MA Bar cheat sheet

Subject-matter jurisdiction: federal question under 28 U.S.C. § 1331 (well-pleaded complaint rule - plaintiff's claim must arise under federal law); diversity under § 1332 requires complete diversity plus amount in controversy exceeding $75,000, exclusive of interest and costs.

Supplemental jurisdiction (§ 1367): allows claims sharing a common nucleus of operative fact with an anchor claim; in diversity cases it does not extend to claims by plaintiffs against parties joined under Rules 14, 19, 20, or 24 when inconsistent with complete diversity.

Personal jurisdiction: general (essentially at home - domicile, principal place of business, place of incorporation) or specific (minimum contacts plus fair play and substantial justice; claim must arise out of or relate to contacts).

Venue (§ 1391): residence of any defendant if all reside in same district, or where a substantial part of events or property is located; if neither, any district where any defendant is subject to personal jurisdiction.

Erie doctrine: federal procedural rules (FRCP, valid under Rules Enabling Act) govern; in the absence of a federal rule, apply state substantive law if it would be outcome-determinative and no strong federal policy favors a different result.

Pleadings: notice pleading under Rule 8(a); Twombly/Iqbal plausibility standard applies to claims; Rule 12(b) defenses - 12(b)(2)-(5) waived if not raised in first response; 12(b)(6) and 12(b)(7) preserved.

Discovery: mandatory initial disclosures (Rule 26(a)); scope is any nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case; work product protection under Rule 26(b)(3).

Summary judgment (Rule 56): no genuine dispute of material fact, movant entitled to judgment as a matter of law; court views facts in light most favorable to nonmovant.

Preclusion: claim preclusion requires final judgment on the merits, same claim, same parties or privies; issue preclusion requires actually litigated, determined, and necessary issue, with full and fair opportunity to litigate.

Judicial review: Marbury v. Madison establishes courts may review acts of Congress; standing requires injury-in-fact, causation, and redressability; ripeness and mootness are justiciability limits; political questions are nonjusticiable.

Commerce power: Congress may regulate channels and instrumentalities of interstate commerce and activities substantially affecting interstate commerce (Wickard aggregation); post-Lopez, noneconomic intrastate activity requires jurisdictional nexus.

State action doctrine: constitutional rights apply to government action; private conduct generally not actionable unless significant state involvement, public function, or entanglement.

Equal protection tiers: strict scrutiny (race, national origin, fundamental rights, voting, travel) - necessary to compelling interest, narrowly tailored; intermediate (sex, illegitimacy) - substantially related to important interest; rational basis (all else) - rationally related to legitimate interest.

Due process: procedural (notice and opportunity to be heard; Mathews v. Eldridge balancing) and substantive (fundamental rights - strict scrutiny; economic liberties - rational basis).

First Amendment speech: content-based restrictions - strict scrutiny; content-neutral time/place/manner - intermediate scrutiny (narrowly tailored, significant interest, ample alternatives); prior restraints disfavored; obscenity (Miller), incitement (Brandenburg), fighting words unprotected.

Establishment Clause: Lemon test (secular purpose, primary effect neither advances nor inhibits religion, no excessive entanglement); coercion and neutrality considerations under recent cases.

Dormant Commerce Clause: state laws discriminating against interstate commerce are per se invalid absent important local purpose and no nondiscriminatory alternatives; nondiscriminatory laws upheld if rational and burden not clearly excessive.

Takings: physical taking requires just compensation; regulatory taking under Penn Central factors (economic impact, investment-backed expectations, character); per se taking for permanent physical occupation or total loss of economic value.

Formation: offer (manifestation of present intent to be bound, definite terms), acceptance (mirror image at common law; UCC 2-207 battle of forms), consideration (bargained-for exchange; preexisting duty rule).

Statute of Frauds: writing required for marriage, year, land, executor, surety, sale of goods over $500 (UCC), and (in some jurisdictions) sale of securities; exceptions - part performance, specially manufactured goods, payment and acceptance.

UCC Article 2: merchants' firm offer (signed writing, no consideration, irrevocable up to 3 months); gap fillers (price, place of delivery, time for payment); perfect tender rule subject to cure and installment contracts.

Parol evidence rule: bars prior or contemporaneous oral agreements that contradict integrated writing; UCC allows course of dealing, usage of trade, and course of performance to explain or supplement.

Excuse: impracticability (unforeseen event, no fault, commercial impracticability under UCC), frustration of purpose, impossibility; mutual mistake (material fact, adversely affected party without risk assumption).

Remedies: expectation (benefit of the bargain), reliance, restitution; UCC buyer's remedies - cover, market price damages, incidental and consequential damages; seller's remedies - resale, market price, lost profits.

Third-party beneficiaries: intended beneficiary (creditor or donee) may enforce; incidental beneficiary cannot; vesting rules determine whether original parties may modify.

Anticipatory repudiation: unequivocal statement or act before performance due; nonbreaching party may await performance or treat as breach; retraction possible until material change in position.

Conditions and substantial performance: material breach excuses counterparty's duty; substantial performance allows recovery minus damages; conditions precedent must occur unless excused (waiver, prevention).

Elements: actus reus (voluntary act or omission where duty exists) and mens rea; common law mental states - specific intent, general intent, malice, strict liability; MPC levels - purposely, knowingly, recklessly, negligently.

Homicide: murder (malice aforethought - intent to kill, intent to cause serious bodily harm, depraved heart, felony murder); manslaughter (voluntary - heat of passion adequate provocation; involuntary - criminal negligence or misdemeanor manslaughter).

Defenses: self-defense (reasonable belief, imminent threat, proportional force; no duty to retreat in home; stand-your-ground in some states), defense of others, duress (not a defense to homicide), necessity, insanity (M'Naghten, irresistible impulse, MPC).

Inchoate offenses: attempt (specific intent plus substantial step); conspiracy (agreement plus intent, overt act under common law not required but required under MPC); solicitation; merger - attempt merges into completed crime, conspiracy does not.

Fourth Amendment: search or seizure requires warrant supported by probable cause unless exception applies (exigency, search incident to arrest, automobile, plain view, consent, inventory, stop-and-frisk under Terry).

Exclusionary rule: evidence obtained in violation excluded from prosecution's case-in-chief; exceptions - good faith, inevitable discovery, independent source, attenuation; fruit of the poisonous tree doctrine.

Fifth Amendment: Miranda warnings required for custodial interrogation; right to counsel attaches at initiation of adversarial judicial proceedings (Massiah); double jeopardy bars retrial after acquittal or conviction.

Sixth Amendment: speedy trial, public trial, jury trial, confrontation, compulsory process, effective assistance of counsel (Strickland two-prong - deficient performance plus prejudice).

Sentencing: Eighth Amendment proportionality (death penalty - aggravating factors required; no death penalty for nonhomicide crimes or juveniles); ex post facto and bill of attainder prohibitions.

Relevance: evidence must have any tendency to make a fact of consequence more or less probable; Rule 403 allows exclusion if probative value is substantially outweighed by unfair prejudice, confusion, or waste of time.

Character evidence: generally inadmissible to prove conduct; exceptions - criminal defendant's character, victim's character (self-defense), specific instances on cross-examination; habit evidence admissible.

Impeachment: prior inconsistent statements (under oath subject to perjury - substantive under FRE 801(d)(1)(A)); bias, interest, conviction of crime (felony or crime involving dishonesty), reputation for truthfulness, contradiction.

Hearsay: out-of-court statement offered for truth; exemptions - party-opponent (FRE 801(d)(2)); exceptions - present sense impression, excited utterance, then-existing state of mind, medical treatment, recorded recollection, business records, public records, ancient documents, learned treatises.

Confrontation Clause: testimonial hearsay inadmissible against criminal defendant unless declarant unavailable and defendant had prior opportunity to cross-examine (Crawford).

Privileges: attorney-client (confidential communication for legal advice; crime-fraud exception), physician-patient (some jurisdictions), spousal (confidential marital communications; testimonial privilege in criminal cases), clergy, psychotherapist.

Writings: authentication (FRE 901 - sufficient to support finding); best evidence rule requires original to prove content of writing, recording, or photograph unless exception.

Expert testimony: Daubert/Kumho Tire - qualifications, reliability (testability, peer review, error rate, acceptance), relevance; court acts as gatekeeper; lay opinions admissible if rationally based on perception and helpful.

Burden of proof: civil - preponderance of the evidence; criminal - beyond a reasonable doubt; presumptions - rebuttable vs. conclusive; burden of production vs. burden of persuasion.

Estates: fee simple absolute (alienable, devisable, descendible, no future interest); fee tail; life estate (pur autre vie possible); fee simple determinable (possibility of reverter); fee simple subject to condition subsequent (right of entry); fee simple subject to executory limitation (executory interest).

Concurrent estates: joint tenancy (right of survivorship; four unities - time, title, interest, possession; severance by conveyance); tenancy in common (no survivorship; unequal shares allowed); tenancy by the entirety (spouses only).

Landlord-tenant: lease types - term of years, periodic, at will, at sufferance; implied warranty of habitability (residential); constructive eviction; assignment vs. sublease; security deposit rules vary by state.

Easements: express (writing), implied (prior use, necessity), prescriptive (open, notorious, adverse, continuous, statutory period); easement appurtenant vs. in gross; termination by merger, release, abandonment, prescription.

Covenants and servitudes: real covenant requires writing, intent, touch and concern, privity (horizontal and vertical), notice; equitable servitude requires intent, touch and concern, notice; changed circumstances and relative hardship defenses.

Recording acts: race (first to record), notice (first to receive notice), race-notice (first to record without notice); shelter rule protects transferee from a protected party; inquiry notice, record notice, actual notice.

Mortgages: lien theory vs. title theory; foreclosure by judicial sale or power of sale; deficiency judgment; priority - purchase-money mortgage first, then recording order; subordination agreements.

Zoning and land use: nonconforming uses, variances (use vs. area), special exceptions, spot zoning; regulatory takings (Lucas, Penn Central); exactions (Nollan/Dolan nexus and rough proportionality).

Future interests: reversions, possibilities of reverter, rights of entry (grantor); remainders (vested, contingent, indefeasibly vested, vested subject to open/divestment); executory interests (grantee); Rule Against Perpetuities - lives in being plus 21 years.

Intentional torts: battery (harmful or offensive contact with intent), assault (apprehension of imminent battery), false imprisonment (confinement within boundaries), trespass to land/chattels, conversion; defenses - consent, self-defense, necessity, privilege.

Negligence elements: duty, breach (reasonable person standard; custom; res ipsa loquitur), actual cause (but-for), proximate cause (foreseeability; intervening causes), damages (actual harm).

Duty: general duty to foreseeable plaintiffs (Palsgraf); no duty to rescue absent special relationship or creation of peril; premises liability - invitee (reasonable care, warn of known dangers), licensee (warn of known dangers), trespasser (refrain from willful harm).

Strict liability: abnormally dangerous activities (factors - high risk, likelihood of harm, inability to eliminate risk, uncommon activity, inappropriate location, value to community); wild animals; products liability (manufacturing defect, design defect, warning defect).

Products liability theories: negligence, strict liability, breach of warranty (express, implied merchantability, fitness for particular purpose); defenses - misuse, assumption of risk, comparative fault, state-of-the-art.

Defamation: defamatory statement, of or concerning plaintiff, publication, damages; constitutional limits - public figure/official must prove actual malice (knowledge of falsity or reckless disregard); private figure on matter of public concern - fault at least negligence.

Privacy torts: appropriation of name or likeness, intrusion upon seclusion, public disclosure of private facts, false light; defenses - consent, truth, privilege.

Damages: compensatory (economic and noneconomic), punitive (intentional or reckless conduct), nominal; mitigation of damages; collateral source rule; comparative vs. contributory negligence; joint and several liability.

Immunities: governmental (discretionary function; some jurisdictions abrogate), charitable, intra-family; sovereign immunity; statute of limitations and repose.

Agency: fiduciary duties (care, loyalty, obedience, disclosure); actual authority (express or implied), apparent authority (third-party reasonable belief based on principal's manifestations), ratification; termination by act of parties, operation of law, or expiration.

Partnership: general partnership - default entity, joint and several liability, equal management rights, profits and losses shared equally absent agreement; limited partnership (general and limited partners); limited liability partnership.

Partnership duties: duty of loyalty (no self-dealing, no usurping opportunities, no competing), duty of care (gross negligence standard); dissociation and dissolution; winding up and distribution priorities.

Corporations: formation (articles of incorporation, bylaws); de facto corporation and corporation by estoppel; piercing the corporate veil (alter ego, undercapitalization, fraud); S corporation and close corporation considerations.

Corporate governance: shareholders elect directors; directors appoint officers; business judgment rule protects directors absent breach of loyalty, bad faith, or gross negligence; duty of care and duty of loyalty (self-dealing, corporate opportunity, insider trading).

Shareholder rights: voting (cumulative voting), proxies, preemptive rights, inspection rights, derivative suits (demand requirement, contemporaneous ownership, demand futility), direct vs. derivative claims.

Securities: registration under Securities Act of 1933 (Section 4(a)(2) private placement, Rule 506, Regulation A); Rule 10b-5 antifraud (material misrepresentation, scienter, reliance, damages); insider trading (misappropriation theory).

LLCs: members have limited liability; operating agreement governs; default rules - member-managed, equal voting, profits shared equally; fiduciary duties may be modified; dissolution and winding up.

Securities fraud and fiduciary duties: short-swing profits under Section 16(b); tender offer rules; proxy fraud (Section 14(a)); state blue sky laws.

Intestacy: shares determined by statute; surviving spouse and descendants; per stirpes vs. per capita distribution; advancement, ademption, abatement; simultaneous death acts.

Wills: testamentary capacity (age, sound mind); formalities - writing, signature, two witnesses (attestation), publication; holographic wills (some states); nuncupative wills (limited); codicils; incorporation by reference, acts of independent significance.

Will contests: lack of capacity, undue influence (factors - susceptibility, opportunity, motive, unnatural disposition), fraud, duress, mistake; no-contest clauses; revocation by subsequent writing, physical act, or operation of law (divorce).

Trusts: elements - settlor, trustee, beneficiary, trust property, intent; express (private, charitable), resulting, constructive; spendthrift protection; discretionary vs. support trusts; modification and termination (changed circumstances, consent).

Trustee duties: loyalty, prudence (investments - prudent investor rule), impartiality, accounting; powers; liability; removal; delegation; exculpation clauses.

Future interests: reversions, remainders, executory interests; Rule Against Perpetuities - lives in being plus 21 years; wait-and-see and cy pres approaches; savings clause.

Probate administration: personal representative, letters testamentary; creditor claims (nonclaim statutes); inventory and accounting; distribution; small estate procedures.

Taxes: estate tax (gross estate, deductions, credits), gift tax (annual exclusion, lifetime exemption), generation-skipping transfer tax; portability; basis step-up at death.

Trustee and beneficiary rights: beneficiary's right to enforce, to accounting, to remove trustee; trustee's duty to diversify; delegation of investment functions; trust protectors.

Marriage: legal requirements (license, solemnization, capacity - age, consent, no bigamy, no close relatives); common law marriage (where recognized - cohabitation plus holding out); putative spouse doctrine.

Divorce: fault vs. no-fault grounds; residency requirements; jurisdiction (divorce - domicile; property division - in rem; support - personal jurisdiction); full faith and credit (Williams v. North Carolina).

Property division: equitable distribution (marital vs. separate property; factors - duration, contributions, earning capacity); community property (nine states - equal division); valuation and tracing.

Spousal support: types - temporary, rehabilitative, permanent, lump-sum; factors - standard of living, duration, age, health, earning capacity; modification and termination (remarriage, cohabitation).

Child custody: best interests of the child standard; legal vs. physical custody; joint custody; UCCJEA (home state jurisdiction); relocation; parenting plans.

Child support: income shares model or percentage of income; guidelines; deviation factors; modification (substantial change in circumstances); enforcement (income withholding, contempt).

Paternity: presumption of legitimacy; voluntary acknowledgment; genetic testing; rights of unmarried fathers (constitutional protection); adoption and termination of parental rights.

Domestic violence: protective orders (ex parte, temporary, permanent); full faith and credit for orders (VAWA); custody and support implications; firearms restrictions.

Premarital and postmarital agreements: enforceability (writing, voluntariness, disclosure, independent counsel); UPAA; unconscionability; child support not waivable.

Civil procedure: Massachusetts Rules of Civil Procedure (based on FRCP); Superior Court - civil actions over $25,000, equity; District Court - civil actions up to $25,000; Small Claims - up to $7,000; Housing Court jurisdiction.

Jurisdiction and venue: Massachusetts courts may exercise personal jurisdiction consistent with due process and long-arm statute (G.L. c. 223A); venue generally in county where plaintiff resides or where cause of action arose.

Statute of limitations: tort - 3 years (G.L. c. 260, § 2A); contract - 6 years (§ 2); real property - 20 years; medical malpractice - 3 years from act or discovery; wrongful death - 3 years.

Comparative negligence: Massachusetts follows modified comparative negligence - 51% bar (G.L. c. 231, § 85); joint and several liability retained for certain defendants; no punitive damages except statutory.

Landlord-tenant: security deposit limit (one month's rent; G.L. c. 186, § 15B); interest on deposits; implied warranty of habitability; eviction procedures (summary process); retaliatory eviction prohibited.

Criminal procedure: Massachusetts Declaration of Rights provides broader protections than federal Constitution in some areas; no death penalty; District Court and Superior Court jurisdiction; grand jury indictment for felonies in Superior Court.

Evidence: Massachusetts Guide to Evidence (not a rule of evidence but a compilation); spousal privilege; wiretap statute (G.L. c. 272, § 99 - two-party consent); rape shield statute.

Family law: no-fault divorce (irretrievable breakdown); equitable distribution (G.L. c. 208, § 34 factors); child support guidelines; alimony reform (G.L. c. 208, §§ 48-55 - durational limits).

Wills and estates: Massachusetts Uniform Probate Code (G.L. c. 190B); will execution (two witnesses); elective share for surviving spouse; intestacy statute; estate tax (Massachusetts estate tax with $2 million threshold).