Oregon Bar cheat sheet

Subject-matter jurisdiction: federal question under 28 U.S.C. § 1331 requires a federal issue on the face of a well-pleaded complaint; diversity under § 1332 requires complete diversity plus an amount in controversy exceeding $75,000, exclusive of interest and costs.

Personal jurisdiction: a defendant must have minimum contacts with the forum such that maintenance of the suit does not offend traditional notions of fair play and substantial justice (International Shoe); general jurisdiction exists where the defendant is essentially at home.

Venue under 28 U.S.C. § 1391: a civil action may be brought in a district where any defendant resides if all defendants reside in the same state, or where a substantial part of the events or omissions giving rise to the claim occurred.

Erie doctrine: federal courts apply state substantive law and federal procedural law; if federal law directly conflicts with state law on a matter covered by the Rules Enabling Act, the federal rule governs if it is arguably procedural.

Pleading standard: a complaint must contain a short and plain statement showing entitlement to relief; plausibility pleading applies under Twombly and Iqbal, and a party must state with particularity the circumstances of fraud or mistake.

Summary judgment under Rule 56 is proper where there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law; the nonmovant's evidence is viewed in the light most favorable to that party.

Claim preclusion requires a final judgment on the merits, identity of parties or privies, and identity of claims arising from the same transaction or occurrence; issue preclusion requires actual litigation and a necessary determination of the issue.

Removal: a defendant may remove a case within 30 days of service of the initial pleading; cases may not be removed on diversity grounds more than one year after commencement, and in-state defendants may not remove on diversity grounds.

Rule 26(a) initial disclosures must be made without awaiting a discovery request and include the name and contact information of each individual likely to have discoverable information, a copy or description of documents the disclosing party may use, a computation of damages, and any insurance agreement.

Standing requires injury in fact (concrete and particularized, actual or imminent), causation fairly traceable to the challenged conduct, and redressability by a favorable decision; third-party standing is disfavored.

State action doctrine: constitutional rights are generally enforceable only against government actors; private conduct is not actionable absent a significant state entanglement, public function, or statute.

Equal protection tiers: strict scrutiny for suspect classifications (race, national origin, fundamental rights) requiring a compelling interest and narrow tailoring; intermediate scrutiny for sex requiring an exceedingly persuasive justification; rational basis for all else.

Due process: procedural due process requires notice and an opportunity to be heard before deprivation of life, liberty, or property; substantive due process protects fundamental liberties, including privacy, marriage, and parental rights.

Dormant Commerce Clause: state laws that discriminate against interstate commerce are per se invalid unless the state has a legitimate local purpose that cannot be served by reasonable nondiscriminatory alternatives; nondiscriminatory laws are upheld unless the burden on interstate commerce clearly exceeds local benefits.

Speech: content-based restrictions are subject to strict scrutiny; content-neutral time, place, and manner regulations are valid if narrowly tailored to a significant government interest and leave open ample alternative channels of communication.

Establishment Clause: the Lemon test asks whether a statute has a secular legislative purpose, has a primary effect that neither advances nor inhibits religion, and avoids excessive entanglement; coercion and neutrality principles also apply.

Ex Post Facto Clause prohibits laws that criminalize conduct that was innocent when done, increase punishment for prior conduct, or alter evidentiary rules to the disadvantage of the accused.

Takings: a physical invasion or permanent total deprivation of all economic use is a per se taking; regulatory takings use the Penn Central factors of economic impact, investment-backed expectations, and character of the governmental action.

Common law formation requires offer, acceptance, consideration, and mutual assent; UCC Article 2 applies to transactions in goods and requires only a manifestation of mutual assent, with open terms filled by gap-fillers.

UCC firm offer: a merchant's signed writing that gives assurance it will be held open is irrevocable for the stated time or for a reasonable time, not exceeding three months, without consideration.

Statute of Frauds (common law) requires a writing for contracts that cannot be performed within one year, surety agreements, promises in consideration of marriage, land sale contracts, and executor promises; UCC § 2-201 requires a writing for goods priced at $500 or more.

UCC § 2-207: definite and seasonable acceptance or written confirmation operates as an acceptance even if it states additional or different terms; additional terms are proposals that become part of the contract unless they materially alter it, the offer expressly limits acceptance, or objection is made.

Perfect tender under UCC § 2-601: a buyer may reject the whole or any commercial unit if the goods or tender of delivery fail in any respect to conform to the contract; the seller may cure under § 2-508 within the contract time or, if the time has expired, within a reasonable time if the seller had reasonable grounds to believe the tender would be acceptable.

Anticipatory repudiation: a party may treat a repudiation as a breach if the repudiation impairs the value of the contract; the aggrieved party may await performance for a commercially reasonable time or resort to remedies.

Expectation damages place the injured party in the position it would have occupied had the contract been performed; consequential damages are recoverable if foreseeable at the time of contracting, and mitigation is required.

Liquidated damages are enforceable if the amount is reasonable in light of anticipated or actual harm and difficult to ascertain; otherwise the clause is an unenforceable penalty.

Impracticability excuses performance where a party's performance is made impracticable by the occurrence of an event whose nonoccurrence was a basic assumption of the contract, without fault of the party asserting it.

Fourth Amendment: a search occurs when the government intrudes on a reasonable expectation of privacy; a seizure of a person occurs when a reasonable person would not feel free to leave.

Warrant exceptions include search incident to lawful arrest, automobile exception with probable cause, plain view, consent, exigent circumstances, inventory searches, and stop-and-frisk under Terry v. Ohio.

Exclusionary rule: evidence obtained in violation of the Fourth Amendment is generally inadmissible; the good-faith exception applies where officers reasonably rely on a facially valid warrant later found defective.

Miranda warnings (right to remain silent, anything said can be used, right to counsel, appointed counsel if indigent) are required before custodial interrogation; the suspect must unambiguously invoke the right to cut off questioning.

Sixth Amendment right to counsel attaches at the initiation of adversary judicial proceedings, including formal charge, preliminary hearing, indictment, information, or arraignment.

Murder requires malice aforethought, established by intent to kill, intent to inflict serious bodily harm, reckless indifference to an unjustifiably high risk to human life, or felony murder; voluntary intoxication can negate specific intent but not malice.

Felony murder: a death during the commission of an inherently dangerous felony (BARRK: burglary, arson, rape, robbery, kidnapping) is murder; the underlying felony merges with the homicide and the death must be a foreseeable result.

Self-defense requires a reasonable belief in imminent unlawful force and proportional force; deadly force is permitted only against deadly force or a threat of serious bodily harm, and there is no duty to retreat in most jurisdictions under the castle doctrine.

Voluntary act requirement: criminal liability requires a voluntary act or an omission where there is a legal duty to act, such as a statute, contract, relationship, or voluntary assumption of care.

Relevance: evidence is relevant if it has any tendency to make a fact of consequence more or less probable; relevant evidence is admissible unless excluded by the Constitution, a statute, the Rules, or another rule.

Rule 403: relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence.

Character evidence is generally inadmissible to prove conduct in conformity, but may be offered by the accused in a criminal case or by the prosecution to rebut; character for truthfulness may be attacked or supported after attack under Rule 608.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted; nonhearsay includes prior inconsistent statements under oath, prior consistent statements, and statements of identification.

Hearsay exceptions regardless of declarant availability include present sense impression, excited utterance, then-existing mental, emotional, or physical condition, statements for medical diagnosis or treatment, recorded recollection, business records, and public records.

Confrontation Clause: testimonial hearsay is inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine; nontestimonial statements are governed by the hearsay rules.

Expert testimony under Rule 702 requires that the witness be qualified by knowledge, skill, experience, training, or education, and that the testimony be based on sufficient facts, reliable principles and methods, and reliable application to the facts.

Best evidence rule (Rule 1002) requires the original writing, recording, or photograph to prove its content, unless an exception applies; duplicates are admissible to the same extent as originals under Rule 1003.

Privileges: attorney-client privilege covers confidential communications for legal advice, and the crime-fraud exception applies; spousal privilege includes the confidential marital communications privilege and the testimonial privilege in criminal cases.

Estates: fee simple absolute is alienable, devisable, and inheritable; fee tail, life estates, and defeasible fees (fee simple determinable, fee simple subject to condition subsequent, fee simple subject to executory limitation) are limited by future interests.

Future interests: reversions, possibilities of reverter, rights of entry, remainders (vested, contingent, indefeasibly vested), and executory interests; the Rule Against Perpetuities applies to contingent remainders and executory interests and requires vesting within 21 years after a life in being.

Concurrent estates: joint tenancy requires the four unities of time, title, interest, and possession and includes the right of survivorship; tenancy in common has no survivorship; tenancy by the entirety requires a valid marriage.

Landlord-tenant: a lease is a conveyance of an estate; the covenant of quiet enjoyment is breached by actual or constructive eviction; the implied warranty of habitability applies to residential leases and cannot be waived.

Recording acts: race statutes protect the first to record; notice statutes protect a subsequent purchaser without notice; race-notice statutes protect a subsequent purchaser without notice who records first.

Adverse possession requires actual, exclusive, open and notorious, continuous, and hostile possession for the statutory period; color of title and payment of taxes may shorten the period under some statutes.

Easements: an express easement requires a writing; an easement by implication arises from prior use; an easement by necessity arises from a landlocked parcel; a prescriptive easement requires adverse use for the statutory period; an easement is terminated by release, merger, abandonment, or prescription.

Mortgages: a mortgage is a security interest in real property; priority is generally determined by recording; foreclosure extinguishes junior liens and the purchaser takes free of them, but senior liens survive.

Zoning: nonconforming uses may continue but generally cannot be expanded; variances require undue hardship (area variances) or unnecessary hardship (use variances); spot zoning is invalid if not in accordance with a comprehensive plan.

Negligence requires duty, breach, actual cause (but-for), proximate cause (foreseeable harm), and damages; the standard of care is that of a reasonably prudent person, with special standards for children, professionals, and common carriers.

Premises liability: invitees are owed a duty to exercise reasonable care to inspect and warn of known and hidden dangers; licensees must be warned of known dangers; trespassers are owed only a duty not to willfully or wantonly injure.

Strict liability applies to abnormally dangerous activities and to defective products; a product is defective if it has a manufacturing defect, a design defect (risk-utility or consumer expectations test), or a failure to warn.

Defenses: comparative negligence reduces recovery in proportion to fault; contributory negligence is a complete bar in the few remaining jurisdictions; assumption of risk requires knowledge and voluntary acceptance of a known risk.

Intentional torts: battery requires harmful or offensive contact; assault requires apprehension of imminent harmful or offensive contact; false imprisonment requires confinement within fixed boundaries; intentional infliction of emotional distress requires extreme and outrageous conduct.

Defamation: plaintiff must show a defamatory statement of and concerning the plaintiff published to a third party; public officials and public figures must prove actual malice (knowledge of falsity or reckless disregard) for statements about public conduct.

Invasion of privacy: four torts are appropriation of name or likeness, intrusion upon seclusion, public disclosure of private facts, and false light; newsworthiness and consent are defenses.

Nuisance: private nuisance is a substantial, unreasonable interference with another's use and enjoyment of land; public nuisance is an unreasonable interference with a right common to the general public.

Damages: compensatory damages include economic and noneconomic losses; punitive damages require willful, wanton, or malicious conduct and are subject to constitutional due process limits; the collateral source rule bars reduction for third-party payments.

Agency: an agency relationship arises from consent, control, and a fiduciary duty; an agent has actual authority (express or implied) and apparent authority (manifestation by the principal to a third party); ratification occurs when the principal affirms the act.

Partnership: a general partnership is an association of two or more persons to carry on as co-owners a business for profit; each partner is an agent of the partnership for business purposes, and partners have joint and several liability for partnership obligations.

Limited partnership: a limited partnership has at least one general partner and one limited partner; limited partners are liable only to the extent of their contributions but lose limited liability if they participate in control.

LLC: members are not personally liable for the debts and obligations of the LLC; an LLC is taxed as a partnership by default; a member's interest is assignable, but only an assignee admitted as a member has management rights.

Corporation: a corporation is a separate legal entity with limited liability for shareholders; the board of directors manages the corporation, and officers are agents of the board.

Piercing the corporate veil requires a showing that the corporation is the alter ego of the shareholder and that honoring the corporate form would work an injustice or fraud; mere undercapitalization alone is generally insufficient.

Duty of care and loyalty: directors owe a duty of care and a duty of loyalty; the business judgment rule presumes directors acted on an informed basis, in good faith, and in the honest belief the action was in the corporation's best interest.

Self-dealing: a transaction between a director and the corporation is voidable unless the director discloses the interest and the transaction is fair to the corporation, or it is approved by disinterested directors or shareholders.

Securities: Rule 10b-5 prohibits fraud or deceit in connection with the purchase or sale of securities; a plaintiff must prove a material misrepresentation or omission, scienter, reliance, and loss causation; insider trading requires a breach of fiduciary duty.

Marriage: a valid marriage requires capacity, consent, and compliance with licensing and solemnization requirements; common law marriage requires cohabitation, capacity, and holding out as married in jurisdictions that recognize it.

Premarital agreements are enforceable if they are in writing, entered voluntarily, and do not unconscionably limit spousal support or fail to disclose assets; Uniform Premarital Agreement Act standards apply in many states.

Divorce: no-fault divorce is available on grounds such as irreconcilable differences; fault grounds include adultery, cruelty, desertion, and habitual drunkenness; the court must have personal jurisdiction over the defendant to adjudicate support and property.

Property division: equitable distribution divides marital property, generally including earnings and property acquired during the marriage; separate property includes premarital property, gifts, and inheritances, and commingling can convert it.

Child support is determined by statutory guidelines based on income, number of children, and time-sharing; modification requires a substantial change in circumstances, and support arrearages are generally not retroactively modified.

Custody: the best interests of the child standard governs; factors include stability, the child's wishes, parental fitness, and the child's adjustment to home, school, and community; joint custody requires cooperative parents.

Adoption: adoption requires termination of the birth parents' rights, either voluntarily by consent or involuntarily by court order; a putative father who has not established a relationship may be subject to the adoption.

Domestic violence: protective orders may be issued ex parte upon a showing of immediate danger; a full hearing follows within a short statutory period, and violation of a protective order is a criminal offense.

Intestate succession: property passes to the surviving spouse and descendants under the state's intestacy statute; if no spouse or descendants, it passes to parents, then siblings, then more remote relatives, and escheats to the state if no heirs.

A valid will requires testamentary capacity (age and sound mind), testamentary intent, and proper execution: a writing signed by the testator and attested by two witnesses in the testator's presence (or a notarized self-proving affidavit).

Holographic wills are unwitnessed wills written and signed in the testator's handwriting; they are valid in many states if the material provisions are in the testator's hand.

Revocation: a will may be revoked by a subsequent will, by physical act with intent to revoke, or by operation of law such as divorce; lost wills are presumed revoked if the testator had possession and they cannot be found.

Trusts: a trust requires a settlor, trustee, beneficiary, and trust property; a trust is valid if the settlor has capacity and manifests intent to create it; a charitable trust must have a charitable purpose and indefinite beneficiaries.

Spendthrift trusts restrict a beneficiary's ability to assign or creditors' ability to reach trust assets; discretionary trusts give the trustee discretion over distributions, and creditors may reach only amounts the trustee has distributed.

Rule Against Perpetuities applies to private trusts and future interests; a trust is void if it may vest beyond the perpetuities period, which is a life in being plus 21 years, unless a state has adopted a different rule.

Fiduciary duties: a trustee owes the duties of loyalty, impartiality, prudence, and accounting; the duty of loyalty prohibits self-dealing, and the trustee may not commingle trust property with personal assets.

Probate: a will must be probated in the county where the decedent was domiciled at death; the personal representative administers the estate, pays debts and taxes, and distributes the residue to beneficiaries.

Competence and diligence: a lawyer must provide competent representation, which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation (Rule 1.1).

Confidentiality (Rule 1.6): a lawyer may not reveal information relating to the representation of a client without informed consent, except to prevent reasonably certain death or substantial bodily harm, to prevent a client from committing a crime or fraud, or to respond to allegations in a controversy.

Conflicts of interest (Rule 1.7): a concurrent conflict exists if representation of one client will be directly adverse to another client or if there is a significant risk that the representation will be materially limited by responsibilities to another client or a personal interest; informed consent confirmed in writing is required.

Former client conflicts (Rule 1.9): a lawyer who has formerly represented a client in a matter may not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, absent informed consent.

Fees (Rule 1.5): fees must be reasonable; contingent fees must be in writing and signed by the client, and contingent fees are prohibited in criminal cases and in domestic relations matters where the fee is contingent on securing a divorce or amount of support.

Safekeeping property (Rule 1.15): client funds must be held in a trust account, and a lawyer may not commingle client funds with the lawyer's own funds; disputed funds must be kept separate until the dispute is resolved.

Candor to the tribunal (Rule 3.3): a lawyer may not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement previously made; the duty of candor overrides confidentiality.

Advertising and solicitation (Rules 7.1-7.3): a lawyer may not make false or misleading communications about the lawyer's services; in-person solicitation of prospective clients for pecuniary gain is prohibited, and written solicitation must be labeled as advertising.

Withdrawal (Rule 1.16): a lawyer must withdraw if continued representation will result in a violation of the rules or other law, or if the lawyer's physical or mental condition materially impairs the representation; permissive withdrawal requires good cause and reasonable notice.

Performance tests require the applicant to complete a practical lawyering task, such as drafting a memorandum, a letter, or a contract provision, using only the File and the Library provided.

The File contains the facts of the matter, including client documents, correspondence, and instructions; the Library contains legal authorities, such as statutes, cases, and regulations, that must be applied to the facts.

Read the task memo first: it identifies the client, the assignment, the audience, and the required format; the task memo may specify the length and the level of detail expected.

Organize the answer by the elements of the legal rule: state the rule from the Library, apply the facts from the File, and reach a conclusion for each element.

Do not import outside law: the Performance Test is self-contained, and the answer must be based on the authorities in the Library, not on the applicant's independent legal knowledge.

Manage time: allocate roughly 90 minutes per performance test, spending about 20 minutes reading the File and Library and 60-70 minutes drafting the answer.

Cite the authorities in the Library by name or section, and quote key language where it supports the analysis; do not cite authorities not provided.

Format matters: use headings, short paragraphs, and a professional tone; for a letter, include the date, addressee, and signature block; for a memorandum, include a statement of facts and a discussion.

Follow the client's instructions exactly: if the task memo asks for a list of questions to ask the client, do not draft a legal argument; if it asks for a recommendation, state a clear recommendation.