiescence—implied by P’s acceptance of A’s acts or P’s failure to object to unauthorized actions of A that affirm A’s belief regarding P’s objectives and support A’s perceived authority to act in future
o Delegate—generally A is prohibited from delegating either express or implied authority to a third party without P’s express authorization |
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Term
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Definition
| P’s behavior—derives from the reasonable reliance of a third party on that party’s perception of the level of authority granted to A by P’s behavior (over a period of time |
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Term
Pricipal’s direct liability to third parties
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Definition
P can be liable if
(1) A has actual authority
(2) Ratification: P authorizes the conduct or intended its consequences, or
(3) P affirms a prior act that was done or purportedly done on P’s behalf
P can also be liable for negligence in selecting, supervising, or controlling A |
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Term
Voluntary Dismissal Timeline (Civ Pro)
Federal & Ohio Distinction |
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Definition
Can be filed without prejudice any time before the opposing party serves answer, motion for summary judgment, or dismissal.
OHIO DISTINCTION - plaintiff has one year to refile |
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Term
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Definition
When a defendant fails to perform a specific duty imposed by statute, he is liable in negligence to -
(1) Anyone in the class of people intended to be protected by the statute, FOR
(2) Any harms of the type the statute was intended to protect against that were
(3) Proximately caused by the defendant’s violation of the statute. |
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Term
| Double Jeopardy and Lesser Included Offenses |
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Definition
Generally - prosecution of a greater crime after the defendant has been sentenced to a lesser included offense violates DJ.
Exception - does not prohibit prosecution for greater offense on appeal if D was charged with the greater offense at the time D was charged with the lesser offense |
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Term
District Court ----> District Court Transfer
2 requirements |
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Definition
| Transfer for the convenience of parties and witnesses and in the interest of justice requires: 1. The transferor court must determine that the action could have been initiated in the transferee court, OR 2. All parties consent to the transfer. |
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Term
| Fifth Amendment Miranda Rights |
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Definition
Miranda protections
Implicated only in the context of custodial interrogation |
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Term
| Competence of children to testify |
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Definition
The competence of a child depends on:
(1) his intelligence,
(2) his ability to differentiate between truth and falsehood, and
(3) his understanding of the importance of telling the truth. |
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Term
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Definition
Redundant
Relevant evidence may be excluded if its probative value is substantially outweighed by a variety of concerns, one of which is that it needlessly presents cumulative evidence. |
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Term
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Definition
An offer terminates upon the death of the offeror.
An exception exists for an offer that is an option, which does not terminate upon death because consideration was paid to keep the offer open during the option period, and the offer is therefore made irrevocable during that period. |
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Term
| Younger abstention doctrine |
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Definition
Under the doctrine of abstention, a federal court may abstain from deciding a claim when strong state interests are at stake.
Under the Younger abstention doctrine, a court will not enjoin a pending state criminal case in the absence of (1) bad faith, (2) harassment, or (3) a patently invalid state statute. |
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Term
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Definition
Also called an "accessory before the fact"/"principal in the second degree"
A person who, with intent that the crime be committed, aids or abets a principal prior to or during the commission of the crime.
An accomplice to the crime can be convicted of the crime, even if he was not involved in the principal’s criminal actions.
An accomplice is responsible for the crime to the same extent as the principal. |
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Term
| Supplemental jurisdiction based on diversity |
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Definition
1. Common nucleus of operative fact
2. Supplemental jurisdiction does not apply if the exercise of jurisdiction over the claim or party would ruin diversity |
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Term
| Is impossibility a defense to a charge of attempt? |
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Definition
| Impossibility is not a defense to a charge of attempt if the crime attempted is factually impossible to commit due to circumstances unknown to the defendant. In other words, if the facts were what the woman here believed them to be, there would have been a crime. |
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Term
| Voluntary dismissal of a claim |
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Definition
| A party may voluntarily dismiss a cross-claim, a counterclaim, a or third-party claim without the approval of the court or the consent of the parties before (1) a responsive pleading is served, or (2) if there is no responsive pleading, before evidence is introduced at a hearing or trial. |
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Term
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Definition
| An incidental beneficiary is one who benefits from a contract even though there is no contractual intent to benefit that person. An incidental beneficiary has no rights to enforce the contract. |
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Term
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Definition
| Performance of a promise would satisfy a duty of the promisee to a third party, and the promisee did not intend to make a gift to the third party, then the third party is called a creditor beneficiary. |
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Term
| Elements of intentional interference with a contract |
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Definition
| (1) that a valid contract existed, (2) that defendant had knowledge of the contract, (3) that defendant acted intentionally and improperly, and (4) that plaintiff was injured by the defendant's actions. |
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Term
| Attorney communications with unrepresented parties |
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Definition
Prof. Cond. Rule 4.3 prohibits an attorney who is acting on behalf of a client from stating or implying that he is disinterested when dealing with an unrepresented person.
If the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer must make reasonable efforts to correct the misunderstanding. |
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Term
| Attorney counseling fraudulent conduct |
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Definition
A lawyer is prohibited from counseling or assisting the client in conduct the lawyer knows to be illegal or fraudulent.
In general, a lawyer is subject to discipline for acts of misconduct committed by another if the lawyer orders the misconduct. |
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Term
| Professional misconduct "catch all" |
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Definition
| It is professional misconduct for an attorney to engage in conduct that is prejudicial to the administration of justice |
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Term
| A drawer's liability for the drawee bank's insolvency |
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Definition
Generally, the drawer of a check is not liable for the intervening insolvency of a drawee bank.
The drawer is generally not “off the hook” with respect to the underlying obligation because the giving of a check merely suspends the drawer’s liability but does not discharge it.
However, with regard to a cashier’s check, the underlying liability, at least to the amount of the cashier’s check, is immediately discharged. |
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Term
| An endorser's liability to a subsequent holder |
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Definition
| An endorser is secondarily liable to a subsequent holder of an instrument when the instrument is first presented to the drawer for payment, dishonored, and notice of the presentment and dishonor is provided to the endorser. |
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Term
Holder in due course
1. When to determine HDC status
2. Requirements of a HDC
3. Result of HDC status
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Definition
1st transfer - determine whether transferee is a HDC
1. Takes for value,
2. In good faith (subjective), and
3. Without notice
Result - takes free of personal defenses and claims, subject only to real defenses |
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Term
| Liability of accomodation parties (co-signors) |
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Definition
| An accommodation party who signs as a co-maker is primarily liable to a holder of the instrument; the holder may seek payment of the instrument solely from the accommodation party. |
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Term
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Definition
| When “collection guaranteed” or similar words added to a signature unambiguously indicate an intention to guarantee collection only, the signer guarantees only collection rather than payment. |
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Term
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Definition
| Any holder of an instrument can discharge a prior endorser's liability, even if the discharge is gratuitous. |
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Term
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Definition
| An indorser may include the qualification "without recourse" after his signature to remove liability |
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Term
| Final payments and checks |
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Definition
1. A bona fide dispute, in good faith, with "final payment" marked conspicuously on the check,
2. The final payment of the check sent to the creditor's address designated to accept final payments,
3. The money not be returned within 90 days, AND
4. The person receiving the check knows it is for final payment. |
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Term
| A bank's failure to honor a properly payable check |
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Definition
Properly payable looks to the relationship and agreement between the bank and its customer.
A bank can properly refuse to accept a check when it is following prescribed procedures and those procedures are generally in line with general banking procedures.
If a bank refuses to accept a check based on this criteria, there is no dishonor of the check.
The bank is only liable to its customer and not anyone else presenting this check for payment. |
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Term
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Definition
A check is dishonored when the drawer (1) refuses to accept the check or (2) notifies the bank and endorsers of dishonor by its midnight deadline.
Midnight deadline = midnight of the next banking day after the Bank receives the check. |
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Term
| Delay in giving notice of dishonor (excused) (CP) |
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Definition
Delay in giving notice of dishonor is excused if:
(1) it was the result of circumstances beyond the control of the notifier, and
(2) the notifier exercises reasonable diligence in giving such notice after the circumstances cease to exist. |
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Term
| Confrontation Clause and Children |
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Definition
The State’s interest in protecting child witnesses from more than de minimis trauma as a result of testifying in the defendant’s presence is considered an important public purpose.
However, the defendant must still be able to
(1) cross-examine the witness regarding the witness’s testimony, and
(2) observe the demeanor of an adverse witness. |
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Term
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Definition
A defendant is liable for trespass to chattels if he
(1) intentionally interferes with a plaintiff’s right of possession by either (2) dispossessing the plaintiff of the chattel, or
(3) using or intermeddling with the plaintiff’s chattel.
Trespass to chattels requires that the plaintiff show (1) actual harm to or (2) deprivation of the use of the chattel for a substantial time. |
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Term
| When can evidence of a victim's character be introduced? |
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Definition
| A CRIMINAL DEFENDANT may introduce reputation or opinion evidence of the alleged victim’s character when it is relevant to the defense asserted. |
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Term
| Supplemental jurisdiction over a counterclaim |
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Definition
Court can exercise jurisdiction if CC arises out of
“common nucleus of operative fact,”
even if the court would not have had jurisdiction had the claim been brought by the claimant as a plaintiff. |
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Term
| Express warranties in sales |
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Definition
| Any promise, affirmation, description, or sample that is part of the basis of the bargain is an express warranty, UNLESS it is merely the seller’s opinion or commendation of the value of the goods. |
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Term
| Appeal of interlocutory orders (SJ, motion to dismiss, etc) |
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Definition
| Although most interlocutory orders—such as the denial of a summary-judgment motion, a motion to dismiss, or the granting of a new trial motion—are not immediately appealable, certain equitable orders are reviewable immediately as a matter of right pursuant to federal statute, including an order granting, modifying, refusing, or dissolving an injunction. |
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Term
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Definition
Real defenses - big problems for which we don’t want to let HDC off the hook
Infancy, incapacity, fraud, etc |
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Term
| Circumstances allowing an officer to make an arrest in a residence without a warrant |
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Definition
Generally a police officer cannot effect an arrest within a residence without a warrant, a police officer may do so where exigent circumstances exist.
Exigent circumstances = an objective standard
Ex: the prevention of violence and the rendering of aid to the victim of violence |
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Term
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Definition
Issue Preclusion
Requires that the party against whom the issue is to be precluded was a party to the original action
The determination of an issue must have been essential to the prior judgment in order for collateral estoppel to apply |
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Term
| Specific jurisdiction arising out of minimum contacts |
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Definition
| When a cause of action arises out of or closely relates to a defendant’s contact with the forum state, jurisdiction may be warranted even if that contact is the defendant’s only contact with the forum state. |
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Term
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Definition
| When a cause of action does not arise out of or relate to the defendant’s contacts with the forum (specific jurisdiction), jurisdiction is warranted only when the defendant is “at home” in the forum state. |
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Term
| Prohibitions against assignment |
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Definition
Generally, prohibitions against assignment in the contract are strictly construed, and the assignment is permissible.
If contract prohibits assignment, assignment operates as (1) a breach of the contract and
(2) the assignee takes all of the rights of the assignor as the contract stands at the time of the assignment. |
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Term
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Definition
Congress is vested by Article I with “all legislative powers,” and may not delegate that power to any other branch of government.
However, delegation of some of Congress’s authority to the executive branch has consistently been held constitutional, so long as Congress specifies an “intelligible principle” to guide the delegate. |
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Term
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Definition
| Provides that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states,” |
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Term
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Definition
Grants Executive power to the President
Broadly interpreted to mean that although the President has no power to make laws, he does have the power to enforce them. |
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Term
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Definition
In order for joinder of defendants to be proper, there must be:
1. A common question of law or fact, and
2. Any right to relief must arise out of the same transaction, occurrence, or series of transactions or occurrences. |
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Term
| Relief from joined parties |
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Definition
| When parties are joined, the relief must be sought from them jointly, severally, or in the alternative. |
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Term
| Doctrine of equitable conversion |
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Definition
| Upon the execution of a land sales contract, subsequent purchasers become equitable owners of a property. The owner holds only legal title to the property. |
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Term
| Federal Property Clause of Article IV, Section 3 |
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Definition
Gives Congress the “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”
There is no express limit on Congress’s power to dispose of property owned by the United States. |
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Term
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Definition
| A defendant is not required to foresee the extent of damages in order to be held liable for all damages resulting from an intentional tort. |
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Term
| Defense of incorrect legal advice from an attorney |
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Definition
| Incorrect or bad legal advice from an attorney is not itself a valid mistake-of-law defense, but it may negate the required intent or mental state for a material element of the crime. |
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Term
| Common law solicitation (Federal) |
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Definition
| Solicitation is the encouragement of another person to commit a crime with the intent that the other person commit the crime. |
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Term
| Admissibility of character evidence about a defendant in a criminal case |
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Definition
While generally character evidence is inadmissible to show that a person acted in conformity with a character trait, a defendant in a criminal case may introduce evidence of his good character as being inconsistent with the type of crime charged.
This evidence is allowable regardless of whether the defendant will be a witness |
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Term
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Definition
Tenancy by the entirety is a joint tenancy between married persons with a right of survivorship.
The same rules for joint tenancy apply to tenancy by the entirety; in addition, the joint tenants must be married when a deed is executed or when the conveyance occurs (the fifth unity of person). |
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Term
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Definition
When a court erroneously admits evidence, the court may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence.
Known as a curative admission, such additional evidence can be admitted in the court’s discretion when necessary to remove unfair prejudice. |
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Term
| Rule 403 (Prejudicial Evidence) |
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Definition
| Rule 403 permits a court to deny the admission of evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. |
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Term
| Rights of the assignee upon assignment |
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Definition
An assignee takes all of the rights of the assignor as the contract stands at the time of the assignment.
However, the assignee takes those rights subject to any defenses that could be raised against the assignor. |
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Term
| When an installment contract is subject to cancellation for nonconforming goods |
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Definition
| When there is a nonconforming tender under one segment of an installment contract, the buyer may cancel the contract ONLY IF the nonconformity substantially impairs the value of the entire contract to the buyer. |
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Term
| Intervening act defense to felony murder |
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Definition
| Applies when a person is killed during the commission of a felony due to the (1) direct action of (2) someone other than the perpetrator of the crime or his accomplices |
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Term
| Witness testimony of voice identification |
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Definition
| A voice can be identified by any person who has heard the voice at any time. It makes no difference whether the voice was heard firsthand or through mechanical or electronic transmission or recording. |
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Term
| Strict liability for defective design |
|
Definition
Manufacturer of a defective product is strictly liable for any harm to persons or property caused by such product.
A product is defective when, at the time of the sale or distribution, it contains a design defect. |
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Term
| Risk-utility test for a defective design |
|
Definition
Courts apply the risk-utility test when determining if a design defect exists, and analyze whether the risks posed by a product outweigh its benefits.
The plaintiff must prove that a reasonable alternative design that was economically feasible was available to the defendant, and the failure to use that design rendered the product unreasonably unsafe. |
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Term
| Common law murder (federal) |
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Definition
| Common-law murder is the unlawful killing of another human being committed with malice aforethought (depraved heart/reckless indifference to human life) |
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Term
| Contract defense of mistake - single party |
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Definition
| When only one of the parties is mistaken as to an essential element of the contract, either party can generally enforce the contract on its terms. However, the mistaken party can void the contract if the he did not bear the risk of the mistake. |
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Term
First Amendment Free Exercise Clause
(What may or may not be regulated) |
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Definition
The freedom to believe in any religion or none at all is absolutely protected and cannot be restricted by law.
The government may not:
1. Deny benefits or impose burdens based on religious belief, or
2. Determine the reasonableness of a belief, although it may determine the sincerity of the person asserting that belief. |
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Term
| Preliminary hearing to determine probable cause |
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Definition
A preliminary hearing to determine whether probable cause exists to hold the defendant (i.e., a Gerstein hearing) generally must be held within 48 hours of the defendant’s arrest.
There is no need to hold a preliminary hearing if probable cause has already been determined through a grand jury indictment or an arrest warrant. |
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Term
| Elements and damages for the tort of Intentional Misrepresentation (of products) |
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Definition
To recover for intentional misrepresentation, the plaintiff must establish
(1) a misrepresentation by the defendant,
(2) scienter - knowledge of the act's "wrongness",
(3) intent to induce the plaintiff's reliance,
(4) causation,
(5) justifiable reliance by the plaintiff, and
(6) damages
In a majority of jurisdictions, the measure of recovery in misrepresentation cases is the “benefit of the bargain” rule, meaning the difference between the actual value received in the transaction and the value that would have been received if the misrepresentation were true |
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Term
| Definition of A D Activity |
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Definition
| Abnormally dangerous means that an activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised and the activity is not commonly engaged in. |
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Term
| (Elements) Claim for strict products liability |
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Definition
Plaintiff must plead and prove:
(1) the product was defective;
(2) the defect existed at the time the product left the defendant’s control; and (3) the defect caused the plaintiff’s injuries when used in an intended or reasonably foreseeable way |
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Term
| Test for manufacturing defect |
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Definition
| The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications. |
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Term
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Definition
A survivorship action is a cause of action brought by the estate of the deceased.
Allows the claims of the person to survive his/her death. |
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Term
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Definition
| Compensatory damages are those damages sought to compensate the plaintiff for losses resulting from the liability of another. |
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Term
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Definition
| Property damage is typically measured by the fair market value of the damaged items unless repair is less costly; in which case, the cost of repair, not the cost to replace, is the correct measure of damages. |
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Term
| Causation requirement in negligence |
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Definition
| Causation is a two-part analysis. The defendant must be the "but for" cause and the "proximate" cause of the plaintiff's damages. |
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Term
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Definition
| Abandoned property is that which the true owner seeks to divest all interest in. Possession of abandoned property goes to the finder over all others. |
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Term
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Definition
Automatic - event occurs in one step
"O to A until Bea gets married" |
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Term
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Definition
| Future interest following a Fee Simple Determinable |
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Term
| Fee Simple Subject to Condition Subsequent |
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Definition
2 steps =
(1) if... (2) then...
"O to A until Bea gets married, then O has a right to re-enter |
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Term
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Definition
| Future interest following a FSSCS |
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Term
| Fee Simple Subject to Executory Limitation |
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Definition
1 step but goes to a third party
"O to A until Bea gets married, then to Tre" |
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Term
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Definition
| Future interest following a FSSEL |
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Term
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Definition
Measured by life
"To A for life, then to Bea" |
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Term
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Definition
Future interest following a LE
2 types
1. Vested - remainderman exists
2. Contingent - (a) unascertained remainderman, OR (b) remainderman has to do something |
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Term
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Definition
A person is guilty of complicity if they support, aid, or facilitate the commission of an offense.
The principal need not be convicted in order for the Defendant to be found guilty of complicity.
In order to be complicit in an offense, the Defendant must intend for the offense to happen. |
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Term
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Definition
Conspiracy requires:
(1) an agreement between two people to carry out an illegal act or scheme, and
(2) an overt act in furtherance of the conspiracy
Parties to a conspiracy are criminally liable for all acts in furtherance of the conspiracy. |
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Term
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Definition
The exclusionary rule is a judge-made doctrine prohibiting the introduction, at a criminal trial, of evidence obtained in violation of a person's Constitutional rights.
In addition, any evidence obtained or derived from the original illegality must also be excluded as "fruit" from a poisoned tree. |
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Term
| Fourth Amendment Protection (Crim Pro) |
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Definition
| Under the Fourth Amendment, persons are to be free in their persons from unreasonable search and seizures. |
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Term
| Permissible search without a warrant |
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Definition
Searches without warrants are not permissible unless (a) they fall into one of the permissible warrantless search exceptions or (b) the police can show
I) inevitable discovery,
2) independent source, or
3) intervening act of free will on the defendant breaks the chain of illegality. |
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Term
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Definition
| A search is a government intrusion into an area where there is an expectation of privacy. |
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Term
| Consent to enter a residence from a third party |
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Definition
Exception to the warrant requirement
Consent may be given from anyone living at the property.
The third party’s consent may be valid even though she lacks actual authority if the police reasonably believe that she has such authority. |
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Term
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Definition
| Probable cause is reasonably trustworthy facts or knowledge that would lead a reasonable person to conclude that a crime is or has been committed. This is determined under the "totality of the circumstances." |
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Term
| Arizona v Gant: warrantless search of a vehicle after an arrest |
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Definition
The Gant Court held that, in order to justify a warrantless search of an automobile incident to arrest, the Fourth Amendment requires that law enforcement demonstrate either
(i) that the arrestee is within reaching distance of the passenger compartment at the time of the search and, as a result, may pose an actual and continuing threat to the officer’s safety or a need to preserve evidence from being tampered with by the arrestee or
(ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle. |
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Term
| Primary purpose of shareholder meetings |
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Definition
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Term
| Exceptions to hearing requirement of due process |
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Definition
Sometimes, the hearing can occur after the action, so long as the hearing is prompt and fair.
Ex: terminating disability benefits; dismissing students for academic reasons. |
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Term
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Definition
| When a responsibility is so important to the community that a person should not be permitted to transfer it to another person (e.g., inherently dangerous activities such as using explosives) |
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Term
| Description of a basic secured transaction |
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Definition
In a typical secured transaction, the creditor loans money to the debtor, and in order to ensure repayment of the loan, takes an interest in some collateral of the debtor.
The creditor will have an interest once attachment occurs. |
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Term
| Requirements for attachment (3) |
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Definition
For attachment to occur, the following must coexist:
(1) the debtor and creditor must agree to enter into a security agreement;
(2) the creditor must give value;
(3) the debtor must have rights in the collateral. |
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Term
| Perfection (SC) (General definition) |
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Definition
| Once attachment occurs, the creditor may choose to perfect that interest by putting the interest on notice to other potential creditors. |
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Term
| Requirements to attach a security interest to collateral & requirements of a SA |
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Definition
For a security interest to attach to collateral there must be a security agreement.
The agreement must
(1) be established through an authenticated record (signature), and
(2) identify an Article 9 type of collateral ("all debtor's equipment") |
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Term
| Conditions for the creation of a PMSI |
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Definition
Purchase Money Security Interest A PMSI is created when the debtor either
(1) purchases directly from the creditor or
(2) borrows money for a specific purchase. |
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Term
| Perfection of a security interest |
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Definition
| A security interest is perfected by filing in the state of the debtor’s location. |
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Term
| Perfection of a security interest in equipment |
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Definition
| Finance statement must be filed within 20 days of possession of the property |
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Term
| Priority between two perfected security interests |
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Definition
| The first to file or perfect has priority |
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Term
| Determination of the classification of goods (ST) |
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Definition
| The classification of goods is determined by the use to which the debtor puts the collateral |
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Term
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Definition
| A venue is proper (I) where the defendant or any of the defendants reside; (2) the county were a substantial portion of the activity giving rise to the cause of action occurred; (3) the principal place of business of the defendant, if it is a corporation; (4) the county where the breach occurred, and (5) if none of the foregoing are proper, in the county in which the plaintiff resides. |
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Term
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Definition
| Although a federal court is permitted to offer remittitur (a reduction in the damages awarded by the jury) as the means by which the plaintiff can avoid a new trial, a federal court is not permitted to offer additur (an increase in the amount of damages awarded by the jury) as the means by which the defendant can avoid a new trial. |
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Term
| Proper timing of a motion for a new trial (federal) |
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Definition
| A motion for a new trial must be filed no later than 28 days after the entry of judgment |
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Term
| Default judgement - process |
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Definition
When a party has failed to plead or otherwise defend an action, and that failure is shown by affidavit or otherwise, the court clerk must enter the party’s default.
Once a default is entered against a party, the plaintiff may seek a default judgment. |
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Term
| Standard applied for a novel cause of action to determine whether jury is allowed |
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Definition
| If a new cause of action that was unknown at common law is created, then the court must look to whether the remedy sought is legal rather than equitable; if it is legal, a jury should be allowed. |
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Term
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Definition
A party asserting a claim may join with it as many independent or alternative claims of whatever nature against the opposing party so long as the court has subject-matter jurisdiction over the new claims.
If the original claim is based on federal-question jurisdiction, as it is here, then a non-federal claim (such as the state law breach-of-contract claim here) may be joined only if diversity jurisdiction exists or if the new claim arises out of the same case or controversy as the federal claim such that supplemental jurisdiction applies |
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Term
| Notice requirement of due process |
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Definition
Due process is met if the notice is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of an action and afford them an opportunity to present their objections.
If the identity and address of an interested party are known or obtainable through reasonable efforts, then notice through in-person delivery, registered mail, return receipt requested, or some other means likely to notify the particular individual is required. |
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Term
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Definition
| If a plaintiff has voluntarily dismissed an action based on a claim, a subsequent voluntary dismissal of an action based on the same claim is a dismissal with prejudice and thus has preclusive effect. |
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Term
| Requirements for the certification of a class |
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Definition
Under Rule 23(b)(3), a class can be certified if
(1) the questions of law or fact that are common to the class members predominate over any questions affecting only individual members, and
(2) a class action is the superior method in bringing about a fair and efficient adjudication of the controversy. |
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Term
| "Necessary party" (Civ Pro) |
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Definition
| . A person who has not been named as a party but whose interest could be impaired by the disposition of the action is a necessary party. |
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Term
| Dismissal for failure to join a necessary party |
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Definition
Under Rule 19(b), if a necessary party cannot be joined because of jurisdictional or venue concerns, then the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or be dismissed.
If the court determines that the party is indispensable, the court must dismiss the case. |
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Term
| Timing of a motion to dismiss for failure to join a necessary party |
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Definition
| A motion to dismiss for failure to join a necessary party is not required to be made in a defendant’s initial pleading. It may be raised in any pleading, in a motion for judgment on the pleadings, or at trial. |
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Term
| Standard for a motion for summary judgment |
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Definition
Rule 56
Must be granted if the (1) pleadings, (2) the discovery and disclosure materials on file, (3) and any affidavits show that there is:
1. No genuine dispute as to any material fact and
2. That the movant is entitled to judgment as a matter of law. |
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Term
| Jury delivery of a general verdict versus special interrogatories |
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Definition
When a jury is instructed to deliver both a general verdict and to answer special interrogatories, and the answers are consistent with each other but not with the general verdict, the court may
(i) approve a judgment that is consistent with the answers, notwithstanding the general verdict,
(ii) direct the jury to reconsider its answers and verdict, or
(iii) order a new trial. |
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Term
| Removal from state to district court |
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Definition
Generally, an action commenced in a state court that is within the original jurisdiction of a U.S. district court may be removed by the defendant to the district court for the district in which the state court action was commenced.
However, if removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of the state in which the action was filed. |
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Term
| Requirements to grant a motion to dismiss |
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Definition
The court can grant a motion to dismiss under 12(b)(6) if (1) the claim fails to assert a valid legal theory of recovery, or
(2) fails to allege facts sufficient to support a cognizable claim.
However, if the court considers new evidence in its review of a motion to dismiss, it should treat the motion as a motion for summary judgment rather than a motion to dismiss. |
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Term
| Timing to raise the defense of failure to state a claim upon which relief can be granted |
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Definition
| The defense of failure to state a claim upon which relief can be granted may be raised at any time |
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Term
| Proper venue under federal question jurisdiction |
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Definition
| Venue is proper either in (1) the judicial district where the plaintiff resides or (2) in the judicial district where the act or omission occurred. |
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Term
| Timing of an answer following waiver of service of process |
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Definition
| If a defendant timely returns a waiver of service before being served with process, then the defendant does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after it was sent to a defendant outside a judicial district of the United States. |
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Term
| Certification of immediate appeal for interlocutory orders |
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Definition
Federal courts of appeals may hear appeals from the final judgment of the district courts, but most interlocutory orders, such as the denial of a summary-judgment motion or a motion to dismiss, are not considered final and are therefore not immediately appealable.
If a district court certifies that an immediate appeal would help to resolve an unclear interpretation of a controlling question of law, however, a court of appeals has discretion to allow the appeal if the application is made to it within 10 days after the entry of the order. |
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Term
| Federal court's supplemental jurisdiction over state law claim |
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Definition
| When a federal court has jurisdiction over a claim arising under federal law, the court may exercise supplemental jurisdiction over a state-law claim that arises out of a “common nucleus of operative fact,” even though the federal court would not otherwise have subject-matter jurisdiction over the state-law claim |
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Term
| Jury instruction timing requirements (Civ Pro) |
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Definition
| Although the court may require the parties to file jury instructions at the close of evidence or at any earlier reasonable time, a party can file a request for jury instructions on issues that could not have reasonably been anticipated as of the earlier time set by the court for such requests. |
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Term
| Venue requirements for an action against a federal employee |
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Definition
| An action against a federal officer or employee acting in an official capacity or under color of legal authority may be brought in the judicial district in which the plaintiff resides. |
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Term
| Preemptory challenges by co/several parties |
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Definition
| Several defendants or several plaintiffs may be considered as a single party for the purpose of making such challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly. |
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Term
| Number preemptory challenges allowed in a civil case |
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Definition
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Term
| Jury's failure to follow instructions |
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Definition
| hen a jury’s verdict does not properly follow the court’s instructions, the court may set aside the verdict and order the jury to resume deliberations. |
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Term
| Appelate standard of review for factual findings |
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Definition
| A judge’s factual findings will not be set aside unless the findings are clearly erroneous |
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Term
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Definition
| Even if the trial court has acted erroneously, the judgment is not modified or overturned if the error did not result in an incorrect judgment (i.e., the error was harmless) |
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Term
| "Abuse of discretion" standard |
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Definition
| Appropriate when reviewing a trial court’s ruling on discretionary matters, such as the admissibility of evidence, sanctions for violation of discovery rules, and the grant or denial of a motion. |
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Term
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Definition
| Appropriate when the appellate court is reviewing the trial court’s legal rulings. |
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Term
| Requirements for subject matter jurisdiction based on diversity |
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Definition
1. The citizenship of the party bringing the action must be completely diverse from that of the claimants, and
(2) the statutory amount in controversy must be met ($75,000)
Claimants need not be diverse in themselves |
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Term
| Requirements for a summary judgment motion (2) |
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Definition
| Movant must show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. |
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Term
| Summary judgment presumption against movant |
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Definition
In ruling on a motion for summary judgment, the court must
(1) construe all evidence in the light most favorable to the nonmoving party, and
(2) resolve all doubts in favor of the nonmoving party. |
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Term
| Perfection of a PMSI in a consumer good |
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Definition
| Entitled to automatic perfection without filing and priority over the other secured creditors. |
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Term
| Perfection of a PMSI in equipment |
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Definition
| A PMSI in equipment is temporarily perfected, but there must be filing within 20 days |
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Term
| Requirements for a PMSI in inventory to prevail |
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Definition
A PMSI in inventory prevails over all other security interests in the same collateral, even if they were previously perfected, if:
(i) the PMSI is perfected by the time that the debtor receives possession of the collateral; and
(ii) the purchase money secured party sends an authenticated notification of the PMSI to the holder of any conflicting security interests.
Notification is required only when the previously perfected security interest has been perfected by filing. |
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Term
| Automatic attachment on collateral |
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Definition
| A security interest in collateral automatically attaches to identifiable proceeds. |
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Term
| Perfection of a security interest: 4 ways |
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Definition
| A secured party can perfect a security interest by (i) filing a financing statement, (ii) possessing the collateral, (iii) controlling the collateral, or (iv) automatically perfecting. |
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Term
| Perfection of a security interest in proceeds |
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Definition
If the security interest in the original collateral is perfected, a security interest in proceeds is temporarily perfected for 20 days from the time it attaches. |
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Term
|
Definition
A purchase-money security interest (PMSI) in goods exist when a secured party sold goods to the debtor, and the debtor incurs an obligation to pay the secured party all or part of the purchase price.
Automatically attaches |
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Term
| Holder in due course "Shelter Rule" |
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Definition
| The shelter rule provides that a transfer from a HOC to a holder will allow the transferee to enforce the same rights as held by the transferring HOC. |
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Term
| Holder in due course for future value |
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Definition
| Benefit must accrue at the time of assignment to qualify as a holder in due course |
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Term
| Lack of testamentary capacity (Wills) |
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Definition
The Testator must also have an understanding of (1) his estate, (2) the natural objects of his bounty, and (3) an understanding that he is creating a will.
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Term
| Testatamentary capacity - knowledge of family |
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Definition
He must also be able to appreciate:
(1) his relationship to the members of his family, and
(2) hold in his mind the names and identities of those who have natural claims upon his bounty. |
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Term
| Requirements of undue influence (Wills) |
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Definition
A will is the product of undue influence if
1. The testator is susceptible to such influence,
2. There was an opportunity for such influence,
3. Such influence actually occurred, and
4. An unnatural disposition occurred. |
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Term
| Presumption in undue influence (Wills) |
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Definition
| A presumption of undue influence arises when the defense is raised. Such presumption can be rebutted if the suspected "influence" can provide an explanation for the unnatural disposition. |
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Term
| Requirements for the execution of a will (generally) |
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Definition
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Term
| Witness requirement to the formation of a will |
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Definition
| One of the formalities is the requirement that the two uninterested witnesses observe the Testator sign or hear him attest to his signature. |
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Term
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Definition
| An advancement is a lifetime gift intended to satisfy a general legacy or inheritance where either the donor evidences such intent through a contemporaneous writing or the donee acknowledges the gift as such in writing. |
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Term
| Rule 30 deposition requirements |
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Definition
| Under Rule 30, a party may take the deposition of any party or nonparty witness at any time after the party has made its mandatory initial disclosures pursuant to Rule 26(a). |
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Term
| When leave of the court must be obtained for depositions |
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Definition
| nless the parties agree to the deposition, leave of the court must be obtained to (i) exceed the 10-deposition limitation, (ii) depose a witness a second time, or (iii) depose a person before the deposing party has complied with its initial disclosure requirements under Rule 26(a) |
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Term
| Requirements of granting a new trial for newly discovered evidence |
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Definition
One ground for granting a new trial upon motion by a party is that newly discovered evidence that
(1) existed at the time of trial,
(2) was excusably overlooked and
(3) would likely have altered the outcome of the trial. |
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Term
| Sanctions for failure to participate in a pretrial conference |
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Definition
| If counsel or a party fails to appear, fails to participate in good faith, or fails to obey a pretrial conference order, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order, including contempt of court or dismissal of an action. |
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Term
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Definition
| Robbery is larceny from the person or presence of the victim by force or intimidation. |
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Term
| Requirements for standing to challenge a government seizure |
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Definition
| A defendant does not have standing to challenge governmental conduct as a violation of the Fourth Amendment protection against unreasonable searches and seizures unless the defendant himself has been seized or he has a reasonable expectation of privacy with regard to the place searched or the item seized. |
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Term
| Public records exception to hearsay |
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Definition
A hearsay exception applies to a record or statement of a public office or agency that sets out an observation of a person under a duty to report the observation or factual findings of a legal investigation.
In addition to factual findings, opinions, evaluations, and conclusions contained in an investigative report that are based on factual findings are included in the public records exception. |
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Term
| Admissibility of grand jury testimony |
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Definition
| To be admissible, the former testimony of an unavailable witness must be given under oath in a hearing or deposition, and the party against whom the testimony is being offered must have had an opportunity and similar motive to develop the testimony by direct or cross-examination; grand jury testimony does not meet this standard because the defendant does not have the opportunity to cross-examine grand jury witnesses. |
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Term
| Murder - exceptions to "intent" |
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Definition
| A person who intends to do serious bodily injury or “grievous bodily harm” but actually succeeds in killing is guilty of murder despite the lack of intention to kill. |
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Term
|
Definition
| An offer is an objective manifestation of a willingness by the offeror to enter into an agreement that creates the power of acceptance in the offeree. A statement is an offer only if the person to whom it is communicated could reasonably interpret it as an offer. It must express the present intent of a person to be legally bound to a contract. |
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Term
| Child's standard of care for negligence |
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Definition
| That of a reasonable child of similar age, intelligence, and experience |
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Term
|
Definition
| Habit evidence is admissible to prove action in conformity with that habit |
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Term
|
Definition
| Actual threats of violence are outside the protection of the First Amendment, given the need to protect individuals from (i) the fear of violence, (ii) the disruption that fear engenders, and (iii) the possibility that the threatened violence will occur. |
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Term
| Multiparty, Multiforum Trial Jurisdiction Act of 2002 |
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Definition
| when a civil action “arises from a single accident, where at least 75 natural persons have died in the accident at a discrete location,” only one plaintiff need be of diverse citizenship from one defendant for a federal court to have diversity jurisdiction, provided a defendant resides in a state and a substantial part of the accident took place in another state or other location. |
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Term
|
Definition
| . Under the rule of completeness, a party may compel the introduction into evidence of a writing or recorded statement that in fairness ought to be considered at the same time that related evidence has been introduced by an adverse party. |
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Term
| Waiver of a contractual condition |
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Definition
| A party whose duty under a contract is subject to a condition can waive the condition, either by words or by conduct. A party who chooses to continue with a contract after a condition is not satisfied effectively elects to waive that condition. |
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Term
| Covenant of future warranty |
|
Definition
| The covenant of warranty is a future covenant that guarantees that the grantor will defend against a third party’s claim for title. This covenant, however, does not require the grantor to defend against a third party’s wrongful claim. |
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Term
|
Definition
| A battery is a harmful or offensive contact with the plaintiff’s person caused by the defendant’s intentional act. |
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Term
|
Definition
| A license is a non-possessory right to enter another’s land for some delineated purpose. Generally, a license is freely revocable by the owner of the land. |
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Term
| Property Clause of Article IV |
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Definition
| The Property Clause of Article IV, section 3 gives Congress the “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” |
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Term
| When silence operates as acceptance |
|
Definition
| Generally, silence does not operate as an acceptance of an offer, even if the offer states that silence qualifies as acceptance, unless (i) the offeree has reason to believe that the offer could be accepted by silence, and he was silent with the intent to accept the offer by silence, or (ii) because of previous dealings or patterns of behavior, it is reasonable to believe that the offeree must notify the offeror if the offeree intends not to accept. |
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Term
| Defendant's timing to file an answer (Ohio) |
|
Definition
| In Ohio, after proper service of a complaint a Defendant has 28 days whether to answer, request a leave to plead or move for a motion to dismiss under Rule 12. |
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Term
| Motion for default judgment - service requirements |
|
Definition
| If a Defendant does not answer Plaintiff's claim within 28 days, then a Plaintiff can file a motion for default judgment. If the Defendant has made an appearance then the motion must also be served on the Defendant. If the Defendant has not made an appearance then there is no need to serve the Defendant with the motion. |
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Term
|
Definition
| In Ohio, a judgment can be opened and vacated if it is reasonable, timely, and there is a meritorious defense. |
|
|
Term
| Timing of a motion for a directed verdict |
|
Definition
| 28 days after entry of judgment |
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Term
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Definition
| hen a state or municipality regulates, as opposed to performs a physical taking, it may be deemed a “regulatory taking” requiring just compensation if the regulation interferes substantially with the use of the property so that the regulation left no viable economic use. |
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Term
| Constitutionality of public contracts |
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Definition
| For a public contract (one to which the state or local government is a party), the state must show that its important interest cannot be served by a less-restrictive alternative and that the impairment it seeks is necessary because of unforeseeable circumstances. This is in addition to the requirement that the government demonstrate that the interference was reasonable and necessary to serve an important governmental interest. |
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Term
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Definition
| Conduct that manifests a reckless indifference to an unjustifiably high risk to human life, unaccompanied by the intent to kill, and that actually results in death, is known as "depraved heart murder." |
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Term
| Service of process against a US officer |
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Definition
| Even though a plaintiff is pursuing an action against a U.S. officer or employer in his individual capacity, the plaintiff is required to also serve process on the United States if the basis for the action is conduct that occurred in connection with duties performed on behalf of the United States. |
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Term
| Article III "judicial power" |
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Definition
| grants federal courts "judicial power" to decide actual “cases or controversies"—i.e., to render a final judgment, binding on the parties, that cannot be reviewed or revised by the other branches of government. |
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Term
| Reinstatement of a condition |
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Definition
| A party whose duty is subject to a condition can waive the condition, either by words or by conduct. The condition may be reinstated if the waiving party communicates a retraction of the waiver before the condition is due to occur, and the other party has not already suffered detrimental reliance. |
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Term
| Article 1, Section 10 prohibition on the impairment of contracts |
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Definition
| Article I, Section 10 of the U.S. Constitution prohibits states from passing any law "impairing the obligation of contracts." This prohibition applies only to state legislation that retroactively impairs contractual rights. Impairment by the state of a public contract (one to which the state or local government is a party) must be reasonable and necessary. Furthermore, the state must show that its important interest cannot be served by a less-restrictive alternative and that the impairment it seeks is necessary because of unforeseeable circumstances. |
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Term
| Waiver of the defense of insufficient service of process |
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Definition
| Under Federal Rule of Civil Procedure 12, the defense of insufficient service of process is waived if it is not raised in a pre-answer motion or, if no pre-answer motion is made, in the answer. |
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Term
| Requirements for proper service of process |
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Definition
| Federal Rule of Civil Procedure 4 provides that service may be made by: (i) personally serving the summons and complaint on the defendant; (ii) leaving the summons and complaint at the defendant’s usual place of abode with a person of suitable age and discretion who resides there; or (iii) delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service. Further, service is proper if made according to the state law of the forum or service state. |
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Term
| Non justiciable political question |
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Definition
| A federal court will not rule on a matter in controversy if it is a political question, meaning (i) the Constitution has assigned final decision-making on this subject to a different branch of government, and (ii) the matter is inherently not one the judiciary can decide. |
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Term
| Requirements for an easement by prescription |
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Definition
Continuous, actual, open, and hostile use for the statutory period in this jurisdiction.
Unlike adverse possession, the requisite use to establish an easement by prescription need not be exclusive. |
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Term
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Definition
| A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the plaintiff in harm’s way if the plaintiff demonstrates that: (i) he was within the “zone of danger” of the threatened physical impact—that he feared for his own safety because of the defendant’s negligence; and (ii) the threat of physical impact caused emotional distress. Under the majority rule, damages for negligent infliction of emotional distress without physical symptoms are not recoverable; however, an exception exists for the negligent mishandling of a corpse. |
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Term
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Definition
| A party will be permitted to intervene if (i) its rights will not be adequately protected absent intervention, (ii) there is a risk that party will be exposed to inconsistent judgments absent intervention, or (iii) there will be incomplete relief as to the existing parties without intervention. |
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Term
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Definition
| Her joinder is improper because Rule 14 only permits joinder of a third party where the original defendant alleges that, if it is liable to the plaintiff, the third-party defendant is liable to the original defendant for some or all of the judgment. |
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Term
| Fundamental corporate change |
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Definition
| requires a board resolution and two-thirds of shareholders' vote |
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Term
| Board of Directors rights to stock |
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Definition
| The Board of Directors decides whether or not to issue stock. The Board also decides the value for the stock. |
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Term
| Subject matter jurisdiction of Municipal Courts (Ohio) |
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Definition
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Term
| Subject matter jurisdiction of Common Pleas courts (Ohio) |
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Definition
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Term
| Suretyship (defined and relation to the SoF) |
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Definition
Under the Statute of Frauds, a promise to answer for the debt of another must generally be in writing to be enforceable.
Exception = if the main purpose of the surety in agreeing to pay the debt of the principal is the surety's own economic advantage, rather than the principal's benefit. |
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Term
| Indirect tax exception to federal immunity from state taxation |
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Definition
| The federal government and its instrumentalities are immune from taxation by the states. However, states may impose generally applicable indirect taxes so long as they do not unreasonably burden the federal government (e.g., state income taxes on federal employees). |
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Term
| Elements of a mutual mistake |
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Definition
A mutual mistake occurs when both parties are mistaken as to an essential element of the contract. Requires:
(i) mistake of fact existing at the time the contract was formed;
(ii) the mistake relates to a basic assumption of the contract;
(iii) the mistake has a material impact on the transaction; and
(iv) the adversely affected party did not assume the risk of the mistake. |
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Term
| Requirements of a negotiable instrument |
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Definition
To be negotiable, an instrument must
(1) Be in writing,
(2) signed by the drawer or maker,
(3) include an unconditional promise or order to pay,
(4) a fixed amount to "order" or "bearer,"
(5) and it must be payable at a definite time or on demand. |
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Term
| Liability of an indorser on an instrument |
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Definition
| An indorser is secondarily liable on an instrument. In order for an indorser to be required to pay an instrument, the instrument must first be dishonored and the indorser must receive notice of dishonor. |
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Term
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Definition
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Term
| Perfection for a holder of an SI in a fixture |
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Definition
| A holder of a security interest in a fixture as personal property must file, in addition to the usual financing statement, a fixture filing in the real estate records office where the property is located. Once he does so, then he takes priority over later recorded mortgages, but is subject to already recorded ones. |
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Term
| Rights of heirs in Fee Simple Absolute conveyance |
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Definition
| conveyance of real property to the grantee “and her heirs” is recognized as a conveyance of the property in fee simple absolute to the grantee. The grantee’s heirs do not have an ownership interest in the property as a direct consequence of the conveyance. Their identities are not established until the grantee dies and they have no rights to the property unless the grantee dies intestate owning the property. |
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Term
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Definition
| The Eleventh Amendment prohibits an action in federal court by a citizen of one state against another state when the basis for the action is the violation of state law. |
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Term
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Definition
| A profit (also known as a profit à prendre) is a nonpossessory right to enter another’s land and remove specific natural resources (such as oil, gas, minerals, timber, or game). Profits are created and analyzed similarly to easements, except that profits cannot be created by necessity. |
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Term
| Authentication of tangible evidence |
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Definition
| All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is. When reproductions (e.g., photographs, diagrams, maps, movies) are introduced into evidence, they may be authenticated by the testimony of a witness with personal knowledge that the object accurately depicts what its proponent claims it does. |
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Term
| Implied reciprocal servitude |
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Definition
An implied reciprocal servitude must meet the following requirements to be enforceable:
(i) there must be intent to create a servitude on all real property interests (i.e., a common scheme);
(ii) the servitude must be negative (i.e., a promise to refrain from doing something); and
(iii) the party against whom enforcement of the servitude is sought must have actual, record, or inquiry notice. |
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Term
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Definition
| Order paper - containing the words "pay to the order of" or restrictive endorsements - may be transferred to a holder in due course |
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Term
| Requirements for burden to run with the land |
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Definition
| writing, intent, horizontal and vertical privity, notice, and "touch and concern" |
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Term
| Requirements for benefits to run with the land |
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Definition
| writing, intent, limited vertical privity, and "touch and concern" |
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Term
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Definition
| In Ohio, theft occurs when a person knowingly obtains control over another’s property with the purpose to deprive the owner of such property and is accomplished either: (i) without the consent of the owner or other authorized person, (ii) beyond the scope of the express or implied consent of the owner or authorized person, or (iii) by deception, threat, or intimidation. |
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Term
| Aggravated robbery (Ohio) |
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Definition
| To constitute aggravated robbery, the offender must display, brandish, or indicate possession of a deadly weapon, or use the deadly weapon in the commission of the robbery. |
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Term
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Definition
| In Ohio, a robbery occurs if when committing a theft, a person: (i) possesses a deadly weapon; (ii) inflicts or threatens to inflict physical harm; or (iii) uses or threatens the immediate use of force. |
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Term
| Unlawful restraint (Ohio) |
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Definition
In Ohio, unlawful restraint is the unlawful confinement of a person without consent.
Confinement can occur by actually forcing or threatening to force a person to go where she does not want to go. |
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Term
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Definition
| A person commits felonious assault when he knowingly causes serious physical harm to another by means of a deadly weapon. |
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Term
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Definition
| Murder occurs when a person purposely causes another’s death or causes another’s death as a proximate result of committing or attempting to commit a violent 1st or 2nd degree felony. A person acts purposely if he acts with the specific intent to cause a certain result. |
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Term
| Voluntary manslaughter (Ohio) |
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Definition
| In Ohio, voluntary manslaughter occurs if one (i) knowingly causes the death of another, (ii) is under the influence of sudden passion or in a sudden fit of rage, (iii) the provocation is serious and brought on by the victim, and (iv) that provocation is reasonably sufficient to incite the use of deadly force. |
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Term
| Requirements of a plea of not guilty by reason of insanity |
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Definition
| A plea of not guilty by reason of insanity must be made in writing by the defendant or his counsel, and if it is not pleaded properly, the defendant may be denied the opportunity to have the defense considered. A defendant who does not plead not guilty by reason of insanity is conclusively presumed to have been sane at the time he committed the charged offense. |
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Term
| Assignable rights and interests in Partnerships |
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Definition
Under Ohio partnership law, profits and financial interests in partnerships are assignable and can be inherited, just like stock in a corporation. The profit interests in a partnership are a financial asset.
However, management rights in the partnership are not assignable. One cannot become a partner without unanimous consent of other partners. |
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Term
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Definition
| Partnership property belongs to the partnership, not partners as individuals. Whether it is partnership property is determined by several factors: who provided funds for the property; in whose name the property is titled; who pays for maintenance, repair and insurance; and how the property is used. |
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Term
| Motion for judgment non-withstanding the verdict (timing) (Ohio) |
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Definition
| A party has not later than 14 days after entry of judgment to move to have the verdict and any judgment entered set aside and have judgment entered in accordance with the motion. |
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Term
| Motion for judgment non-withstanding the verdict (requirements) (Ohio) |
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Definition
| A motion for JNOV will be granted if the judge decides no reasonable jury could have come to the conclusion that the jury in question did |
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Term
| Motion for a new trial (requirements) |
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Definition
| A motion for a new trial will be granted based on (1) an error at trial, (2) new evidence (that could have been discovered in time for trial for due diligence), (3) improper conduct by the jury, or (4) a verdict against the weight of the evidence. |
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Term
| Motion for a new trial (timing) |
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Definition
| A motion for new trial under Rule 59 must be brought within 28 days after judgment is entered |
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Term
| Motion for relief from judgment (timing) (Ohio) |
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Definition
| Such a motion must be made within a reasonable time after the entry of judgment and under most circumstances within a maximum of one year. |
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Term
| Motion for relief from judgment (requirements, Ohio) |
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Definition
| Usually new evidence, can also be granted for mistake, surprise, and excusable neglect |
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Term
| Request for jury trial in a Civil Case (timing) |
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Definition
| Any request for jury trial must be made within 14 days after the last response/answer is required. |
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Term
| Motion for a directed verdict (timing) |
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Definition
| A directed verdict may be requested (1) at the end of opening statement, (2) at the end of the plaintiff's case by the defendant, or (3) by either party at the end of the presentation of evidence. |
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