Essay Roadmaps Flashcards
(16 cards)
Essay Structure - Agency
- Identify agency relationship
- Determine whether agency relationship has termination (if yes, look for apparent authority and/or ratification)
- Discuss liability of principal for agent’s actions
- Address any liability of agent to the third party (breach of contract, tort)
- Discuss any breach of fiduciary duties owned by the agent and duties owed by principle
Essay Roadmap - Civil Procedure
Issue categories:
1. Forum choice (personal and SMJ, venue, service of process)
2. Scope of action (choice of law, pleadings and motions, joinder)
3. Discovery
4. Adjudication (with or without trial)
5. Appeal
6. Preclusion of claims/issues
Time limit for service
Within 90 days of filing initial complaint
Essay structure: Dealing with PJ
- Is the exercise of PJ authorized by statute/another basis? Can be presence, domicile, consent or through long-arm statute.
- Is exercise constitututional (meets due process clause)? Test: If PJ based on presence, domicile or consent, due process is satisfied. If PJ is based on long-arm statute, due process required sufficient minimum contacts between a party and forum state to not offend traditional notions of fair play and substantial justice.
Minimum contacts:
- Purposeful availment
- Foreseeability of being sued in forum state
- Relatedness
Fair play/substantial justice:
- Interests of forum state
- Burden on D to appear
- Interest in judicial efficiency
- Shared interest of states in promoting common policy
Essay structure - Choice of law question
Issue spotting: If facts including tow or more states, or more than one state law is referenced in fact pattern.
Approach:
1. Does court have jurisdiction?
2. Is venue proper?
3. Identify conflict of laws issue
4. Characterize area of substantive law
5. Determine choice of law approach that applies
6. Apply facts to choice of law approach (if unclear which approach forum court will apply, discuss all that may apply)
Constitutional Law - Essay roadmap (General)
- Can matter be addressed by this court? Judicial review
- What type of constitutional issue is presented?
- Scope of congressional power? Commerce power, power to tax and spend
- State interference with power? Preemption, Dormant Commerce Clause, P& I Clause
- Indivudual rights? Due process, Equal protection, Takings clause, 1st Amendment
Essay structure - Intentional Torts
- Set out case
- Need to address tortious conduct, requisite mental state, and causation
- Defenses
- Special situations/limitations
Essay approach - negligence
- Set out prima facie case (duty, breach, causation, damages)
- Look for defenses
3 Identify special liability/limitations
Essay approach - Strict liability tort
- Categorize the situation (DAD: Dangerous activity, animal, defective product)
- Set out prima facie case (absolute duty to make safe, causation, damages)
- Look for defenses
Substantive due process - general standards of review
- If government action infringes on fundamental right, strict scrutiny applies (least restrictive means to achieve compelling government interest)
- If interest infringed is not fundamental, rational basis applies (law must be rationally related to legitimate state interest)
Consti - What counts as a fundamental right?
Travel, right to vote, privacy (includes marriage, contraception, intimate sexual behavior, parental rights, family relations, obscene material, right to refuse medical treatment) and second amendment
14th Amendment Equal protection clause - General standards of review
- If fundamental right or suspect classification involved, strict scrutiny applies - least restrictive means to achieve compelling government interest.
- If classification is based on gender or legitimacy, intermediate scrutiny applies (substantially related to important government interest). Gender requires ‘exceedingly persuasive justification’
- Where higher standards do not apply, rational basis applies (rationally related to legitimate government interest)
To trigger strict or intermediate, there must be discriminatory intent on the part of the government
Suspect/quasi-suspect/nonsuspect classifications
- Suspect classifications - race, ethnicity, national origin, and citizenship status (depending on level of government and nature of classification - federal classification is likely valid/state generally struck down)
- Quasi-suspect classifications - gender, legitimacy of children
- Nonsuspect classifications - age, poverty, sexual orientation
Expressive conduct
Subject to lesser degree of protection than speech, upheld if:
- Regulation is within government’s power to enact;
- furthers important government interest;
- interest is unrelated to expression of ideas; and
- burden on speech is no greater than necessary.
Free speech - Categories of forums
