Adaptibar and Essay Rules Flashcards
Joinder - necessary
A party is necessary (1) if the court cannot award complete relief without the party, (2) if the party’s interests may be harmed, (3) a resolution will subject a party to a risk of multiple obligations.
Joinder - indespensible
consider
- availability of an alternate forum
- extent of likely harm
- whether the court can shape relief to avoid the harm
Joinder and Supplemental Jurisdiction
Can only add absentee if PJ over absentee and there is SMJ over the claim or against the absentee
If solely based on diversity and absentee destroys diversity - not smj
Transfer of venue
if proper, can transfer to another proper or to one where you consent
if improper, can only transfer to proper
Rule 26f conference
At a Rule 26(f) conference, the parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, and a discovery plan. The parties then must submit a proposed discovery plan to the court, and the plan must address the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required of the court.
Granting a writ of mandaumus
Command a trial judge to act
1) an appeal would be insufficient to correct the problem
2) the trial court’s actions constitute a serious abuse of power in need of immediate rectification
Notice for covenants
While it is generally true that the owner of the burdened land must have notice, it should be remembered that the requirement is a function of the recording statute. (At common law, the covenant was enforceable in an action for damages regardless of notice; this was changed by the recording statutes.) However, because the daughter is a donee (an heir) and not a bona fide purchaser, she is not protected by the recording statute and thus is subject to the covenant even without notice.
Writ of ejectment question - jury trial
7th amendment provides that in suits at common law, right to trial by jury guaranteed.
Fair housing act
prohibits advertisements that indicate any preference, limitation, or discrimination based on race, color, religion, sex, disability, familial status, or national origin. This restriction applies even when the dwelling itself is otherwise exempt from the other provisions of the Act. Here, advertising for no children constitutes discrimination based on familial status, which is prohibited by the Act. Though this dwelling is a single-family home rented by an owner who owns no more than three single-family homes, this exemption does not apply to advertising. (A) is incorrect because, as discussed above, the landlord’s advertisement violated the Act. (C) is incorrect because the Act does not apply to single-family homes rented by an owner who owns no more than three single-family homes, which is the case here. As explained, though, this exemption does not apply to advertising. Thus, the Act does not prohibit the landlord from refusing to lease the unit even though it prohibits the advertisement. (D) is incorrect because, as explained above, only the landlord’s ad violated the Act.
Merger for easements
A life tenancy does not create a merger
Section 14 14th amendment
enabling clause
gives congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14th amendment.
may no expand rights or create new once, only can enact laws to prevent or remedy violations of rights already recognized
law must be congruent and proportional to solving the violations
Employment contact essential term
salary
legal impossibility v factual
legal is a defense for attempt, factual is not
Legal impossibility means that the defendant believes what he or she is attempting to do is illegal, when it is not. Factual impossibility means that the defendant could not complete the crime attempted because the facts are not as he or she believes them to be.
Title insurance
insures good record title of the property exists as of the policy date and promises to defend the record title if litigated
owner’s policy
-protects the person who owns the policy- owner of property and their successors and hairs and devises
does not run with the land to subsequent purchases
lender’s policy
-follows assignment of mortgage loan
Congress power to remove officials
Congress has the power to remove certain types of federal
officials, such as those serving as members of the governing bodies of regulatory agencies and inferior officers in
agencies where the head of the agency may be removed by the President at will. However, under the separation of
powers doctrine, Congress may not play any role in the removal of a presidential appointee.
Time is of the essence
Time may be made of the essence later if there is a reasonable time between the
notice and the new date. Since time was made “of the essence” and the buyer acknowledged the time as reasonable,
the buyer’s failure to close on the rescheduled closing date resulted in a breach of contract.
Restrictive covenant and title
makes title unmarketable unless excepted in the contract
Automatic perfection of small scale account
auto perfection in case of si in a small scale assignment of an account or payment intangible
account does not alone, or in conjunction with other assignment to the same assignee, transfer a significant party of the assignor’s outstanding accounts or payment intangibles to creditor
Alienage
An alien admitted for permanent reside in the us shall be deemed a citizen of the state in which the alien is domiciled
Business judgment rule
(a) Absent fraud, illegality, or self-dealing, the business judgment rule presumes that, when making business decisions, directors act on an informed basis, in good faith, and in the company’s best interests
Preclusion choice of law
Generally speaking, when dealing with the preclusive effect of a judgment, the recognizing court should not give a judgment any greater effect than the rendering state would. (When “case one” has been decided in state court, the court in case two generally will apply the claim or issue preclusion of the jurisdiction that decided case one.) Here, the rendering state, State A, does not recognize nonmutual collateral estoppel, so a federal court sitting in State B should not give the judgment issue preclusive effect. (B) is incorrect. As stated above, the law of the rendering state generally determines the preclusive effect of the judgment. (C) is incorrect for a similar reason. The fact that federal law may permit nonmutual issue preclusion is irrelevant. The law of the rendering state generally controls the preclusive effect of the judgment. (D) is incorrect. The listed factors are used to determine whether a court may apply issue preclusion, but they do not address whether nonmutual issue preclusion is applicable.
Nonparent custody and vistiation
Custody
- decision does not rest solely on best interest of the child
- parent has constitutional right to raise- if not volutnaryily relniquieshed entitled to custody
unless non parent shows unfit or harm to child
- if abandon, negligt, abuse, may find bio lost right to rear child
Visitation
- fit parent wishes protected and given special weight- may not override decisions merely because best interest of child
Confrontation clause
testimonial
- primary purpose to prove or establish past events relevant to a later crim prosecution
- against accued in crim case
- unavailable for cross
- no propr opportunity to corss
- testimonial
enabiling clause section 5 14th a
Section 5 is the enabiling clause - allos congress to enact legislation to enforce the rights people have under the 14th amendment. It can only enforce rights they already have - cannot expand or grant new rights. The law must be proportional and congruent to solve the violation
Interlocutory appeal
Multiple claims
- not just reason for delay
Interlocutory appeals act
- judge certifies as a controlling question of law
- substantial grounds for differing opinions
- COA agrees to ehar it
Collateral order doctrine
- issue distinct from mertis of case
-involves an important legal question
- essentially unreviewable after final judgmnet -delay in appeal precludes losing party from opprtunity to vindicate its rights on appeal
Chartiable trust
must have charitable purpose
eduction, environmental causes, relief from poverty, religious organizations
Partnership authority
Actual
- implied - carry out their ordinary duties
- extraordinary - unanimous vote
- ordinary course - majority vote
apparent
- ordinary court of business or business in kind
