- Negligence — the four elements
- Duty, breach, causation (actual + proximate), and damages. The plaintiff must prove all four to recover.
- Battery (intentional tort)
- A harmful or offensive contact with the plaintiff's person, caused by a volitional act done with intent. Contact with anything connected to the person counts.
- Assault (intentional tort)
- An act intended to cause, and that does cause, a reasonable apprehension of an imminent harmful or offensive contact. Words alone usually are not enough.
- False imprisonment
- Intentional confinement of the plaintiff to a bounded area, with no reasonable means of escape, where the plaintiff is aware of or harmed by the confinement.
- Intentional infliction of emotional distress (IIED)
- Extreme and outrageous conduct, done intentionally or recklessly, that causes the plaintiff severe emotional distress.
- Standard of care in ordinary negligence
- That of a reasonably prudent person under the same or similar circumstances — an objective standard that does not lower for the defendant's own shortcomings.
- Negligence per se
- A statutory violation establishes duty and breach where the plaintiff is in the class the statute protects and suffered the type of harm it was meant to prevent.
- Res ipsa loquitur
- It lets the jury infer breach from the accident itself when the harm ordinarily would not occur absent negligence and the instrumentality was in the defendant's exclusive control.
- But-for cause vs. proximate cause
- But-for (actual) cause asks whether the harm would not have happened but for the defendant's act. Proximate cause limits liability to foreseeable harms/plaintiffs.
- Palsgraf duty/foreseeability rule
- A defendant owes a duty only to plaintiffs within the foreseeable zone of danger (Cardozo majority). Unforeseeable plaintiffs cannot recover.
- Strict products liability — elements
- A commercial seller is liable for a product that is defective (manufacturing, design, or warning) and unreasonably dangerous when it left the seller's control and causes injury in foreseeable use.
- Strict liability for abnormally dangerous activities
- Liability without fault for activities that create a foreseeable, highly significant risk that cannot be eliminated with reasonable care and are not common in the community.
- Premises liability — duty to an invitee
- The land possessor must inspect for, and warn of or make safe, known and reasonably discoverable dangerous conditions. Invitees get the highest duty.
- Defamation — the elements
- A defamatory statement of or concerning the plaintiff, publication to a third party, fault, and damage to reputation. Public-figure plaintiffs must show actual malice (NYT v. Sullivan).
- Respondeat superior
- An employer is vicariously liable for torts an employee commits within the scope of employment. Generally not liable for intentional torts or for independent contractors.
- Complete diversity rule
- No plaintiff may be a citizen of the same state as any defendant (Strawbridge v. Curtiss), and the amount in controversy must exceed $75,000.
- A corporation's citizenship for diversity
- Both its state of incorporation and the state of its principal place of business (the 'nerve center' where officers direct and control activities — Hertz v. Friend).
- Federal question — the well-pleaded complaint rule
- A federal question must appear on the face of the plaintiff's properly pleaded complaint. Anticipated defenses or counterclaims do not create it.
- Personal jurisdiction — the minimum contacts test
- The defendant must have such minimum contacts with the forum that suit does not offend traditional notions of fair play and substantial justice (International Shoe).
- General vs. specific personal jurisdiction
- General jurisdiction (any claim) requires the defendant to be 'at home' in the forum. Specific jurisdiction requires the claim to arise from the defendant's forum contacts.
- The Erie doctrine
- A federal court sitting in diversity applies state substantive law and federal procedural law. Outcome-determinative state rules are treated as substantive.
- Rule 56 summary judgment standard
- Granted when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law; the court views evidence in the light most favorable to the nonmovant.
- Waivable Rule 12(b) defenses
- Lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process. Subject-matter jurisdiction may be raised any time.
- Claim preclusion (res judicata)
- A final judgment on the merits bars the same parties from relitigating the same claim, including matters that could have been raised in the first action.
- Issue preclusion (collateral estoppel)
- An issue of fact or law actually litigated and necessarily decided in a prior valid final judgment cannot be relitigated by that party in a later suit.
- The final judgment rule for appeals
- Generally only final judgments disposing of all claims may be appealed; interlocutory orders are reviewable only under limited exceptions.
- Compulsory counterclaim (Rule 13(a))
- A claim that arises from the same transaction or occurrence as the opposing party's claim must be pleaded or it is lost.
- Scope of discovery (Rule 26(b)(1))
- Any nonprivileged matter relevant to a claim or defense and proportional to the needs of the case; it need not be admissible to be discoverable.
- Supplemental jurisdiction
- A federal court may hear related state claims that form part of the same case or controversy as a claim within its original jurisdiction (28 U.S.C. 1367).
- Standing — the three elements
- Injury in fact (concrete and particularized, actual or imminent), causation (traceable to the defendant), and redressability (a favorable decision would likely fix it).
- The three levels of constitutional scrutiny
- Strict scrutiny (necessary to a compelling interest), intermediate scrutiny (substantially related to an important interest), and rational basis (rationally related to a legitimate interest).
- Strict-scrutiny classifications (Equal Protection)
- Suspect classes: race, national origin, and alienage (state laws). Strict scrutiny also applies to laws burdening fundamental rights.
- Intermediate-scrutiny classifications (Equal Protection)
- Quasi-suspect classes: gender and legitimacy (nonmarital children). Gender classifications need an exceedingly persuasive justification.
- The Dormant Commerce Clause rule
- States may not discriminate against or unduly burden interstate commerce. Facial discrimination is virtually per se invalid; nondiscriminatory burdens get Pike balancing.
- The market-participant exception
- When a state acts as a buyer or seller (not a regulator), it may favor its own residents without violating the Dormant Commerce Clause.
- State action requirement
- Constitutional rights generally restrain only government, not private parties — unless a private actor performs a traditional public function or is entangled with the state.
- Procedural due process requirements
- When the government deprives a person of life, liberty, or property, it must provide notice and an opportunity to be heard (Mathews v. Eldridge balancing sets how much).
- Content-based vs. content-neutral speech regulation
- Content-based restrictions get strict scrutiny; content-neutral time, place, and manner restrictions get intermediate scrutiny and must leave open alternative channels.
- Unprotected (or less-protected) speech categories
- Incitement, fighting words, true threats, obscenity, defamation, and child pornography receive little or no First Amendment protection.
- Establishment Clause — modern approach
- Government cannot establish religion; recent cases (Kennedy v. Bremerton) emphasize historical practices and coercion rather than the old Lemon test.
- The Takings Clause
- Government may take private property for public use only with just compensation. A permanent physical occupation or a regulation denying all economic use is a taking.
- Procedural vs. substantive due process
- Procedural DP governs the fairness of the process used to deprive a right; substantive DP protects certain fundamental rights from government interference altogether.
- Congressional power under the Commerce Clause
- Congress may regulate the channels and instrumentalities of interstate commerce and activities substantially affecting it.
- UCC Article 2 — scope
- Transactions in goods (things movable at the time of identification). Sales of land, services, and employment are governed by the common law.
- The predominant-purpose test
- For mixed goods-and-services contracts, the body of law (UCC vs. common law) is chosen by whichever purpose predominates.
- Elements of contract formation
- Mutual assent (a valid offer and acceptance) and consideration (a bargained-for exchange of legal value).
- The mailbox rule
- Acceptance is effective on dispatch (when sent), while revocations, rejections, and counteroffers are effective on receipt.
- UCC 2-207 (battle of the forms)
- An acceptance with additional terms still forms a contract; between merchants, additional terms become part of it unless they materially alter the deal, are objected to, or the offer limits acceptance.
- The Statute of Frauds
- MY LEGS: Marriage, contracts not performable within one Year, Land, Executor promises, Goods $500+, and Suretyship.
- The parol evidence rule
- Prior or contemporaneous statements cannot contradict a final written contract. It does not bar evidence of fraud, ambiguity, or a separate consideration.
- Common-law perfect tender vs. UCC
- Common law allows substantial performance; the UCC requires perfect tender — the buyer may reject goods that fail in any respect, subject to the seller's right to cure.
- Implied warranty of merchantability
- In a sale by a merchant who deals in goods of that kind, the goods are warranted to be fit for their ordinary purpose. It can be disclaimed (e.g., 'as is').
- Implied warranty of fitness for a particular purpose
- Arises when the seller knows the buyer's particular purpose and that the buyer is relying on the seller's skill to select suitable goods.
- Expectation damages
- The benefit of the bargain — enough to put the nonbreaching party where it would have been had the contract been performed.
- Specific performance — availability
- For unique goods or land (land is always unique), when money damages are inadequate. Not available for personal-service contracts.
- Liquidated damages — enforceability
- When damages were difficult to estimate at formation and the stipulated amount is a reasonable forecast — not a penalty.
- Impossibility, impracticability, frustration of purpose
- Performance is discharged by objective impossibility, extreme and unforeseen difficulty (impracticability), or destruction of the contract's underlying purpose (frustration).
- Intended vs. incidental third-party beneficiary
- Only an intended beneficiary (one the parties meant to benefit) can sue to enforce the contract; an incidental beneficiary cannot.
- Actus reus and mens rea
- Actus reus is the voluntary physical act (or qualifying omission); mens rea is the guilty mental state. Most crimes require both, concurrently.
- The four MPC mental states (most to least culpable)
- Purposely, knowingly, recklessly, negligently.
- Specific vs. general intent crimes
- Specific intent requires a special further purpose beyond the act (e.g., burglary's intent to commit a felony inside). General intent requires only intent to do the act.
- Common-law murder
- An unlawful killing committed with malice aforethought — intent to kill, intent to inflict serious bodily harm, depraved-heart recklessness, or felony murder.
- Felony murder
- A killing during the commission or attempted commission of an inherently dangerous felony. Malice is imputed from the felony. Classic predicates: Burglary, Arson, Rape, Robbery, Kidnapping (BARRK).
- Voluntary vs. involuntary manslaughter
- Voluntary = intentional killing in the heat of passion on adequate provocation. Involuntary = unintentional killing from criminal negligence or during an unlawful act.
- Conspiracy — elements
- An agreement between two or more people to commit a crime, with intent to agree and intent to achieve the unlawful objective (most jurisdictions also require an overt act).
- Merger of attempt or conspiracy with the completed crime
- Attempt merges into the completed offense; conspiracy does NOT merge — a defendant can be convicted of both conspiracy and the completed crime.
- Larceny vs. embezzlement vs. false pretenses
- Larceny = trespassory taking of another's property. Embezzlement = fraudulent conversion of property already lawfully possessed. False pretenses = obtaining title by a false representation.
- Burglary (common law)
- Breaking and entering the dwelling of another at night with intent to commit a felony inside.
- Self-defense — the rule
- A person may use reasonable, proportional force to repel an imminent unlawful threat. Deadly force requires a reasonable belief of imminent death or serious bodily harm.
- The M'Naghten insanity test
- A defendant is not guilty if, due to a mental disease, he did not know the nature and quality of the act or did not know it was wrong.
- Miranda warnings — when required
- Before custodial interrogation. Statements from un-warned custodial interrogation are generally inadmissible in the prosecution's case-in-chief.
- Fourth Amendment — warrant exceptions
- Search incident to lawful arrest, automobile exception, plain view, consent, stop and frisk (Terry), hot pursuit, and exigent circumstances.
- The exclusionary rule (and fruit of the poisonous tree)
- Evidence obtained from an unconstitutional search or seizure is generally inadmissible, as is derivative evidence — subject to good-faith and other exceptions.
- Relevance under FRE 401
- Evidence is relevant if it has any tendency to make a fact of consequence more or less probable. Relevant evidence is admissible unless a rule bars it (FRE 402).
- FRE 403 balancing
- A court may exclude relevant evidence if its probative value is substantially outweighed by unfair prejudice, confusion, misleading the jury, delay, or needless cumulative evidence.
- The propensity ban (FRE 404(a))
- Character evidence is generally not admissible to prove a person acted in conformity with that character on a particular occasion.
- FRE 404(b) permissible purposes (MIMIC)
- Other acts may be admitted for Motive, Intent, Mistake (absence of), Identity, or Common plan — but never to show propensity.
- Impeachment with prior convictions (FRE 609)
- Crimes of dishonesty/false statement are automatically admissible. Other felonies are admitted subject to balancing; convictions over 10 years old face heightened scrutiny.
- Definition of hearsay (FRE 801(c))
- An out-of-court statement offered to prove the truth of the matter asserted. Statements offered for another purpose (notice, effect on listener) are not hearsay.
- Opposing party statement (FRE 801(d)(2))
- A party's own statement offered against that party is defined as NOT hearsay (an admission). It need not have been against interest when made.
- Present sense impression vs. excited utterance
- Present sense impression (803(1)): describes an event while or immediately after perceiving it. Excited utterance (803(2)): made under the stress of a startling event.
- Business records exception (FRE 803(6))
- Records of a regularly conducted activity, made at or near the time by someone with knowledge, kept in the ordinary course — admissible if not lacking trustworthiness.
- Dying declaration (FRE 804(b)(2))
- In a homicide prosecution or any civil case, a statement about the cause/circumstances of death made by a now-unavailable declarant who believed death was imminent.
- Statement against interest (FRE 804(b)(3))
- A statement so contrary to the declarant's pecuniary, proprietary, or penal interest that a reasonable person would not have made it unless true — requires unavailability.
- The Confrontation Clause (Crawford)
- Testimonial hearsay is barred against a criminal defendant unless the declarant is unavailable and the defendant had a prior chance to cross-examine.
- Attorney-client privilege
- Confidential communications between a client and attorney made to obtain legal services are protected. The crime-fraud exception applies to future crimes/frauds.
- Best evidence rule (FRE 1002)
- To prove the content of a writing, recording, or photograph, the original (or a duplicate) is required, unless it is unavailable through no fault of the proponent.
- Lay vs. expert opinion (FRE 701/702)
- Lay opinion must be rationally based on perception. Expert opinion requires specialized knowledge, sufficient facts, and reliable methods (Daubert).
- Adverse possession — elements
- Possession that is Actual, Open and notorious, Hostile, Exclusive, and Continuous for the statutory period. Permissive use defeats hostility.
- Joint tenancy vs. tenancy in common
- Joint tenancy carries a right of survivorship (deceased's share passes to survivors); tenancy in common does not — that share passes by will or intestacy.
- The four unities of a joint tenancy
- Time, Title, Interest, and Possession — cotenants must take at the same time, by the same instrument, in equal shares, with an equal right to possess the whole.
- Severance of a joint tenancy
- A conveyance by one joint tenant of their interest destroys the unities and converts it to a tenancy in common as to that share.
- Fee simple absolute vs. defeasible fees
- Fee simple absolute is the largest, unconditional estate. Defeasible fees (determinable, subject to condition subsequent) can be cut short on a stated event.
- Vested vs. contingent remainder
- A remainder is vested if given to an ascertained person with no condition precedent; contingent if subject to a condition or held by an unascertained person.
- The Rule Against Perpetuities
- An interest is void unless it must vest, if at all, within 21 years after a life in being at the creation of the interest.
- Easement creation methods
- By express grant/reservation, implication (prior use), necessity, or prescription (like adverse possession). Appurtenant easements run with the land.
- Assignment vs. sublease (landlord-tenant)
- An assignment transfers the entire remaining lease term (assignee in privity of estate with landlord); a sublease transfers less than the whole term.
- Recording acts — race, notice, race-notice
- Race: first to record wins. Notice: a later bona fide purchaser without notice wins. Race-notice: a later BFP without notice who records first wins.
- Bona fide purchaser (BFP)
- One who pays value for the property without notice (actual, constructive, or inquiry) of a prior conflicting interest.
- Lien theory vs. title theory of mortgages
- In lien-theory states the borrower keeps title and the lender holds a lien; in title-theory states the lender holds legal title until the debt is paid.
- Equity of redemption
- The borrower's right to redeem the property and stop foreclosure by paying the full debt before the foreclosure sale.
- Tenancy by the entirety
- A joint tenancy between spouses with survivorship; neither spouse can unilaterally convey or sever it, and it offers creditor protection in many states.
- General vs. special warranty deed
- A general warranty deed covenants against all title defects; a special warranty deed covenants only against defects arising during the grantor's ownership.
