NextGen Bar cheat sheet

Federal question jurisdiction under 28 U.S.C. § 1331 requires a claim arising under federal law that appears on the face of a well-pleaded complaint; a federal defense or counterclaim does not create it.

Diversity under § 1332 requires complete diversity between all plaintiffs and all defendants plus an amount in controversy exceeding $75,000 exclusive of interest and costs.

General personal jurisdiction exists where the defendant is domiciled, incorporated, has its principal place of business, or is essentially at home; specific jurisdiction requires purposeful contacts plus a claim arising out of or relating to those contacts, and must be reasonable.

Removal is due within 30 days of service of the initial pleading; a § 1332 case is not removable if any properly joined defendant is a citizen of the forum state, and no case may be removed more than one year after commencement if diversity was not initially apparent.

Under Erie, a valid Federal Rule of Civil Procedure governs in diversity cases; absent a federal rule or statute, courts apply state substantive law and federal procedural law, using outcome determination as the guide.

Venue under § 1391 lies where any defendant resides if all reside in the same state, where a substantial part of the events or omissions occurred, or where the property is situated; the fallback is any district where any defendant is subject to personal jurisdiction.

Summary judgment is granted only where no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law, viewing evidence in the nonmovant's favor.

Under Twombly/Iqbal, a complaint must plead sufficient factual content to make relief plausible; conclusory allegations and legal conclusions are disregarded.

Claim preclusion requires a final judgment on the merits, the same claim or transaction, and the same parties or their privies; issue preclusion requires the issue to have been actually litigated and essential to the judgment.

Standing requires an injury in fact that is concrete, particularized, actual or imminent, fairly traceable to the defendant, and redressable by a favorable ruling; taxpayer standing is barred except for Establishment Clause challenges to congressional spending.

Strict scrutiny requires a compelling interest and narrow tailoring; it applies to suspect classifications (race, national origin, alienage) and fundamental rights (voting, travel, privacy).

Intermediate scrutiny requires an important interest and a substantial relationship; it applies to sex-based classifications, illegitimacy, and content-neutral time/place/manner regulations.

Rational basis review upholds a law if it is rationally related to any legitimate government purpose; it applies to economic regulation, age, disability, and sexual orientation (per current doctrine).

The Commerce Clause reaches channels of interstate commerce, instrumentalities, persons and things in interstate commerce, and intrastate activity that substantially affects interstate commerce, with aggregation under Wickard.

The Dormant Commerce Clause bars discriminatory state laws absent an important local purpose with no nondiscriminatory alternative; Pike balancing applies to nondiscriminatory laws that burden interstate commerce.

Procedural due process requires notice and an opportunity to be heard; Mathews v. Eldridge balances the private interest, risk of erroneous deprivation, and government burden.

Content-based speech restrictions receive strict scrutiny; prior restraints carry a heavy presumption of unconstitutionality; vagueness and overbreadth doctrines limit regulation of speech.

The Fifth Amendment Takings Clause requires public use and just compensation; Penn Central factors include economic impact, investment-backed expectations, and character of the government action.

UCC 2-207: a definite expression of acceptance or written confirmation operates as acceptance even with additional or different terms; between merchants, additional terms enter unless material, objected to, or the offer limited acceptance.

Statute of Frauds categories are marriage, year, land, executor, goods of $500 or more, and surety; the writing must be signed by the party to be charged and state essential terms.

Common law applies substantial performance with damages equal to cost of completion; the UCC perfect tender rule lets a buyer reject goods failing in any respect, subject to cure and acceptance rules.

Expectation damages put the nonbreaching party where performance would have placed them; consequential damages are recoverable only if foreseeable at formation under Hadley v. Baxendale.

Liquidated damages are enforceable if damages were difficult to estimate at formation and the stipulated sum is a reasonable forecast, not an unreasonable penalty.

Anticipatory repudiation requires a clear and unequivocal refusal to perform; the nonbreaching party may await performance or treat the repudiation as breach, and under the UCC the repudiator may retract before the next performance is due.

The parol evidence rule bars prior or contemporaneous agreements contradicting a fully integrated writing; exceptions include ambiguity, consistent additional terms, course of dealing, and conditions precedent.

Impracticability excuses performance when an unforeseeable event makes performance impracticable without fault; frustration of purpose requires the principal purpose of the contract to be substantially frustrated.

A merchant's firm offer under UCC 2-205 is irrevocable without consideration if made in a signed writing and held open no longer than three months.

MPC mens rea levels are purposely, knowingly, recklessly, and negligently; recklessness requires conscious disregard of a substantial and unjustifiable risk.

Voluntary intoxication may negate the specific intent required for first-degree murder, burglary, larceny, and attempt; involuntary intoxication may be a complete defense.

Felony murder attributes a killing during an inherently dangerous felony to the felon; the merger doctrine bars it when the underlying felony is assaultive and integral to the killing.

Self-defense requires a reasonable belief in imminent unlawful force; deadly force requires a reasonable belief in imminent death or serious bodily harm, and retreat rules vary by jurisdiction.

Attempt requires the specific intent to commit the target crime plus an act beyond mere preparation, typically the substantial step test; factual impossibility is no defense.

Conspiracy requires an agreement plus intent to achieve the unlawful objective; at common law no overt act is required, while the MPC requires an overt act by any conspirator.

Miranda warnings are required before custodial interrogation; invocation of the right to remain silent must be unambiguous, and waiver must be knowing, voluntary, and intelligent.

The M'Naghten test excuses a defendant who did not know the nature and quality of the act or did not know it was wrong; the MPC test excuses one lacking substantial capacity to appreciate wrongfulness or conform conduct.

The Fourth Amendment requires probable cause and generally a warrant, subject to exceptions including search incident to arrest, automobile, consent, plain view, exigency, inventory, and Terry stops on reasonable suspicion.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted; FRE 801(d) exclusions include the declarant's prior sworn inconsistent statements, prior consistent statements, identifications, and opposing party statements.

FRE 803 exceptions (availability immaterial) include present sense impression, excited utterance, then-existing mental, emotional, or physical condition, statements for medical diagnosis, business records, and public records.

FRE 804 exceptions (declarant unavailable) include former testimony, dying declarations (homicide or civil cases), statements against interest, and statements of personal or family history.

FRE 403 permits exclusion of relevant evidence when probative value is substantially outweighed by unfair prejudice, confusion of the issues, misleading the jury, or waste of time.

Character evidence is inadmissible to prove propensity, but is admissible for the accused's pertinent trait, the victim's character in self-defense cases, and MIMIC purposes (motive, intent, mistake, identity, common plan).

Impeachment by prior conviction requires a felony or a crime involving dishonesty; the court balances under 403, and a pending appeal does not bar admission.

The best evidence rule requires the original writing, recording, or photograph to prove its contents unless the original is unavailable through no fault of the proponent or the contents are collateral.

The Confrontation Clause bars admission of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine.

Daubert requires the trial judge to ensure expert testimony rests on a reliable foundation and is relevant; factors include testability, known error rate, peer review, standards, and general acceptance.

A fee simple determinable ends automatically on the stated event and leaves the grantor a possibility of reverter; a fee simple subject to a condition subsequent requires the grantor to exercise a right of entry.

The Rule Against Perpetuities requires an interest to vest, if at all, no later than 21 years after the death of a life in being at the interest's creation; wait-and-see and cy pres reform apply in many jurisdictions.

Joint tenancy requires the four unities of time, title, interest, and possession and carries a right of survivorship; severance by conveyance destroys survivorship.

Tenancy by the entirety exists only between spouses and requires the same four unities; neither spouse may unilaterally convey or encumber.

Race-notice recording statutes protect a subsequent purchaser who records first and takes without notice of prior unrecorded interests; inquiry and record notice defeat bona fide purchaser status.

An easement by necessity requires common ownership followed by severance and strict necessity at the time of severance; an easement by implication requires prior use that was apparent, continuous, and reasonably necessary.

A real covenant requires a writing, intent, touch and concern, horizontal and vertical privity, and notice to bind successors; equitable servitudes require intent, touch and concern, and notice, and are enforced by injunction.

Adverse possession requires actual, open and notorious, exclusive, continuous, and hostile possession for the statutory period; some jurisdictions add color of title or tax payment requirements.

Constructive eviction occurs when the landlord's act or omission substantially interferes with possession or makes the premises unfit, permitting the tenant to vacate and cease rent; the implied warranty of habitability is nonwaivable in residential leases.

Negligence requires duty, breach measured by the reasonable person standard, actual cause (but-for), proximate cause (foreseeability), and damages.

Landowner duties: trespassers are owed only the duty not to inflict willful or wanton harm; licensees must be warned of known dangers; invitees are owed reasonable inspection and warning of latent dangers.

Strict liability applies to abnormally dangerous activities, wild animals, and defective products; proximate cause and foreseeability limits still apply.

Products liability theories are manufacturing defect, design defect (risk-utility or consumer expectations), and failure to warn; claims may sound in negligence, strict liability, or implied warranty.

Defamation requires a defamatory statement of fact, publication to a third party, fault, and damages; public officials and figures must prove falsity and actual malice by clear and convincing evidence.

Private nuisance requires a substantial and unreasonable interference with another's use and enjoyment of land; public nuisance requires special damage to the plaintiff.

Res ipsa loquitur requires the instrumentality to be in the defendant's exclusive control and the event to be one that ordinarily does not occur absent negligence, creating a permissible inference of breach.

Comparative negligence reduces recovery in proportion to fault; contributory negligence is a complete bar in a minority of jurisdictions; assumption of risk requires knowing and voluntary encounter with a known risk.

Intentional torts: battery is harmful or offensive contact, assault is apprehension of imminent contact, false imprisonment is confinement, and IIED requires extreme and outrageous conduct plus severe emotional distress.

Agency is a fiduciary relationship in which the agent acts on the principal's behalf and subject to the principal's control; actual authority may be express or implied by conduct or circumstances.

Apparent authority arises from manifestations by the principal to a third party, not from the agent's own statements; ratification occurs when the principal accepts the benefits of an unauthorized act with knowledge.

General partners owe fiduciary duties of loyalty and care; UPA defaults include equal sharing of profits and losses, majority vote for ordinary matters, and unanimity for extraordinary matters.

LLC members enjoy limited liability; a charging order is the exclusive remedy of a judgment creditor against a member's distributional interest, and the operating agreement controls internal governance.

Piercing the corporate veil requires abuse of the corporate form such as alter ego, commingling, undercapitalization, or fraud, plus a showing that limited liability would work injustice.

The business judgment rule presumes directors acted on an informed basis, in good faith, and in the honest belief the action served the corporation's best interests; it is rebutted by loyalty breaches, bad faith, or gross negligence.

The duty of loyalty prohibits self-dealing, usurpation of corporate opportunities, and insider trading; a corporate opportunity must be disclosed and rejected before a director may take it.

A derivative suit requires contemporaneous ownership, a demand on the board or futility excusal, and fair and adequate representation of the shareholders' interests.

Rule 10b-5 requires a material misrepresentation or omission, scienter, reliance, and damages in connection with the purchase or sale of securities; § 16(b) recovers short-swing profits by insiders within six months.

Domicile requires physical presence in a place plus intent to remain there indefinitely; a person retains an existing domicile until a new one is established.

The First Restatement vested-rights approach applies the law of the place of the wrong for torts and the place of contracting or performance for contracts.

The Second Restatement applies the law of the state with the most significant relationship, weighing the relevant policies of the forum and other interested states, party expectations, and predictability.

Party autonomy permits contracting parties to select governing law unless the chosen law is contrary to a fundamental public policy of the forum or has no reasonable basis.

Full faith and credit requires enforcement of a sister-state judgment that is final, on the merits, and rendered by a court with personal and subject matter jurisdiction.

Marriage validity is generally determined by the law of the place of celebration, subject to a strong public policy exception for categories such as incest or polygamy.

Forum non conveniens permits dismissal when a substantially more appropriate forum exists and the plaintiff has an adequate alternative remedy; the doctrine is procedural and not a merits determination.

A federal court sitting in diversity applies the choice-of-law rules of the state in which it sits under Erie and Klaxon.

Divorce jurisdiction requires the plaintiff to be domiciled in the forum state; a court may dissolve the marriage without personal jurisdiction over the absent spouse but cannot bind that spouse to property or support orders without it.

Equitable distribution divides marital property based on fairness factors such as duration of marriage, contributions, ages, and health; separate property including premarital assets, gifts, and inheritances is generally retained by its owner.

In the nine community property states, earnings and property acquired during marriage are presumptively community property and divided equally.

Premarital agreements are enforceable if in writing, voluntarily executed, with fair and reasonable disclosure, and not unconscionable at enforcement.

Child custody is decided under the best interests of the child standard, considering stability, parental fitness, the child's preference, and domestic violence history.

The UCCJEA grants custody jurisdiction to the child's home state, defined as the state where the child lived with a parent for at least six consecutive months before the proceeding.

Spousal support may be rehabilitative, durational, or permanent; modification requires a substantial change in circumstances not anticipated at the original order.

Child support obligations cannot be waived by the parents and are modifiable prospectively only; termination of parental rights requires clear and convincing evidence of grounds and the child's best interests.

Intestate succession passes first to the surviving spouse and descendants; per stirpes divides the estate by branches so that a deceased child's share descends to that child's issue.

A valid attested will requires testamentary intent, testamentary capacity, a writing, the testator's signature, and two witnesses; a holographic will requires material provisions in the testator's handwriting and a signature.

Revocation may occur by physical act with intent to revoke, by a subsequent instrument, or by operation of law such as divorce; a codicil republishes the will as amended.

A pour-over will transfers assets to an existing inter vivos trust; the trust must be identified in the will, and incorporation by reference or facts of independent significance may validate unattested writings.

Trust elements are a settlor, trustee, beneficiary, trust res, intent to create a trust, and a lawful purpose; a trust fails without identifiable beneficiaries or property.

A spendthrift provision restrains both voluntary and involuntary alienation of the beneficiary's interest; exceptions include necessities, child support, and certain government claims.

Trustee duties include loyalty, the prudent investor rule (diversify and consider risk/return), impartiality among beneficiaries, and the duty to account and inform.

The Rule Against Perpetuities applies to contingent interests in trust; wait-and-see and cy pres doctrines may save interests that would otherwise fail.

A surviving spouse's elective share guards against disinheritance, and pretermitted child statutes protect children omitted from a will without indication of intentional disinheritance.