Mnemonics & Info Lists (All Subjects) Flashcards
(Torts) What are the main types of Economic Torts?
1) Intentional Misrepresentation
2) Negligent Misrepresentation
3) Interference with Prospective Economic Advantage
4) Injurious Falsehood
(Constitutional Law) What are the steps for evaluating the burden of persuasion in a Free Exercise Clause issue?
In situations involving the Free Exercise Clause, government regulation may be permissible if the regulation is:
(1) generally applicable to all people;
and (2) neutral as to religion.
If met, the test to be applied is rational basis, requiring the plaintiff to prove that the law is not rationally related to a legitimate government interest.
If the regulation is not generally applicable and neutral, then the test to be applied is strict scrutiny, requiring the state to show both a compelling government interest and narrow tailoring.
(Civ Pro) When does a federal court have subject-matter jurisdiction over a particular case?
1) Federal Question jx
a) Well-pleaded complaint rule (P’s
claim raises question of federal law)
b) state law claim necessarily involves
a federal question that is disputed
and substantial (must be resolved)
2) Diversity jx
3) Supplemental jx (piggybacking claims)
4) Removal (from state to fed ct by D)
(Civ Pro) When can a federal court in a state assert personal jx over a party?
If:
1) a state court in that state could assert PJ over that party; and
2) the state law authorizing PJ must be constitutional under the DPC of the 14A. Such law is constitutional if PJ is authorized in one of 5 circumstances:
(“PJ Rarely Causes Severe Mental Anguish”)
(i) Residency
(ii) Consent
(iii) Service (i.e., tag jx)
(iv) Minimum contacts
(v) “At-home” general jurisdiction
(Civ Pro) What are the ways in which joinder of claims may be accomplished?
1) Joinder of multiple claims brought by 1 P and 1 D (Rule 18) - P can bring all claims they have against D, regardless of relatedness (if add’l claim is related, must be brought, else likely precluded).
2) Counterclaims (Rule 13(a) and (b)) - permissive counterclaims (not related) and compulsory counterclaims (arising out of same txn/occurrence; D must file or forfeit)
3) Cross-claims (Rule 13(g)) - Filed by party against co-party (e.g., D1 v. D2); must arise from same txn or occurrence underlying one of P’s claims –> once related cross is filed, it becomes the anchor claim for supplemental jx & the cross-claimant is treated like P for that claim (i.e., normal rules apply, including re: add’l joinders).
4) Impleader claims (rule 14) - D brings in a 3P not already a party if 3P is responsible for all/some of liability to P –> D can implead w/in 14 days of serving answer; else needs ct’s permission. 3P treated like D in D1 v. 3P case; P has no claim against 3P unless P adds new claims after 3P is implead.
(Civ Pro) What are the ways in which additional parties may be joined to a suit?
1) Permissive Joinder (Rule 20) - multiple P’s or D’s can be added if (a) joinder arises out of the same transaction or occurrence and (b) questions of law or fact that will be raised are common to the joined parties
2) Mandatory joinder (Rule 19) - absent party is required by court to be added to the suit
3) Class actions (Rule 23) - requires numerosity, commonality, typicality, and representativeness.
4) Interpleader claims (Rule 22) - have other 2 parties sue each other bc D is caught in the middle between them. E.g., D1 adds D2 bc D1 fears it will face multiple or inconsistent liabilities if sued by both P and D2; D1 will be sidelined until they handle the issue.
5) Intervention (Rule 24) - Non-party is interested but has not been joined.
a) Intervention of right: non-party must be permitted to intervene upon timely application when (i) it claims an interest relating to subject matter of the action, and (ii) without intervention, risk they might not be able to protect that interest.
b) Permissive intervention: upon timely application & court’s discretion, may intervene with a claim or defense that shares with the main action a common question of law or fact.
(Civil Procedure) What is the relationship between joinder and SMJ, PJ, and Venue?
SMJ: Necessary for EVERY claim, regardless of how it is brought & by whom
PJ: Necessary for every party to an action (note: class members are not parties, only the lead plaintiffs are).
Bulge rule: An impleaded D will be subject to PJ if, in addition to another ground for PJ, impleaded D is served with process w/in 100 miles of the ct.
Venue: unlike PJ & SMJ, law of venue only need be consulted when the lawsuit is filed. (Exception: Rule 19 - joinder of parties –> if venue would be improper, court must dismiss the joined party
(Civ Pro) What are the Discovery Pre-Logistics?
1) Discovery Planning (Rule 26(f) Conference must be held – AT LEAST 21 DAYS BEFORE (3) – between the parties to discuss the likely content of discovery & draft a discovery plan.
2) Discovery plan must be submitted to court within 14 days of the Rule 26(f) conference.
3) Rule 16(b) Conference before court - court issues a scheduling order dictating schedule of stages of litigation and specify limitations on discovery (e.g., scope thereto on particular issues).
(a) Mandatory disclosures - default rules for discovery re: initial disclosures, expert disclosures, and pretrial disclosures.
(b) Scope of disclosures - parties ask for scope to be limited based on (i) relevance, (ii) work product, (iii) privileged matters, (iv) undue burden, and (v) re: experts.
(c) Methods - how discovery is conducted
(d) Enforcement - what happens if a party ignores or does not fully comply with the rules.
(Civ Pro) What is the scope of discovery?
Mnemonic: “the Scope of discovery is for when you REALLY WANT PRIVATE PHENOMENAL EVIDENCE”
R - Relevance to party’s claim/defense
W - Work product
P - Privilege - confidential communications
P - Proportionality - discovery must be proportional to the needs of the case considering 6 factors.
E - Expert - testifying expert’s opinions are discoverable to a limited extent (3 things besides the expert’s mandatory report).
