Wetlaufer's Civil Procedure Flashcards - 1/30/07 Edition

Front 1

In 16th and 17th century England, there were two rival sets of court, one comprised of the courts of "law" and the other of the courts of "equity." Among the differences between these two sets of courts were differences in the remedies they administered. Describe the difference between "legal" and "equitable" remedies.

Back 1

Legal remedies typically involve orders directing the defendant to pay money damages, including both compensatory and punitive damages. Equitable remedies typically involve orders directing the defendant to act or refrain from acting in some specific way (other than the payment of money), including injunctions, specific performance, rescission, reformation, and accountings.

Front 2

In 16th and 17th century England, there were two rival sets of court, one comprised of the courts of "law" and the other of the courts of "equity" (the chancery courts). There was a famous battle between these two sets of courts as to the question of which had priority over the other. Which now has priority? In what sense?

Back 2

"Law" has priority over "equity" - at least in the sense that, even after the merger of law and equity in the federal courts, a plaintiff is entitled to "equitable" remedies" (e.g. injunctions) only if she can show that her "legal" remedies would be "inadequate."

Front 3

In 16th and 17th century England, there were two rival sets of court, one comprised of the courts of "law" and the other of the courts of "equity." In the federal courts, what is the current status of the distinction between law and equity? When and how was that current status established?

Back 3

The distinction was abolished by 1938 enactment of the Federal Rules of Civil Procedure.

Front 4

Compensatory damages are

Back 4

damages calculated to make a plaintiff whole for damages or losses actually suffered.

Front 5

Punitive damages are

Back 5

damages that are additional to those warranted by compensation and intended to punish the defendant for behavior deemed especially wrongful (e.g. willful or malicious).

Front 6

An injunction is

Back 6

a remedy in the form of a judicial order compelling a defendant to a lawsuit to do or refrain from doing something - to be distinguished from a court order compelling a party to the lawsuit to do or refrain from doing some procedural thing related to the conduct of the litigation.

Front 7

A preliminary injunction is

Back 7

a pre-trial injunction, issued only after a hearing, which is meant to protect the claimant from loss or injury while the action is pending.

Front 8

A temporary restraining order is

Back 8

a temporary restraining order which functions as an injunction of short and fixed duration and may be granted without a hearing (ex parte).

Front 9

Mandamus is

Back 9

an extraordinary "writ" by which a court commands a lower court, or some other governmental official, to perform some specified act.

Front 10

Attachment is

Back 10

a legal process directing seizure of the defendant's property and is (a) sometimes prior to trial and in aid of jurisdiction and (b) sometimes after judgment and in aid of executing that judgment.

Front 11

A declaratory judgment is

Back 11

relief in the form of a judicial order which (merely and passively) declares the rights and other legal relations of the parties, and that may be sought by someone who is otherwise a "natural defendant." 28 U.S.C. 2201-02; F.R. Civ. P. 57.

Front 12

A statute of limitations is

Back 12

a statute setting the period of time within which a lawsuit may be brought - and beyond which it will be barred.

Front 13

A statute of limitations is said to have been "tolled" when

Back 13

for one reason or another it is regarded as having stopped running.

Front 14

Laches is

Back 14

the non-statutory doctrine by which relief may be denied on grounds of unreasonable and unexcused delay in seeking the relief.

Front 15

Estoppel is

Back 15

a doctrine generally providing that a party is barred (estoppel) from taking a position in litigation when that position is inconsistent with earlier conduct and the change would unfairly burden another party.

Front 16

What is stare decisis?

Back 16

The doctrine of finality according to which a principle of law established in one case is taken as established law in later cases.

Front 17

What is (are) the way(s) a litigant may challenge an order of a trial court? Note the question involves "way(s) a litigant may challenge" and not "way(s) a litigant may appeal."

Back 17

(1) motion for reconsideration
(2) an appeal to the appellate court
(3) a separate action for mandamus initiated in the appellate court.
(4) a collateral attack brought through subsequent action (See Pennoyer v. Neff casebook at 61, Durkee v. Duke at 716).

Front 18

What is the final judgment rule?

Back 18

As a general matter, appeals may be taken to a Federal Court of Appeals only from final judgments of a District Court. 28 U.S.C. 1291.

Front 19

Decisions by a District Court that are not "final" are, instead

Back 19

interlocutory

Front 20

In the federal system, an appeal from a District Court to a Court of Appeals may be taken in what circumstances?

Back 20

(1) From a "final order" of the District Court (28 U.S.C. 1291);
(2) From an order involving an injunction (28 U.S.C. 1292(a)(a)); and
(3) From an interlocutory order that has been certified by the District Court and accepted by the Court of Appeals (28 U.S.C. 1292(b)).

Front 21

Under what circumstances may an appeal be brought in absence of a final judgment? (Note the question is not "under what circumstances may a decision be challenged in the absence of a final judgment.")

Back 21

The decision from which appeal is sought either (a) involves an injunction or (b) it has been certified for appeal by the District Judge. 28 U.S.C. 1292.

Front 22

What is the doctrine of "full faith and credit," and what is its relationship to res judicata and collateral estoppel?

Back 22

The doctrine by which the courts of one state are generally obliged to respect judgments entered by a court of another state and by which the federal courts are generally obliged to respect judgments entered by a court of one of the states.

Front 23

What is a collateral attack?

Back 23

A second suit brought by a party who asserts the invalidity of prior litigation, e.g., for lack of personal or subject matter jurisdiction. (See e.g., Pennoyer v. Neff casebook at 61, Durfee v. Duke at 716).

Front 24

(a) May the result in one suit be collaterally attacked through a second suit if the plaintiff in the second suit appeared in the first suit and litigated the asserted deficiency? (b) What if the plaintiff in the second suit asserts that the court in the first suit never had jurisdiction?

Back 24

(a) No. (b) That depends on whether he appeared and defended the first suit - if he did, the answer is still no; if he didn't, the answer is yes. (Durfee v. Duke at 716)

Front 25

A mandamus action initiated in an appellate court is

Back 25

a lawsuit filed in a higher court (e.g., the U.S. Court of Appeals) and asking the higher court to intervene in a case pending in a lower court (e.g., a U.S. District Court). It is distinguished from an appeal by the fact that it is brought as a separate lawsuit, it is actually initiated in the court of appeals and it names as defendant either the lower court of the lower court judge. (See e.g., World-Wide VW v. Woodson at 119)

Front 26

In two words, res judicata is

Back 26

claim preclusion.

Front 27

In two words, collateral estoppel is

Back 27

issue preclusion.

Front 28

In more than two words, res judicata is

Back 28

the doctrine of finality and repose by which a final judgment entered on the merits of a claim by a court of competent jurisdiction is, for purposes of any subsequent adjudication, conclusive upon the parties to that judgment and to others in privity with those parties.

Front 29

Parties are "in privity" with respect to some action, matter or thing (e.g., a prior lawsuit) when

Back 29

they had an actual part or interest in that action, matter or thing.

Front 30

In more than two words, what is collateral estoppel?

Back 30

The doctrine of finality and repose by which a prior determination of a right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction is, for purposes of any subsequent litigation, conclusive upon the parties to earlier judgment and to other in privity with those parties even if the subsequent litigation is for a different cause of action.

Front 31

What is the old-time Latin name for issue preclusion?

Back 31

collateral estoppel

Front 32

What is the old-time Latin name for claim preclusion?

Back 32

res judicata (the thing adjudicated)

Front 33

Biff has purchased a product from Alice and taken it home. There it exploded, causing permanent injury to his arm and the sleeve of his $60 coat. Biff brought suit on the damage to his coat and won. He has now filed a second suit for injury to his arm. What is the doctrine of finality that plaintiff Biff may now seek to invoke?

Back 33

Plaintiff Biff may seek to invoke the doctrine of issue preclusion or collateral estoppel, arguing that the question of Alice's liability has already been resolved in the first suit that Alice may not now relitigate that question in the second suit.

Front 34

Biff has purchased a product from Alice and taken it home. There it exploded, causing permanent injury to his arm and the sleeve of his $60 coat. Biff brought suit on the damage to his coat and won. He has now filed a second suit for injury to his arm. What is the doctrine of finality that defendant Alice may now seek to invoke?

Back 34

Defendant Alice may seek to invoke the doctrine of claim preclusion or res judicata, arguing that, even though the claim was not asserted in the first suit, that claim should have been asserted in the first suit and it's litigation in a second suit is now barred. In this way, res judicata may operate as a rule of compulsory joinder in the first suit. (Because the second suit is STO to the first, the second suit is almost certainly barred res judicata).

Front 35

Statements of what three things must be set forth in a complaint?

Back 35

The grounds for jurisdiction, the claim, and a demand for judgment for the relief sough. F.R.Civ.P.8(a).

Front 36

In the language of the Federal Rules, the standard of sufficiency for a complaint is

Back 36

"a short and plain statement of the claim." F.R.Civ.P.8(a).

Front 37

In a complaint, may a plaintiff make claims for which he lacks evidence?

Back 37

Yes, if he does so on the basis of "information and belief." (Under Rule 11(b), a person filing a pleading is taken to certify that "to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances...(3) the allegations...have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for [e.g.,] discovery."

Front 38

A "motion to dismiss for failure to state a claim" is authorized by

Back 38

Federal Civil Rule 12(b)(6).

Front 39

The stuff to which the applicable standard is applied on a motion to dismiss for failure to state a claim is

Back 39

the complaint.

Front 40

For purposes of a motion to dismiss for failure to state a claim, claims and facts set out in the complaint are

Back 40

taken to be true.

Front 41

When may a motion to dismiss for failure to state a claim under Rule 12(b)(6) - or its companion the motion for judgment on the pleadings under Rule 12(c) - be brought?

Back 41

(1) by motion prior to pleading (under Rule 12(b)(6)),
(2) by motion prior to trial (under Rule 12(c)),
(3) at the trial on the merits (under Rule 12(c)).
F.R.Civ.P.12(b)(6), 12(c), and 12(h)(2).

Front 42

On what ground(s) may a defendant bring a motion to dismiss for failure to state a claim under Rule 12(b)(6)?

Back 42

(1)insufficiency of detail (e.g., "it's not enough to say that the defendant's behavior is reprehensible and illegal and that therefore you demand relief") or (2) the legal insufficiency of the complaint ("even if all you say is true - her boyfriend is really annoying - the law affords you no relief")

Front 43

What is a motion for a more definite statement? When and to whom is it available?

Back 43

A motion for a more definite statement is a pre-answer motion that may be brought by a party obligated to respond to a pleading that is "so vague and ambiguous" that it cannot be answered. F.R.Civ.P.12(e). It may not be used to get the information needed for trial - that's what discovery tools are for.

Front 44

What is a motion to strike? When and to whom is it available?

Back 44

A motion to strike is a motion by which a party may ask the court to delete material from her adversary's pleading (1) if, for instance, the material is immaterial and scandalous or (2) if it states an "insufficient defense." F.R.Civ.P.12(f). In the second of these two forms, it provides the plaintiff with a means to attack, on the pleadings, a legally insufficient defense - and thus provides the plaintiff with a tool similar to the defendant's motion to dismiss for failure to state a claim.

Front 45

The number of Rule 12 motions that may be brought prior to responsive pleading is

Back 45

one. F.R.Civ.P.12(g).

Front 46

Among the grounds for dismissal set out in Rule 12(b), The Indestructible One is

Back 46

lack of subject matter jurisdiction. F.R.Civ.P.12(b)(1).

Front 47

Among the grounds for dismissal set out in Rule 12(b), The Hardy Two are

Back 47

failure to state a claim, F.R.Civ.P.12(b)(6) and failure to join an indispensable party, F.R.Civ.P.12(b)(7).

Front 48

Among the grounds for dismissal set out in Rule 12(b), The Fragile Four are

Back 48

-personal jurisdiction
-improper venue
-insufficiency of process, and
-insufficiency of service of process.
F.R.Civ.P.12(b)(2-5).

Front 49

What happens if a defendant fails to deny an averment made in the complaint?

Back 49

It is admitted. F.R.Civ.P.8(d).

Front 50

In an answer, may a defendant deny claims when she lacks actual evidence?

Back 50

Better still, if she is without knowledge or information sufficient to form a belief as to the truth of the averment, she may truthfully "so state" and this will have the effect of a denial. F.R.Civ.P.8(b). See also Rule 11(b)(4) denials, when so identified, may be reasonably based on a lack of information or belief.

Front 51

An affirmative defense is

Back 51

a defense which is waived if not affirmatively set out in a party's answer. F.R.Civ.P.8(c).

Front 52

The three sample affirmative defenses I have asked you to know are

Back 52

accord and satisfaction (settlement)
res judicata
the statute of limitations

Front 53

Beyond the three affirmative defenses I had asked you to know, what do you knokw about what is and what is not an affirmative defense?
(not on midterm)

Back 53

It's cloudy and dangerous. It's hard to know why various things are on the list; why other things are off the list; and which of the things that are off the list are really on the list.

Front 54

What is the standard controlling the amendment of pleadings?

Back 54

According to Rule 15(a), amendment will be permitted by leave of court which "shall be freely granted when justice as requires." For the midterm: amendments are to liberally granted.

Front 55

The standard of review on a district court judge's decision on a motion to amend a complaint is

Back 55

abuse of discretion.

Front 56

Rule 11 generally authorizes

Back 56

sanctions against lawyers and others for certain forms of misconduct in the course of litigation.

Front 57

The occasions to which Rule 11 applies are

Back 57

"every pleading, written motion, and other paper." F.R.Civ.P.11(a).

Front 58

For purposes of Rule 11, what certification is a signatory making with respect to his purposes?

Back 58

That the paper is not being presented "for any improper purpose, such as to harass or to course unnecessary delay or needless increase in the cost of litigation." F.R.Civ.P.11(b)(1). This has probably not ended the litigator's practice of considering matters of these kinds in making his strategic decisions.

Front 59

What are the elements of a cause of action? As a general matter, must each element be pleaded?
(not on midterm)

Back 59

The elements of a cause of action are the constituent parts of a claim that must be proved for the claim to succeed, as proximate cause is an element of a negligence claim or consideration may be an element of a contract claim. As a general matter, each element need not be pleaded.

Front 60

Historically, a motion to dismiss for failure to state a claim has also been known as

Back 60

a demurrer.

Front 61

A motion for summary judgment is authorized by

Back 61

Federal Civil Rule 56.

Front 62

A motion for a directed verdict is formally known, somewhat confusingly, as a

Back 62

Motion for Judgment as a Matter of Law. F.R.Civ.P.50(b).

Front 63

A motion for a judgment notwithstanding the verdict is usually called a motion for a J.N.O.V. and, is formally known, somewhat confusingly, as a

Back 63

Renewed Motion for Judgment as a Matter of Law. F.R.Civ.P.50(b).

Front 64

Unlike the motion to dismiss for failure to state a claim and the summary judgment motion, motions for directed verdict or for J.N.O.V. are only available

Back 64

in jury trials.

Front 65

The burden of persuasion or the burden of proof is

Back 65

the burden, always assigned to one party or another, of convincing the decision-maker that the applicable standard has been met.

Front 66

In the actual trial of a civil case, whether it is a bench trial or a jury trial, the burden of proof is on (whom?)

Back 66

the party seeking relief (the plaintiff on her claims or the defendant on a counterclaim, a cross-claim, or a third-party claim).

Front 67

What does it mean to say that a party has established a prima facie case?

Back 67

a party's production of enough factual evidence to allow the fact-finder to rule in the party-s favor, subject to the possibility of disproof or rebuttal by the other side. It means that a party has discharged its burden of proof (at least temporarily) and has done enough to survive a motion for a directed verdict has shifted that burden to the other side.

Front 68

On a motion for summary judgment, how will the court deal with questions involving conflicting evidence or the credibility of witnesses?

Back 68

The court will view the matter in the light most favorable to the party opposing the motion - and, if the questions involve facts that matter ("material facts"), it will deny the motion so those questions may be resolved at trial.

Front 69

On motions, including motions for summary judgment and directed verdict, the burden of persuasion is generally on (whom?)

Back 69

the proponent of the motion (the party who has brought the motion and thus who seeks the action of the court.)

Front 70

The allocation of the burden of proof or persuasion in a motion for summary judgment is complicated by
not on midterm

Back 70

the Celotex case.

Front 71

The stuff to which the applicable standard is applied on a motion for summary judgment is

Back 71

the material attached to the motion, which may include pleadings, discovery material, and affidavits. F.R.Civ.P.56(c).

Front 72

The stuff to which the applicable standard is applied on a motion for directed verdict is

Back 72

the record of evidence offered and admitted at trial. F.R.Civ.P.50.

Front 73

The stuff to which the applicable standard is applied on a motion for J.N.O.V. is

Back 73

the record of evidence offered and admitted at trial. F.R.Civ.P.50.

Front 74

A motion for summary judgment may be brought (when?)

Back 74

at any time prior to trial, except that the plaintiff may not file such a motion immediately after commencement of the action. F.R.Civ.P.56(a-c).

Front 75

A motion for a directed verdict may be brought (when?)

Back 75

during trial, at any time after the other side has been fully heard and before the case is submitted to the jury. F.R.Civ.P.50(a).

Front 76

A motion for a J.N.O.V. may be brought (when?)

Back 76

after the moving party has made a timely motion for a directed verdict, after an adverse decision by the jury, and no later than 10 days after entry of judgment. F.R.Civ.P.50(b).

Front 77

The standard applied in a civil trial, whether to a judge or a jury is

Back 77

"the preponderance of the evidence" or "more probable than not."

Front 78

The standard applied on a motion to dismiss for failure to state a claim is

Back 78

whether the allegations in the complaint, if read if the light most favorable to the plaintiff and taken to be true, states a claim for which relief could be granted.

Front 79

The standard applied on a motion for summary judgment is

Back 79

whether there is no genuine issue of material fact; facts interpreted in light most favorable to party opposing motion; moving party entitled to judgment as a matter of law. F.R.Civ.P.56. (Not on midterm: If the MSJ is brought by D, it is P - as the party the ultimate burden of proof of trial - who bears the burden of persuading the judge that there are issues of fact warranting trial. If the D "shows" that P cannot do so, D has done all he must do to win on his MSJ. Celotex).

Front 80

The standard applied on a motion for directed verdict is

Back 80

"could a reasonable jury" viewing evidence in the "light most favorable to party opposing motion."

Front 81

The standard applied on a motion for J.N.O.V. is

Back 81

"could a reasonable jury" viewing evidence in the "light most favorable to party opposing motion."

Front 82

In bench trials, is there a motion that is the equivalent of the motions for a directed verdict or a jnov in a jury trial?

Back 82

Yes. (The motion to dismiss under Rule 52.)

Front 83

A default judgment is

Back 83

an order, most commonly issued against a non-responding defendant, for failure to plead or otherwise defend a suit. F.R.Civ.P.55.

Front 84

What does it mean to say that the standard of review is de novo?

Back 84

It means that the reviewing court will ask and answer the same question as was asked and answered by the court whose decision is being reviewed.

Front 85

What are the standards of review we have encountered in civil adjudication?

Back 85

(1) de novo
(2) reasonable jury
(3) clearly erroneous
(4) abuse of discretion
I should probably also include the standards applicable to Rule 12(b)(6) motions to dismiss and Rule 56 motions for summary judgment.

Front 86

The standard(s) of review applicable to pure questions of law is (are)

Back 86

de novo.

Front 87

The standard(s) of review that entail deference is (are)

Back 87

reasonable jury, clearly erroneous, and abuse of discretion.

Front 88

Standards of review that have no place in civil procedure include
not on midterm

Back 88

beyond a reasonable doubt and heightened scrutiny standards from constitutional and administrative law.

Front 89

Are questions of the sufficiency of facts ever subject to non-deferential (de novo) review? If so, give an example

Back 89

Yes. When a Court of Appeals review a District Court's decision on a motion for summary judgment (e.g., Houchens at 35) or on a motion for judgment notwithstanding the verdict (e.g., Norton at 42), it affords no deference to the decision of the District Court. Thus CA asks and answers precisely the same question that the DC was charged with asking and answering; it substitutes its judgment on that question for the judgment of the DC; and its review of the DC is thus de novo.

Front 90

Is it true that reviewing courts always defer to the judgments of trial court judges because the trial court judges was present and thus well positioned to assess the evidence?

Back 90

No. Reviewing courts defer to the trial courts when the trial court is the designated first finder of fact, as in the case of bench trials under the clearly erroneous standard. But when there is a jury and the appeal involves a directed verdict or a jnov, reviewing courts defer to the jury (the designated first finder of fact) but do not defer to the trial court judge, even though the trial court judge was present for the hearing.

Front 91

On a motion to dismiss for failure to state a claim, (a) what is the standard applied by the district court judge? Is it deferential or nondeferential and to whom? (b) Same re standard applied by the court of appeals. (c) Same re standard applied by the Supreme Court.

Back 91

(a) whether the allegations in the complaint, if read in the light most favorable to the plaintiff and taken to be true, state a claim for which relief could be granted; (deference to continued litigation & designated first finder of fact);
(b) same standard; (deference to continued litigation & designated first finder of fact), no deference to district court judge;
(c) same standard, (deference to continued litigation & designated first finder of fact), no deference to district court judge or court of appeals.

Front 92

On an appeal from a bench trial, (a) what is the standard applied by the court of appeals? Is it deferential or nondeferential? To whom? (b) Same re the standard applied by the Supreme Court.

Back 92

(a) clearly erroneous; deference to the district court judge.
(b) clearly erroneous; deference to the district court judge, no deference to the court of appeals.

Front 93

On a motion for a directed verdict or a JNOV, (a) what is the standard applied by the district court judge and is it deferential or nondeferential and to whom? (b) Same re standard applied by the Court of Appeals. (c) Same re standard applied by the Supreme Court.

Back 93

(a) no genuine issue of material fact and entitled as matter of law (deference to the possibility of trial);
(b) same standard; deference to the possibility of trial, no deference to district court judge.
(c) same standard; deference to the possibility of trial, no deference to district court judge or court of appeals.

Front 94

What is the standard of review (the question that will be asked) on an appeal from the decision of a District Court in a bench trial?

Back 94

clearly erroneous

Front 95

What is the standard of review (the question that will be asked) on an appeal from the decision of a District Court in granting a motion for J.N.O.V.?

Back 95

reasonable jury, light most favorable to a party opposing motion.

Front 96

What is the standard of review (the question that will be asked) on an appeal from the decision of a District Court in granting a motion for a directed verdict?

Back 96

reasonable jury, light most favorable to a party opposing motion.

Front 97

What is the standard of review (the question that will be asked) on an appeal from the decision of a District Court in granting a motion for summary judgment?

Back 97

No genuine issue of material fact; facts interpreted in light most favorable to party opposing motion; moving party entitled judgment as a matter of law.

Front 98

Decisions that are reviewed on an abuse of discretion standard apply to several categories of decisions. 7 options. Midterm: need 1.

Back 98

(1) accepting or declining supplemental jurisdiction under 28 U.S.C. 1367(c).
(2) the amendment of pleadings under Rule 15.
(3) joinder (e.g., necessary and indispensable parties under Rule 19; joinder of plaintiffs and defendants under Rule 20; certification and management of class actions under Rule 24; timeliness and permissive intervention under Rule 24).
(4) discovery, including but not limited to sanction (Rule 26-37, 45)
(5) TROs and preliminary injunctions under Rule 64
(6) consolidation or bifurcation of proceedings under Rule 42
(7) decisions on motions for new trials under Rule 59.

Front 99

What is the "American rule" regarding lawyers fees?

Back 99

Each litigant must pay its own attorney's fees, even if the litigant prevails in the lawsuit.

Front 100

What is the "English rule" regarding lawyers fees?

Back 100

A losing litigant must pay the winner's costs and attorney's fees.

Front 101

What are contingent fees?

Back 101

Lawyer's fees that are set as a percentage of the amount recovered, e.g. 25-30% in a tort action.

Front 102

What "fee shifting" rules?

Back 102

One of a class of rules by which the defendant may, when found liable, sometimes by required to pay the plaintiff's attorney's fees.

Front 103

What is a retainer?

Back 103

A contractual agreement between a lawyer and a client, often involving a flat fee advanced to the lawyer for holding herself available for representation.

Front 104

Under the Rules Enabling Act of 1934 what is the procedure governing the drafting and amendment of the Federal Rules of Civil Procedure?

Back 104

The Supreme Court appoints a committee to draft proposed rules and to submit those proposals to the Supreme Court. If the Court approves the changes, it sends them to Congress (by May 1). Absent negative Congressional action, those changes automatically became effective (usually on December 1 of the same year).

Front 105

What is sequestration?
not on midterm

Back 105

Sequestration is the judicial process by which property relevant to a lawsuit seized and held by the court.

Front 106

What is garnishment?
not on midterm

Back 106

Garnishment is the judicial proceeding by which a court, in a dispute between a creditor and a debtor, orders a third person to turn over to the creditor some of the debtor's property (e.g., wages or bank accounts) held by that third person.

Front 107

Does the quality and quantity of lawyering make a difference in civil litigation? Subject to a small number of exceptions, what is the basis on which we have chose to allocate the quality and quantity of lawyering?

Back 107

(a) It makes all the difference in the world.
(b) As a general matter, we've chosen to allocate lawyering - and thus civil justice - through the marketplace and thus on the basis of people's ability and willingness to pay. I assume this means that our massive and growing inequalities in wealth translate directly into massive and growing inequalities in the availability of civil justice.

Front 108

What is the requirement of complete diversity and what is the case by which it was established?

Back 108

It is the requirement that all plaintiffs be diverse from (citizens of different states from) all defendants. Strawbridge v. Curtiss (1806) (casebook at 233).

Front 109

In addition to the necessary pleading, what must a plaintiff do in order successfully to bring a class action?

Back 109

She must bring and win a motion for class certification.

Front 110

In a class action, are absent members of the class bound res judicata to the outcome of the suit? Sometimes? Always? Explain.

Back 110

Absent members of the class are bound res judicata to the outcome of the suit - after but not before the class has been certified.

Front 111

In what ways does notice pleading differ from code pleading?

Back 111

Notice pleading requires only "a short and plain statement of the claim" - and it does not require the plaintiff to plead a particular cause of action, or to plead all the elements of a cause of action, or to plead the facts.

Front 112

While syllogisms may be unpersuasive because they are invalid, they may also be valid but unpersuasive if one or both of their premises is false. Wetlaufer's favorite example is:

Back 112

Premise 1: all hummingbirds have red feathers.
Premise 2: my friend Barry is a hummingbird.
Conclusion: therefore my friend Barry has red feathers.
This syllogism is formally valid (all A are B; C is an A; therefore C is B) but completely unpersuasive - because the second premise is factually wrong. Barry is not a hummingbird. Thus this syllogistic argument is valid but unpersuasive.

Front 113

The simple - but not very interesting - syllogism to which all judicial decisions can be reduced is

Back 113

(1) legal premise (e.g., if A then B as in "if someone breaches his contract, then he is liable")
(2) factual premise (e.g., C has done A as in "the defendant has breached his contract"
(3) legal conclusion (therefore C is B as in "therefore the defendant is liable")

Front 114

If all judicial decisions can be reduced to simple syllogisms (legal premise, factual premise, legal conclusion) but, legal-argument-wise, those syllogisms aren't where the real action is likely to be, where is the real action likely to be?

Back 114

Legal-argument-wise, the interesting arguments - the action, if you like - will usually involve the arguments that are offered for or against the parties' different versions of the appropriate legal premise and the arguments that are offered for or against the parties' different versions of the appropriate factual premise.

Front 115

Assume that all judicial decisions can be reduced to simple (legal premise, factual premise, legal conclusion) syllogisms but that, legal-argument-wise, those syllogisms aren't where the real action is likely to be. Where the real action is, will the arguments there being offered always be syllogisms?

Back 115

The real action involves the arguments that the parties are offering for and against their proposed legal and factual premises - and those arguments are much less likely to look like a syllogism than to look like a list of reasons for accepting or rejecting one premise or the other.

Front 116

What is the doctrine of pre-emption?
not on midterm

Back 116

Is it the Constitutional principle, derived from the Supremacy Clause, that a federal law can supersede or supplant any inconsistent state law.

Front 117

What is a docket?

Back 117

The docket is the formal record in which a judge or court clerk briefly notes all the proceedings and filings in a court case, usually by title and date of documents filed with the court.

Front 118

What is the meaning of "pro se"?

Back 118

A person appears "pro se" before a court when he appears without counsel.

Front 119

What is the meaning of "ex parte"?

Back 119

A hearing is "ex parte" when it takes place between a judge and only one of the parties to a case. Such hearings are rarely permissible, but see Rule 65(b) (concerning the issuance of temporary restraining orders).

Front 120

Three great things that happened in 1938 were

Back 120

Through enactment of the Federal Courts of Civil Procedure (1) law and equity were merged in the federal system and (2) procedure in federal district courts, which had been controlled by the law of the state in which the district court sat, was unified and federalized. Also (3) the Court's decision in Erie v. Tompkins reversed Swift v. Tyson, thus removing from federal district courts, sitting in diversity actions, the power to declare substantive common law contrary to the rules established by state courts.

Front 121

On a motion for a directed verdict for a JNOV, (a) what is the standard applied by the district court judge and is it deferential or nondeferential and to whom? (b) Same re the standard applied by the court of appeals. (c) Same re standard applied by the Supreme Court.

Back 121

(a) reasonable jury, deference to jury
(b) reasonable jury, deference to jury, no deference to district court judge
(c) reasonable jury, deference to jury, no deference to district court judge or court of appeals