NextGen Bar flashcards

32 cards. Read the term and the definition here. The deck at the top of this page is optional.

Complete diversity

Requirement under 28 U.S.C. § 1332 that no plaintiff share state citizenship with any defendant, measured at the time of filing, along with an amount in controversy above $75,000.

Erie doctrine

In diversity cases federal courts apply state substantive law and federal procedural rules; a valid Federal Rule governs if it directly conflicts with state practice.

Claim preclusion elements

A final judgment on the merits by a court of competent jurisdiction, the same claim or transaction, and the same parties or their privies, bars later litigation of that claim.

Standing elements

Injury in fact that is concrete and particularized, fair traceability to the defendant's conduct, and redressability through a favorable judicial decision.

Dormant Commerce Clause

States may not discriminate against interstate commerce absent an important local purpose with no nondiscriminatory alternative; nondiscriminatory burdens are balanced under Pike.

Content-neutral time place manner

Speech regulation in a public forum is valid if narrowly tailored to a significant interest, leaves open ample alternative channels, and is content-neutral.

UCC 2-207

A definite acceptance or written confirmation operates as acceptance even with additional terms; between merchants those terms enter unless material, objected to, or the offer limited acceptance.

Promissory estoppel

A promise reasonably expected to induce reliance, actual detrimental reliance, and injustice absent enforcement allow recovery, typically limited to the reliance interest.

Perfect tender rule

Under UCC 2-601 a buyer may reject goods that fail in any respect to conform to the contract, subject to cure rights, installment contracts, and the rules on acceptance.

Felony murder

A killing committed during an inherently dangerous felony; liability is limited by the merger doctrine, agency or proximate cause rules, and the defenses to the underlying felony.

Miranda trigger

Custody plus interrogation by law enforcement requires warnings; waiver must be knowing, voluntary, and intelligent, and invocation of rights must be unambiguous.

M'Naghten test

A defendant is not guilty if, because of mental disease or defect, he did not know the nature and quality of the act or did not know it was wrong.

Excited utterance

A statement relating to a startling event made while the declarant was under the stress of excitement it caused; admissible under FRE 803(2) regardless of availability.

MIMIC exceptions

Motive, intent, mistake or identity, absence of mistake, and common plan or scheme; permissible non-propensity uses of prior bad acts evidence under FRE 404(b).

Daubert factors

Factors for expert reliability include testability, known error rate, peer review and publication, existence of standards, and general acceptance in the field.

Fee simple determinable

An estate that ends automatically upon the occurrence of a stated event, leaving the grantor a possibility of reverter; created by words such as so long as, while, or until.

Race-notice recording act

A subsequent purchaser prevails over a prior unrecorded interest only if the purchaser records first and takes without notice, giving protected status to the bona fide purchaser.

Adverse possession elements

Possession that is actual, open and notorious, exclusive, continuous, and hostile for the statutory period; color of title or tax payment may be required in some states.

Res ipsa loquitur

The instrumentality was in the defendant's exclusive control and the event is one that ordinarily does not occur without negligence, permitting an inference of breach.

Public figure defamation

A public official or figure must prove falsity and actual malice, meaning knowledge of falsity or reckless disregard for the truth, by clear and convincing evidence.

Assumption of risk

A plaintiff who knowingly and voluntarily encounters a known risk cannot recover; in comparative negligence jurisdictions the risk is weighed rather than barring recovery.

Business judgment rule

A presumption that directors acted on an informed basis, in good faith, and in the honest belief the decision served the corporation's best interests.

Partnership default profit sharing

Under the UPA, partners share profits and losses equally regardless of capital contributions, absent an agreement providing otherwise.

Piercing the corporate veil

Shareholders lose limited liability when they abuse the corporate form through alter ego, commingling, or undercapitalization, and recognizing the entity would work injustice.

Domicile

Physical presence in a location combined with intent to remain there indefinitely; a person keeps an existing domicile until a new one is established.

Full faith and credit judgments

A sister-state judgment must be enforced when the rendering court had personal and subject matter jurisdiction and the judgment was final and on the merits.

UCCJEA home state

The state where the child lived with a parent or person acting as parent for at least six consecutive months before the proceeding; it has priority custody jurisdiction.

Equitable distribution

A divorce court divides marital property in a manner it deems fair under statutory factors such as marriage duration, contributions, and each spouse's economic circumstances.

Per stirpes

A method of distributing an estate by branch, so that each deceased child's share passes to that child's descendants rather than being divided equally among all heirs.

Spendthrift trust

A trust restraint on voluntary and involuntary alienation of the beneficiary's interest, preventing creditors from reaching trust assets before distribution to the beneficiary.

Holographic will

A will with material provisions entirely in the testator's handwriting and signed by the testator; no witnesses are required, but testamentary intent must be shown.

Trustee duty of loyalty

A trustee must administer the trust solely in the beneficiaries' interests, avoiding self-dealing, conflicts of interest, and unauthorized personal profit from trust property.