MBE shit list

Question 1

abstention in federal courts

Answer 1

A federal court generally must adjudicate a suit over which it has subject-matter jurisdiction, even when a similar action is pending in a state court. HOWEVER, a federal court with subject-matter jurisdiction may abstain from hearing a case or stay the matter pending adjudication of the similar state court action when an abstention doctrine applies

Question 2

abstention doctrine

Answer 2

ABSENTEION DOCTRINE applies when::
Pullman - Resolution of unsettled state law in state court would moot federal constitutional issue

Burford - Injunction or declaratory judgment would interfere with complex state regulatory scheme that serves important state policy & provides timely & adequate judicial review

Colorado River - Pending state proceeding involving substantially same parties & issues presents exceptional circumstances that justify conserving judicial resources

Younger - Injunction or declaratory judgment would interfere with pending state proceeding that involves important state interest & provides adequate opportunity to litigate federal claims

Question 3

altering jury’s award of damages

Answer 3

A party may move for a new trial on the basis that the fact finder awarded an inadequate amount of damages. If a federal court rules that the amount was inadequate, it **may order a new trial but may not impose an increase in the amount of damages **(i.e., additur).

Question 4

when must a notice of appeal be filed

Answer 4

A notice of appeal must be filed with the district court clerk within 30 days after the entry of final judgment unless a posttrial motion is filed within 28 days after final judgment is entered. In that case, the notice of appeal must be filed within 30 days after the court enters an order disposing of the motion.

Question 5

when an appellate court uses the abuse-of-discretion standard and appeals

Answer 5

An appellate court uses the abuse-of-discretion standard when reviewing a district court’s discretionary rulings—eg, the grant or denial of a preliminary injunction. This is a highly deferential standard under which the appellate court will only reverse the district court’s ruling if it was clearly arbitrary or unreasonable.

NOTE ALSO: most appeals are initiated by filing a notice of appeal with the clerk of the district court. Only certain interlocutory appeals (e..g, appeals certified by a district court) require a notice of appeal be filed with the clerk of the appellate court

Question 6

when the right to a jury trial has been waived

Answer 6

The Seventh Amendment right to a jury trial is** waived when no written jury demand is served on the other parties within 14 days after service of the last pleading related to the jury issue. The parties must then proceed with a bench trial, during which the judge serves as the finder of fact and interpreter of the law.** And after the close of evidence, the judge must provide—orally or in writing—findings of fact and conclusions of law on the record

However, the trial judge is not the final arbiter of the law or facts. That is because an appellate court can review the trial judge’s decision:
- **for clear error **(high deference) – where a judge’s findings of fact will be reversed only if they were clearly erroneous such that no reasonable judge would have made them or
- de novo (no deference) – where a judge’s conclusions of law will be reversed if the appellate court reasonably believes that the judge misinterpreted the applicable law.”

Question 7

collateral-order doctrine

Answer 7

The collateral-order doctrine is a narrow exception to the final-judgment rule. It allows an appeal before final judgment when (1) a district court order conclusively resolves an important issue, (2) that issue is separate from the merits of the underlying claim, and (3) that order is effectively unreviewable on appeal from a final judgment.

BUT NOTE: a district court’s order rejecting a party’s attorney-client privilege claim is not a collateral order –> this issue can be effectively reviewed on appeal from the final judgment

Question 8

appealing an order granting or denying a class action

Answer 8

Appellate courts only have jurisdiction to hear appeals from a final judgment unless an exception applies. Federal Rule of Civil Procedure (FRCP) 23(f) provides such an exception for orders granting or denying class action certification. A petition to appeal this order must be filed with the appellate court clerk within 14 days after the order is entered.

Question 9

filing a notice of appeal

Answer 9

A party may challenge an adverse federal district court ruling, finding, or conclusion by appealing to the federal appellate court encompassing that district. The party must generally file a notice of appeal with the district court clerk within 30 days after the entry of final judgment. However, the time to file a notice of appeal is extended to 60 days if one of the parties is (1) the United States, (2) a federal agency, or (3) a federal officer or employee sued for conduct that relates to government duties.

Question 10

final judgment rule & preliminary injunctions

Answer 10

The final-judgment rule bars federal appellate courts from hearing an appeal until the federal district court has entered a final judgment—i.e., a judicial decision that fully resolves the dispute on the merits and leaves nothing for the court to do but enforce the judgment. BUT the interlocutory appealsstatute provides exceptions to this rule that allow an immediate appeal in limited circumstances.

One of those circumstances arises when a district court grants or denies a preliminary injunction—i.e., a court order entered before or during trial that commands or prohibits a specified action while the case is before the court.

In contrast, a temporary restraining order (TRO)—i.e., a court order that commands or prohibits specified action for 14 days or until a preliminary injunction hearing can take place (whichever occurs first)—is not immediately appealable under this statute.

BUT when a TRO is extended beyond 14 days, it becomes equivalent to a preliminary injunction for purposes of an appeal. As a result, the extended TRO is immediately appealable even though there is no final judgment

Question 11

standards of review

Answer 11

De novo - no deference to trial judge’s legal determination; reverse if reasonably believe trial judge misinterpreted the law
–> applies to pure legal issues (conclusions of law, content of jury instructions)

Clear error - highly deferential to trial judge’s factual findings; reverse if no reasonable judge would have made this finding
–> applies to factual issues in bench trials (credibility of witnesses, factual determinations)

Substantial Evidence - highly deferential to jury’s factual findings; reverse if no reasonable jury would have made this finding
–> applies to factual issues in jury trials (credibility of witnesses, jury’s verdict)

Abuse of discretion - highly deferential to trial judge’s discretionary decisions; reverse only if decision was unreasonable/arbitrary
–> applies to discretionary rulings by judge (grant/denial of new trial, admissibility of evidence)

Question 12

choice of law: the Erie doctrine

Answer 12

When a claim arises under federal-question jurisdiction, the court must apply federal law to procedural and substantive issues.

But when a claim arises under diversity jurisdiction, the court must apply federal procedural law and state substantive law.

Question 13

claim preclusion requirements

Answer 13

The doctrine of claim preclusion (i.e., res judicata) provides that a valid final judgment on the merits precludes identical parties from relitigating identical claims.

Claims are identical if they
(1) arise from the same transaction, occurrence, or series thereof and
(2) could have been raised in the first action because the claim existed and could have been joined.

Factors considered in determining what constitutes the same transaction or series include:
- whether the facts are related in time, space, origin, or motivation
- whether the facts form a convenient trial unit and
- whether treating the facts as a unit conforms to the parties’ expectations.

Question 14

claim preclusion vs. issue preclusion

Answer 14

Claim preclusion (i.e., res judicata) prevents identical parties from relitigating identical claims after the entry of a valid final judgment on the merits. Issue preclusion (i.e., collateral estoppel) prevents the relitigation of issues that were actually litigated, determined, and essential to a valid final judgment.

Question 15

diverse citizenship involving a stateless person

Answer 15

diverse citizenship cannot be established if the suit involves stateless persons—i.e., (1) noncitizens present in the U.S. but not citizens of a foreign country or (2) U.S. citizens domiciled in a foreign country.

Question 16

entering default judgment and when the clerk must enter a default judgment

Answer 16

A default refers to a defendant’s failure to timely serve an answer to a lawsuit, which is generally due within 21 days after the defendant is served with process. When the plaintiff shows this failure to the court clerk, the clerk MUST enter the defendant’s default into the record of the case.

A default judgment can then be entered by the clerk OR the court. The clerk MUST enter a default judgment when:
- the plaintiff’s claim is for a sum certain (i.e., a specified or set amount) OR a sum that can be made certain by calculation
- the plaintiff’s request for default judgment includes an affidavit establishing the amount due
- the defendant failed to appear—i.e., did not file a motion or otherwise act before the court—and
- the defendant is not legally incompetent or a minor.

Question 17

types of verdicts and general verdict with answers

Answer 17

A verdict is the jury’s determination of factual issues in a case. There are three types of verdicts—general verdicts, special verdicts, and general verdicts with special interrogatories—and the judge has the discretion to choose which verdict to use. If the judge selects a general verdict with special interrogatories and the jury’s answers are inconsistent with the verdict, the judge MUST:
- order a new trial
- direct the jury to further consider its answers and verdict or
- disregard the jury’s verdict and enter a judgment consistent with the answers provided.

Question 18

permissive joinder

Answer 18

Permissive joinder of parties is appropriate when (1) the claims asserted by or against the joined parties arise from the same transaction, occurrence, or series thereof and (2) a common question of law or fact will arise among them.

Question 19

SCOTUS jurisdiction

Answer 19

The U.S. Supreme Court has original jurisdiction over (1) cases involving ambassadors, public ministers, or consuls and (2) cases in which a state is a party. Congress has granted lower federal courts concurrent jurisdiction over those cases except for controversies between two or more states, which are exclusive to the U.S. Supreme Court.

Question 20

a federal court obtains personal jurisdiction over a defendant served with process while voluntarily present in the forum state UNLESS

Answer 20

the defendant was (1) fraudulently or forcefully brought into the state to be served with process or (2) present in the state to attend an unrelated judicial proceeding.

Question 21

personal jurisdiction in an in rem action

Answer 21

A court almost always has personal jurisdiction in an in rem action (eg, civil forfeiture action). Minimum contacts exist because an in rem action relates to property in the forum state. And exercising jurisdiction complies with fair play and substantial justice so long as the plaintiff did not fraudulently bring the property into the forum state.

Question 22

specific jurisdiction and the 100-mile bulge rule

Answer 22

Specific personal jurisdiction exists when (1) the plaintiff’s claim arises from or is closely related to the defendant’s minimum contacts with the forum state and (2) the exercise of jurisdiction complies with notions of fair play and substantial justice.

NOTE ALSO: the 100-mile bulge rule only applies to parties added to the suit through impleader or required joinder –> does NOT apply to parties added to a suit through a complaint

Question 23

general venue statute & special venue rules

Answer 23

Venue is the geographic location of a federal district court where a case may be heard. Under the general venue statute, venue can be established in any of the following ways:
- Residency-based venue – a district where any defendant resides (but only if all defendants reside in the same state)
- Events-based venue – a district where a substantial part of the events that gave rise to the suit occurred
- Property-based venue – a district where a substantial part of the property at issue is located
- Fallback provision – a district where any defendant is subject to the court’s personal jurisdiction (only applies if none of the above provisions can be established)

Venue can also be established through special venue rules in certain situations, including when a suit is removed from state court to federal court. In that situation, venue is proper in the federal district encompassing the state court from which the suit was removed—even if venue cannot be established under the general venue statute. This is because the defendant has consented to venue by removing the suit to that federal district court.

Question 24

notice for service of process

Answer 24

Notice, as required by due process, means that a defendant must be reasonably apprised of the pending suit and afforded an opportunity to present objections. So if the plaintiff knows the defendant did not receive notice through service of process, then the plaintiff must take additional reasonable steps to provide notice.

NOTE ALSO: under this constitutional requirement, actual notice is not required –> just have to reasonably apprise the defendant

Question 25

service of process for federal government officers

Answer 25

FRCP 4(i) provides special service rules when the plaintiff sues a federal government officer or employee for actions related to his/her government duties.  **The requisite service of process depends on whether the officer or employee is sued in an:** - **official capacity** – when recovery is sought from the U.S. government's treasury or -** individual capacity** – when recovery is sought from the officer's or employee's own pocket. When the officer or employee is sued in an individual capacity, the officer or employee must be served with process pursuant to the rules for serving an individual—eg, personal delivery of process.  If these rules are not followed, then the action should be dismissed without prejudice.  **Process must also be served on the U.S. government.**  If it is not, then the court must allow the plaintiff a reasonable time to cure that failure.

Question 26

the forum defendant rule prohibits removal when...

Answer 26

The forum-defendant rule prohibits removal when (1) subject-matter jurisdiction arises solely from diversity jurisdiction and (2) a defendant is a citizen of the state in which the case was filed.  **BUT** this rule does not apply—and removal is proper—when subject-matter jurisdiction also arises from federal-question jurisdiction.

Question 27

removing a case from state to federal court

Answer 27

A **DEFENDANT** **can remove a case from state to federal court if the case falls within the federal court's original subject-matter jurisdiction. ** . A party, usually the plaintiff, can request that the federal district court **return** the case to state court by filing a motion to remand based on a lack of subject-matter jurisdiction or a procedural error in the removal.  The federal district court may also remand a case sua sponte—but only if it concludes that it lacks subject-matter jurisdiction A district court's **order to remand the case is typically not appealable** because Congress has explicitly forbidden these appeals to expedite litigation and avoid drawn-out removal disputes.  As a result, federal appellate courts lack jurisdiction over such appeals absent limited exceptions

Question 28

how can a defendant remove a case originally filed in state court to federal court

Answer 28

A ***DEFENDANT*** can remove a case originally filed in state court to federal court if: - the federal court has subject-matter jurisdiction over the plaintiff's claims—eg, when a claim arises under the U.S. Constitution, a treaty, or federal law - all defendants consent to removal - the defendant files a notice of removal within 30 days of receiving the plaintiff's initial complaint or service of the summons (whichever period is shorter) and - a copy of the notice of removal is delivered to the state court and the other parties. A **party can challenge removal by filing a motion to remand (ie, return) the case to state court**.  This motion must generally be filed in federal court within 30 days after the notice of removal is filed, but a motion based on lack of subject-matter jurisdiction can be filed at any time.  The burden is then on the party seeking removal to prove by a preponderance of the evidence that removal is proper.  If there was a procedural error in the removal, the federal court should remand the entire case to state court.

Question 29

supplemental jurisdiction

Answer 29

A federal court will generally exercise supplemental jurisdiction over a claim that falls outside of its original subject-matter jurisdiction if it shares a common nucleus of operative facts with a claim that arises under such jurisdiction.  However, the court may decline to do so if the original claim has been dismissed.

Question 30

venue is proper where...

Answer 30

Venue is proper in any district where (1) any defendant resides, if all defendants reside in the same state, (2) a substantial part of the events giving rise to the suit occurred or the property at issue is located, or (3) any defendant is subject to the court's personal jurisdiction, if the first two provisions do not apply.

Question 31

transfer of venue

Answer 31

A district court can transfer venue for the convenience of the parties and witnesses, and in the interest of justice, to any judicial district (1) where the suit could have been originally brought or (2) to which all parties have consented. Whether an action involves common questions of fact with similar actions ir relevant to a court's certification of a class action, NOT its determination to transfer venue

Question 32

jury instructions

Answer 32

A court ***must*** provide jury instructions that advise the jurors on their **deliberation procedures and the applicable law.** These instructions can be formulated by the court or the parties, and FRCP 51 permits a party to request specific jury instructions. These requests can be filed before or at the close of evidence unless the court sets an earlier, reasonable deadline. Additionally, a request may be filed after the close of evidence if: - the request relates to an issue that the party could not have reasonably anticipated by the deadline or - the court permits a late submission that relates to any issue.

Question 33

right to a jury trial

Answer 33

Federal law governs whether there is a right to a jury trial in federal court. ALL civil litigants in federal court may demand a jury trial for any legal claim in which the amount in controversy exceeds $20 (this is a constitutional right to a jury trial). The demand must be (1) served within 14 days after the last pleading directed to that issue is served, and (2) filed with the court within a reasonable time thereafter.

Question 34

challenging an error in jury instructions

Answer 34

To challenge an error in jury instructions on appeal (ie, to preserve error), a party generally must object at trial.  If a party fails to do so, the challenged error can only be reviewed for plain error.  Under a plain-error review, an appeal will be heard if the appellant shows that an obvious error affected a substantial right and the fairness of judicial proceedings.

Question 35

jury selection process

Answer 35

During jury selection, each party is entitled to (1) three peremptory challenges to strike a potential juror for any reason (other than race, ethnicity, gender, NOT AGE) without an explanation and (2) an unlimited number of challenges for cause to strike a potential juror for bias or lack of impartiality.

Question 36

juror numbers

Answer 36

A federal civil jury trial must begin with at least 6 and no more than 12 members.  The parties may stipulate to the size of the jury so long as the stipulation stays within the requisite range.

Question 37

Erie: when the choice of law is unclear

Answer 37

A federal court sitting in diversity must apply state law to substantive issues and federal law to procedural issues.  When it is unclear whether an issue is substantive or procedural, the court must determine if a valid federal law (ie, federal statute, rule, or constitutional provision) directly addresses the issue.  If so, federal-rule analysis provides that the federal law governs over a conflicting state law if the federal law is arguably procedural and does not modify a substantive right.

Question 38

when may a party seek discovery

Answer 38

Absent limited circumstances, a **party may not seek discovery** (e.g., serve interrogatories) **until the parties have held an initial planning conference**—i.e., a meeting where the parties arrange for initial disclosures and prepare a discovery plan. If a discovery request is served before this conference is held, the court would likely grant a protective order to shield the served party from the undue burden of responding to that request. Discovery *may* be sought before an initial planning conference (1) in a proceeding exempt from initial disclosures or (2) if permitted by a court order, the parties' stipulation, or a procedural rule.

Question 39

service of process under Rule 4

Answer 39

A defendant** must receive notice of a lawsuit through service of process**—i.e., delivery of the summons and complaint. Under FRCP 4, a plaintiff can properly serve any defendant (individual or organization) when someone who is at least 18 years old and ***NOT A PARTY*** to the suit serves the defendant with a summons and complaint. This means the plaintiff, a party to the suit, cannot serve the defendant NOTE ALSO: a defendant in the U.S. must be served with process within 90 days after the plaintiff's complaint is filed (for defendants in a foreign country, the process must be served with "due dilligence")

Question 40

a court will grant a motion for a new trial based on newly discovered evidence if...

Answer 40

A court will grant a motion for a new trial based on newly discovered evidence if the movant shows that (1) the evidence was unknown to the movant at trial, (2) due diligence was used to discover the evidence before trial ended, (3) the evidence is material, and (4) a new trial with the evidence will likely have a different outcome.

Question 41

motion to alter or amend final judgment

Answer 41

Motion to Alter or Amend FInal Judgment Motion must be made within 28 days on any of following grounds: - Judgment based on manifest error of law or fact (eg, court applied wrong law) - Necessary to prevent manifest injustice (eg, attorney or juror misconduct) - Discovery of new evidence that was unavailable during trial - Intervening change in controlling law

Question 42

extraordinary relief from a final judgment

Answer 42

A party may obtain extraordinary relief from a final judgment within one year from the entry of a judgment when the motion is based on (1) mistake, inadvertence, surprise, or excusable neglect, (2) newly discovered evidence, or (3) the opposing party's fraud, misrepresentation, or misconduct.

Question 43

summary judgment motion

Answer 43

In a summary-judgment motion, **t****he movant has the initial burden to show that there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law**.  The movant must support this motion with admissible facts contained in pleadings, affidavits, declarations, discovery, or other materials.  Once the movant satisfies its initial burden, **the burden shifts to the nonmovant** to avoid summary judgment by either: - requesting that the court postpone consideration of the motion until additional discovery can take place (not seen here) or - showing specific disputed facts through affidavits, declarations, discovery, or other materials containing admissible evidence, but not through pleadings.

Question 44

a federal court has the power to certify the following types of class actions

Answer 44

**Prejudicial risk** – separate actions would create a risk of (1) inconsistent decisions regarding the parties or (2) impairing absent class members' interests **Common question** – common questions of law or fact predominate over individual questions, and a class action is the best method to fairly and efficiently adjudicate the dispute (as seen here) **Final equitable relief** – injunctive or declaratory relief is appropriate because the opposing party's actions generally apply to the whole class **NOTE:** Any certified class action can be settled, compromised, or voluntarily dismissed. When a settlement is proposed to the court, notice of the proposal must be provided to all class members who would be bound by it. This allows members to object to and opt out of the settlement before the court approves it. In addition, any proposed settlement must be approved by the court to be valid. The court may approve such a proposal only after it holds a hearing and is fair, reasonable, and adequate

Question 45

notice given to class members in a class action

Answer 45

In a "common question" class action, **adequate notice must be provided to all class members** because they have the right to opt out of the class action and sue on their own behalf. HOWEVER, in "prejudicial risk" and "final equitable relief" class actions, **notice is not required** because class members do not have a right to opt out

Question 46

interpleader

Answer 46

Interpleader is available when **multiple persons** (i.e., claimants)** claim an interest in the same property** (i.e., the stake). It allows the possessor of the stake (i.e., the stakeholder) to **force potential claimants into a single lawsuit to determine who has a right to the property.** There are two types of interpleader: **statutory** interpleader and **rule** interpleader. A statutory interpleader action must satisfy special requirements for: - **subject-matter jurisdiction** – requires an amount in controversy of at least $500 and minimal diversity of citizenship between at least two claimants - **personal jurisdiction** – exists over any claimant who is served with process anywhere within the U.S. - **venue** – proper in any judicial district where any claimant resides and - **deposit** – requires the stakeholder to deposit the property at issue with the court or post a bond in an amount determined by the court

Question 47

compulsory counterclaim

Answer 47

If a defendant has a claim against the plaintiff, then the defendant may state it as a counterclaim in the answer to the complaint. However, a **counterclaim is compulsory and *must* be asserted in the defendant's answer if it:** - arises from the same transaction or occurrence as the plaintiff's claim(s) and - does not require adding parties over whom the court cannot acquire jurisdiction. **Failure to do so generally results in the counterclaim being waived and barred** from being raised in subsequent lawsuits. But when an action is dismissed before a defendant's answer is filed, any counterclaims that would have been compulsory in an answer are not waived. That is because the defendant never had the opportunity to raise, and therefore could not waive, those counterclaims.

Question 48

joinder of claims

Answer 48

Federal Rule of Civil Procedure (FRCP) 18 allows a party to join (i.e., add) **as many claims as it has against an opposing party in a single lawsuit**. But like all disputes in federal court, a suit involving multiple joined claims must satisfy subject-matter jurisdiction. If subject-matter jurisdiction is based on diversity jurisdiction, then a party may aggregate (i.e., combine) ALL claims to be joined against a single opposing party to satisfy the amount-in-controversy requirement—even if those claims are unrelated

Question 49

100-mile bulge rule

Answer 49

The "100-mile bulge rule" establishes personal jurisdiction over a party (1) added to the suit through impleader or required joinder and (2) served with process within 100 miles of the federal court where the suit is pending.

Question 50

general jurisdiction vs. specific jurisdiction

Answer 50

Personal jurisdiction can also be established through: ● general jurisdiction – when the defendant has continuous and systematic contacts with the forum state that are so substantial that the defendant is essentially ""at home"" (i.e., where a defendant is domiciled) or ● specific jurisdiction – when the plaintiff's claim arises from the defendant's minimum contacts with the forum state and the exercise of jurisdiction would comply with notions of fair play and substantial justice.

Question 51

Article IV full faith and credit clause

Answer 51

The Article IV full faith and credit clause requires **STATE** courts to recognize and enforce the valid judgments of other state courts. **This clause does not apply to federal courts** A judgment entered by a federal court with personal jurisdiction over the defendant can be enforced by a federal court in another state—even if the defendant does not have minimum contacts with that state.

Question 52

service of process by publication

Answer 52

A plaintiff must provide the defendant with adequate notice of a lawsuit that reasonably apprises the defendant of the suit so that the defendant may appear and present objections. Service by publication is permitted ONLY when the defendant's identity or address is unknown and unobtainable.

Question 53

amendment of an original pleading

Answer 53

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). When this occurs, a response to the amended pleading (e.g., answer) generally must be made by the later of the following deadlines: 1) The time remaining to respond to the original pleading—e.g., an answer is generally due within 21 days after service of process 2) 14 days after the service of the amended pleading

Question 54

answer requirements | pleadings

Answer 54

A defendant's answer must include admissions or denials of each allegation in the plaintiff's complaint. A failure to deny these allegations generally results in them being admitted and conclusively established. However, damages-related allegations cannot be admitted by the defendant's failure to deny them in an answer.

Question 55

Rule 11 sanctions & the safe harbor rule

Answer 55

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 sanctions. Sanction proceedings can be initiated by the court sua sponte or by a party's motion. When sanction proceedings are initiated by a party's motion, the safe-harbor rule requires the party serving the motion to refrain from filing it for 21 days after serving it to allow any violation to be corrected (e.g., by dismissing a claim).

Question 56

service of process

Answer 56

Process can be served by (1) following the rules of the state where the court is located or where service is made, (2) delivering the summons and complaint to the defendant personally (or to his/her authorized agent), or (3) leaving the summons and complaint at the defendant's dwelling with a resident of suitable age and discretion.

Question 57

proof of service requirement

Answer 57

A plaintiff must provide the defendant with adequate notice of a lawsuit through service of process—i.e., delivery of the summons and complaint. Service of process can be made by any person who is at least 18 years old and not a party to the suit. The process server (other than a U.S. or deputy marshal) must then file a proof-of-service affidavit if service was made in the U.S. and not waived by the defendant. However, failure to prove service of process does not affect the validity of the service.

Question 58

final judgment rule

Answer 58

The final-judgment rule is a jurisdictional requirement that bars federal appellate courts from hearing an appeal until the district court has entered a final judgment. A final judgment **fully resolves a dispute on the merits and leaves nothing for the court to do but enforce the judgment**. Therefore, absent limited exceptions, an appellate court must dismiss an appeal for lack of jurisdiction if no final judgment has been entered.

Question 59

oral depositions

Answer 59

A party may conduct an oral deposition without the court's leave or the parties' stipulation unless (1) the deposition exceeds the 10-deposition limit, (2) the deposition is sought before the initial planning conference, or (3) the deponent was already deposed in the case.

Question 60

interrogatories

Answer 60

Interrogatories are a method of discovery in which a party serves written questions on another party—not a nonparty (e.g., witness)—that inquire about any matter within the scope of discovery.

Question 61

opinions held by experts not expected to testify at trial

Answer 61

The facts known and opinions held by an expert not expected to testify at trial, including the expert's identity, are privileged and not discoverable unless (1) the information relates to a court-ordered physical or mental examination or (2) exceptional circumstances make it impracticable to obtain that information by other means.

Question 62

voluntary dismissal vs. involuntary dismissal

Answer 62

Under Federal Rule of Civil Procedure (FRCP) 41, a suit can be dismissed in two ways: **Voluntary dismissal **– when the plaintiff moves to dismiss the suit **Involuntary dismissal **– when the defendant moves to dismiss the suit NOTE: if an involuntary dismissal motion is granted, the case will be dismissed with prejudice to prevent the plaintiff from suing the defendant on the same claim in the future

Question 63

voluntary dismissal and the two-dismissal rule

Answer 63

Under Federal Rule of Civil Procedure 41(a), a plaintiff **may voluntarily dismiss a suit without a court order by filing** (1) a stipulation of dismissal signed by all the parties or (2) a notice of dismissal before the defendant serves an answer or a summary judgment motion.  A voluntary dismissal is generally **entered without prejudice**.  This means that the plaintiff can sue the defendant on the same claim in the future.  However, a voluntary dismissal is with prejudice and operates as an adjudication on the merits when stated in an order, notice, or stipulation of dismissal OR the two-dismissal rule applies Under the **two-dismissal rule**, a voluntary dismissal of a second action operates as an adjudication on the merits when the plaintiff voluntarily dismissed (1) the first action in federal or state court without a court order and (2) the second action based on the same claim in federal court by filing a notice of dismissal."

Question 64

voluntary dismissal

Answer 64

FRCP 41 allows a plaintiff to voluntarily dismiss a suit for ***ANY*** reason.  A voluntary dismissal is generally without prejudice, which allows the plaintiff to sue the defendant again on the same claim in the future.  A voluntary dismissal without a court order is **permitted when:** - all the parties who have appeared in the action sign a stipulation of dismissal or - the plaintiff unilaterally files a notice of dismissal before the defendant serves an answer or a motion for summary judgment. If neither of these occur, then the only way that the plaintiff can voluntarily dismiss a suit is with a court order.  This can be obtained when the plaintiff files a motion to dismiss the case without prejudice.

Question 65

a party alleging fraud under Rule 9(b)

Answer 65

Under FRCP 9(b), a party alleging fraud (or mistake) must state the circumstances constituting fraud with particularity. This heightened pleading standard requires the plaintiff to specify the who, what, when, where, and how of the alleged fraud. However, intent, knowledge, and other conditions of a person's mind may be alleged generally.

Question 66

motion to compel a required disclosure

Answer 66

FRCP 37 allows a party to file and serve a motion to compel a required disclosure or a response to a discovery request (eg, request for production).  This motion **must include a certification that the movant has, in good faith, conferred or attempted to confer with the noncompliant party or nonparty** (ie, certification of good-faith conferral).  The motion also must be filed in the proper court: - A motion to compel a party must be filed with the court in which the action is pending. - A motion to compel a nonparty must be filed in the court where the discovery is or will be taken. NOTE ALSO: a response must be served in writing within 30 days after the parties' initial planning conference if a request for production was served before that conference

Question 67

sanctions for electronically stored information (ESI)

Answer 67

Sanctions may be appropriate if a party **failed to preserve electronically stored information** (ESI) that: - should have been preserved in the anticipation or conduct of litigation - is lost because the party failed to take reasonable steps to preserve it and - cannot be replaced or restored through additional discovery. If the court finds that the party **intentionally deprived** the requesting party of the ESI, the court may: - presume that the lost ESI was unfavorable to the party that failed to preserve it - instruct the jury that it may or must presume the lost ESI was unfavorable to that party

Question 68

A preliminary injunction binds the following persons who receive actual notice of it:

Answer 68

A preliminary injunction binds the following persons who receive actual notice of it: (1) the parties, (2) their officers, agents, employees, and attorneys, and (3) any person in active concert or participation with the aforementioned persons.

Question 69

permissive joinder

Answer 69

Permissive joinder of parties is appropriate when (1) the claims asserted by or against the joined parties arise from the same transaction, occurrence, or series thereof and (2) a common question of law or fact will arise among them. NOTE: parties NEED NOT seek (or defend against) the same relief to be joined

Question 70

two types of counterclaims

Answer 70

There are two types of counterclaims: 1) **Compulsory** – one that (1) arises from the same transaction or occurrence as the opposing party's claim and (2) does not require adding a party over whom the court cannot acquire jurisdiction, which must be asserted in the pending lawsuit or it is waived 2) **Permissive** – all other counterclaims, which may be asserted in the pending lawsuit or in future litigation

Question 71

the three-step process for determining whether an absent party MUST be joined in a lawsuit (the required joinder rule/compulsory joinder rule)

Answer 71

The** first step** considers whether the absent party is a required party because: a. complete relief **cannot be granted without that party's presence** b. the party's **absence will subject the other parties to a substantial risk of multiple or inconsistent obligations** or c. the party's absence will **impair his/her ability to protect an interest related to the lawsuit** The **second step** considers whether it is feasible to join the required party.  Joinder is feasible when: a. the court can obtain **personal jurisdiction** over the required party b. **subject-matter jurisdiction remains** after joinder and c. ** proper venue** remains. When joinder is ***not*** feasible, the third step considers whether equity allows the action to proceed without the required party or compels a dismissal. 

Question 72

a party's initial disclosures must include...

Answer 72

A party's initial disclosures must include (1) persons and items that the party may use to support a claim or defense, (2) any insurance agreement with a company that may be liable, and (3) a computation of damages and the materials on which it was based.

Question 73

mandatory disclosures - expert witnesses

Answer 73

A party must disclose the identity of an expert witness expected to testify at trial and provide a written report or summary to the opposing party at least 90 days before trial.

Question 74

parties can modify their pleadings in two ways

Answer 74

- **Amended pleadings** – to set forth a transaction, occurrence, or event that arose before the pleading to be amended was filed - **Supplemental pleadings** – to set forth a transaction, occurrence, or event that arose after the pleading to be supplemented was filed NOTE ALSO: a reply is typically a response made by the plaintiff to the defendant's answer and is permitted only when the court orders one

Question 75

relation-back doctrine and adding a new party

Answer 75

An amended complaint filed after the statute of limitations has expired is **prohibited** **unless** the **relation-back doctrine applies.**  This doctrine **treats the amended complaint as if it were filed on the same date as the original complaint**.  BUT an amendment that changes or adds a party ""relates back"" ***only*** if the statute of limitations allows OR when: 1) the amendment concerns the **same transaction or occurrence** as the original complaint 2) the new party received **notice** of the suit within 90 days after the original complaint was filed AND 3) the **new party knew or should have known** that the suit would have been brought against it but for a mistake concerning the proper party's identity."

Question 76

a temporary restraining order must contain...

Answer 76

A temporary restraining order must contain (1) the reasons why it was issued, (2) a reasonable description of the prohibited or commanded acts, and (3) its specific terms.  The reasonable description must be made without reference to the complaint or another document.

Question 77

Rule 11 requirements

Answer 77

Rule 11 of the Federal Rules of Civil Procedure requires that every pleading, written motion, or other paper submitted to the court be **signed** by at least one attorney of record or by the party personally if unrepresented. By signing, the attorney or party certifies that, to the **best of their knowledge, information, and belief, formed after a reasonable inquiry, the filing is not being presented for an improper purpose, the legal contentions are warranted by existing law or by a nonfrivolous argument for modifying the law**, the factual contentions have evidentiary support or are likely to after discovery, and any denials of factual contentions are warranted on the evidence or reasonably based on belief or lack of information. If a filing **violates** this rule, the court may impose **sanctions** sufficient to deter repetition of the conduct. However, a court ***may not*** impose monetary sanctions against a **represented party** for a violation of Rule 11(b)(2), which concerns legal contentions, because **clients are not held responsible for the legal arguments made by their attorneys.**

Question 78

a party's pretrial disclosures must include

Answer 78

A party's pretrial disclosures must include (1) the name, address, and phone number of each witness, (2) deposition testimony that will be used at trial, and (3) all documents and exhibits. These pretrial disclosures must be made at least 30 days before trial

Question 79

when the seventh amendment right to a jury trial applies

Answer 79

The Seventh Amendment right to a jury trial applies to federal civil cases when the amount in controversy exceeds 20 dollars and a party asserts a legal claim (i.e., a claim seeking a monetary remedy). However, this right does **NOT APPLY **when a party asserts an **equitable** claim (i.e., a claim seeking a nonmonetary remedy).

Question 80

when venue is proper for the U.S. goverrnment

Answer 80

Venue is the geographic location of a federal district court where a case may be heard. When the U.S. government is sued under the Federal Tort Claims Act for the tortious conduct of a federal employee, venue is proper where the plaintiff resides or where the act or omission complained of occurred.

Question 81

long-arm statutes & minimum contacts

Answer 81

Long-arm statutes **specify when a court within the forum state can exercise specific personal jurisdiction over a nonresident defendant**. However, due process only permits application of a long-arm statute when: - the plaintiff's claim arises from or is closely related to the defendant's **minimum contacts** with the forum state and - the exercise of jurisdiction complies with **notions of fair play and substantial justice.** Minimum contacts exist when the defendant** purposefully avails itself **of the state's protections and benefits so that it should reasonably foresee being sued there—e.g., by advertising and selling goods in the state. The minimum contacts of a subsidiary may be imputed to its parent corporation when the subsidiary is acting as the parent corporation's agent or alter ego. But in the absence of such evidence, each corporation is a separate legal entity."

Question 82

diversity jurisdiction in a class action

Answer 82

When diversity jurisdiction exists over at least one named plaintiff's claim in a class action, a court may exercise supplemental jurisdiction over claims that do not satisfy the amount-in-controversy requirement

Question 83

subject matter jurisdiction

Answer 83

Subject-matter jurisdiction arises under diversity jurisdiction when (1) the amount in controversy exceeds $75,000 and (2) the opposing parties are citizens of different states. When this occurs, the** court cannot exercise supplemental jurisdiction over another claim that would contaminate diversity of citizenship.**

Question 84

diversity jurisdiction

Answer 84

Diverse citizenship exists when a suit is between (1) U.S. citizens domiciled in the U.S. and foreign citizens, (2) U.S. citizens domiciled in different states, in which foreign citizens are additional parties, or (3) U.S. citizens and permanent residents domiciled in different states **Multiple plaintiffs may aggregate (i.e., combine) their claims to satisfy the amount-in-controversy requirement when they seek to enforce a single title or right to a common or undivided interest**

Question 85

personal jurisdiction over a defendant who does not have minimum contacts with the forum state

Answer 85

The federal rules establish personal jurisdiction over a defendant who ***does not have minimum contacts*** with the forum state when (1) the plaintiff asserts a federal-law claim, (2) the defendant is not subject to personal jurisdiction in any state court, and (3) the defendant has minimum contacts with the United States as a whole.

Question 86

when does state law apply under *Erie*

Answer 86

Under Erie, state law applies if (1) it is outcome determinative—i.e., forum-shopping or inequitable administration of the laws would result if it is not applied—and (2) there is no countervailing federal policy interest.

Question 87

home-court advantage rule as a basis for remand

Answer 87

A defendant can **remove a suit** from state court to federal court **if the case falls within the federal court's original subject matter jurisdiction**. Original jurisdiction can be based on federal-question jurisdiction or diversity jurisdiction. ***HOWEVER***, diversity jurisdiction seeks to protect ***out-of-state defendants*** from potential bias in state courts. Since ***in-state defendants*** do not face the same risk of bias, the FORUM DEFENDANT RULE (i.e., home court advantage rule) **prohibits** removal when: 1) subject matter jurisdiction arises solely from diversity jurisdiction and 2) a defendant is a citizen of the state in which the case was filed (i.e., the forum state)"

Question 88

when supplemental jurisdiction is and isn't allowed

Answer 88

When only some claims fall within the court's original subject-matter jurisdiction, the court may exercise supplemental jurisdiction over the remaining claims. This is **generally permitted when a supplemental claim and an original claim are so related that they form part of the same case or controversey. ** BUT when the original claim is **based solely on divresity jurisdiction**, supplemental jurisdiction is **not** permitted if a supplemental claim: a) would destroy diversity of citizenship, OR b) seeks $75k or less and is made by a plaintiff 1) against parties added through joinder, intervention, or impleader, OR 2) seeking to join through compulsory joinder or intervention

Question 89

impleader

Answer 89

**Impleader** 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. When this occurs, **the plaintiff may assert his/her own claim against the third-part**y defendant only if that claim: 1) arises out of the **same transaction or occurrence** that is the subject matter of the plaintiff's claim against the defendant in the original complaint AND 2) **satisfies original subject-matter jurisdiction** on its own However, when a claim falls ***outside*** a court's original jurisdiction, the court **may exercise supplemental jurisdiction if the supplemental claim and the original claim share a common nucleus of operative facts**. But when the original claim is based on diversity jurisdiction, **supplemental jurisdiction is barred if** the supplemental claim: 1) is made by (1) existing plaintiffs against parties added through joinder, intervention, or impleader or (2) persons seeking to join as plaintiffs through compulsory joinder or intervention AND 2) would violate the requirements of diversity jurisdiction (e.g., contaminate diversity of citizenship)."

Question 90

polling the jurors

Answer 90

A court must on a party's request, or may on its own initiative, poll the jurors individually after a verdict is returned but before the jury is discharged. If the poll reveals that the verdict is not unanimous, the court can direct the jury to deliberate further or order a new trial.

Question 91

a district court with proper venue can transfer venue when...

Answer 91

Under 28 U.S.C. § 1404, a district court with proper venue can transfer venue for the convenience of parties and witnesses, and in the interest of justice, to any judicial district (1) where the suit could have been originally brought or (2) to which all the parties have consented

Question 92

venue is proper in any federal district where

Answer 92

Venue is proper in any federal district where (1) any defendant resides, as long as all defendants reside in the same state, (2) a substantial part of the events occurred or a substantial part of the property at issue is located, or (3) any defendant is subject to the court's personal jurisdiction (if the first two provisions do not apply).

Question 93

venue when a defendant is a nonresident of the U.S.

Answer 93

Venue is the geographic location of a federal district court where a case may be heard. When a defendant is a nonresident of the U.S., venue is proper in ANY federal judicial district.

Question 94

venue when a plaintiff sues a federal officer or employee

Answer 94

"Venue refers to the federal judicial district where a case may be heard. When a plaintiff** sues a federal officer or employee, proper venue depends on whether the defendant is sued for acting in **(1) his/her individual capacity or (2) an official capacity or under color of legal authority. When an officer or employee is sued in an i**ndividual capacity, the general venue statute applies.** But when an officer or employee is sued in an **official capacity or under color of legal authority,** the special venue rules apply and venue is proper only where: - any defendant resides (residency-based venue) - a substantial portion of the events giving rise to the suit occurred (events-based venue) or a substantial part of the property at issue is located (property-based venue) or - the plaintiff resides, if no real property is involved."

Question 95

issue preclusion

Answer 95

"Issue preclusion bars the relitigation of issues that were actually litigated and necessarily determined by a valid final judgment in a prior civil action or criminal prosecution.  The second court will look to the law of the forum that entered the first judgment to determine if mutual or nonmutual issue preclusion applies in the subsequent action."

Question 96

the judge as a fact finder in a bench trial

Answer 96

In a bench trial, **a judge may enter a partial finding against the nonmovant after the nonmovant has been fully heard on the issue.**  If that finding resolves a party's claim or defense, the court may then enter a judgment on partial findings. As the fact finder in a bench trial, **a judge may consider the credibility of witnesses and the weight of the evidence to determine if they are sufficient** to render a decision for the movant before entering a judgment on partial findings. In contrast, the court *may not* evaluate the credibility of witnesses or the weight of the evidence when considering an initial or renewed motion for JMOL.

Question 97

special jury verdict

Answer 97

Under FRCP 49(a), a judge may require the jury to return a special verdict — a written finding on each issue of fact — by submitting written questions that focus only on the factual issues. The judge then applies the law to those findings to render a judgment. This does not violate the Seventh Amendment right to a jury trial because the jury still decides the facts.

Question 98

what happens when a judge presiding over a hearing or trial is unable to proceed

Answer 98

When a judge presiding over a hearing or trial is unable to proceed, **another judge may take over so long as this successor judge:** 1) certifies that he/she is **familiar** with therecordand 2) determines that the case may be completed **without prejudice** to the parties. When the successor judge takes over a hearing or bench trial, witnesses who previously testified need only testify again in the successor judge's presence when (1) their testimony is material and disputed, (2) they can do so without undue burden, and (3) a party so requested. 

Question 99

voluntary dismissal of a crossclaim, counterclaim, or third-party claim

Answer 99

Federal Rule of Civil Procedure 41(c) allows a party to voluntarily dismiss a crossclaim, counterclaim, or third-party claim (e.g., a claim made through impleader). A party may do so without a court order when: - the appearing parties signed a stipulation of dismissal or - the claimant unilaterally files a notice of dismissal (1) before a responsive pleading (e.g., answer) is served or (2) if a responsive pleading is not served, before evidence is introduced at a hearing or trial.

Question 100

involuntary dismissal

Answer 100

A suit can be dismissed voluntarily (i.e., by the plaintiff) or involuntarily (i.e., on the defendant's motion—as seen here). **An involuntary dismissal generally results in an adjudication on the merits**. This means that the plaintiff's action is **dismissed with prejudice**, which precludes the plaintiff from suing the same defendant on the same claim in the future (i.e., claim preclusion). HOWEVER, an involuntary dismissal based on lack of jurisdiction, improper venue, or failure to join an indispensable party is without prejudice. This means that the dismissal is not an adjudication on the merits and does not trigger claim preclusion

Question 101

waiving service of process

Answer 101

A plaintiff must provide the defendant with adequate notice of a lawsuit through service of process. Since this can be expensive and burdensome, **defendants are encouraged to waive service of process upon the plaintiff's written request.** A request for waiver of service must give a defendant a reasonable time of at least 30 days after the request was sent to return the waiver. If the defendant timely waives service of process, then the defendant's answer to the complaint need not be served until 60 days after the request was sent.

Question 102

*Younger* abstention doctrine

Answer 102

A federal court may invoke a variety of reasons to abstain from deciding a case properly before it. One situation arises under the Younger abstention doctrine, which applies when declaratory or injunctive relief is sought in federal court. This doctrine requires abstention when such relief would interfere with a pending state proceeding on any criminal matter or a particular civil matter that: - involves an important state interest and - provides an adequate opportunity to litigate the federal issue(s).

Question 103

Twenty First Amendment vs. import-export clause

Answer 103

The Twenty-first Amendment grants states **broad authority to regulate the use of alcohol within their borders**. This authority permits a state to prohibit the importation, transportation, or sale of alcohol within the state and to delegate such authority to local governments (e.g., municipalities). In contrast, the import-export clause generally prohibits state taxation of imported goods unless Congress consents or the tax is absolutely necessary for the state to execute its inspection laws.

Question 104

appointment of federal officers

Answer 104

A federal officer is someone who (1) holds a continuing public office and (2) has significant discretionary authority to administer or enforce laws (i.e., executive powers). All federal officers must be appointed by the President or in a manner otherwise consistent with the Article II appointments clause. Under this clause, Congress cannot appoint federal officers because Congress's participation in this executive function would violate the separation of powers doctrine.

Question 105

regulation of congressional elections

Answer 105

Under the elections clause, state legislatures have the power to enact laws that regulate the **time, place, and manner of congressional elections** (e.g., by establishing voting sites). BUT the clause also grants **Congress the power to override** those state laws by supplanting them with federal law.

Question 106

Article I, Section 8 - Dormant Commerce Clause

Answer 106

The Article I, section 8 commerce clause **empowers Congress to regulate interstate commerce**—i.e., nearly all activities involving two or more states. This clause also carries a negative implication (i.e., the dormant commerce clause) that **prohibits states and municipalities from discriminating against or otherwise unduly burdening interstate commerce. ** ***But*** Congress can exercise its broad commerce power to **explicitly authorize conduct that would otherwise violate the dormant commerce clause**. BUT even when Congress authorized conduct that would otherwise violate the dormant commerce clause, states **must comply with other constitutional provisions**. This includes the Fourteenth Amendment equal protection clause, which **subjects discriminatory state taxes to rational basis review**—i.e., the state tax must be rationally related to a legitimate state interest. And in *Metropolitan Life Ins. Co. v. Ward*, SCOTUS held that **promoting in-state business by discriminating against out-of-state business is not a legitimate government interest.**

Question 107

Congress's power under the militia clauses

Answer 107

Congressional legislation must stem from Congress's enumerated powers. Under the militia clauses, Congress has the power to authorize the President to call state National Guard units into action without the approval of the state governor to execute federal laws, suppress insurrections, or repel invasions. This power extends to the use of state National Guard units in domestic situations and non-emergency circumstances.

Question 108

Congress's power under the enclave clause vs. taxing and spending vs. 16th amendment

Answer 108

Congressional legislation must stem from Congress's enumerated powers. **The enclave clause gives Congress plenary (i.e., exclusive) legislative power over the District of Columbia.** The **taxing and spending clause gives Congress the power to impose indirect taxes** (e.g., sales tax), so long as they are uniformly applied in every state (i.e., geographically uniform) and reasonably related to revenue production. The **Sixteenth Amendment gives Congress the power to impose an income tax** without apportioning it among the states on the basis of population

Question 109

Congress's power to regulate naturalization

Answer 109

Article I of the Constitution grants Congress plenary (i.e., exclusive) authority to enact laws that regulate naturalization—i.e., the process through which any noncitizen may obtain U.S. citizenship. But Congress must comply with other constitutional provisions when exercising this authority. This includes the Fourteenth Amendment, which prohibits Congress from revoking the U.S. citizenship of any U.S. citizen without his/her consent unless that citizenship was obtained by fraud or in bad faith.

Question 110

Article I, Section 8 - taxing and spending clause

Answer 110

The Article I, Section 8 taxing and spending clause gives Congress plenary (i.e., exclusive) power to raise federal revenue by imposing and collecting taxes. This allows Congress to impose an indirect tax (e.g., sales tax) so long as the tax is: 1) imposed identically in every state where the taxed goods are found (i.e., geographically uniform) AND 2) reasonably related to revenue production (i.e., no provision extraneous to tax purposes).

Question 111

Congress's power for conditional federal funding (spending clause)

Answer 111

Congress **MAY** use its spending power to regulate states by **placing conditions on the receipt of federal funds** that (1) are clear and unambiguous, (2) are reasonably related to the purpose for which the funds will be expended, (3) do not require recipients to engage in unconstitutional activity, and (4) are not unduly coercive.

Question 112

Article II appointments clause

Answer 112

The Article II appointments clause g**rants the President the power to appoint principal federal officers with the Senate's advice and consent **(i.e., approval). But **Senate approval is NOT required for the President's appointment of inferior federal officers**—i.e., federal officers who are supervised by principal federal officers. That is because Congress may delegate the appointment of inferior federal officers to the President alone (i.e., without Senate approval), the heads of executive-branch agencies, or the federal courts.

Question 113

Article II, President's authority over domestic and foreign policy areas and recognizing foreign governments

Answer 113

Article II vests the President with authority over a **wide array of domestic and foreign policy areas.** When the **President shares authority with Congress over a particular area** (e.g., federal agencies), the validity of the President's actions is determined by the *Youngstown* framework. But when the President does ***not*** share authority with Congress, the **President can exercise that exclusive Article II power without adhering to congressional directives.** One exclusive Article II power possessed by the President as the official U.S. representative in foreign affairs is the **authority to recognize foreign governments**. The President can exercise this power directly or through his/her agents—including executive-branch agencies (e.g., Department of State). As a result, Congress may not override the President's decision on whether to recognize foreign governments

Question 114

Article III justiciability - actual case or controversy

Answer 114

Article III restricts federal judicial power to actual cases or controversies—i.e., disputes that are capable of judicial resolution. As a result, **federal courts can issue a declaratory judgment only if the dispute presents a real and immediate danger to a party's interests**. Otherwise, a declaratory judgment would amount to an impermissible advisory opinion—i.e., a judicial opinion that determines the validity of a law without resolving an actual dispute.

Question 115

Supreme Court's appellate jurisdiction

Answer 115

The U.S. Supreme Court has appellate jurisdiction over decisions by (1) lower federal courts and (2) the highest state courts when the decision turns on federal law. But the Article III exceptions clause gives Congress the power to expand, regulate, or make exceptions to this jurisdiction.

Question 116

an assignee's standing to sue

Answer 116

An assignee has standing to sue to enforce the rights of the assignor provided that (1) the requirements for standing (injury-in-fact, causation, redressability) are met and (2) the assignment was made for ordinary business purposes and in good faith.

Question 117

who bears the burden of establishing standing in federal court

Answer 117

To have standing to sue in federal court, the ***PLAINTIFF*** bears the burden of establishing that he/she (1) suffered an injury-in-fact that (2) was caused by the defendant's challenged conduct and (3) is redressable by a favorable judicial decision.

Question 118

Article IV property clause

Answer 118

The Article IV property clause grants Congress **complete power to dispose of and regulate federally owned property**. This clause includes the power to **regulate private property that affects federal public lands when such regulation is necessary to protect those lands**—e.g., by prohibiting the erection of structures that completely enclose federally owned land. Therefore, the court is likely to rule for the federal government. As part of this property power, Congress may enact statutes regulating the use of buildings owned by the federal government In determining the constitutionality of the statute, it is irrelevant that the properties will be converted for public use --> that is because Congress may dispose of and regulate federally owned property for a public or private use—e.g., by leasing federally owned property to private developers.

Question 119

Article VI supremacy clause & implied preemption

Answer 119

Under the Article VI supremacy clause, a valid federal law preempts (i.e., supersedes) conflicting state law. Such preemption can be **express or implied.** One type of implied preemption is conflict preemption, which stems from either: - **direct conflict** – when it is impossible or nearly impossible to comply with both the federal and state laws or - **indirect conflict** – when the state law frustrates the accomplishment of the federal law's purpose.

Question 120

Article VI supremacy clause & government immunity from direct taxation

Answer 120

Under the Article VI supremacy clause, the federal government is generally immune from direct taxation by the states. ***But*** **state taxes on the federal government's affiliates**—including persons or entities employed by or doing business with the federal government—**a****re valid** unless: - Congress grants the affiliate immunity - the tax discriminates against the federal government or its affiliates or - the nondiscriminatory tax substantially interferes with the affiliate's ability to accomplish its federal purpose or duties—e.g., when a high tax burden makes it impossible for the affiliate to accomplish its federal functions.

Question 121

Article II power to negotiate vs. Article I necessary and proper clause

Answer 121

Article II grants the President certain express powers, including the power to negotiate and enter into treaties with foreign nations. the Article I necessary and proper clause gives Congress the power to enact laws that are reasonably appropriate to carry out the President's treaty-making power (and other express powers).

Question 122

Congress's power to limit the jurisdiction of federal courts

Answer 122

Article III grants Congress the power to limit the jurisdiction of federal courts. But when exercising this power, Congress ***cannot violate:*** - the separation-of-powers doctrine (e.g., usurping judicial power to decide cases) or - other constitutional provisions (e.g., the Article I suspension clause).

Question 123

Article I suspension clause

Answer 123

Under the Article I suspension clause, a person in federal custody can challenge his/her detention by filing a petition for a writ of habeas corpus in a federal court unless Congress has explicitly suspended the writ. This clause applies to noncitizens classified and detained as enemy combatants in territories over which the United States has sovereign control

Question 124

determining whether Congress can regulate an activity

Answer 124

To determine if Congress can regulate an activity, courts consider whether (1) the activity is economic in nature, (2) the regulation contains a jurisdictional element, (3) Congress made express findings on the activity's effect on interstate commerce, and (4) there is a strong link between the activity and that effect.

Question 125

commerce clause

Answer 125

The commerce clause gives Congress broad regulatory authority over most activities involving two or more states. This includes the power to regulate: - the **channels** of interstate commerce (e.g., airports) - the **instrumentalities** of interstate commerce (e.g., planes) - **people and things** moving in interstate commerce (e.g., commercial shipments) and - **in-state activities** that, singly or in the aggregate, substantially affect interstate commerce (presumed when activity is economic in nature). NOTE ALSO: The taxing and spending clause permits Congress to tax and spend (not legislate) for the general welfare.

Question 126

Thirteenth Amendment

Answer 126

Section 1 of the Thirteenth Amendment prohibits all government and private entities from engaging in slavery or involuntary servitude—e.g., forcing an employee to continue working until the employee paid off a debt owed to the employer. And the Section 2 enforcement clause gives Congress the power to enact legislation to eliminate involuntary servitude.

Question 127

taxing and spending clause vs. export clause

Answer 127

The taxing and spending clause **gives Congress broad power to tax and spend for the general welfare** (i.e., any public purpose). ***HOWEVER***, this power is **not unlimited** and must be exercised in compliance with other constitutional provisions—including the export clause. The **export clause prohibits federal taxation of:** - exported goods, which are goods leaving the U.S. and shipped to foreign countries and - services and activities closely related to the export process.

Question 128

Fifth amendment right to procedural due process

Answer 128

The Fifth Amendment right to procedural due process requires the federal government to follow certain procedures when it deprives a person of life, liberty, or property. These procedures include giving persons: - notice of the charges, proceedings, or other actions against them and - a meaningful opportunity to be heard by a neutral decision-maker.

Question 129

privileges and immunities clause of Article IV vs. privileges and immunities clause of the Fourteenth Amendment

Answer 129

The privileges and immunities clause of Article IV prohibits a state from discriminating against the citizens of another state and is not applicable in this case. The privileges or immunities clause of the Fourteenth Amendment prohibits state and local governments from infringing on the rights of national citizenship

Question 130

takings clause of the Fifth Amendment

Answer 130

The takings clause of the Fifth Amendment prohibits governmental taking of private property for public use without just compensation. But this clause only applies to real or personal property—not an employment interest.

Question 131

contracts clause of Article I, section 10

Answer 131

The contracts clause of Article I, Section 10 prohibits states—not the federal government—from passing laws that substantially impair the obligations of existing contracts.

Question 132

*Pike* balancing test for the dormant commerce clause

Answer 132

The commerce clause gives Congress broad power to regulate interstate commerce. The negative implication of this clause (i.e., the dormant commerce clause) is that states cannot unduly burden interstate commerce. An undue burden can arise from a discriminatory law—i.e., a law favoring in-state over out-of-state economic interests—or a nondiscriminatory law. Under the **Pike balancing test**, a nondiscriminatory law will be upheld unless the challenger shows that the law's burden on interstate commerce clearly exceeds its local benefits.

Question 133

state immunity from suit in federal court

Answer 133

The Eleventh Amendment prohibits foreign governments and private parties from suing a state in federal court without the state's consent. This immunity extends to suits against state officials for a violation of state law—even if the remedy that is sought is injunctive relief instead of monetary damages

Question 134

when state taxes are valid on the federal government's affiliates

Answer 134

Under the Article VI supremacy clause, the federal government is generally immune from direct taxation by the states. ***But*** state taxes on the federal government's affiliates—including persons or entities employed by or doing business with the federal government—**are valid unless:** - Congress grants the affiliate immunity - the tax discriminates against the federal government or its affiliates or - the nondiscriminatory tax substantially interferes with the affiliate's ability to accomplish its federal purpose or duties—e.g., when a high tax burden makes it impossible for the affiliate to accomplish its federal functions."

Question 135

rational basis test under the EPC

Answer 135

Under the equal protection clause, a law that does not (1) intentionally discriminate against a suspect or quasi suspect class or (2) substantially impact a fundamental right is reviewed under the rational basis test Gender and illegitimacy (not disability) are the only quasi-suspect classifications that can trigger the intermediate scrutiny test

Question 136

Congress's authoriy over immigration and naturalization

Answer 136

Under Article I of the Constitution, C**ongress has plenary (i.e., exclusive) authority over immigration and naturalization**, so **federal laws based on U.S. citizenship are *presumptively* *constitutional*. ** To rebut this presumption and show that such a law violates the equal protection component of the Fifth Amendment, **a challenger must show that the law is not rationally related to a legitimate government interest**—i.e., that the law is arbitrary or unreasonable.

Question 137

ex post facto clause

Answer 137

The ex post facto clauses **prohibit federal and state governments from enacting criminal laws that have a retroactive punitive effect** (i.e., ex post facto laws). As a result, this clause generally does not apply to civil laws because their purpose is nonpunitive. However, a civil law will be deemed to be an ex post facto law when its retroactive effect is so punitive that it clearly overrides its nonpunitive purpose.

Question 138

President's power to pardon

Answer 138

The President (i.e., executive branch) has the distinct power to enforce laws. This includes the plenary (i.e., absolute, unqualified) power to grant reprieves and pardons to persons who commit federal offenses—EXCEPT in cases of impeachment

Question 139

judge's immunity from civil liability

Answer 139

Judges possess absolute immunity from civil liability for official judicial actions—including rulings that are grave procedural errors—unless the court clearly lacked subject-matter jurisdiction at the time the action was taken. This ensures that judges are free to issue decisions during judicial proceedings without fear that they will later be personally liable for them.

Question 140

Congress's power to delegate incidental legislative powers to federal agencies

Answer 140

"Congress can delegate incidental legislative powers to federal agencies if it provides an intelligible principle— i.e., a clear statement defining (1) the policy Congress seeks to advance, (2) the agency to carry out that policy, and (3) the scope of that agency's authority. REMEMBER: administrative agencies are part of the EXECUTIVE branch"