Bar Exam Review Flashcards

A complete set of vocabulary flashcards covering key legal concepts, rules, and terminology for Bar Exam preparation across Civil Procedure, Constitutional Law, Contracts, Criminal Law, Evidence, Real Property, and Torts.

Personal jurisdiction

About fairness to defendant. A court's power to require a defendant to appear. Based on consent, presence, or domicile.

General jurisdiction

Plaintiff can sue defendant for anything generally. Requires continuous and systematic contacts with the state, presence when served, or domicile.

Domicile

A person is domiciled in the state that is their permanent home where they intend to stay indefinitely.

Specific jurisdiction

The lawsuit must arise out of the defendant's specific contacts with the state. Must be both constitutional under the state constitution and under the Due Process Clause.

Federal-question jurisdiction

Subject-matter jurisdiction based on a federal issue arising on the face of the well-pleaded complaint.

Diversity jurisdiction

Complete diversity must exist at the time the case is filed and amount in controversy must exceed $75\,0$.

Supplemental jurisdiction

State claims may be brought in federal court if they arise from a common nucleus of operative fact.

Removal

A defendant may remove a case within $30\text{ days}$ of notice that it is removable. Cannot remove on diversity grounds if any defendant is domiciled in the state where suit was filed.

Venue

Proper where any defendant resides if all defendants reside in the same state, or where a substantial part of the events giving rise to the claim occurred.

Transfer to proper venue

Occurs if the case is filed in the wrong venue. Law of the transferee court applies.

Transfer to more appropriate forum

Occurs when there is a more convenient forum. Federal court may transfer in the interests of justice. Law of transferor court applies.

Forum non conveniens

If a case should be litigated in a different forum (e.g., different country), a court may dismiss the case.

Service of process

Plaintiff must serve defendant with a summons and copy of the complaint. Process server must be at least $18\text{ years}$ old and not a party to the case.

Waiver of service

Plaintiff may ask defendant to waive formal service. If waived, defendant has $60\text{ days}$ to answer (rather than $21$). If refused, defendant must pay costs of formal service.

Complaint and answer

Complaint must be served within $90\text{ days}$ of filing. Response must be served within $21\text{ days}$ (or $60$ if formal process was waived).

Joinder of claims

Once a party has one properly filed claim, it can bring all claims if the court has jurisdiction. Applies to plaintiff's claims and defendant's counterclaims or cross-claims.

Compulsory counterclaim

Defendant must bring a counterclaim if it arises out of the same transaction or occurrence; defendant loses the right to bring it later if not asserted.

Cross-claim

A claim asserted by one party against a co-party. Must arise out of the same transaction or occurrence as the initial claim. Not compulsory.

Intervention

A movant may intervene as of right if: (1) it has an interest in the property or transaction, (2) disposition may impair that interest, and (3) the interest is not adequately represented by existing parties.

Interpleader

A person subject to conflicting claims (usually an insurance company) may file as plaintiff and join all claimants to avoid the possibility of double liability.

Class action

Requirements include commonality, adequacy, numerosity, typicality, and with common question suits, superiority and that common questions predominate.

CAFA

Class Action Fairness Act. Allows federal court jurisdiction over class actions if there are $100+$ members seeking over $5\text{ million}$ with minimal diversity.

Temporary restraining order (TRO)

A stopgap measure that should not last longer than $14\text{ days}$ unless good cause is shown. Notice to the other party is not needed.

Preliminary injunction

Equitable relief with the object of preserving the status quo. Notice must be given to the adverse party.

Work product doctrine

Work product (prepared in anticipation of litigation) is not discoverable unless there is a substantial need and undue hardship. Attorney's mental impressions are never discoverable.

26(f) conference

Where initial disclosures (DISS: damages, insurance agreements, identity of supporting witnesses, supporting documents) are made and a discovery plan is outlined.

Rule 11 sanctions

Made if an improper paper is presented to the court. A party moving for sanctions must give the other party $21\text{ days}$ to withdraw the offending paper before filing the motion.

Erie doctrine

A federal court sitting in diversity must apply state substantive law and federal procedural law. Generally state law applies to substantive issues.

Klaxon doctrine

A federal court sitting in diversity must apply the choice of law approach prevailing in the state where it sits.

Directed verdict (JMOL)

Given if there is no substantial evidence to support a verdict for the non-moving party. The moving party must show there is no genuine issue of material fact.

Renewed JMOL

Under federal law, the party must have already made a JMOL motion at some point. Party is renewing it when the evidence is insufficient as a matter of law. Within $28\text{ days}$ of jury verdict.

New trial motion

Granted if there were errors in the trial that tainted the jury's decision-making or if the jury's decision was against the great weight of evidence. Within $28\text{ days}$ of jury verdict.

Relief from judgment

If there are circumstances like mistake, fraud, or new evidence that could not have been discovered, the court may grant relief. Generally within $1\text{ year}$.

Motion for summary judgment

Question is whether there is a genuine issue of material fact. Moving party must show no genuine issue; burden shifts to non-moving party to show one exists.

Res judicata (claim preclusion)

Requires: same claim (transaction/occurrence test), same parties or those in privity, final judgment, and on the merits.

Collateral estoppel (issue preclusion)

Requires: same issue (exactly), actually litigated, actually decided at trial, and necessary to the court's judgment.

Nonmutual collateral estoppel

Offensive: a new plaintiff uses issue preclusion as a sword. Defensive: a new defendant uses issue preclusion as a shield. Federal law allows offensive nonmutual collateral estoppel.

Full Faith and Credit Clause

Requires that judgments from state courts be given the same effect in any other court that they would be given in the state where they were handed down.

Two-dismissal rule

If a plaintiff voluntarily dismisses a case twice, the second dismissal is with prejudice and plaintiff cannot refile the lawsuit.

Standing

An individual needs an injury in fact, causation, and redressability to file a lawsuit. The case must be ripe and cannot be moot.

Organizational standing

Must show: a member has standing, the injury is related to the organization's purpose, and individual members are not required to participate in the lawsuit.

Adequate and independent state grounds

The Supreme Court can review state court decisions on federal issues. If the state case rests on two grounds (state and federal), and reversing the federal ground wouldn't change the outcome, the Supreme Court cannot hear the case.

Political question doctrine

Federal courts will not hear political questions (those given to another branch). Examples: republican form of government challenges, military or foreign affairs decisions, impeachment.

Eleventh Amendment

A private individual cannot sue a state for money damages in federal court.

Necessary and proper power

Congress may enact legislation that is congruent and proportional to the Thirteenth/Fourteenth/Fifteenth Amendments. Must be combined with another power.

Commerce power

Congress can regulate anything economic and anything noneconomic that substantially affects interstate commerce. Very broad power.

Taxing and spending power

Congress may tax and spend for the general welfare. Cannot tax as a penalty for the general welfare.

War and defense power

Congress has the power to declare war.

Veto power

The President can veto a law but this can be overridden by a $\frac{2}{3}$ majority vote by Congress. A line item veto is not permitted.

Appointment and removal power

The President appoints federal judges, ambassadors, and principal officers with Senate advice and consent. May remove executive officials without cause unless Congress limits removal for good cause.

Presidential immunity

The President is absolutely immune from civil suits for damages for any official acts (but not purely personal or pre-presidential acts).

War power (President)

The President can respond to attacks or emergency situations. The President cannot declare war.

Legislative veto

Unconstitutional. Occurs when Congress tries to overturn action by the executive branch without bicameralism and presentment.

Supremacy Clause

Federal law is supreme and prevails over state law. States may not pass laws that conflict with federal law, that interfere with a federal objective, or in areas where Congress intends to occupy the field.

Federal immunity from state law

A state cannot regulate or tax the federal government. However a state may tax federal employees the same as they tax everyone else.

Tenth Amendment

Any powers not given to the federal government are given to the states. The federal government cannot compel states to enforce federal statutes.

Dormant Commerce Clause

States may not discriminate against interstate commerce. Two kinds: (1) laws that expressly discriminate (automatically struck down), and (2) non-discriminatory laws that incidentally burden commerce (must serve a compelling state interest with no reasonable non-discriminatory alternative).

Article IV Privileges and Immunities Clause

States may not discriminate against out-of-state citizens with respect to fundamental rights unless there is a substantial justification and no less restrictive means. Employment is a fundamental right for this purpose.

Fourteenth Amendment Privileges or Immunities Clause

States are not allowed to pass laws that would restrict access to vital governmental services to newcomers because such laws would interfere with a citizen's fundamental right to travel state to state.

Content-based restriction

A restriction on speech based on its content. Strict scrutiny applies.

Viewpoint-based restriction

A restriction based on the speaker's viewpoint. Strict scrutiny applies and is usually struck down.

Time place manner restriction

Content-neutral restriction. Different tests apply depending on whether it is a public or private forum.

Public forum

Traditional public forums (streets/sidewalks/parks): regulation must be content-neutral and narrowly tailored and leave open alternative channels of communication.

Prior restraint

Government preventing speech before it is communicated. Strict scrutiny applies. The law is usually struck down.

Overbreadth

A law is unconstitutional on its face if it prohibits substantially more expression than is necessary.

Vagueness

A statute is vague and unconstitutional on its face if a reasonable person could not tell what speech is prohibited and what speech is allowed.

Establishment Clause

A law must be neutral. The government must have a secular legislative purpose, the primary effect must not be to advance or inhibit religion, and it must not foster excessive government entanglement.

Free Exercise Clause

Beliefs are absolutely protected. The government may pass neutral laws of general applicability so long as its goal is not to burden or interfere with religion.

Procedural due process

The government may not intentionally deprive someone of life, liberty, or property without notice and an opportunity to be heard. Property includes public education and public employment that is not at-will.

Substantive due process (fundamental rights)

Strict scrutiny applies. The burden is on the government to show the law is necessary for a compelling interest. Fundamental rights include privacy rights (MCSOFA), right to vote, right to interstate travel, and right to refuse medical treatment.

Rational basis (due process)

Burden is on the plaintiff to show the law is not rationally related to a legitimate government interest. Applies to everything not a fundamental right.

Equal Protection – strict scrutiny

Burden is on the government to show the law is necessary for a compelling government interest. Applies to fundamental rights and suspect classifications (e.g. race and alienage in most cases).

Equal Protection – intermediate scrutiny

Burden is on the government to show the regulation is substantially related to an important government interest. Applies to gender and illegitimacy.

Equal Protection – rational basis

Burden is on the plaintiff to show the law is not rationally related to a legitimate government interest. Applies to age/education/wealth classifications. Plaintiff usually loses.

Takings Clause

The government may not take private property for public use without just compensation. A taking can be physical or regulatory. A regulatory taking deprives the owner of all economic value.

Contracts Clause

A state may not pass legislation that substantially impairs preexisting contracts unless the law serves an important and legitimate public interest and is reasonably and narrowly tailored to promoting that interest.

Ex post facto laws

Neither states nor the federal government may pass legislation that retroactively alters a criminal law in a substantially prejudicial manner for the purpose of punishing a person for some past activity.

Bill of attainder

Neither the state nor the federal government may pass legislation that specifically identifies people to be punished (civilly or criminally) and imposes punishment without a judicial trial.

State action requirement

Plaintiff must show state action when suing under the First/Fourteenth/Fifteenth Amendments. Present if the state passes a law, a private actor performs a traditional and exclusive government function, or if private action is closely controlled by the state.

UCC vs. Common Law

The UCC applies to transactions in goods. Common law applies to everything else (services). Courts look at the predominant purpose of the contract if unclear.

Offer

Creation requires intent to enter into a contract plus specific terms (price/quantity/identity of parties). Must be communicated to the offeree.

Firm offer

A firm offer by a merchant in a signed writing. Can be held open for a maximum of $3\text{ months}$.

Option contract

A promise to hold the offer plus consideration for that promise. Acceptance is effective upon receipt.

Lapse of time

An offer lapses after a reasonable time. One of the four ways to terminate an offer.

Revocation of offer

An offer can be revoked before acceptance unless it falls into one of the four categories: firm offer, option contract, unilateral contract (offeree begins performance), or reasonably foreseeable substantial reliance.

Rejection / counteroffer

Rejects the original offer (including a counteroffer) and creates a new offer. One of the four ways to terminate an offer.

Mailbox rule

Acceptance is effective when sent. Exceptions: option contracts (effective upon receipt) or if a rejection then acceptance is mailed (the one received first controls).

Mirror image rule (common law)

The acceptance must be the mirror image of the offer. Any deviation is a counteroffer.

UCC battle of the forms

An acceptance does not need to mirror the offer. Between merchants additional terms become part of the contract unless they materially alter it or the offeror objects within a reasonable time.

Consideration

Bargained-for exchange. Not consideration: a promise to make a gift, moral obligation, past consideration, or an illusory promise.

Promissory estoppel (reliance)

A substitute for consideration if there is a promise and foreseeable and justifiable reliance; enforcement will be granted as necessary to avoid injustice.

Modification – common law

Consideration is needed to modify a contract. Performance of a preexisting legal duty is not consideration unless it falls into an exception (e.g., unforeseen difficulty, good faith settlement of a disputed debt).

Modification – UCC

Only good faith is needed to modify a contract.

Express condition

Must be complied with exactly (e.g., I will buy it if I like it). Courts find that most conditions are constructive and substantial performance is enough.

Perfect tender rule (UCC)

Seller must provide perfect tender of the goods. If the seller does not and the buyer rejects, the seller only has an automatic right to cure if there is time left or if the seller reasonably believed the buyer would accept nonconforming goods.

Anticipatory repudiation

Occurs when a party unequivocally breaches before performance is due. The other party can immediately sue/suspend performance/treat the contract as discharged/or urge the other party to perform.

Frustration of purpose

The primary purpose of the contract known by both parties at the time of contracting is substantially frustrated by an unforeseeable event that occurred after the contract was entered into.

Impossibility

An event renders performance impossible after the contract was made, was not reasonably foreseeable, and was a basic assumption of the parties. Neither party is at fault and neither bears the risk.

Novation

A new party steps into the shoes of an existing party. One of the ways a duty can be discharged by agreement.

Rescission

The contract is undone. One of the ways a duty can be discharged by agreement.