Overview

Living synthesis across all law school subjects covered in this wiki. Updated with each ingest.

Subjects Covered

This wiki covers a full JD curriculum — approximately three years of law school material. Pages are organized by course, doctrine, case, and statute.

1L Courses

Course	Core Questions
Torts	When is one person liable to another for harm? Fault vs. strict liability; the scope of duty; causation limits on liability
Contracts I / Contracts II	What promises are legally enforceable, on what terms, and what remedies follow breach?
Property	What rights attach to ownership of land and things? How are those rights created, transferred, limited, and taken?
Criminal Law	What conduct does the state punish, with what mental state, and what defenses excuse?
Constitutional Law	What powers does the federal government have, how are they divided, and what rights protect individuals from government action?
Civil Procedure I / Civil Procedure II	How does a federal civil lawsuit proceed from filing through judgment, and what preclusive effect does it have?

Upper-Level Courses

Course	Core Questions
Evidence	What information may a factfinder consider, and under what conditions?
Administrative Law	How do agencies make rules and adjudicate, and when may courts review their actions?
Criminal Investigations	What constraints does the Constitution place on police investigation before charge?
Criminal Adjudications	What constitutional rights govern the adjudicative phase — from grand jury through trial?
Federal Criminal Law	What gives the federal government jurisdiction to prosecute, and what do the major federal crimes require?
Corporations	What fiduciary duties do directors and officers owe, and how are those duties enforced?
Securities Regulation	What disclosure and anti-fraud obligations govern the issuance and trading of securities?
Antitrust	What business conduct restrains competition unlawfully under the Sherman and Clayton Acts?
Professional Responsibility	What ethical obligations govern lawyers’ conduct toward clients, tribunals, and third parties?
Federal Courts	What is the scope and structure of federal judicial power — standing, sovereign immunity, § 1983?
Legislation	How do courts interpret statutes, and what role should legislative history play?
Conflict of Laws	Which jurisdiction’s law governs a multistate dispute, and when must a court recognize another jurisdiction’s judgment?
Transnational Litigation	How do procedural and jurisdictional doctrines apply when a dispute crosses national borders?

Cross-Cutting Themes

Analytical frameworks and doctrines that appear in multiple subjects. Mastering the pattern — not just its application in one course — is the key to exam performance.

1. Standards of Review / Judicial Deference

Every field asks: how much should a court defer to another decision-maker?

Context	Standard	Course
Agency statutory interpretation	Chevron two-step (abandoned post-Loper Bright, 2024) / Skidmore respect	Administrative Law
Agency factfinding	Substantial evidence (formal); arbitrary and capricious / hard-look (informal)	Administrative Law
Director business decisions	Business Judgment Rule (deferential) vs. Entire Fairness (searching)	Corporations
Constitutional rights claims	Rational basis → intermediate scrutiny → strict scrutiny	Constitutional Law
Summary judgment / 12(b)(6)	No genuine dispute of material fact / plausible claim (Twombly/Iqbal)	Civil Procedure I
Expert testimony	Daubert reliability gatekeeping	Evidence
Search warrant sufficiency	Totality of circumstances for probable cause (Gates)	Criminal Investigations

Pattern: Courts are most deferential when: (1) the decision-maker has expertise (agency factfinding, board of directors); (2) the issue is polycentric or involves political choices (legislation, executive action); (3) constitutional values are not directly implicated. Courts apply heightened scrutiny when fundamental rights, suspect classifications, or constitutional rights are at stake.

2. Intent and Mental State

The required mental state is always the first thing to identify.

Subject	Framework	Key Cases
Criminal Law	MPC four levels: purpose, knowledge, recklessness, negligence; willful blindness = knowledge	Mens Rea, United States v. Jewell
Torts — intentional	Desire to cause contact OR substantial certainty it will result	Battery, Garratt v. Dailey
Federal fraud offenses	Specific intent to defraud; materiality; willful blindness sufficient for knowledge	Mail Fraud, Wire Fraud
Securities fraud	Scienter (purpose or knowledge; recklessness in circuits); strong inference standard (PSLRA)	Tellabs, Inc. v. Makor Issues & Rights, Ltd
Official corruption	Quid pro quo (Hobbs Act / § 201 bribery); “official act” narrowly defined	Hobbs Act (18 U.S.C. § 1951), McDonnell v. United States
ConLaw — EP	Discriminatory purpose required for strict scrutiny; disparate impact alone insufficient	Equal Protection

Pattern: Moving from strict liability → negligence → recklessness → knowledge → purpose increases the prosecution/plaintiff’s burden but narrows the class of defendants. Public welfare offenses (regulatory crimes) flip this by imposing strict liability to protect broad interests.

3. The Reasonable Person / Objective vs. Subjective Standards

Across every field there is tension between holding actors to an objective external standard and asking what this particular actor knew or believed.

Torts: Reasonable person standard for negligence (objective); but thin-skull rule is subjective (take plaintiff as you find them).
Criminal Law: MPC generally subjective (what did this defendant believe?). Common law self-defense varies — Goetz (N.Y.) requires objective reasonableness; retreat rules vary by jurisdiction.
Fourth Amendment: Katz “reasonable expectation of privacy” is objective (would society recognize this expectation?); but entrapment defense is subjective (was this defendant predisposed?).
Contracts: Objective theory of contract formation — courts look to outward manifestations, not secret intent (Lefkowitz). But mistake doctrines ask whether both parties shared the erroneous belief.
Corporate Law: BJR asks whether the board acted on an informed and good-faith basis (objective process inquiry); gross negligence is the breach threshold (Smith v. Van Gorkom).

4. Causation

Causation analysis follows the same structure across subjects: actual cause first, then scope-of-liability limit.

Step	Tort Law	Criminal Law	Contracts
Actual cause	But-for; substantial factor	But-for (concurrent causes: substantial factor)	Breach was cause-in-fact of loss
Scope limit	Proximate cause — foreseeable risk rule (Palsgraf/Wagon Mound); superseding cause	Proximate cause — foreseeable risk	Consequential damages: Hadley foreseeability at time of contracting
Special rules	Market share (Sindell); alternative liability (Summers v. Tice); eggshell plaintiff	Transferred intent; year-and-a-day (abolished most jurisdictions)	Certainty requirement; mitigation

Palsgraf and Hadley are dual expressions of the same idea: liability is limited to the foreseeable range of harm. Know both.

5. Balancing Tests

Many constitutional and quasi-constitutional doctrines use three- or multi-factor balancing. Learn the factors cold.

Test	Factors	Context
Mathews v. Eldridge	Private interest / risk of error / government burden	Procedural due process — what process is owed
Penn Central	Economic impact / investment-backed expectations / character of government action	Regulatory takings — when compensation required
Barker v. Wingo	Length / reason / assertion / prejudice	Sixth Amendment speedy trial
Hand Formula (B < PL)	Burden of precaution / probability / magnitude of loss	Negligence — whether a precaution was unreasonably omitted
Unocal	Reasonably perceived threat / proportionality of response	Defensive measures in hostile takeover
Piper Aircraft / Gilbert	Private and public interest factors	Forum non conveniens dismissal

Pattern: Balancing tests give courts flexibility but create unpredictability. The factors are a checklist — exam answers must address each factor; omitting one signals incomplete analysis.

6. Preclusion and Finality

Res judicata (claim preclusion) and collateral estoppel (issue preclusion) are covered in Civil Procedure but appear everywhere.

Claim preclusion (res judicata): same parties, same claim, final judgment on merits → entire claim extinguished, including theories not raised.
Issue preclusion (collateral estoppel): same issue, actually litigated and decided, necessary to judgment → issue cannot be re-litigated. Non-mutual offensive use permitted (Parklane Hosiery) subject to trial court discretion; non-mutual defensive use permitted (Blonder-Tongue).
Federal Courts context: § 1738 requires federal courts to give state court judgments the same preclusive effect those judgments would have in the rendering state.
Criminal/Civil overlap: A criminal conviction may collaterally estop re-litigation of the facts in a civil suit; an acquittal has no preclusive effect (different burdens of proof).
Conflict of Laws: Full Faith and Credit requires recognition of sister-state judgments but not necessarily of sister-state law. Carroll v. Lanza / Hughes v. Fetter.

7. Federalism: Federal/State Power Allocation

Multiple courses address different facets of the same structural question: what can the federal government do, and when does it displace state authority?

Dimension	Course	Key Doctrine
Congressional power sources	Constitutional Law	Commerce Clause (Lopez, Raich, NFIB); N&P Clause; Taxing power
Preemption	Legislation	Express; conflict; obstacle; field preemption
Federal common law	Federal Courts	Erie — no general federal common law; limited enclaves (interstate disputes, admiralty, foreign affairs)
Federal criminal jurisdiction	Federal Criminal Law	Commerce nexus requirement; Lopez three categories
State sovereign immunity	Federal Courts	Eleventh Amendment; Hans; abrogation via § 5 of 14th Amendment; Ex Parte Young exception
Choice of law	Conflict of Laws	Constitutional limits under Full Faith and Credit and Due Process (Allstate, Phillips Petroleum)

8. The Role of Procedure in Securing Rights

A recurring theme: substantive rights are only as strong as the procedures that protect them.

Criminal procedure trilogy: Fourth Amendment (investigation), Fifth/Sixth Amendments (custodial interrogation + charging), Sixth Amendment (adjudication / trial). Each stage has distinct doctrine.
Due process: procedural (what process is owed before deprivation — Mathews) vs. substantive (what deprivations the government may not impose regardless of process — Lawrence, Obergefell).
Brady/Giglio disclosure: the prosecutor’s obligation to disclose is the procedural mechanism enforcing the defendant’s due process right to a fair trial. Materiality is the limiting principle.
Civil procedure: pleading standards (Twombly/Iqbal) effectively screen substantive claims — a higher pleading bar acts as a substantive limitation on certain causes of action.

9. Fiduciary Duties

The fiduciary concept appears in Corporations, Agency, Trusts, Professional Responsibility, and Securities.

Relationship	Duties	Standard
Director/officer → corporation	Care, Loyalty, Good Faith	BJR (care); Entire Fairness (loyalty/conflict)
Controlling shareholder → minority	Entire Fairness (always or when controller stands on both sides)	Weinberger; Kahn v. Lynch; Kahn v. M&F Worldwide (BJR if MFW conditions met)
Attorney → client	Competence, confidentiality, loyalty (no conflicts), candor to tribunals	MRPC
Insider → securities market	Disclose or abstain; misappropriation theory	Rule 10b-5; Dirks tipper-tippee
Co-venturers	”Not honesty alone, but the punctilio of an honor the most sensitive”	Meinhard v. Salmon

10. Materiality

“Materiality” is a limiting principle that appears wherever there is too much potentially relevant information.

Evidence (FRE 401): a fact is material if it is “of consequence in determining the action.”
Securities (Rule 10b-5): a fact is material if there is a substantial likelihood a reasonable investor would consider it important (Basic — probability × magnitude for contingent facts).
Mail/Wire Fraud: misrepresentation must be material to the scheme (Neder).
Brady/Giglio: suppressed evidence is material if there is a reasonable probability the result would have differed had it been disclosed.
Contracts: misrepresentation must be material or fraudulent to make a contract voidable.

Pattern: Materiality always asks whether a reasonable decision-maker would have acted differently. It is an objective test. The precise formulation varies but the underlying logic is uniform.

11. Statutory Interpretation as a Meta-Skill

Reading statutes appears in every field. The court’s methodology is always the threshold question — identifying which sources of meaning count, and in what order.

Merrill’s Hierarchy of Interpretive Strength:

Clear statement (“super-strong”) — text must plainly state a result; no outside sources fill the gap (e.g., federalism clear statement; sovereign immunity abrogation)
Clear intent (“strong”) — dispositive legislative history can overcome textual ambiguity
Presumption (“middling”) — a meaning prevails unless strong countervailing evidence (lenity as tie-breaker, retroactivity presumption)
Tie-breaker (“weak”) — comes into play only when everything else is balanced

Schools of Interpretation:

School	Primary Sources	Leading Cases
New Textualism (Scalia)	Text, dictionaries, textual canons only	United States v. Locke; Muscarello v. United States (dissent)
Soft Plain Meaning (Breyer)	Text first; LH can overcome plain meaning	Muscarello v. United States (majority)
Purposivism	Text + statutory purpose at general level	Church of the Holy Trinity v. United States; Gen. Dynamics Land Systems v. Cline
Intentionalism	Text + specific congressional intent + LH	imaginative reconstruction; Weber

Key Linguistic Canons (applied when text is ambiguous):

Noscitur a sociis: broad term constrained by neighbors in a list (Gustafson v. Alloyd Co.)
Ejusdem generis: catch-all terms limited by the specific terms preceding them (Yates — fish ≠ “tangible object”)
Expressio unius: express inclusion implies exclusion of others (Lindh v. Murphy)
Anti-surplusage: don’t render provisions redundant (Gustafson v. Alloyd Co.)
Consistent usage: same word = same meaning across statute (unless context overrides — Gen. Dynamics Land Systems v. Cline)

Normative Canons (when linguistic canons leave ambiguity):

Lenity: criminal statutes only; tie-breaker (Breyer) or clear-statement (Scalia) strength
Presumption against retroactivity: new legal consequences on completed past conduct require clear intent/statement (Landgraf v. USI Film Products)
Presumption against extraterritoriality: need clear congressional statement for foreign application (Kiobel v. Royal Dutch Petroleum Co.; ARAMCO)
Federalism clear statement: displacing traditional state functions requires specificity (Gregory v. Ashcroft)
Constitutional avoidance: choose constitutional reading if available (NLRB v. Catholic Bishop of Chicago; NFIB)

Agency Deference (historical vs. current):

Pre-2024: Chevron two-step — if Congress has not spoken precisely, defer to any reasonable agency interpretation; Mead: Chevron requires force-of-law authority (formal rulemaking/adjudication); Brand X: agency can overrule prior judicial interpretation of an ambiguous statute
Post-2024 (Loper Bright): Chevron overruled; courts determine “best reading” of ambiguous statutes de novo; Skidmore Deference (persuasive weight based on reasoning and expertise) survives; Auer deference to agency’s own regulations under pressure (Kisor)

Pattern: In every question involving a federal statute: (1) What does the text say? (2) If ambiguous, what do purpose and legislative history suggest? (3) Does a normative canon resolve? (4) Is an agency’s construction entitled to deference? Post-Loper Bright, courts own the interpretive question.

12. Immunity as a Threshold Defense

Immunity terminates litigation before reaching the merits. Multiple overlapping doctrines apply to different categories of defendants. Always work through immunity before substantive analysis.

Doctrine	Defendant	Source	Key Rule
State sovereign immunity	States	11th Am + Hans v. Louisiana	Bars suits by citizens in federal court; abrogated only by § 5 of 14th Am (congruent and proportional — City of Boerne v. Flores); Ex Parte Young allows prospective injunctive relief against state officers
Federal sovereign immunity	Federal government	Common law; FTCA	Waiver required; FTCA waives for torts by federal employees within scope of employment except discretionary functions
Foreign sovereign immunity	Foreign states	FSIA (28 U.S.C. § 1330)	Exclusive basis for jurisdiction; commercial activity exception § 1605(a)(2); expropriation; non-commercial tort; state-sponsored terrorism
Qualified immunity	Individual officers (fed/state)	§ 1983; Bivens; Harlow v. Fitzgerald	Shielded unless conduct violates clearly established law a reasonable person would have known; objective test
Absolute immunity	Judges, legislators, prosecutors	Common law	Functional test: acts within core capacity; legislators (speech-or-debate); judges (all judicial acts); prosecutors (prosecutorial, not investigative, acts); President (outer perimeter — Nixon v. Fitzgerald
Act of State	Foreign government acts	Common law (Sabbatino)	Courts will not adjudicate the validity of a foreign sovereign’s official acts on its own territory; Dunhill formal-act test; Kirkpatrick escape: doctrine applies only when act-of-state is element of the claim, not merely incidentally involved

Pattern: Check immunity in this order: (1) Is the defendant a state, federal government, or foreign sovereign? → sovereign immunity rules; (2) Is the defendant an individual officer? → qualified or absolute immunity; (3) Does the claim turn on validity of a foreign government’s act? → Act of State doctrine. Congressional abrogation of state immunity under Art. I fails after Seminole Tribe — only § 5 of 14th Amendment works, and only if congruent and proportional.

13. Standing and Justiciability

Article III limits courts to “cases or controversies.” These threshold doctrines filter cases before merits are reached and apply in every federal court proceeding.

Constitutional Standing (Lujan):

Injury in fact — concrete and particularized; actual or imminent (not speculative or hypothetical)
Causation — injury fairly traceable to defendant’s challenged conduct
Redressability — a favorable ruling must be likely to redress the injury

Prudential Standing:

Zone of interests: plaintiff must be within the class of interests the statute was designed to protect
Third-party standing: generally prohibited; exceptions for close relationships or when third party is practically unable to sue
Generalized grievances: shared by all citizens → no standing (structural principle, not just prudential — Lujan, Scalia, J.)

Ripeness: Issue must be fit for judicial decision and plaintiff must face hardship if decision is withheld. Abbott Laboratories v. Gardner: pre-enforcement review of agency rules is ripe when: (1) purely legal question + (2) hardship of withholding review.

Mootness: No live controversy → case must be dismissed. Exceptions:

Capable of repetition yet evading review (short-duration issues — Roe v. Wade)
Voluntary cessation: defendant must demonstrate cannot reasonably resume the challenged conduct
Class action: certified class claim survives even if named plaintiff’s claim becomes moot

Political Question: Baker v. Carr six factors: textual commitment of issue to another branch; lack of judicially manageable standards; need for initial policy determination; impossibility of independent resolution without expressing lack of respect for coordinate branches.

Pattern: All three Lujan prongs must be addressed — courts reject standing if any is missing. States receive “special solicitude” in standing analysis when a statute gives them procedural rights (Massachusetts v. EPA). Procedural rights plaintiffs (e.g., failure to consult under a statute) satisfy injury if any interest they hold is affected.

Exam Approaches

Issue-spotting checklists by subject area.

Torts

1. Intentional torts?
   — Battery: intent (desire or substantial certainty) + harmful/offensive contact
   — Assault: intent + reasonable apprehension of imminent harmful/offensive contact
   — IIED: extreme/outrageous conduct + intent/recklessness + severe emotional distress
   — Trespass to land/chattel, conversion, false imprisonment
   — Defenses: consent, self-defense, necessity (public/private), defense of others

2. Negligence?
   — Duty: general duty of reasonable care; special no-duty rules (landowner categories, pure
     economic loss, emotional distress, nonfeasance); exceptions (special relationships, undertaking)
   — Breach: reasonable person standard; Hand Formula (B < PL); negligence per se (statutory
     violation → breach if within class/harm); custom (relevant but not determinative)
   — Cause-in-fact: but-for; substantial factor (concurrent sufficient causes); alternative
     liability (Summers v. Tice); market share (Sindell)
   — Proximate cause: foreseeability of type of harm; eggshell plaintiff; superseding causes
     (unforeseeable = superseding; foreseeable = not superseding; negligent rescuers foreseeable)
   — Damages: compensatory (economic + non-economic); no punitive absent malice/outrage
   — Defenses: contributory negligence (CL bars recovery); comparative negligence (pure/modified);
     assumption of risk (express; implied primary = no duty; implied secondary = comparative)

3. Strict liability?
   — Abnormally dangerous activities: Restatement factors (inability to eliminate risk, non-natural
     use, inappropriate location, magnitude of harm) — *Rylands*, *Indiana Harbor Belt*
   — Products liability: manufacturing defect (deviation from design); design defect (RAD test /
     consumer expectations); failure to warn (duty to warn of non-obvious risks)

4. Damages? Punitive? Contribution/indemnification?

Contracts

1. Was a contract formed?
   — Offer: definite terms + manifestation of intent to be bound
   — Acceptance: mirror image (CL); UCC § 2-207 (battle of forms); unilateral vs. bilateral
   — Consideration: bargained-for exchange; forbearance; illusory promises; adequacy irrelevant
   — Promissory estoppel (§ 90 RST): promise + reasonable reliance + injustice
   — Unjust enrichment / quasi-contract: benefit conferred + unjust to retain without payment
   — Defenses to formation: mutual mistake (as to substance, not value); duress; misrepresentation;
     unconscionability; Statute of Frauds (MYLEGS — land, 1 year, marriage, executor, goods > $500)

2. What are the contract's terms?
   — Parol evidence rule: no extrinsic evidence to contradict (not supplement) fully integrated writing
   — Interpretation: plain meaning vs. context; trade usage / course of dealing / course of performance
     can supplement or qualify written terms (UCC; Nanakuli)
   — Implied terms: good faith (UCC 1-304; RST § 205); Wood v. Lucy reasonable efforts

3. Was performance excused?
   — Conditions: express vs. implied; precedent (must occur for duty to arise); subsequent (discharges duty)
   — Material breach vs. partial breach: material breach → non-breaching party may suspend and rescind;
     partial breach → only damages
   — Anticipatory repudiation: definite and unequivocal; immediate cause of action; may await performance
   — Excuse: mutual mistake (Sherwood — substance, not risk allocated by contract); unilateral mistake
     (rarely excuses); impossibility / impracticability (supervening event not foreseeable at formation);
     frustration (supervening event destroys principal purpose)

4. Remedies?
   — Expectation: put in position as if performed; loss in value + other loss - cost avoided - loss avoided
   — Consequential damages: foreseeable at time of contracting (Hadley rule)
   — Reliance damages: expenditures made in reliance — alternative to expectation
   — Restitution: value of benefit conferred (may exceed contract price — Britton v. Turner)
   — Specific performance: unique goods or land; inadequacy of legal remedy
   — Liquidated damages: reasonable estimate of harm at contracting, not penalty (Truck Rent-a-Center)
   — Mitigation: injured party must take reasonable steps (Clark v. Marsiglia; Parker)

Torts / Negligence — Quick Reference

The Palsgraf debate matters: Cardozo (duty runs only to foreseeable plaintiffs) vs. Andrews (duty is general; proximate cause does the limiting work). Most jurisdictions follow Cardozo’s framing — identify the foreseeable plaintiff zone.

Criminal Law

1. Actus reus
   — Voluntary act required (State v. Utter — automatism)
   — Omission liability: requires legal duty (status, statute, contract, voluntary assumption, creating peril)

2. Mens rea
   — Identify MPC level: Purpose / Knowledge / Recklessness / Negligence
   — Default: negligence for each material element if statute silent (MPC § 2.02(3))
   — Strict liability: public welfare / regulatory offenses (Staples — firearms, not SL absent clear signal)
   — Willful blindness = knowledge (Jewell; MPC § 2.02(7))
   — Mistake of fact: negates mens rea if genuine (and reasonable for recklessness standard)
   — Mistake of law: generally no defense; exceptions: reliance on official statement, willfulness req.

3. Homicide
   — Murder (common law): malice aforethought (express or implied)
   — 1st degree: premeditated + deliberate (instantaneous premeditation in some states, Commonwealth v. Carroll;
     actual reflection required in others, State v. Guthrie)
   — 2nd degree: intent to kill / serious GBH / depraved heart (extreme recklessness)
   — Felony murder: death in furtherance of inherently dangerous felony; merger doctrine limits it
   — Voluntary manslaughter: adequate provocation + heat of passion; no cooling time
   — Involuntary manslaughter: criminal negligence (or unlawful act)

4. Attempt
   — Actus reus: dangerous proximity (CL — Rizzo) vs. substantial step (MPC — State v. Pacheco)
   — Mens rea: purpose (intent to commit the target crime)
   — Impossibility: legal impossibility defense; factual impossibility not a defense

5. Conspiracy
   — Agreement (bilateral CL — Pacheco; unilateral MPC); overt act (federal § 371; MPC)
   — Pinkerton liability: co-conspirator liable for foreseeable substantive offenses
   — Withdrawal: does not erase conspiracy liability; may prevent future liability

6. Defenses
   — Self-defense: honest + reasonable belief of imminent deadly force; duty to retreat (varies);
     Castle doctrine; *Goetz* (objective); battered woman syndrome (*Norman*)
   — Necessity: lesser evil; imminent harm; no alternative; not self-created; *Dudley & Stephens* — murder excluded
   — Duress: imminent threat of serious bodily harm by another; no reasonable escape; not available for murder (CL)
   — Insanity: M'Naghten (cognitive: didn't know nature or wrongfulness); irresistible impulse; MPC § 4.01
     (lacks substantial capacity to appreciate criminality or conform conduct)

Criminal Investigations (4th / 5th / 6th Amendment)

Fourth Amendment
  1. Was there government action? (private searches excluded)
  2. Was there a search or seizure?
     — Search: physical trespass (Jones) OR reasonable expectation of privacy (Katz)
     — Third-party doctrine: no REP in info voluntarily shared (Smith, Miller) — BUT see Carpenter
  3. Was there a warrant?
     — Valid warrant requires: probable cause, particularity, neutral magistrate (Franks v. Delaware
       — can challenge affidavit if knowingly/recklessly false)
     — Good faith exception (Leon) — invalid warrant if: bare bones, magistrate not neutral, too
       broad, affiant reckless
  4. Does an exception apply?
     — Search incident to arrest: person + grabbable area (Chimel); vehicle — only if can reach
       or offense-related (Gant)
     — Automobile exception: probable cause to search vehicle (Carroll, Acevedo)
     — Terry stop: reasonable suspicion of criminal activity; frisk if reasonable suspicion of weapon
     — Consent: voluntary, no coercion; doesn't need to know right to refuse
     — Exigent circumstances: emergency/hot pursuit (Warden v. Hayden); destruction of evidence
       (Kentucky v. King — police cannot manufacture the exigency); community caretaking
     — Plain view: lawfully present + incriminating character immediately apparent
  5. Exclusionary rule: derivative evidence (fruit of poisonous tree) excluded UNLESS independent
     source, inevitable discovery, attenuated taint, good faith (Leon)

Fifth Amendment — Privilege
  1. Testimonial and incriminating communication (not act of production if collective entity)
  2. Immunity: transactional (complete bar) vs. use + derivative use (Kastigar — coextensive)
  3. Act of production doctrine: Fisher — testimonial if existence/possession/authenticity are
     foregone conclusions exception; Hubbell — can't use immunized production as leads

Miranda
  1. Custody (reasonable person standard — not free to leave)
  2. Interrogation (questions or functional equivalent — words likely to elicit response)
  3. Waiver: knowing, voluntary, and intelligent
  4. Exceptions: public safety (Quarles); routine booking questions; spontaneous statements
  5. Fruits: inadmissible only for substantive use in case-in-chief; may use to impeach

Sixth Amendment
  1. Right attaches at initiation of formal proceedings (indictment, arraignment, etc.)
  2. Deliberate elicitation by government agent without counsel (Brewer v. Williams)
  3. Offense-specific — does not apply to uncharged crimes
  4. Massiah line vs. Miranda: Sixth Amendment applies post-charge; Miranda applies to custodial interrogation

Administrative Law

1. Has there been agency action?
   — Final agency action required (§ 704): two-part Bennett test (consummated, legal consequences)
   — Exhaustion of administrative remedies

2. Rulemaking or adjudication?
   — Legislative rule: binding; requires § 553 notice-and-comment
   — Interpretive rule / policy statement: not binding; exempt from § 553
     (American Mining Congress factors; Connecticut Light & Power general policy statement)
   — Formal rulemaking: §§ 556-557 procedures required only when "on the record" (Florida East Coast Railway)

3. Did the agency follow required procedures?
   — Notice: adequate notice of proposed rule; basis and purpose (Nova Scotia — must disclose technical data)
   — Vermont Yankee: courts cannot impose procedures beyond APA minimum
   — Logical outgrowth: final rule must be within scope of proposed rule

4. Is the action reviewable?
   — § 701(a)(1): statute precludes review (clear and convincing evidence)
   — § 701(a)(2): action committed to agency discretion (Heckler v. Chaney — no-action decisions)
   — Zone of interests (prudential standing); constitutional standing (Lujan)

5. Standard of review
   — Statutory interpretation: post-Loper Bright (2024) — courts determine "best reading" of statute;
     no deference to agency; Skidmore persuasive weight still applies
   — Factfinding (formal): substantial evidence on the record as a whole
   — Informal rulemaking: arbitrary and capricious / hard look (State Farm — agency must consider
     alternatives, explain reasoning, not ignore relevant factors)
   — Auer deference: agency interpretation of its own ambiguous regulations (under pressure post-Kisor)

6. Constitutional constraints
   — Non-delegation: intelligible principle required (J.W. Hampton); rarely applied since 1935
   — Appointments Clause: Officers (principal / inferior); inferior officers may be appointed by
     President alone, department heads, or courts per Congress
   — Removal: at-will (Myers — executive officers); for-cause permissible for independent agencies
     (Humphrey's Executor); double-layer for-cause removal unconstitutional (Free Enterprise Fund)

Corporations

1. Duty of care
   — BJR presumption: informed + good faith + no conflict → not second-guessed
   — Overcome if: grossly negligent process (Van Gorkom); bad faith; conflict
   — DGCL § 102(b)(7): can exculpate directors for breach of care (not loyalty or bad faith)

2. Duty of loyalty
   — Self-dealing transactions: entire fairness (fair dealing + fair price) unless ratified by
     disinterested directors or shareholders → shifts burden
   — Corporate opportunity: fiduciary must present opportunity to corporation first if: in line of
     business, corporation has expectancy, fiduciary learned of it in corporate capacity

3. Controlling shareholder
   — Freeze-out / going-private: entire fairness (Weinberger)
   — MFW protocol: if ab initio conditioned on (1) SPC approval + (2) majority-of-minority vote →
     business judgment review (Kahn v. M&F Worldwide)

4. Hostile takeovers / defensive measures
   — Board has duty to be informed; Unocal enhanced scrutiny:
     (1) reasonable belief target is under threat; (2) proportionate response
   — Poison pills (rights plans): upheld if reasonable (Moran)
   — Revlon mode triggered by: sale of company / change of control / asset breakup
     → maximize shareholder value; no defensive measures impeding higher bid
   — Not triggered by: strategic merger preserving shareholder continuity (Time)

5. Shareholder derivative suit
   — Demand requirement (Aronson test: demand excused if reasonable doubt as to interest/
     independence or business judgment protection)
   — SLC: independent committee may move to dismiss; court applies two-step scrutiny (Zapata)

Conflict of Laws

1. Which state's law governs? (Choice of Law)
   — Identify the states with a connection to the dispute
   — Determine which CoL approach the forum uses:
     (a) First Restatement (lex loci): torts — place of injury; contracts — place of contracting/performance
         → mechanical; harsh results (Alabama Great Southern)
     (b) Second Restatement (most significant relationship): §§ 6 + 145 (torts) / §§ 6 + 188 (contracts)
         → multifactor, flexible
     (c) Governmental interest analysis (Brainerd Currie): identify each state's policy + whether
         state has a legitimate interest in applying its law
         — False conflict: only one state interested → that state's law applies
         — True conflict: both interested → forum applies its own law (Currie) or comparative
           impairment (Baxter/California — Bernhard v. Harrah's Club)
         — Unprovided-for case: neither state interested → forum law or better-law approach
     (d) Better-law (Leflar): which state's law is better? (minority approach)
   — Depecage: different laws may govern different issues in the same case

2. Constitutional limits
   — State may apply its own law only if it has a significant contact creating a state interest
     (Allstate v. Hague; Phillips Petroleum v. Shutts)
   — Full Faith and Credit (Art. IV; § 1738): must recognize sister-state judgments; may refuse
     to apply another state's law if no interest

3. Recognition of judgments
   — Full Faith and Credit: sister-state judgments recognized without re-examination on the merits
     (limited exceptions: lack of jurisdiction, extrinsic fraud)
   — Foreign country judgments: comity (Hilton v. Guyot); UFCMJRA (majority approach)

Securities / Federal Criminal Law (Fraud) — Unified Fraud Checklist

Both federal securities fraud (Rule 10b-5) and mail/wire fraud share common elements. Exam essays often test both.

Mail / Wire Fraud (§§ 1341, 1343)
  1. Scheme or artifice to defraud
  2. Scheme to obtain money or property (McNally — not intangible rights, except:)
     — Honest services fraud § 1346 limited to bribery/kickbacks (Skilling)
  3. Use of mails / interstate wires in furtherance of the scheme (nexus requirement — Schmuck)
  4. Materiality (Neder)
  5. Intent to defraud

Rule 10b-5 (Securities Exchange Act § 10(b))
  1. Misrepresentation or omission of a material fact
  2. In connection with the purchase or sale of securities (Blue Chip Stamps — standing)
  3. Scienter (purpose or knowledge; recklessness in circuits)
  4. Reliance (presumption via fraud-on-the-market — Basic)
  5. Loss causation (Dura — corrective disclosure + price drop)
  6. Damages

Insider Trading
  — Classical theory: corporate insider trades on material non-public information → breach of duty to shareholders
  — Misappropriation: outsider misappropriates information in breach of duty to source (O'Hagan)
  — Tippee liability: tipper breaches duty + receives personal benefit; tippee knows of breach (Dirks)

Evidence

Step 1 — Relevance (FRE 401-403)
  1. Does the evidence make a material fact more or less probable? (FRE 401)
  2. Is that fact of consequence to the action?
  3. FRE 403 balancing: probative value substantially outweighed by unfair prejudice, confusion,
     waste of time, or needlessly cumulative?
  4. Conditional relevance? → FRE 104(b): admit upon sufficient evidence of conditioning fact

Step 2 — Policy Exclusions
  - Subsequent remedial measure? → FRE 407 (not for negligence; OK for ownership/feasibility)
  - Settlement offer or statement? → FRE 408 (not for validity/amount; OK for bias, obstruction)
  - Offer to pay medical expenses? → FRE 409 (not for liability; humanitarian gesture)
  - Plea or plea discussion? → FRE 410 (not admissible; waivable per Mezzanatto)
  - Liability insurance? → FRE 411 (not for negligence; OK for agency, ownership, bias)
  - Character evidence / propensity? → FRE 404(a): propensity bar; FRE 404(b): identify MIMIC
    purpose (motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake)
    — Huddleston: preponderance standard for whether D committed the prior act
    — Sexual assault / child molestation: FRE 413-415 propensity ban is lifted
  - Sexual history? → FRE 412 rape shield (shift burden; higher threshold: substantially outweighs)

Step 3 — Witness Issues
  - Competency: personal knowledge (FRE 602); oath/affirmation (FRE 603)
  - Judges (FRE 605) and jurors (FRE 606) incompetent in their own case; jurors cannot impeach
    verdict except for extraneous information or outside influence (Tanner)
  - Lay opinion (FRE 701): based on perception; helpful; not specialized knowledge
  - Expert (FRE 702): qualified + reliable principles/methods (Daubert) + reliably applied to facts
    — Daubert factors (flexible): testability, peer review, error rate, standards, general acceptance
    — Kumho: Daubert applies to ALL expert testimony, not only scientific
    — Appellate review: abuse of discretion (Joiner); no automatic remand if expert excluded on appeal (Weisgram)
    — Ultimate issue: generally allowed (FRE 704(a)); criminal defendant's mental state = exception (FRE 704(b))
  - Impeachment (FRE 607 — any party may impeach including calling party):
    (1) Sensory/mental defect; (2) Bias (extrinsic allowed; foundation required); (3) Prior
    inconsistent statement (FRE 613; collateral issue rule limits extrinsic evidence); (4)
    Contradiction; (5) Character for truthfulness (FRE 608: opinion/reputation only; specific
    instances on cross only, no extrinsic); (6) Prior convictions (FRE 609):
    — Crimen falsi: always admissible; no FRE 403 discretion
    — Felony vs. criminal defendant: probative > prejudicial (reverse 403)
    — Felony vs. other witnesses: 403 standard applies
    — 10+ year convictions: probative substantially > prejudicial (strong bar)
    — Pardons based on innocence: never admissible

Step 4 — Hearsay (FRE 801-807)
  1. Out-of-court statement (oral, written, or assertive conduct)?
  2. Offered to prove the truth of the matter asserted?
     — Non-hearsay uses: verbal acts, effect on hearer, declarant's state of mind, impeachment
  3. Exemptions (FRE 801(d) — "not hearsay"):
     — Prior witness statements: (A) inconsistent + under oath; (B) consistent + predates motive to
       fabricate (Tome); (C) prior identification
     — Party-opponent admissions: personal; adoptive; authorized; agent/employee within scope;
       co-conspirator statement during and in furtherance of conspiracy
  4. FRE 803 exceptions (availability immaterial):
     803(1) Present sense impression — immediacy critical
     803(2) Excited utterance — under stress; time and reflection are key factors
     803(3) Then-existing mental/physical state — no past acts (Shepard); forward intent OK (Hillmon)
     803(4) Statements for medical diagnosis — cause OK; fault not OK
     803(5) Past recollection recorded — fresh, accurate, now impaired memory; read in but not
             admitted as exhibit unless offered by adverse party
     803(6) Business records — regular course; NOT litigation-driven reports (Palmer v. Hoffman)
     803(8) Public records — scope varies: civil vs. criminal, and by type (agency activities,
             matters observed, investigative findings; opinions in investigative reports OK if
             trustworthy — Beech Aircraft)
  5. FRE 804 exceptions (declarant must be unavailable):
     804(b)(1) Former testimony — prior opportunity and similar motive to cross-examine
     804(b)(2) Dying declaration — belief of imminent death; cause or circumstances; civil +
               homicide cases only
     804(b)(3) Statement against interest — penal, pecuniary, or proprietary interest
     804(b)(6) Forfeiture by wrongdoing — party procured declarant's unavailability
  6. FRE 807 residual — use sparingly; sufficient trustworthiness + more probative than alternatives
  7. Criminal case? → Confrontation Clause (Crawford): testimonial hearsay is barred unless
     declarant unavailable AND defendant had prior opportunity to cross-examine.
     Primary purpose test (Ohio v. Clark): statements made to address ongoing emergency are
     non-testimonial; statements made to establish past facts for prosecution are testimonial.

Step 5 — Authentication (FRE 901-902)
  - Is it what the proponent claims? FRE 901 standard
  - Self-authenticating documents (FRE 902)

Step 6 — Best Evidence Rule (FRE 1001-1008)
  - Is a writing, recording, or photograph's *contents* at issue? → FRE 1002 original required
  - Duplicate admissible unless genuine authenticity question (FRE 1003)
  - Original excused if: lost without bad faith; unobtainable; opponent failed to produce (FRE 1004)
  - Voluminous documents: summaries admissible (FRE 1006)

Step 7 — Privileges (FRE 501)
  - Attorney-client: walk through Wigmore elements; crime-fraud exception; waiver
  - Work product: ordinary (substantial need + hardship) vs. opinion (near-absolute)
  - Spousal; Fifth Amendment privilege
  - FRE 502: no waiver for inadvertent disclosure if reasonable steps taken to prevent and rectify

Antitrust

Sherman Act § 1
  Step 1: Procedural threshold
    - Standing: direct purchaser only (Illinois Brick); no pass-through defense (Hanover Shoe)
    - Pleading: Twombly — enough factual matter to suggest agreement; parallel conduct alone insufficient
    - Immunity: state action (clear articulation + active supervision for nonsovereign delegates — NC
      Dental); Noerr-Pennington (sham litigation exception); single entity (Copperweld; American
      Needle: independent centers of economic decision-making?); collective bargaining; noncommercial
      boycott (NAACP v. Claiborne Hardware)
  Step 2: Finding an agreement
    - Direct evidence (recordings, admissions)
    - Circumstantial: parallel conduct + plus factors (advance price notices, MFN clauses, facilitation
      practices, radical departure from prior practice, action rational only with competitor assurance)
    - Oligopolistic conscious parallelism alone is NOT a § 1 violation
  Step 3: Classify the conduct
    - Per se: horizontal price fixing (Socony-Vacuum); naked territorial division (Topco); naked group
      boycotts (Klor's); certain tying (two products + market power + not-insubstantial commerce)
      — Exceptions: ancillary restraints (necessary to make new product available — BMI; or to
        prevent free-riding — Polk Bros.); market power screen (<6%); leagues/professional associations;
        nonprofits with altruistic social welfare purpose (Brown Univ.)
    - Quick-look: presumed anticompetitive → D proffers procompetitive justification → P shows less
      restrictive alternative achieves the same end (Board of Regents; IFD; PolyGram)
    - Rule of reason (three steps): P shows anticompetitive effects in relevant market (market power +
      harm) → D proffers valid procompetitive justification → P shows less restrictive alternative
  Step 4: Market definition (when rule of reason or quick-look applies)
    - Product: SSNIP/HMT; cross-elasticity of demand; cellophane fallacy warning (DuPont)
    - Geographic: willingness of customers to switch; supply-side constraints
    - Submarkets: core vs. marginal consumers (Whole Foods); store type (Staples); derivative
      aftermarkets (Kodak); destination vs. local (Vail); upstream market (Microsoft)
  Step 5: Vertical agreements
    - Check Colgate first: unilateral announcement + refusal to deal = NOT an agreement
    - RPM: rule of reason (min — Leegin; max — State Oil v. Khan)
    - Nonprice intrabrand restraints: rule of reason (Sylvania — fosters interbrand competition)
    - Exclusive dealing: rule of reason; substantial foreclosure test
    - Tying: per se if two products + market power + not-insubstantial commerce; technological
      integration = rule of reason (Microsoft)

Sherman Act § 2
  Step 1: Monopoly power
    - Profitably raise prices to supracompetitive levels
    - Market share: >70% strong; 50–70% possible; <50% rarely sufficient
    - Barriers to entry: network effects, capital requirements, regulatory, chicken-egg
  Step 2: Willful acquisition or maintenance (not superior product, business acumen, or historic accident)
    - Predatory pricing: price below AVC + dangerous probability of recoupment (Brooke Group)
    - Bundled discounts: LePage's (monopolist uses bundles to exclude) or Cascade Health (competitive
      product priced below AVC after allocation)
    - Refusal to deal: prior profitable course of dealing abandoned (Aspen Skiing); Trinko —
      regulatory access duty ≠ antitrust duty to deal
    - Tying: technological integration evaluated under rule of reason (Microsoft)
    - Patent-hopping; reverse payments (Actavis)
    - Price squeezing: not a standalone violation (Linkline)
  Step 3: Attempted monopolization
    - Predatory/anticompetitive conduct + specific intent + dangerous probability of achieving power

Clayton Act § 7 — Mergers
  Step 1: HSR notification (threshold obligation ≠ substantive review)
  Step 2: Market definition (SSNIP; cluster markets — Philadelphia National Bank)
  Step 3: Concentration
    - HHI: unconcentrated <1,500; moderate 1,500–2,500; highly concentrated >2,500
    - Presumptively anticompetitive: HHI >2,500 + delta >200; Philadelphia National Bank structural
      presumption (30% + significant concentration increase)
  Step 4: Competitive harm theory
    - Unilateral effects: merging firms are closest substitutes; recapture on price increase (Staples)
    - Coordinated effects: market susceptible to tacit collusion — fungible products, inelastic demand,
      transparent prices, history of coordination, high entry barriers (HCA)
    - Vertical foreclosure: substantial foreclosure + entry barriers + collusion facilitation
  Step 5: Rebuttal
    - Entry: timely, likely, sufficient (replicates scale of lost competitor)
    - Efficiencies: merger-specific, verifiable, passed through to consumers, not from output reductions
    - Failing firm: grave probability of failure, no other buyer, assets would exit market
  Step 6: Merger type adjustments
    - Vertical: less risky; look for substantial foreclosure of significant share in both markets
    - Conglomerate: almost always fine; watch for post-merger tying/bundled discount risk

Criminal Adjudications

1. Charging
   - Prosecutorial discretion: essentially unreviewable (Inmates of Attica); executive function
   - Selective prosecution: must show discriminatory effect AND discriminatory purpose with clear
     evidence (Armstrong); discovery catch-22 makes this nearly impossible in practice
   - Vindictive prosecution: presumption at post-conviction stage when new charge follows exercise
     of appellate rights (Blackledge); no presumption pre-trial (Goodwin: D bears burden)
   - Overlapping statutes: prosecutor may choose between statutes with different penalties (Batchelder)

2. Grand Jury
   - 5th Amendment right to GJ: federal defendants only; not incorporated (Hurtado)
   - Grand jury belongs to no branch; secret; ex parte; inquisitorial
   - Hearsay admissible; FRE do not apply; no duty to present exculpatory evidence (Williams)
   - Minimal judicial review: Costello + Bank of Nova Scotia + Mechanik = essentially unreviewable
   - GJ vs. preliminary hearing: GJ inquisitorial/secret; PH adversarial/public; right to counsel
     attaches at preliminary hearing (Coleman v. Alabama) but not GJ

3. Right to Counsel (6th Amendment)
   - Federal/state felonies: always (Gideon)
   - Misdemeanors: only if actual imprisonment imposed (Scott); suspended sentence counts (Shelton)
   - Critical stages only: post-indictment proceedings; NOT GJ proceedings, pre-charge lineups, or
     parole revocation

4. Bail (8th Amendment + Bail Reform Act 1984)
   - Purpose = ensuring appearance at trial; bail reasonably calculated for that purpose (Stack)
   - BRA § 3142(e): preventive detention if (1) flight risk or (2) danger to community — clear
     and convincing evidence required at detention hearing (Salerno: DPC satisfied; regulatory, not punitive)
   - 8th Amendment does not guarantee a right to bail at all

5. Speedy Trial (6th Amendment + Speedy Trial Act 1974)
   - Triggered by indictment, information, or arrest (not pre-indictment)
   - Pre-indictment delay: 5th Am DPC (Lovasco: investigative delay generally valid)
   - Barker four-factor balancing: (1) length — presumptively prejudicial at 8+ months;
     (2) reason — deliberate delay weighs heavily against government; (3) defendant's assertion
     of right; (4) prejudice — oppressive incarceration, anxiety, impaired defense (most important)
   - Remedy: dismissal with prejudice — the only available remedy
   - Speedy Trial Act: 30 days arrest→indictment; 70 days indictment→trial; excludable delays
     (motions, competency, transfers, interlocutory appeals, ends-of-justice continuances)

6. Brady/Discovery
   - Rule 16: government must disclose (on request) defendant's prior statements, criminal record,
     documents/objects, scientific reports, expert information; reciprocal obligations on defense
   - Jencks Act: government witness's prior statements available to defense after direct testimony
   - Brady: due process requires disclosure of (1) favorable (exculpatory AND impeaching) and
     (2) material evidence, regardless of good faith (Brady v. Maryland)
   - Bagley materiality: reasonable probability that the result would have been different had
     the evidence been disclosed
   - Kyles: assess all undisclosed evidence in the aggregate — not item by item; affirmative duty
   - Failure to preserve: DPC violation only if bad faith (Youngblood)

7. Guilty Pleas (FRCP 11)
   - Types: unequivocal; conditional (reserves appeal issue); Alford (maintains innocence; requires
     strong factual basis); nolo contendere (not admissible in civil proceedings)
   - Voluntariness: intelligent choice among alternatives; pleading to avoid maximum penalty = OK
     (Brady v. United States)
   - FRCP 11 colloquy: inform defendant of rights being waived; ensure accuracy
   - What is waived: jury trial, confrontation, self-incrimination, most pre-trial rights (Tollett)
   - Collateral attack very limited: facially duplicative indictment (Menna); government lacks power
     to prosecute (Blackledge exception)
   - Bordenkircher: threatening more serious charges to coerce plea is constitutional if probable cause exists

8. Sentencing
   - Federal Sentencing Guidelines: advisory after Booker; court must calculate range and consider
     § 3553(a) factors (nature/circumstances of offense, defendant's history/characteristics, purposes
     of punishment: retribution, deterrence, incapacitation, rehabilitation)
   - Mandatory minimums: Congress has authority to impose; amplifies prosecutorial leverage in plea
     bargaining because defendants plead down to avoid triggering minimums

Federal Courts

1. Supreme Court Review of State Decisions
   - Final judgment from highest state court with federal question?
   - Independent and adequate state ground bars review (Fox Film); if unclear, presume federal basis
     (Michigan v. Long plain-statement rule)
   - Scope of review: de novo for contract clause antecedents (Indiana ex rel. Anderson v. Brand);
     "fair and substantial basis" for property antecedents

2. Subject Matter Jurisdiction
   (a) Federal question (§ 1331)
       - Well-pleaded complaint: claim arises under federal law on its face (Mottley; Holmes test)
       - State law claim with embedded federal question: Grable four-part test — necessarily raised,
         actually disputed, substantial to federal system, resolvable without disrupting balance (Gunn)
       - Complete preemption: state cause of action recharacterized as federal (Avco; Metro Life)
       - Declaratory judgment: Skelly Oil look-through — could plaintiff have filed coercive suit?
   (b) Diversity (§ 1332): complete diversity of citizenship + amount > $75,000; no dual nationals
       (only U.S. citizenship counted); corporations: every state of incorporation + principal place
       of business (Hertz "nerve center" test)
   (c) Supplemental (§ 1367): same constitutional case/controversy (Gibbs: common nucleus of
       operative fact); § 1367(b) exclusions in diversity-only cases for plaintiff's claims against
       Rule 14/19/20/24 parties; § 1367(c) discretionary decline (novel state law; state claim
       predominates; all federal claims dismissed)

3. Erie / Choice of Law in Diversity
   - Federal Rule directly covers the matter? → REA analysis (Hanna): is it rationally classifiable
     as procedure? If yes, apply Federal Rule
   - No Federal Rule: apply twin aims of Erie (forum-shopping; inequitable administration)?
     Outcome-determinative test (York): if ignoring state law would change the outcome, apply state law
   - Countervailing federal interests (Byrd) may justify departing from state rule even when
     outcome-determinative (e.g., 7th Amendment right to jury vs. state judge-made finding rule)
   - Diversity cases: apply forum state's conflict-of-laws rules (Klaxon)

4. Federal Common Law
   - Limited domains: U.S. commercial paper (Clearfield); interstate disputes; military contracting
     (Boyle); foreign relations (Sabbatino); maritime; § 301 labor agreements (Lincoln Mills)
   - Outside enclaves: apply state law to point of preemption (Kimbell Foods presumption)

5. Suing Government Officers
   - Federal officer → Bivens implied remedy (4th Am, 5th Am equal protection, 8th Am);
     no Bivens if Congress has provided an alternative remedial scheme (Bush v. Lucas; Schweiker)
   - State officer → § 1983 (color of law; constitutional or federal statutory right violated);
     Monell: municipality liable only for injury pursuant to official policy or custom
   - 11th Amendment: prospective injunctive relief against state officers OK (Ex Parte Young);
     retrospective relief barred (Edelman); local governments not immune (Monell)
   - Qualified immunity (Harlow): officer shielded unless conduct violates clearly established
     law that a reasonable person would have known

6. Congressional Abrogation of State Immunity
   - Art. I power insufficient after Seminole Tribe (1996)
   - § 5 of 14th Amendment: must be congruent and proportional to documented pattern of
     unconstitutional state conduct (City of Boerne); FMLA family-leave provisions valid (Hibbs —
     documented history of sex discrimination)

7. Implied Private Rights of Action
   - Post-Sandoval: courts look only to whether Congress intended to create a private right AND
     a private remedy, evidenced by the statutory text
   - § 1983 supplies the remedy if Congress has unambiguously conferred the right

8. Abstention
   - Younger: pending state judicial proceeding → abstain absent extraordinary circumstances
     (bad faith, harassment, patently unconstitutional statute with no defense)
   - Pullman: unsettled state law that could avoid constitutional ruling → abstain for state court
     to interpret state law first
   - Burford: complex state regulatory scheme with unified state-court review → defer
   - Colorado River: parallel federal-state litigation → multi-factor balancing (order of filing,
     whether federal or state law governs, desirability of avoiding piecemeal litigation)

9. Standing (Article III)
   - Injury in fact (concrete and particularized; actual or imminent)
   - Causation (fairly traceable to defendant's conduct)
   - Redressability (favorable ruling likely redresses the injury)
   - States: special solicitude when statute confers procedural rights (Massachusetts v. EPA)

Securities Regulation (Registration and Offering Process)

Note: Securities fraud (Rule 10b-5), insider trading, and scienter are covered under the Securities / Federal Criminal Law Fraud checklist above.

1. Is this a security?
   - Investment contract? → Howey four-part test: (1) invests money, (2) in a common enterprise,
     (3) with expectation of profits, (4) solely (principally) from efforts of others
     — Fixed vs. variable returns irrelevant (Edwards)
     — LP interests presumed to be securities (passive investors)
   - Stock? → Landreth: look to economic characteristics, not the label
   - Note? → Reeves family resemblance test: rebuttable presumption of security; four factors
     (motivation, plan of distribution, reasonable expectations, other regulatory schemes)
   - Watch for: housing co-ops (Forman = no); pyramid schemes (yes); condos with rental pools (yes)

2. §5 Registration — identify which period applies
   - Pre-filing (quiet period): no offers or conditioning the market
     — Exceptions: WKSI (Rule 163); communications > 30 days before filing (Rule 163A);
       non-referencing communications by reporting issuers (Rule 168) or non-reporting (Rule 169);
       Rule 135 (issuer/security info, no underwriter/price)
   - Waiting period (RS filed): oral selling allowed; no binding sales
     — Tombstone ads (Rule 134); FWPs if Rule 433 conditions met; preliminary prospectus (Rule 430)
     — Road shows: live webcast = oral communication; written = FWP
   - Post-effective period (RS effective): sales allowed
     — Must accompany/precede with §10(a) final prospectus; access = delivery (Rule 172)
     — Rule 173: notify purchasers within 2 business days of sale

3. Exemptions from §5
   - §4(2) private placement (Ralston Purina): every offeree can "fend for themselves" —
     sophistication + access to same information registration would provide; one unsophisticated
     offeree destroys the exemption (Doran); burden on party claiming exemption
   - Rule 506 safe harbor (unlimited amount): up to 35 non-accredited (who must be sophisticated)
     + unlimited accredited investors; no general solicitation (JOBS Act exception for accredited-only)
   - Rule 505 (up to $5M): 35 non-accredited OK; bad-boy disqualifiers apply
   - Rule 504 (up to $1M): non-reporting companies only; any purchasers; no info delivery required
   - Integration risk: offerings within 6 months are aggregated
   - Rule 701: compensatory benefit plans; non-reporting; dollar cap

4. WKSI / Shelf Registration
   - WKSI (Rule 405): S-3 eligible + $700M public float OR $1B non-convertible debt in last 3 years
     → automatic shelf registration (ASR); can use FWPs at any time without SEC review
   - Shelf registration (Rule 415): seasoned S-3 filer; SEC review; 3-year shelf; post-effective
     amendment required for fundamental changes
   - MD&A disclosure standard: "reasonably likely" (broader than §11/§12 materiality — ~40% likely)

Professional Responsibility

1. Regulatory Authority
   - Inherent judicial power over legal profession; state law primary; legislature is secondary
   - Unauthorized practice (Rule 5.5): presence + subject matter + domicile + party focus
     (Birbrower: NY lawyers advising CA client in CA arbitration = unauthorized practice)
   - Choice of law (MR 8.5): disciplined by licensing state; choice of law follows predominant
     practice location or state where conduct has predominant effects

2. Attorney-Client Privilege (evidentiary — prevents compelled disclosure)
   - Walk through Wigmore elements: (1) legal advice sought; (2) from professional lawyer in that
     capacity; (3) communication; (4) confidential; (5) by client; (6-8) not waived, at client's instance
   - Crime-fraud exception: advice sought to commit or further a crime or fraud
   - Not protected: physical objects; documents not prepared for legal advice; identity, fee, location
   - Privilege survives death (Swidler & Berlin)
   - Waiver: intentional; by putting at issue (advice-of-counsel defense); judicial disclosure
     (broader waiver — Von Bulow 2d Cir.); extrajudicial disclosure; inadvertent (FRE 502 protects if
     reasonable steps taken)
   - Corporate context: Upjohn (federal) — extends to employees at direction of corporate superiors,
     for legal advice, within scope of their duties, and employees are aware they are being consulted
     for legal advice; some states use narrower control group test

3. Duty of Confidentiality (MR 1.6) — broader than ACP; professional duty
   - Any information relating to the representation (not just communications)
   - Exceptions vary by jurisdiction:
     — Future crimes causing death or substantial bodily harm: ABA MR 1.6(b)(1); CA 3-100
     — Financial harm from client's use of lawyer's services: ABA MR 1.6(b)(2)-(3) (2003)
     — Self-defense: MR 1.6(b)(5) — malpractice, fee disputes, third-party allegations
   - Distinguish ACP (evidentiary) from 1.6 confidentiality (professional ethics; broader)

4. Conflicts of Interest
   - Concurrent (MR 1.7): direct adversity OR material limitation on representation
     — Cure: informed consent + objective test (disinterested lawyer could represent competently)
     — Positional conflict: only if significant risk of material limitation in effectiveness
     — Hot potato rule: cannot drop current client to take on adverse, substantially unrelated matter
   - Successive (MR 1.9): adversity of interests + substantial relation to former representation
   - Imputed disqualification (MR 1.10): firm-wide when one lawyer disqualified; 2009 amendment
     allows screening for lateral moves (ABA, not all states); former government lawyers screened (MR 1.11)

5. Organizational Clients
   - Entity is the client (MR 1.13); lawyer represents organization through its authorized constituents
   - Privilege belongs to the entity; current board controls waiver; trustee in bankruptcy controls
     waiver after insolvency (CFTC v. Weintraub)
   - Conflict between organization and constituent: lawyer must clarify role (MR 1.13(f))
   - Garner exception (5th Cir.): management may not be able to assert privilege in shareholder
     derivative suit — case-by-case balancing

6. Document Destruction / Obstruction (18 U.S.C. § 1512(c))
   - Nexus requirement: act must be in contemplation of a particular official proceeding
     (Arthur Andersen); does not apply to entirely prospective concerns
   - Duty to suspend routine document destruction when litigation is "reasonably anticipated"
   - General retention policy is no defense once on notice of likely litigation (Temple memo)
   - Adverse inference: courts may instruct juries to draw adverse inference from spoliation

7. Anti-Contact Rule (MR 4.2)
   - No communication about the subject of representation with a represented party without
     consent of other lawyer or authorization by law
   - Pre-indictment: investigatory activities not subject to rule
   - Post-indictment: defendants cannot waive (lawyer must consent, not defendant)

Legislation / Statutory Interpretation

Step 1: Identify the interpretive issue
  - What exactly is ambiguous? What does the text support?
  - What policy consequences follow from each reading?

Step 2: Choose the interpretive framework
  | Framework | Sources | Leading Cases |
  |-----------|---------|---------------|
  | New Textualism | Text, dictionaries, textual canons only | Scalia opinions; Locke; Yates |
  | Soft plain meaning | Text + LH if ambiguous | Muscarello (Breyer) |
  | Purposivism | Text + purpose at general level | Holy Trinity; Weber |
  | Intentionalism | Text + specific legislative intent + LH | Weber; imaginative reconstruction |

Step 3: Apply linguistic canons (text-linked)
  - Noscitur a sociis: broad term constrained by neighbors in the list (Gustafson)
  - Ejusdem generis: catch-all limited by preceding specific terms (Yates: fish ≠ "tangible object")
  - Expressio unius: express inclusion implies exclusion of others (Lindh; Landgraf)
  - Anti-surplusage/anti-redundancy: don't render provisions meaningless (Gustafson)
  - Consistent usage: same word = same meaning across the statute (Gen. Dynamics exception: age =
    elderly when purpose compels)

Step 4: Apply normative canons (if ambiguity remains after linguistic canons)
  - Rule of lenity (criminal statutes only): tie-breaker (Breyer) or clear statement (Scalia)?
    — Other canons may resolve before reaching lenity (Muscarello — Breyer applied purpose first)
  - Retroactivity: does the statute add new legal consequences to completed past conduct?
    → Stevens: clear intent required; Scalia: clear statement in text required (Landgraf)
  - Extraterritoriality: does statute apply abroad? → clear statement needed (Kiobel; ARAMCO)
  - Federalism: does statute displace traditional state functions? → clear statement required
    (Gregory v. Ashcroft; Atascadero for sovereign immunity abrogation)
  - Constitutional avoidance: if one reading raises constitutional doubt and another avoids it,
    choose the latter (NLRB v. Catholic Bishop; NFIB — individual mandate = tax)

Step 5: Legislative history
  - Strong (committee reports identifying the specific mischief; smoking-gun): can overcome plain
    meaning in soft plain-meaning and purposivist analysis
  - Weak (floor statements, conference reports): less weight
  - Scalia: never consult LH; only text passes bicameralism and presentment; unreliable and dangerous
  - Merrill hierarchy: strong LH = "clear intent" level; ambiguous LH = "presumption" level only
  - Legislative acquiescence: non-action after judicial interpretation strengthens stare decisis;
    ratification (Congress tracks or codifies interpretation) is stronger (Bob Jones)

Step 6: Agency deference (if regulation or agency action is involved)
  - Post-Loper Bright (2024): courts determine "best reading" of ambiguous statutes de novo;
    no Chevron deference; Skidmore persuasive weight survives based on reasoning and expertise
  - Mead: Chevron (historically) required force-of-law authority (formal rulemaking/adjudication);
    informal guidance letters → Skidmore only
  - Brand X: if court previously held statute ambiguous, agency can overrule that interpretation;
    if court held statute unambiguous, court's reading controls
  - Auer deference to agency interpretation of its own ambiguous regulations (under pressure — Kisor)

Step 7: Preemption (when state law may conflict)
  1. Express preemption clause? → construe its scope; savings clause? agency views? (Skidmore — Wyeth)
  2. Implied preemption?
     — Conflict (mutual exclusivity: can't comply with both)
     — Obstacle/frustration (state law frustrates federal purpose — Geier v. Honda)
     — Field (comprehensive federal scheme)
  3. Federalism presumption: in areas of traditional state concern → presume against preemption

Open Questions and Doctrinal Tensions

Areas where courts are divided, doctrine is unstable, or reasonable arguments point both ways.

1. Post-Loper Bright (2024) admin law landscape Chevron deference was overruled by Loper Bright Enterprises v. Raimondo (2024). Courts now determine the “best reading” of ambiguous statutes without deference. How much this disrupts existing regulatory schemes, and whether Skidmore persuasive deference fills the gap, remains to be seen. Wiki case law (written pre-2024) reflects the Chevron framework; apply Loper Bright for current analysis.

2. Honest services fraud after Skilling Skilling limited § 1346 to bribery and kickbacks. Whether undisclosed self-dealing by private parties — not involving explicit bribes — can ever satisfy the statute remains unsettled. Compare with McDonnell’s narrow “official act” definition: federal fraud statutes are under sustained narrowing pressure.

3. Fourth Amendment and digital data Carpenter v. United States carved out cell-site location data from the third-party doctrine. Lower courts are still working out its scope: Does it apply to real-time tracking vs. historical data? To other digital records (IP logs, email metadata)? Carpenter explicitly left these questions open.

4. The MFW protocol in Corporations Kahn v. M&F Worldwide grants BJR protection to controlling-shareholder mergers if both (1) SPC approval and (2) majority-of-minority vote are required ab initio. The ab initio requirement is the key battleground: how early must both conditions be imposed, and what contamination of the SPC or MOM vote destroys the protection?

5. Proportionality in damages Courts increasingly police grossly excessive punitive damages (due process — BMW v. Gore ratios). Whether this doctrine should extend to statutory penalties (per-violation fees under data privacy statutes, etc.) is an active area.

6. Materiality thresholds across federal regimes The Basic probability × magnitude test for securities and the Brady “reasonable probability” standard use superficially similar language but are calibrated for different purposes (investor decision vs. verdict). Whether courts should harmonize materiality across fraud regimes is unresolved.

7. Preemption scope under Conflict of Laws When federal law preempts a state-law claim, choice-of-law analysis becomes irrelevant — federal law governs. But the preemption/CoL interaction creates complexity: a plaintiff forum-shopping may hope that choice-of-law principles would point to a state whose law is not preempted, while defendants seek to invoke preemption to knock out all state-law alternatives.

8. Bivens After Continuing Retrenchment The Supreme Court has aggressively limited Bivens actions over time. Congress’s provision of any alternative remedy — even an incomplete one — now displaces Bivens (Bush v. Lucas; Schweiker v. Chilicky). The practical effect is that federal officers alleged to have violated constitutional rights often face no personal damages liability if Congress has created any alternative scheme (e.g., the CSRA for federal employees). The accountability gap between constitutional violation and available remedy is a persistent tension in Federal Courts doctrine.

9. ATS After Kiobel and Nestlé: What’s Left? Kiobel (2013) applied the presumption against extraterritoriality to the Alien Tort Statute, requiring that claims “touch and concern” the United States with sufficient force. Nestlé USA, Inc. v. Doe (2021) held that general corporate activity in the U.S. (headquarters, operations) is insufficient — the relevant conduct giving rise to the tort must occur in the United States. The class of viable ATS claims after these decisions is very narrow: primarily cases where U.S. nationals are the tortfeasors, or where the relevant tortious conduct (not merely planning or financing) occurred on U.S. soil. Whether ATS can reach domestic corporations for conduct abroad remains contested.

10. Textualism vs. Purpose After Loper Bright: Statutory Interpretation in the Post-Chevron Era Loper Bright (2024) overruled Chevron and restored de novo judicial construction of ambiguous statutes. This is partly a victory for textualism (courts, not agencies, own interpretation) but creates a new tension: if courts read statutes to their “best meaning” independently, and if courts adopt different interpretations from those agencies have used for decades, significant regulatory upheaval follows. The transition question — how existing regulations construed under Chevron’s Step 2 survive de novo review — is the dominant admin law issue of the post-2024 era. Skidmore respect survives, but its practical influence without Chevron’s thumb on the scale remains to be seen.

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