ESSAYS Flashcards
Civ Pro: Personal Jurisdiction
I. PERSONAL JURISDICTION
A. TRADITIONAL BASES
B. LONG ARM STATUTE
C. CONSTITUTIONAL DUE PROCESS
- GENERAL JX
- SPECIFIC JX & PURPOSEFUL AVAILMENT
- FAIRNESS
D. SERVICE
E. CONCLUSION
LOOK AT THE TYPES OF MOTIONS, THEIR BASES, AND WHETHER EVERYTHING WAS SATISFIED.
I.E., REMOVAL REQUIREMENTS
Civ Pro: Removal
II. REMOVAL
A. TIMING
B. DEFENDANT MEMBER OF STATE
C. DEFENDANTS JOIN IN REMOVAL
D. ABLE TO BE BROUGHT ORIGINALLY
Con Law: First Amendment
I. STANDING
II. STATE ACTION
III. ELEVENTH AMENDMENT
IV. FIRST AMENDMENT GENERALLY
A. PRIOR RESTRAINT
B. OVERBROAD
C. VAGUE
D. UNFETTERED DISCRETION
V. FREE SPEECH SUPPRESSION
A. CONTENT REGULATION
Exceptions: incitement, obscenity, commercial
B. CONTENT NEUTRAL
- TIME, PLACE, AND MANNER
i. PUBLIC FORUMS
ii. LIMITED AND NONPUBLIC
iii. SYMBOLIC SPEECH
VI. FREEDOM OF ASSOCIATION
VII. FREEDOM OF RELIGION
A. ESTABLISHMENT CLAUSE
- SECULAR PURPOSE
- DOES NOT PROMOTE OR DISCRIMINATE
- NO OVER ENTANGLEMENT
B. FREE EXERCISE
- REGLIGIOUS BELIEF
- RELIGIOUS CONDUCT
Con Law: Due Process
I. STANDING
II. STATE ACTION
III. ELEVENTH AMENDMENT
IV. PROCEDURAL DUE PROCESS
A. THREATENED INTEREST PROTECTED
- PROPERTY
- LIBERTY
B. PROCESS DUE PLAINTIFF
- PRIVATE INTEREST
- VALUE OF SAFEGUARD
- GOVERNMENT EFFICIENCY
V. SUBSTANTIVE DUE PROCESS
- FUNDAMENTAL RIGHT
A. STRICT SCRUTINY
- NO FUNDAMENTAL RIGHT
A. RATIONAL BASIS
Evidence: Witness Testimony
I. INDIVIDUAL WITNESS NAME
A. RELEVANCE
- LOGICAL
- LEGAL
B. CHARACTER EVIDENCE?
C. COMPETENCY
D. PERSONAL KNOWLEDGE
E. AUTHENTICATION OF DOC OR VOICE
F. HEARSAY
- NOT OFFERED FOR TRUTH
- OFFERED FOR TRUTH
- EXCEPTIONS
G. PRIVILEGES
Professional Responsibility: Intro
I. FORMATION
II. SCOPE
Client controls the objectives, attorney controls the means. Attorney may only limit the relationship if reasonable and with informed, express consent.
Professional Responsibility: Conflict of Interest
I. DUTY OF LOYALTY
Lawyer must act in the client’s best interest and avoid conflicts.
A. POTENTIAL CONFLICT OF INTEREST
Under the ABA, if the lawyer suspects that there may be a potential conflict of interest between concurrent clients, he needs to monitor the relationship for a conflict, but does not need to require written consent. However, in CA, the lawyer must obtain consent if there is a potential conflict between present or former clients through his firm or his relationships.
B. ACTUAL CONFLICT OF INTEREST
Under the ABA, a lawyer is precluded from engaging in an actual conflict of interest, as a violation of the duty of loyalty. A lawyer must not represent a client if the representation is 1) directly adverse to another client, or 2) materially limited by responsibilities to another client, a third party, or the lawyer’s own interests.
- CONFLICT 1
- CONFLICT 2
- REPRESENTATION DESPITE CONFLICTS
The attorney may cure a conflict if all of the following are met: 1) written, informed consent, 2) the attorney’s reasonable belief that he can represent all interests without materially limiting the relationship, 3) the clients are not actually adverse, and 4) the representation does not violate the law or another ethics rule.
Types of conflicts:
- Business transaction with a client; pecuniary interest adverse
- Proprietary interest in case (except fees)
- Financial assistance and loans
- Limiting malpractice liability
- These are cured if client has chance to be rep’d by outside counsel
Professional Responsibility: Fees
I. AMOUNT OF FEES
ABA: reasonable
CA: cannot be unconscionable or illegal
II. FEE AGREEMENTS
A. CONTINGENCY FEES
B. ALL OTHER FEES
- CALIFORNIA
C. SHARED FEES
Remedies: Injunctions
I. TRO
A. IRREPARABLE HARM
- INADEQUATE LEGAL REMEDY
- FEASIBLE ENFORCEMENT
- PRESERVATION OF STATUS QUO
B. LIKELIHOOD OF SUCCESS
C. FORMALITIES
II. PRELIMINARY INJUNCTION
A. IRREPARABLE HARM
- INADEQUATE LEGAL REMEDY
- FEASIBLE ENFORCEMENT
- PRESERVATION OF STATUS QUO
B. BALANCE OF THE HARMS
C. LIKELIHOOD OF SUCCESS
D. FORMALITIES
Remedies: Specific Performance
I. SPECIFIC PERFORMANCE
A. VALID CONTRACT WITH DEFINITE TERMS
B. INADEQUATE LEGAL REMEDY
C. FEASIBLE ENFORCEMENT
D. PERFORMANCE MUTUALITY
E. BUT FOR THE BREACH
F. NO UNFAIRNESS
Defenses, hardship, mistake, misrep, inadequate consideration, unconscionable
Con Law: Equal Protection
I. EQUAL PROTECTION
A. STATE ACTION
B. FUNDAMENTAL RIGHT
- STRICT SCRUTINY
C. SUSPECT CLASS
- DISCRIMINATORY INTENT
- STRICT SCRUTINY
- RATIONAL BASIS
D. QUASI-SUSPECT CLASS
- DISCRIMINATORY INTENT
- INTERMEDIATE SCRUTINY
- RATIONAL BASIS
Con Law: Sue Gov’t Officers
I. FEDERAL SOVEREIGN IMMUNITY
A. OFFICIAL CAPACITY
1) Official, 2) acting with state authority = no monetary damages.
Injunctive relief OK 1) for violation of a federal law (per Ex Parte Young) if 2) there is intent to create a private right.
Unless there is an express, federal remedial scheme. (But see, FTCA insufficient for 8th Amendment)
B. OFFICIALS AS INDIVIDUALS
May be sued when they violate a constitutionally protected interest, unless Congress has otherwise provided for a remedy.
C. IMMUNITIES
A. ABSOLUTE
Executive officials in official capacity.
B. QUALIFIED
Injunctive relief for discretionary functions. Damages only if clearly established right they should have been on notice of.
II. STATE SOVEREIGN IMMUNITY
A. 11TH AMENDMENT
- NO ARTICLE 1 POWERS
- SPENDING CLAUSE
- § 5 OF 14TH AMENDMENT
i. CLEAR STATEMENT
ii. CONGRUENT AND PROPORTIONAL
Must meet means and ends. Identify conduct transgressing 14th amendment substantive right.
- INJUNCTIVE RELIEF
i. IMMUNITIES - DAMAGES
i. IMMUNITIES
Crim Pro: Fourth Amendment
I. SEARCH OF PERSON
A. STATE ACTION
B. SEARCH
Search occurs when state action violates a reasonable privacy expectation.
C. UNREASONABLE
Unreasonable if executed in the absence of probable cause or a warrant. Exceptions:
- STOP & FRISK
- VEHICLE CHECKPOINT
D. PROBABLE CAUSE OR WARRANT?
E. CONCLUSION
II. SEIZURE OF PERSON OR PROPERTY
A. STATE ACTION
B. SEIZURE
A seizure happens when a reasonable person believes she is not free to terminate an encounter or the state exercises control over the property the person has control over.
C. STANDING
1) Defendant’s own rights must be violated, 2) defendant must show ownership of, or possessory interest in, the items seized, and 3) defendant must have a legitimate privacy expectation in the physical area searched.
D. WARRANT
Warrant must be: 1) issued by neutral, detached magistrate, 2) based on probable cause, and 3) state with particularity all of the places to be searched and items to be seized.
E. WARRANT EXCEPTIONS
- INCIDENT TO ARREST
i. AUTOMOBILE
Accused is not secured; anything within reach. Otherwise may search for instrumentality of crime in car (excluding trunk).
- AUTOMOBILE EXCEPTION
Probable cause, may search anywhere.
- ETC
III. EXCLUSIONARY RULE
Civ Pro: Venue
I. VENUE
A. ANY DEFENDANT RESIDES, ALL IN SAME STATE
- PERSON
- CORPORATION
Subject to personal jurisdiction.
B. SUBSTANTIAL PART OF EVENTS OR OMISSIONS
C. ANY DEFENDANT SUBJECT TO PERSONAL JX
II. VENUE CHANGE
A. ORIGINAL PROPER
- CONVENIENCE OF PARTIES
- INTERST OF JUSTICE
- OTHER DISTRICTS WHERE MATTER MAY HAVE BEEN BROUGHT
- CONCLUSION
B. ORIGINAL IMPROPER
- OTHER DISTRICTS PROPER
- CONCLUSION
Civ Pro: Joinder
I. COMPULSORY JOINDER
A. SERVICE OF PROCESS
B. SUBJECT MATTER JURISDICTION
C. VENUE
D. NECESSARY PARTY
- COMPLETE RELIEF
- DISPOSITION IMPAIR INTEREST
- MULTIPLE OR INCONSISTENT OBLIGATIONS
E. CAPABLE OF JOINING
- JUDGMENT IN ABSENCE PREJUDICE
- PREJUDICE CAN BE REDUCED
- JUDGMENT IN ABSENCE ADEQUATE
- PLAINTIFF DEPRIVED ADEQUARE REMEDY
II. PERMISSIVE JOINDER
III. INTERVENTION
