Friday Deck

Question 1

Parties much make initial disclosures within ___ days of the Rule 26(f) conference.

Answer 1

Parties much make initial disclosures within 14 days of the Rule 26(f) conference.

Question 2

Under Rule 26(f), parties must confer __________________ to 1) consider the claims, possibility of settlement, initial disclosures, and a settlement plan, and 2) submit to the court a proposed discovery plan.

Answer 2

Under Rule 26(f), parties must confer as soon as is practicable to 1) consider the claims, possibility of settlement, initial disclosures, and a settlement plan, and 2) submit to the court a proposed discovery plan.

Question 3

A Rule 26(f) conference will result in a proposed discovery plan addressing 1) the ___________________of required disclosures, 2) the ____________ on which discovery may be needed, 3) the _____________ on discovery, and 4) the relevant ___________ that may be required by the court.

Answer 3

A Rule 26(f) conference will result in a proposed discovery plan addressing 1) the timing and form of required disclosures, 2) the subjects on which discovery may be needed, 3) the timing of and limitations on discovery, and 4) the relevant orders that may be required by the court.

Question 4

Res judicata is claim preclusion. Collateral estoppel is issue preclusion.

Answer 4

Res judicata is ____________ preclusion. Collateral estoppel is _____________ preclusion.

Question 5

To successfully bar a claim under res judicata, the party must show that 1) the original claim resulted in a ________________________, 2) the original and later-filed causes of action were ___________________________, and 3) there is _________________________ (i.e., the plaintiff and defendant are the _______, or ____________ exists between the parties in the new and original actions). A similar action by a new party that is not in privity with the original party is _____ barred under res judicata.

Answer 5

To successfully bar a claim under res judicata, the party must show that 1) the original claim resulted in a valid final judgment on the merits, 2) the original and later-filed causes of action were related to the same transaction or occurrence, and 3) there is mutuality of parties (i.e., the plaintiff and defendant are the same, or privity exists between the parties in the new and original actions). A similar action by a new party that is not in privity with the original party is not barred under res judicata.

Question 6

To successfully preclude re-litigation of issue of fact or law, the party must show that 1) the issue sought to be precluded is the _________ (i.e., same ________________), 2) the issue must have been __________________, 3) the issue must have been ______________________________, and 4) the determination of the issue must have been ________________________________.

Answer 6

To successfully preclude re-litigation of issue of fact or law, the party must show that 1) the issue sought to be precluded is the same (i.e., same facts and same applicable law), 2) the issue must have been actually litigated, 3) the issue must have been determined by a final judgment on the merits, and 4) the determination of the issue must have been essential in the original judgment.

Question 7

Congress may abrogate state immunity from liability if usually enjoys under the ____________ Amendment when Congress is clearly acting to enforce rights created by the remedial provisions of the ____________, _______________, and ______________ Amendments, and does so expressly.

Answer 7

Congress may abrogate state immunity from liability if usually enjoys under the Eleventh Amendment when Congress is clearly acting to enforce rights created by the remedial provisions of the Thirteenth, Fourteenth, and Fifteenth Amendments, and does so expressly.

Question 8

Congress ______ abrogate state sovereign immunity under the Commerce Clause.

Answer 8

Congress cannot abrogate state sovereign immunity under the Commerce Clause.

Question 9

Applicable to the states via the Fourteenth Amendment, the First Amendment generally prohibits the government’s ability to restrict speech. However, the government may regulate speech-related activities in nonpublic forums as long as the regulation is (i) _____________ and (ii) ____________________________.

Answer 9

Applicable to the states via the Fourteenth Amendment, the First Amendment generally prohibits the government’s ability to restrict speech. However, the government may regulate speech-related activities in nonpublic forums as long as the regulation is (i) viewpoint-neutral and (ii) reasonably related to a legitimate governmental interest.

Question 10

The government _____________ leave open ample alternative channels for communication if it is regulating speech in a nonpublic forum.

Answer 10

The government need not leave open ample alternative channels for communication if it is regulating speech in a nonpublic forum.

Question 11

A prosecutor _______ express opinions about a defendant’s guilt or innocence outside of court.

Answer 11

A prosecutor may not express opinions about a defendant’s guilt or innocence outside of court.

Question 12

A statement of the declarant’s then-existing state of mind is ______________ as hearsay. A statement of ______________, ___________, ___________, or ________ can be used to prove conduct in conformity with that state of mind.

Answer 12

A statement of the declarant’s then-existing state of mind is not excluded as hearsay. A statement of motive, intent, plan, or physical condition can be used to prove conduct in conformity with that state of mind.

Question 13

The doctrine of _____________ provides that once a deed has been delivered, the land sales contract ___________, and the deed ___________. Any obligations contained in the contract of sale _______ be enforced unless the deed contains the obligations. A buyer cannot recover under the land sales contract after the deed has been delivered.

Answer 13

The doctrine of merger provides that once a deed has been delivered, the land sales contract merges, and the deed controls. Any obligations contained in the contract of sale cannot be enforced unless the deed contains the obligations. A buyer cannot recover under the land sales contract after the deed has been delivered.

Question 14

Mistake of fact is a defense that shows the defendant lacked the ____________ required for the crime. If the charged offense is a ____________ intent crime, the mistake need not have been reasonable. For _________________ crimes, the mistake must have been reasonable. It is irrelevant in __________ crimes.

Answer 14

Mistake of fact is a defense that shows the defendant lacked the state of mind required for the crime. If the charged offense is a specific intent crime, the mistake need not have been reasonable. For malice and general intent crimes, the mistake must have been reasonable. It is irrelevant in strict liability crimes.

Question 15

The covenant of ___________ warrants that the deed describes the land in question and that the grantor is the rightful owner.

Answer 15

The covenant of seisin warrants that the deed describes the land in question and that the grantor is the rightful owner.

Question 16

The covenant of the __________________ warrants that the grantor has the right to convey the property.

Answer 16

The covenant of the right to convey warrants that the grantor has the right to convey the property.

Question 17

The covenant _____________________ warrants that there are no undisclosed encumbrances on the property that could limit its value (i.e., easements, mortgages, etc.)

Answer 17

The covenant against encumbrances warrants that there are no undisclosed encumbrances on the property that could limit its value (i.e., easements, mortgages, etc.)

Question 18

The covenant of ________________ promises that the grantor will defend against future challenges to the grantee’s title to the property.

Answer 18

The covenant of quiet enjoyment promises that the grantor will defend against future challenges to the grantee’s title to the property.

Question 19

The covenant of _______________ promises that the grantor will defend against future developments that extend into the grantee’s property boundary.

Answer 19

The covenant of warranty promises that the grantor will defend against future developments that extend into the grantee’s property boundary.

Question 20

The covenant of ________________ promises to do what is reasonably necessary to cure future problems with title.

Answer 20

The covenant of further assurances promises to do what is reasonably necessary to cure future problems with title.

Question 21

________________ is title that is free from an unreasonable risk of litigation. It is __________.

Answer 21

Marketable title is title that is free from an unreasonable risk of litigation. It is implied.

Question 22

A warning, to be effective, must be directed to anyone who could be foreseeably injured by the machine (e.g., an ordinary user), not just the owner of the machine.

Answer 22

A warning, to be effective, must be directed to ____________________ (e.g., an ordinary user), not just the __________ of the machine.

Question 23

When property to be searched is under the joint control of the defendant and a third party (e.g., a house jointly owned by a husband and wife), the authority of the third party to consent turns on whether the defendant is _________ at the time of the search. If the defendant is present at the time of the search, then the police _______ rely on third-party consent if the defendant objects to the search.

Answer 23

When property to be searched is under the joint control of the defendant and a third party (e.g., a house jointly owned by a husband and wife), the authority of the third party to consent turns on whether the defendant is present at the time of the search. If the defendant is present at the time of the search, then the police may not rely on third-party consent if the defendant objects to the search.

Question 24

Under the Model Penal Code, a defendant may be ____________, but not ______________________, more than one inchoate offense (i.e., solicitation, conspiracy, and attempt) based on conduct designed to culminate in the commission of the same crime.

Answer 24

Under the Model Penal Code, a defendant may be concurrently prosecuted for, but not convicted of, more than one inchoate offense (i.e., solicitation, conspiracy, and attempt) based on conduct designed to culminate in the commission of the same crime.

Question 25

If the offeree sends an acceptance and later sends a communication rejecting the offer, then the ____________________ even if the offeror receives the ________ first. If, however, the offeror receives the _________ first and __________________ on the rejection, then the offeree will be ____________ from enforcing the contract.

Answer 25

If the offeree sends an acceptance and later sends a communication rejecting the offer, then the acceptance will generally control even if the offeror receives the rejection first. If, however, the offeror receives the rejection first and detrimentally relies on the rejection, then the offeree will be estopped from enforcing the contract.

Question 26

In general, specific performance is _____ available as a remedy for breach of a contract when damages are __________________. Because the seller in a sale-of-goods contract typically receives money from the buyer in exchange for the goods, damages are generally an ___________ remedy for the seller.

Answer 26

In general, specific performance is not available as a remedy for breach of a contract when damages are an adequate remedy for the nonbreaching party. Because the seller in a sale-of-goods contract typically receives money from the buyer in exchange for the goods, damages are an adequate remedy for the seller

Question 27

Federal preemption may exist where a state law indirectly conflicts with federal law by ______________________.

Answer 27

Federal preemption may exist where a state law indirectly conflicts with federal law by creating an obstacle to or frustrating the accomplishment of that law’s purpose.

Question 28

There is a presumption that a federal law __________preempt state law unless ______________.

Answer 28

There is a presumption that a federal law does not preempt state law unless Congress expressly states otherwise.

Question 29

When state law creates a cause of action, a federal court can nonetheless exercise general federal-question jurisdiction if t______________________, and the outcome ____________ on resolving this federal issue, like an unlawfulness claim under state consumer protection law.

Answer 29

When state law creates a cause of action, a federal court can nonetheless exercise general federal-question jurisdiction if the complaint raises a real and substantial issue of federal law, and the outcome necessarily depends on resolving this federal issue, like an unlawfulness claim under state consumer protection law.