Questions and Answers
The plaintiff must prove the product was defective in ______, design, or failure to warn.
manufacture
A security interest in money may be perfected only by ______.
possession
A financing statement must contain the ______ name, the name of the secured party or a representative of the secured party, and the collateral covered.
debtor's
Perfection by control of the collateral may only be achieved with respect to a security interest in ______ property.
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A PMSI in consumer goods is automatically perfected upon ______.
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On Day One, the debtor authenticates a ______ agreement, which describes the collateral.
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On Day Two, the secured party files a ______ statement.
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Goods, instruments, negotiable documents, money, and tangible ______ paper are the only types of collateral that may be perfected by possession.
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Under the ________________ exception, when a plaintiff wrongfully takes personal property from a defendant's possession, the defendant may use reasonable, nondeadly force to regain possession of the property if the defendant acts promptly
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No PEL for ________________ claims.
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A court may exercise supplemental jurisdiction over additional claims that are related to a claim based on diversity jurisdiction—even if those additional claims do not satisfy the amount-in-controversy requirement, unless those claims would destroy complete diversity of ________________.
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A plaintiff can properly serve a defendant who is an individual located in the United States by following the rules of the state where the court sits or where service is made, having process delivered to the defendant personally (or to an agent authorized to receive process), or having process delivered to the defendant's dwelling and left with a resident of suitable age and ________________.
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For injunctions, if monetary damages can make defendant whole, then no ________________.
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For answers, the failure to deny an allegation relating to the amount of damages does not deem that allegation ________________.
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Under Federal Rule of Civil Procedure 15, a party may amend its original pleading (e.g., complaint) once as a matter of course (i.e., without the court's permission) and a response to the amended pleading (e.g., answer) generally must be made by the later of the following deadlines: the time remaining to respond to the original pleading, or 14 days after the service of the amended ________________.
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A court may not impose a monetary sanction under Rule 11 on its own initiative without issuing a ________________ order.
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Impleader (i.e., third-party practice) allows a defendant to add a nonparty (i.e., third-party defendant) to a suit who may be liable to the defendant for all (i.e., indemnity) or part (i.e., contribution) of the plaintiff's claim, and the plaintiff may assert his/her own third-party claim against the third-party defendant if that claim arises out of the same ________________ or occurrence.
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To challenge a jury instruction on appeal, a party must preserve the issue at trial by timely objecting to the instruction on the record and stating the grounds for the ________________.
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The rights of an intended beneficiary vest when the beneficiary ______ in justifiable reliance on the rights created;
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Impracticability requires that an unforeseeable event has ______;
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The doctrine of anticipatory repudiation is applicable when a promisor repudiates a promise ______ the time for performance is due;
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A party may appeal a district court order by filing a petition with the appellate court clerk within ______ days after the order is entered.
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A district court may enter final judgment as to fewer than all claims or parties if it expressly determines that there is no just reason for ______.
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A class notice must include, among other things, the ______ of the action;
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A temporary restraining order may remain in effect for only a limited number of days, but no longer than ______ days unless good cause exists or the adversary consents;
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The two dismissal rule applies when a party voluntarily dismissed the first action in federal or state court without ______.
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Defects in title rendering title unmarketable include private ______, such as mortgage or easement.
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The plaintiff is responsible for serving the summons and complaint upon the defendant within ______ days after filing the complaint;
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The buyer must wait to enforce marketable title until ______ occurs.
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In cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the ______;
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Time is of the essence notice must be given at a reasonable time before the date designated for ______.
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Permanent spousal support is typically awarded only when the marriage was one of ______ duration;
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In the implied warranty of good workmanship context, the buyer is not required to employ an expert ______ inspector.
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Ps and Ds may join/be joined in one action if any right to relief is asserted jointly, severally, or with respect to or arising out of same ______, occurrence, or series of them;
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The seven principles of the second restatement include the needs of the ______ or international system;
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A court order granting a motion for a new trial is not an exception to the final ______ rule.
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Activities are considered abnormally dangerous if they create a foreseeable and highly significant risk of physical ______.
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The appellate court has the discretion to permit the appeal from the district court order that granted or denied class action ______.
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For a nonparty to intervene in an action, the disposition of the action may ______ the nonparty’s interest.
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A class action is appropriate where common questions of law or fact ______.
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To be entitled to an adverse inference, the alleged victim must establish that the destruction was ______.
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For lay witness opinion to be admissible, it must be based on the witness’s ______ and helpful to the factfinder.
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The Confrontation Clause requires that the declarant is ______ and prior opportunity for cross-examination to use hearsay.
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A business record is excepted from the hearsay rule if the record was kept in the course of a regularly conducted activity of a ______.
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The irresistible impulse test requires that the defendant lacked self-control and free choice because of ______.
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Adequate provocation is a situation that could bring a reasonable person to act momentarily out of ______ rather than reason.
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Mental states for malice include intent to kill, intent to cause serious bodily injury, reckless indifference to human ______.
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A witness may be impeached by evidence of a juvenile adjudication, but only if it is offered in a ______ case.
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Such materials will be subject to discovery if the party shows that it has substantial need for the materials to prepare its case and cannot obtain their substantial equivalent by other means without undue ________________.
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A rebuttable presumption shifts the burden of ________________ to the opposing party.
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Under the 'bursting bubble' approach, a presumption bursts after the introduction of sufficient evidence by the opposing party to sustain a contrary ________________.
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The violation of the 'knock and announce' rule does not trigger the ________________ rule with respect to evidence discovered as a result of a search conducted in violation of this rule.
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Statements taken in violation of ________________ may be used to impeach the credibility of the criminal defendant.
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Involuntary confessions cannot be used either substantively or for ________________ purposes.
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The failure to provide counsel at trial results in automatic ________________ of a conviction.
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Once an individual in custody asserts the Fifth Amendment right to counsel, no subsequent waiver of that right is valid in a police-initiated custodial ________________.
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The police are not required to inform the suspect of the defense counsel's efforts to reach the defendant by ________________.
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A Miranda violation does not provide a basis for a federal civil action against a law enforcement officer for deprivation of rights under 42 U.S.C. § ________________.
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The Edwards rule will still apply if the accused has actually asserted his right to ______, but remember that the Edwards rule only applies in custodial interactions.
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If the police initiate a conversation with an accused individual who has requested ______, any incriminating statements made by the defendant may still be used for impeachment purposes.
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When a lawyer’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant is presumed with no further showing from the defendant of the merits of his underlying ______.
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Failure to make such a ______ violates the Due Process Clause and is grounds for reversal, regardless of whether the failure to disclose was intentional, if the defendant can show that (i) the evidence is favorable to the defendant (i.e., is exculpatory or impeaches) and (ii) the failure to disclose caused prejudice against the defendant (i.e., there is a reasonable probability of a different outcome had the evidence been disclosed earlier).
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An improper exclusion of a juror from a jury that imposed a death sentence is subject to automatic ______.
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When a sentence may be increased if additional facts are established, a jury must generally determine the existence of such facts beyond a ______ doubt.
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For double jeopardy, A grant of a demurrer or motion to dismiss in favor of the accused at the close of the state’s case is NOT the equivalent of an ______.
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The Double Jeopardy Clause generally does not prevent the retrial of a defendant after an appeal on the basis of an error made at trial, such as the admission of improper hearsay evidence or improper jury ______.
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However, a retrial after reversal of a conviction due to insufficiency of the evidence is barred by the Double Jeopardy Clause. A conviction is based upon insufficient evidence if the evidence presented, when viewed in the light most favorable to the prosecution, is such that no rational fact-finder could have found the defendant guilty beyond a ______ doubt.
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A guilty plea to a lesser included offense does not preclude prosecution for a greater offense if the greater offense has been charged before the plea is ______.
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The common law elements of battery include unlawful, offensive contact, and contact with the ______ of another.
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Consent obtained by fraud in the ______ (i.e., regarding the nature of the act itself) is not a valid defense to rape.
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Under the MPC, withdrawal from a conspiracy may only occur by acting voluntarily to ______ the success of the conspiracy.
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Involuntary manslaughter can be committed by negligent homicide or a killing during the commission of a ______ in se misdemeanor.
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A judge must determine that a plea is both intelligent and ______ before accepting it.
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The good faith exception to the exclusionary rule does not apply if the warrant was obtained by ______.
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To challenge a jury instruction on appeal, a party must preserve the issue at trial by timely objecting to the instruction and stating the grounds for the ______.
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The rights of an intended beneficiary vest when the beneficiary ______ in justifiable reliance on the rights created.
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A district court may enter final judgment as to fewer than all claims or parties if it expressly determines that there is no just reason for ______.
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In cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the ______.
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The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe it contains contraband or evidence of a ______ activity.
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Police may enter a third party's home to execute an arrest warrant only when they have a warrant authorizing the search of the home, ______ circumstances, or the third party's consent to enter the home.
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Probable cause to believe that a misdemeanor was committed, without actually witnessing the crime, is not sufficient for a valid ______ arrest.
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The illegal stop was not effected for the purpose of arresting the individual, and the length of the stop did not constitute ______ police misconduct.
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The act of receiving the property must coincide with the recipient's knowledge that the property is ______.
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Derivative physical evidence obtained as a result of a non-Mirandized confession is admissible, so long as that confession was not ______.
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If no counsel before plea, The defendant has the right to withdraw the plea, and it may not be used against the defendant as an evidentiary ______.
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If counsel denied at nontribal proceeding, The denial is subject to harmless-error analysis on ______.
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Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting ______.
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Voluntary intoxication is not a defense to ______ crimes.
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A violation of one of the provisions of Federal Rule of Civil Procedure (FRCP) 11(b) can subject a law firm, attorney, or party to ______________.
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The safe-harbor rule requires the party serving the motion to refrain from filing it for ______________ days after serving it.
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Taxpayers do not have standing to challenge government spending unless there is a ______________ between the plaintiff's status and the challenged expenditures.
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In official capacity suits, the venue may be proper where any defendant ______________.
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A witness's prior out-of-court identification is not hearsay and is admissible if the witness testifies at the present trial and is subject to ______________.
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Due process requires that a public employee receives notice of alleged misconduct and a pre-termination opportunity to ______________.
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The export clause prohibits federal taxation of exported goods, which are goods leaving the U.S. and shipped to ______________ countries.
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If the defendant timely waives service of process, then the defendant's answer need not be served until ______________ days after the request was sent.
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Special venue rules permit suits involving federal officers in the district where a substantial portion of ______________ occurred.
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When sanction proceedings are initiated by a party's motion, they can also be initiated by the court ______________.
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State can tax feds when that tax is indirect and does not unreasonably burden the federal ______.
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A governmental regulation of expressive conduct will be upheld if the regulation furthers an important governmental ______.
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Under the DCC rules, there should be no discrimination against out-of-state ______.
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A person may only be punished based on political association if that individual is an active member of a ______ organization.
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New value is given under an authenticated security ______.
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A perfected possessory security interest has no effect on perfection when perfected under the new state's ______.
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A tax is fairly apportioned to the amount of time the instrumentality is in the ______.
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Interstate movement of collateral may include a movement of the debtor to another state with a ______ grace period for a perfected security interest.
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Study Notes
Product Liability
- To prove product liability, the plaintiff must show:
- The product was defective (in manufacture, design, or failure to warn)
- The defect existed at the time the product left the defendant's control
- The defect caused the plaintiff's injuries when the product was used in an intended or reasonably foreseeable way
- Market share liability doctrine: if the plaintiff's injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant's share of the market
Securities and Financing
- A security interest in money can only be perfected by possession
- A deposit account or letter-of-credit rights that are not a supporting obligation can only be perfected by control
- A security interest in accounts can only be perfected by filing
- A financing statement must contain:
- The debtor's name
- The name of the secured party or a representative of the secured party
- The collateral covered by the financing statement
- Perfection by control of the collateral may only be achieved with respect to a security interest in investment property, deposit accounts, letter-of-credit rights, electronic chattel paper, or electronic documents
- A PMSI in consumer goods is automatically perfected upon attachment
Buying and Selling Goods
- A buyer, other than a secured party, of collateral that is goods, tangible chattel paper, tangible documents or a security certificate takes free of an unperfected security interest in the same collateral if the buyer:
- Gives value
- Receives delivery of the collateral
- Does so without knowledge of the existing security interest
- A buyer in the ordinary course of business (BOCB) takes free of a security interest created by the buyer's seller, even if the security interest is perfected and the buyer knows of its existence
- A BOCB is a person who:
- Buys goods (other than farm products)
- In the ordinary course
- From a seller who is in the business of selling goods of that kind
- In good faith
- Without knowledge that the sale violates the rights of another in the same goods
Landlord's Liability
- Bases for landlord's liability:
- Common areas
- Hidden dangers
- Public use premises
- Negligent repair
- Landlord agrees to repair
Civil Procedure
- A court may exercise supplemental jurisdiction over additional claims that are related to a claim based on diversity jurisdiction—even if those additional claims do not satisfy the amount-in-controversy requirement
- Supplemental jurisdiction over additional claims is barred when, as here, those claims would destroy complete diversity of citizenship
- Under FRCP 4, a plaintiff can properly serve a defendant who is an individual located in the United States by:
- Following the rules of the state where the court sits or where service is made
- Having process delivered to the defendant personally (or to an agent authorized to receive process)
- Having process delivered to the defendant's dwelling and left with a resident of suitable age and discretion
- For injunctions, if monetary damages can make the defendant whole, then no injunction
- For answers, the failure to deny an allegation relating to the amount of damages does not deem that allegation admitted
- Amended pleadings: under Federal Rule of Civil Procedure 15, a party may amend its original pleading (e.g., complaint) once as a matter of course (i.e., without the court's permission)
Jurisdiction and Appeals
- List of permissible interlocutory appeals:
- Injunction (grant/denial)
- Certification by district court
- Appointment of receiver
- Admiralty case
- Collateral-order doctrine
- Bankruptcy cases (certain orders)
- Mandamus (petition for writ)
- Patent infringement order (only accounting left)
- Activities are considered abnormally dangerous if they create a foreseeable and highly significant risk of physical harm even in the exercise of reasonable care, and the activity is not commonly engaged in### Constitutional Law
- Failure to disclose evidence that is favorable to the defendant and causes prejudice is grounds for reversal, regardless of intent
- Improper exclusion of a juror from a jury that imposes a death sentence is subject to automatic reversal
- In capital sentencing, a jury must determine the existence of certain facts beyond a reasonable doubt
- Double Jeopardy Clause does not prevent retrial after an appeal on the basis of an error made at trial
- However, retrial is barred if the conviction is overturned due to insufficiency of the evidence
Contracts
- Rights of an intended beneficiary vest when:
- The beneficiary materially changes position in justifiable reliance on the rights created
- The beneficiary manifests assent to the contract at one party's request
- The beneficiary files a lawsuit to enforce the contract
- Impracticability: unforeseeable event, nonoccurrence is a basic assumption of the contract, and the party seeking discharge is not at fault
- Anticipatory repudiation is applicable when a promisor repudiates a promise before the time for performance is due
Class Actions
- Seven things that must be in a class notice:
- Nature of the action
- Definition of the class
- Class claims, issues, or defenses
- Ability to enter an appearance through an attorney
- Exclusion of class members who request it
- Time and manner for requesting exclusion
- Binding effect of a class judgment on members
- Three situations where a class action is appropriate:
- Common questions of law or fact predominate
- Parties seek common equitable relief
- Separate actions would create a risk of prejudice
Evidence
- To be entitled to an adverse inference, the alleged victim must establish:
- Intentional destruction of evidence
- Relevance to the issue at hand
- Due diligence in preserving evidence
- Hearsay exceptions:
- Dying declaration
- Prior testimony
- Spoliation rule
- Against interest
- Personal or family history
- Confrontation clause requirements:
- Declarant is unavailable
- Prior opportunity for cross-examination
- Business records rule:
- Record kept in the course of a regularly conducted activity
- Made as a regular practice for that activity
- Made at or near the time of the act or event by someone with knowledge
Criminal Law
- Elements of kidnapping:
- Hiding or moving another person
- Confinement against that person's will
- Embezzlement:
- Defendant has title or lawful control over the property
- Fraudulent conversion of the property
- Of another
- Involuntary manslaughter:
- Negligent homicide
- Killing committed in the commission of a malum in se misdemeanor or a felony
- Larceny:
- Trespassory taking and carrying away
- Of property
- Of another
- With intent to permanently deprive
Procedure
- Intervention as of right:
- Nonparty has an interest in the property or transaction
- Disposition of the action may impair nonparty's interest
- Nonparty's interest is not adequately represented by existing parties
- Permissive intervention:
- Movant has a conditional right to intervene under federal statute
- Movant's claim or defense and the original action share a common question of law or fact
- Ways to authenticate a telephone call:
- Voice recognition
- Particular facts
- Number and ID on answering
- Dialed business and spoke about business
Sentencing and Appeals
- Seven exceptions to the exclusionary rule:
- Inevitable discovery rule
- Independent source doctrine
- Attenuation principle
- Good-faith exception
- Isolated police negligence
- Knock and announce
- In-court identification
- Good faith exception does not apply if:
- No reasonable officer would rely on the affidavit underlying the warrant
- The warrant is defective on its face
- The warrant was obtained by fraud
- The magistrate has "wholly abandoned his judicial role"
- The warrant was improperly executed### Service of Process and Venue
- If the defendant waives service of process, their answer to the complaint is due 60 days after the request was sent.
- Proper venue for suit against federal officer or employee:
- Official capacity (recovery from government): suit can be filed in the district where the defendant resides, a substantial portion of events occurred or property is located, or the plaintiff resides if no real property is involved.
- Individual capacity (recovery from officer/employee): suit can be filed in the district where the defendant resides, a substantial portion of events occurred or property is located, or is subject to personal jurisdiction if neither of the above applies.
Standing and Taxpayers
- Taxpayers have limited standing to challenge government spending unless there is a nexus between their status as a taxpayer and the challenged expenditures.
- The narrow exception applies when the taxpayer challenges legislation under Congress's taxing and spending power and alleges a violation of a specific constitutional limitation on this power (currently only the First Amendment establishment of religion clause).
Evidence and Witnesses
- Prior out-of-court identification of a person by a witness is not hearsay and is admissible as substantive evidence if the witness testifies at the present trial or hearing and is subject to cross-examination.
Employment and Due Process
- A public employee who can only be terminated for cause has a property interest in their employment, and due process requires:
- Notice of alleged misconduct
- Pre-termination opportunity to respond to the allegation
- Post-termination evidentiary hearing to determine if the termination was warranted
Export Clause and Taxation
- The export clause prohibits federal taxation of:
- Exported goods leaving the U.S. and shipped to foreign countries
- Services and activities closely related to the export process
- A state can tax federal instrumentalities when the tax is indirect and does not unreasonably burden the federal government.
Content-Based Speech Restriction
- There are 5 categories of content-based speech restriction:
- Commercial speech
- Obscenity
- Fighting words
- Incitement
- Defamation
Commerce Clause and State Taxation
- A state can tax instrumentalities of interstate commerce when:
- The instrumentality has a taxable situs within (or sufficient contacts with) the taxing state
- The tax is fairly apportioned to the amount of time the instrumentality is in the state
- The DCC rules require:
- No discrimination against out-of-state interests
- No undue burden on interstate commerce
- No purposeful application to wholly extraterritorial activity
Expressive Conduct and Governmental Regulation
- A governmental regulation of expressive conduct will be upheld if:
- The regulation is within the government's power to enact
- The regulation furthers an important governmental interest
- The interest is unrelated to the suppression of ideas
- The burden on speech is no greater than necessary (narrowly tailored)
Political Association and Employment
- A person can only be punished or deprived of public employment based on political association if:
- They are an active member of a subversive organization
- They have knowledge of the organization's illegal activity
- They have specific intent to further those illegal objectives
Security Interests and Perfection
- New value given under an authenticated security agreement perfects a security interest in certificated securities, negotiable documents, or instruments for 20 days from attachment.
- A security interest in goods, instruments, negotiable documents, money, tangible chattel paper, and certificated security can be perfected by possession, but perfection only exists during the period of possession.
- Interstate movement of collateral or debtor affects perfection:
- Debtor moving to another state: 4-month grace period for a perfected security interest
- Collateral moving to debtor in another state: 1-year grace period for a perfected security interest
- Perfected possessory security interest: no effect on perfection when the security interest is perfected under the new state's laws
- Lapse of perfection: the security interest generally ceases to be perfected upon expiration of the temporary perfection period
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Description
This quiz covers the requirements for proving a product liability lawsuit, including the product being defective and causing injuries. It also touches on the market share liability doctrine.
