ND Bar flashcards
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32 cards. Read the term and the definition here. The deck at the top of this page is optional.
- Complete diversity
- For federal diversity jurisdiction, no plaintiff may be a citizen of the same state as any defendant; the amount in controversy must exceed $75,000.
- Federal question jurisdiction
- Federal courts have jurisdiction over claims arising under the U.S. Constitution, federal statutes, or treaties; a federal defense ordinarily does not create federal question jurisdiction.
- Hearsay definition
- An out-of-court statement offered to prove the truth of the matter asserted; it is generally inadmissible unless an exclusion, exemption, or exception applies.
- Present sense impression
- A statement describing or explaining an event made while or immediately after the declarant perceived it; admissible as a hearsay exception under the Federal Rules.
- Excited utterance
- A statement relating to a startling event made while the declarant was under the stress of excitement it caused; admissible as a hearsay exception.
- Strict scrutiny
- Applies to suspect classifications and fundamental rights; the law must be narrowly tailored to serve a compelling government interest and use the least restrictive means.
- Intermediate scrutiny
- Applies to sex-based classifications and illegitimacy; the law must serve an important government interest and be substantially related to that interest.
- Rational basis review
- Applies to economic and social legislation; the law must be rationally related to a legitimate government interest, and courts uphold it if any conceivable basis exists.
- UCC 2-207 acceptance
- A definite expression of acceptance or written confirmation operates as acceptance even with additional or different terms; additional terms between merchants enter unless material, objected to, or already offered.
- Res ipsa loquitur
- Permits an inference of negligence when the instrumentality causing injury was in the defendant's exclusive control and the accident ordinarily would not occur absent negligence.
- Race-notice recording
- A later purchaser prevails only if it records first and takes without notice of the prior conveyance; notice may be actual, inquiry, or record.
- Search incident to arrest
- Police may search the arrestee's person and the area within the arrestee's immediate control to prevent weapons access and evidence destruction; vehicle passenger compartment limits apply.
- Miranda custody test
- Miranda warnings are required before interrogation when a reasonable person would not feel free to leave; booking questions and routine traffic stops generally do not trigger the requirement.
- Proximate cause
- A defendant is liable only for harms that are a foreseeable result of the breach; unforeseeable intervening causes may supersede and cut off liability.
- MEE format
- The Multistate Essay Examination has six 30-minute essay questions in one three-hour session; questions may test one subject or combine multiple subjects.
- Actual authority
- An agent's power to act on the principal's behalf based on the principal's manifestations to the agent; it may be express or implied by conduct, custom, or necessity.
- Apparent authority
- An agent's power to bind the principal based on the principal's manifestations to a third party that reasonably lead the third party to believe the agent is authorized.
- Duty of loyalty
- A director, officer, or agent must act in the principal's best interest, avoid self-dealing, and not usurp corporate opportunities without informed consent.
- Business judgment rule
- A presumption that directors acted on an informed basis, in good faith, and in the corporation's best interest; it protects disinterested decisions from liability absent waste or bad faith.
- Spendthrift trust
- A trust provision restraining both voluntary and involuntary alienation of the beneficiary's interest; it generally protects trust distributions from the beneficiary's creditors until paid.
- Domicile test
- A person acquires domicile by physical presence in a state plus intent to remain indefinitely; a prior domicile persists until a new one is established.
- UCC Article 9 attachment
- A security interest attaches when value is given, the debtor has rights in the collateral, and the debtor authenticates a security agreement describing the collateral.
- Premarital agreement writing
- A premarital agreement must be in writing and signed by both parties to be enforceable; lack of disclosure or unconscionability may defeat enforcement under state law.
- Testimonial hearsay
- A statement made for the primary purpose of establishing past events for prosecution is testimonial; it is inadmissible against an unavailable declarant absent prior cross-examination or forfeiture.
- MPT format
- The Multistate Performance Test has two 90-minute tasks in a three-hour session; each task provides a file of facts and a library of legal authorities.
- Closed universe
- MPT materials include all facts and law needed; candidates should not rely on outside statutes, cases, or personal knowledge not supplied in the file or library.
- Objective memorandum
- A neutral legal analysis usually containing a question presented, brief answer, statement of facts, discussion, and conclusion; it predicts how a court would rule.
- Persuasive brief
- An advocacy document with caption, statement of facts, argument, and conclusion; it argues for a client's position using favorable facts and authorities from the library.
- Client letter
- A written communication to a client that states the matter, summarizes relevant facts and law, analyzes options, and recommends action in plain language.
- Task instructions
- The MPT directive governs the document's format, audience, length, and required analysis; it may require a memo, brief, letter, contract clause, will, or other document.
- Library authority
- Provided statutes, regulations, cases, and secondary sources; mandatory authority binds within its jurisdiction, while persuasive authority may influence but does not bind.
- Element application
- For each legal rule, identify every element, match specific file facts to each element, and explain whether the element is satisfied or not.