THINGS YOU NEED TO KNOW

Question 1

Rational Basis

Answer 1

Requires: Plaintiff must show that the government action is not rationally related to a legitimate government interest.

Laws almost never fail rational basis review (but see Romer)

Analogous to Smith test for laws that are neutral and generally applicable; (no free speech parallel)

Basically most of the police power questions, that doesn’t meet the specific categories in the others.

Question 2

Intermediate Scrutiny

Answer 2

“Intermediate Scrutiny”
Requires: The government must show that the law is “substantially related” to an “important government interest”; US v. Virginia adds the phrase “exceedingly persuasive”

Applies to: distinctions based on gender/sex; legitimacy
Can be passed with sufficient, non-discriminatory reasons advanced by the government
Analogous to free speech “time, place, and manner” test and free speech “symbolic speech” test for non-content-based laws (no Religion Clause parallel)

Question 3

Strict Scrutiny

Answer 3

Strict Scrutiny (presumptively invalid):  
Requires: The government must show that the law is (1) narrowly tailored to achieve (2) a compelling governmental interest

Applies to: “suspect” classifications including race, national origin, or alienage; also applies to classifications that infringe “fundamental rights” (also applies to content-based speech restrictions; laws burdening religion that are not “neutral and generally applicable”; through RFRA to other religious burdens)
[fundamental rights: 1) the right to vote; 2) the right to travel; 3) the right to privacy; and 4) all 1stAmendment rights (since they are deemed `fundamental’).]

Virtually impossible to pass (exceptions: Korematsu, Grutter)

Some variance re “least restrictive means”

Question 4

Comparing Scrutiny Tests

Answer 4

Strict scrutiny
Narrowly tailored, necessary (or “least restrictive means”)
Compelling interest
Intermediate scrutiny
Substantially related (or sometimes, confusingly, “narrowly-tailored”)
Important/significant interest
Rational basis
Rationally related
Legitimate interest

Question 5

Liquidated Damages clause

Answer 5

A contractual provision requiring a party in breach to pay a pre-determined amount to the other party as compensation for the breaching party’s failure to perform a specific task or comply with a particular duty or obligation

Question 6

Claim preclusion

Answer 6

Claim preclusion- res juticata:

1. same party in the same position as before p must be p.
2. same transaction or occurrence,
3. valid final judgement on the merits.

if you have a claim against someone you cannot bring another claim from the same transaction or occurrence later, if you bring one for negligence you must also bring the contract claim with it.

Question 7

Issue preclusion

Answer 7

current suit and prior suit.

1. was issue litigated in the first suit? was the negligence issue litigated?
2. a decision on the merits and essential to the judgment, aka not collateral to the litigation.
3. valid final judgment on the merits.

4.the party against whom preclusion is assert must have had a full and fair opportunity to litigate and incentive to litigate in the first suit
[did the p have their chance to sue this D? if they sue the bus company they should sue the driver also if not then there is issue preclusion and they can’t sue driver.]

Question 8

Claim Preclusion

Answer 8

For claim preclusion to apply there must have been a valid final judgment on the merits, both parties must be the same, or in privity with a party in the prior suit, and the new action must involve the same cause of action (arising out of the same transaction or occurrence)

Question 9

Issue Preclusion

Answer 9

For issue preclusion to apply the issue in both actions must be the same, there must have been a final judgment as to that issue, the party against whom collateral estoppel is asserted must have had a fair opportunity to be heard on the matter and the posture of the case must be such that it would not be unfair or inequitable to apply collateral estoppel.

Question 10

Damages:

Expectation
Reliance,
Restitution,

Answer 10

•Expectation [Benefit of the Bargain]: Put promisee in position he would have been in
had the contract been performed

•Reliance (losses incurred due to expectation): Put promisee in the position he would
have been in had the contract never been made

•Restitution (e.g., down payment, deposit): Put the promisor back in the position he
would have been in had the promise never been made. When someone has been unjustly enriched.

Question 11

attachment

Answer 11

1. debtor authenticates a security agreement or creditor takes possession
2. creditor gives value
3. the debtor has rights in the collateral

Question 12

Perfection

Answer 12

occurs by possession or by filing a security interest.

Question 13

PMSI

Answer 13

creditor advances credit/provides funds for the debtor to purchase the collateral and the creditor takes a security interest in the collateral purchased.

If a consumer good perfection is automatic.

A grace period of 20 days is provided to permit purchase-money security interest lenders a reasonable opportunity to file their UCC-1’s

For the purchase money security interest LENDER-financed INVENTORY, the lender must perfect its security interest before the debtor receives the financed inventory; the 20-day grace period does not apply Additionally, the notice must be sent and received before the debtor gets its new inventory and must be renewed every 5 years if the inventory lending is ongoing.Finally, the notice must indicate that the lender is obtaining a purchase money security interest and describe the affected inventory collateral.

Question 14

The most significant relationship test torts:

Answer 14

govnernment interest
the place where the injury occurred,
the place where the conduct causing the injury occurred,
the domicile, residence, nationality, place of incorporation and place of business of the parties, and
the place where the relationship, if any, between the parties is centered.

Question 15

Most significant relationship test, first statement to makes.

Answer 15

“Under this approach the court will apply the law of the state which is most
significantly related to the outcome of the litigation. To determine this, the
court will consider connecting facts and policy principles.”

Question 16

Most significant relationship test, after analysis.

Answer 16

Under this approach the
court will apply the law of the
state which is most
significantly related to the
outcome of the litigation. To
determine this, the court will
consider connecting facts
and policy principles.

Question 17

Vested rights approach contracts

Answer 17

Rule #1: If the case is about formation, apply the law of the place of
contracting.
Examples of formation issues:
1. Capacity
2. Contractual formalities
3. Consideration

Rule #2: If the case is about performance, apply the law of the place of
performance.
Examples of performance issues:
1. Time, place and manner of performance
2. Excuses for nonperformance

Question 18

Vested right approach tort

Answer 18

Governing law is the law where the INJURY

occurred.

Question 19

The most significant relationship test contract:

Answer 19

Factual Connections:

1. Place of contracting.
2. Place of negotiations.
3. Place of performance.
4. Place where the parties are at home.

Policy Principles:

1. Relevant policies of the forum state.
2. Relevant policies of other connected states.
3. Reasonable expectations of the parties.

Question 20

Conflitcts of Law Property

Answer 20

♦ Immovable (Real) Property
Rule: Apply the law of the situs.

♦ Movable (Personal) Property
Rule #1: If the case involves an inter vivos transaction, apply the law of the
situs at time of transaction.
Rule #2: If the case involves a matter relating to inheritance, apply the law
of the decedent’s domicile at date of death.

Question 21

Exceptions where the declarant must be unavailability

Answer 21

The five important exceptions requiring the declarant’s unavailability are: (i) former testimony, (ii) statements against interest, (iii) dying declarations, (iv) statements of personal or family history, and (v) statements offered against party procuring declarant’s unavailability.

Question 22

defenses to a fault grounds divorce

Answer 22

Collusion- between spouses to simulate grounds for divorce Erika jane
Connivance- willing consent of one spouse to the other’s misconduct.
Condonation- forgiveness of the offense with knowledge of their act.
Recrimination- party seeking divorce is also guilty of misconduct

Question 23

Fiduciary Duty of Director of Corp

Answer 23

A director must act in good faith and with a reasonable belief that her actions are in the best interest of the corporation. She must also use the care that a prudent person in like position would reasonably believe appropriate under the circumstances.

first sentence is the duty of loyalty and second is duty of care

liable if breach of duty causes a harm to co.

Question 24

Mental Illness Crim law

Answer 24

M’Naghten: A disease of the mind caused a defect of reason such that defendant lacks the ability to understand the wrongfulness of their actions OR understand the nature and quality of their actions. (right from wrong or unable to understand their actions)

New Hampshire/Durham: But for the mental illness defendant would not have done the act

Irresistible impulse: the D was not capable of controlling his conduct in accordance with the law due to a mental illness

MPC M’Naughten and Irresistabel impulse

Question 25

Types of class actions

Answer 25

Type 1 Prejudice: class treatment necessary to avoid harm (prejudice) either to class members or to a non-class party.

Type 2 Class seeks an injunction or declaratory judgment

Type 3 Damages: 1. common question predominate over individual questions; and 2. class action is the superior method to handle the dispute.

Question 26

Interpleader

Answer 26

Rule 22: requires 1. complete diversity between stakeholder and all adverse claimants and over 75k OR 2. A FEDERAL QUESTION

Rule 1335: requires only diversity between any two contending claimants and $500 be in issue.

Mneumonic: Rule 22 must follow the regular rules;

Statutory impleader has special simpler standards.

Question 27

Erie tests

Answer 27

outcome determinative: will the rule substantially affect the outcome (state law)

balance of interest: does the state have a greater interest (if yes then use this test)

forum shopping: will failing to apply state law result in forum shopping

Question 28

NOTICE STATUTES and phrasing

Answer 28

RACE
WHOEVER RECORDS FIRST ALWAYS WINS
“No conveyance or mortgage of an interest in land is valid against

any subsequent purchaser WHOSE CONVEYANCE is first recorded.”

NOTICE STATUTE
A BFP ALWAYAYS WINS IF THERE WAS NO NOTICE WHEN THEY PURCHASED EVEN IF THEY DON’T BEAT SOMONE ELSE TO RECORDING

“No conveyance or mortgage of an interest in land is valid against

any subsequent purchaser FOR VALUE WITHOUT NOTICE THEREOF, unless it is recorded.”

RACE NOTICE
PHRASING HAS BOTH

MUST NOT HAVE NOTICE AND MUST RECORD FIRST

“No conveyance or mortgage of an interest in land is valid against

any subsequent PURCHASER FOR VALUE WITHOUT NOTICE THEREOF, WHOSE CONVEYANCE is first recorded.”

Question 29

Standard of review

Answer 29

De novo, erred on a matter of law

Clearly erroneous, finding of fact by judge (appeal will look at fact favorable to winning party, as the jury decided.)

Mixed question of law and fact are de novo,

Abuse of discretion- Discretion of judge (cleave or to amend a paleading, consolidate or sever a case.)

Question 30

Notice Statutes

Answer 30

Race- first buyer to record wins (there is no bfp requirement; even if second buyer has notice that other owns) [a wild deed, poorly recorded, will never win even if recorded first]

Notice- last bfp always wins if there was no notice (2nd must not have any type of notice) [no conveyance is valid against a BFP…]

Race notice- B2 must not know of B1 and must record first.. last bfp wins if they are first to record (if b2 knew or should have known then they lose even if they record first; 2nd buyer must be bfp without any type of notice; B1 doen’t have to be a bfp) [no conveyance is valid against a bonified purchaser… AND… who has recorded the deed to his conveyance first]

Question 31

MALICE

Answer 31

Intent to kill, intent to cause serious bodily injury, or A RECKLESS INDIFFERENCE TO an unjustifiably high risk of harm to human life.