MBE IMMERSION Flashcards
CON LAW MBE APPROACH
- Identify what level of govt. is acting
- Determining if question is a “powers” or “rights” question
- Match appropriate power/ right to rule or test provided by the constitution
CON LAW QUESTIONS THAT TEST ON THE RELATIVE POWERS OF THE THREE (3) BRANCHES OF GOVERNMENT:
- Legislative powers of Congress
- President’s executive powers
- Federal court jurisdiction
CON LAW MBE QUESTIONS THAT TEST ON FEDERALISM:
- Supremacy Clause
- Dormant Commerce Clause
CON LAW MBE RIGHTS QUESTIONS:
QUESTIONS THAT TEST ON THE VARIOUS RIGHTS PROTECTED BY CONSTITUTION:
- Speech
- Religion
- Procedural DP
- EP of the laws
- Fundamental rights
THESE LIBERTIES ARE LIMITS ON FEDERAL AND STATE GOVERNMENTS
STANDING: Must Show
- INJURY IN FACT
- CAUSATION
- REDRESSABILITY
CON LAW MBE APPROACH
- Identify what level of government is acting
- Determining if question is a “powers” or “rights” question
- Match appropriate power/ right to rule or test provided by Constitution
CONGRESS’ COMMERCE POWER
(1) Channels of interstate commerce
(2) Instrumentalities of interstate commerce
(3) Any activity which has a substantial economic effect on interstate commerce.
INTRASTATE ACTIVITY:
ECONOMIC V. NONECONOMIC
- If intrastate activity is ECONOMIC in nature –> upheld if rational basis exists to conclude activity substantially affects interstate commerce
- If intrastate activity is non-economic in nature –> upheld if Congressional finding that activity substantially affects interstate commerce
DORMANT COMMERCE CLAUSE
STATE REGULATIONS ON INTERSTATE COMMERCE WILL BE UPHELD ONLY IF:
- Regulation is non-discriminatory
- Regulation does not unduly burden interstate commerce.
STATE ACTION
- Must be governmental conduct
- May apply to private conduct if state is significantly involved in the conduct of private party
WHERE NO STATE ACTION:
- Grant of a state license
- Grant of monopoly to utility company
- Grant of state land or funds.
EQUAL PROTECTION
- Applies when similarly situated people are being treated differently
- Determine what level of scrutiny to apply to the discrimination:
(1) Strict scrutiny
(2) Intermediate scrutiny
(3) Rational basis.
STRICT SCRUTINY APPLIES WHEN:
(1) Discrimination is based on suspect classification [R-A-N] :
- Race
- Alienage and
- National Origin
(2) Fundamental right is implicated:
- Right to vote
- Right to travel
- Right to privacy
STRICT SCRUTINY: TEST:
GOVERNMENT MUST SHOW:
(1) Law is necessary to achieve (i.e., no less restrictive means);
(2) Compelling government interest (i.e., necessary or crucial for society).
RIGHT TO PRIVACY
[“CAMPERS”]
- Contraception
- Abortion
- Marriage
- Procreation
- Education, private
- Relations, family
- Sexual relations
INTERMEDIATE SCRUTINY APPLIES WHEN:
(1) Discrimination is based on gender
(2) Discrimination is based on child being born to unwed parents.
INTERMEDIATE SCRUTINY TEST:
GOVERNMENT MUST SHOW:
- LAW IS SUBSTANTIALLY RELATED (i.e., close “fit” needed- not necessarily least restrictive means).
- IMPORTANT GOVERNMENT INTEREST
- Something less than compelling; something more than legitimate
- Gender discrimination– requires “exceedingly persuasive justification”
INTERMEDIATE SCRUTINY TEST:
GOVERNMENT MUST SHOW:
- LAW IS SUBSTANTIALLY RELATED (i.e., close “fit” needed- not necessarily least restrictive means).
- IMPORTANT GOVERNMENT INTEREST
- Something less than compelling; something more than legitimate
- Gender discrimination– requires “exceedingly persuasive justification”
RATIONAL BASIS APPLIES WHEN:
Neither strict scrutiny nor intermediate scrutiny apply
RATIONAL BASIS IS APPLIED IF DISCRIMINATION IS BASED ON:
- Age
- Poverty / wealth
- Mental incapacity
- Necessities for life
RATIONAL BASIS: TEST:
PLAINTIFF MUST SHOW:
- Law is not rationally related
- To any legitimate government interest
WHICH TEST APPLIES RE: STATE DISCRIMINATION AGAINST ALIENS?
- APPLY STRICT SCRUTINY
- EXCEPTION: Discrimination concerning self-government (e.x., police, teachers, serving on a jury).
WHICH TEST APPLIES RE: FEDERAL DISCRIMINATION AGAINST LEGAL OR ILLEGAL ALIENS:
APPLY RATIONAL BASIS TEST
1ST AMENDMENT QUESTION APPROACH:
(1. ) Consider facial attack on statute:
- Overbreadth
- Vagueness
- Prior restraints
(2. ) Determine if statute is regulating content of speech/ expression or conduct of speech/ expression
- If content –> apply strict scrutiny
- If conduct –> apply time, place, and manner test.
TIME, PLACE & MANNER TEST:
PUBLIC FORUMS/ DESIGNATED PUBLIC FORUMS
REGULATION MUST:
1. Further important governmental interest
- Be narrowly tailored
- Leave open alternative channels of communication
TIME, PLACE & MANNER TEST:
NONPUBLIC FORUMS/ LIMITED PUBLIC FORMS
REGULATION MUST:
- Be viewpoint neutral
- Be reasonably related to legitimate government purpose.
CATEGORIES OF UNPROTECTED SPEECH:
- Speech advocating imminent lawlessness
- Fighting words
- Obscenity
- Child pornography
- False/ deceptive advertising
- Defamation
2 CIVIL PROCEDURES CATEGORIES:
(1) JURISDICTION
(2) PROCEDURE
CATEGORY 1 CIV PRO QUESTIONS:
JURISDICTION
PERSONAL JX: Can the plaintiff sue the defendant(s) in this state?
SUBJECT MATTER JX: Does the federal court have power to hear this type of case?
- Federal question cases
- Diversity cases
VENUE: Which federal court may hear the case?
CATEGORY 2 CIV PRO QUESTIONS:
PROCEDURE
RULES THAT DETERMINE WHEN, WHERE AND HOW CERTAIN LITIGATION TOOLS SHOULD BE USED:
- Service of process
- Motions
- Discovery
- Trial
- Appeals
CIVIL PROCEDURE ON THE MBE:
- 25 questions
- 18 questions on 3 areas:
(i) Personal and subject matter Jx
(ii) Pretrial procedures
(iii) Motions
SUBJECT MATTER JX
a. Diversity
b. Federal question
DIVERSITY JX
- Complete Diversity: EACH plaintiff must be a citizen of a different state than EVERY defendant.
- Amount in Controversy:
> $75,000
Plaintiff may aggregate all of his claims against a single D.
FEDERAL QUESTIONS JX
- Arising under the Constitution, laws or treatises of the United States
- Existence of federal question must appear in complaint as part of plaintiff’s well-pleaded cause of action.
SUPPLEMENTAL JX: FEDERAL QUESTION CASES
Where plaintiff has both federal question and state law claims– the court has discretion to exercise “supplemental Jx” over state law claim if:
- The “supplemental” claim arises from a common nucleus of operative fact as the federal question claim
- The claims ordinarily would be tried in one proceeding
PERSONAL JX MUST BE:
(A) Statutorily authorized
(B) Constitutional
PERSONAL JX: STATUTORILY AUTHORIZED
- Presence at the time of service
- Domicile
- Consent
- Long arm statute
- Need notice too.
PERSONAL JX: CONSTITUTIONAL REQUIREMENTS
- Contacts
- Relatedness
- Fairness
PERSONAL JX: CONTACTS
“There must be sufficient minimum contacts between the defendant and the forum state such that Jx is fair and reasonable”
- Purposeful availment
- Forseeability
PERSONAL JX:
RELATEDNESS
Plaintiff’s claim must be related to defendant’s contacts w/ the forum state.
SPECIFIC JX: Current cause of action only —> long arm statute
GENERAL JX: All causes of action –> domicile or “essentially at home”
PERSONAL JX: FAIRNESS
Must not offend “traditional notions of fair play and substantial justice”
FRCP
- Drafted by SCOTUS
- Authorized by Rules Enabling Act: allows federal civil procedure rules to supersede state law in federal court on procedural matters.
ERIE DOCTRINE
In a diversity action:
- Federal procedural law applies
- State substantive law applies
ERIE DOCTRINE CONFLICT APPROACH;
Is there a federal rule or directive on point which is “arguably procedural”?
- If so, apply federal law.
- If not, apply federal law for procedural matters & state law for substantive matters.
ERIE DOCTRINE: CONFLICT RESOLUTION
3 SCOTUS TESTS:
- Outcome determinative: Does it substantially affect outcome?
- Balance of interest test: Does state have greater interest?
- Forum shopping deterrence: Increase litigation in federal court?
AREAS THAT ARE DEEMED SUBSTANTIVE [RE: ERIE DOCTRINE[
- SOL
- Rules for tolling SOL
- Choice of law rules
- Elements of claim or defense.
TEST FOR IMPLEADER
Defendant may implead TPD only if TPD is or may be liable for all or part of D’s liability to P.
TEST STRATEGY FOR JOINDER ISSUES:
FOCUS ON:
- Do the Federal Rules permit joinder?
- Is there SMJ over the claims and/or added claims?
ENTRY OF DEFAULT
Notation in that case file by clerk that answer was not timely filed:
- Entry of default cuts off defendant’s right to contest liability unless defendant has default set aside.
- After default, plaintiff must still obtain a judgment. Defendant can still contest damages at default hearing.
CLERK MAY ENTER DEFAULT JUDGMENT WHEN:
1) The amount in dispute is for a sum certain
2) The defendant has NOT appeared
An appearance means any formal appearance or any action by the defendant indicating that he intends to contest the merits.
If defendant appears, notice must be given.
3 PRIMARY TORTS CAUSES OF ACTION:
(1) INTENTIONAL TORTS: Defendant intends to do act that causes P injury.
(2) NEGLIGENCE: Defendant accidentally causes plaintiff injury by acting unreasonably.
(3) STRICT LIABILITY: Defendant causes plaintiff injury without any fault on defendant’s part.
3 STEP APPROACH FOR IDENTIFYING CAUSE OF ACTION:
1) Do the facts support an intentional tort cause of action?
2) Do the facts support strict liability cause of action?
3) Did the plaintiff accidentally cause an injury, making a negligence cause of action appropriate?
NEGLIGENCE LADDER OF ELEMENTS
DAMAGES
CAUSATION
BREACH
DUTY
DUTY OF CARE
Every person owes a duty of ordinary reasonable care to all foreseeable plaintiffs.
VICARIOUS LIABILITY (e.g., respondeat superior)
PLAINTIFF suing DEFENDANT (ER) for acts of TORTFEASOR (EE)
ZONE OF DANGER
P2 can recover ONLY IF she can establish that a reasonable person would have foreseen a risk of injury to her the circumstances
RES IPSA LOQUITUR (RIL)
“THE THING SPEAKS FOR ITSELF”
- The accident causing the injury is of a type that would not normally occur unless someone was negligent;
- The negligence must be attributable to the defendant; and
- The plaintiff must be free from fault- the plaintiff must show that the injury was not attributable to her.
MOTION FOR DIRECTED VERDICT
Request that judge direct a verdict for the moving party rather than give the case to the jury.
- P moves for DV almost always denied
- D moves for DV: could be granted if P has not shown breach of duty
- Most cases on exam: MDV should be denied
BOTTOM LINE: Deny a motion for directed verdict if there is ANY triable issue of fact for the jury.
NEGLIGENCE PER SE
Established by violation of a statute if plaintiff shows:
- She is in the class intended to be protected by the statute; and
- The statute was designed to prevent the type of harm suffered by plaintiff
Establishes duty and breach.
NEGLIGENCE PER SE & RES IPSA LOQUITUR
Both establish duty and breach- either is sufficient to overcome directed verdict.
RES IPSA: inference of negligence
NEGLIGENCE PER SE: presumption of negligence.
