Issue-Spotting Checklists
Use 190 fact-pattern tells to identify the issue and state the next analytical move.
Showing 190 of 190 tells
Civil Procedure
| When you see… | Spot this issue | Your move |
|---|---|---|
| Parties from different states plus a dollar figure mentioned in passing, or a corporation suing across state lines; watch for a party who recently moved or a corporation with its main office in one state and plants in another. | Subject-matter jurisdiction - diversity | Test complete diversity at filing and whether the amount in controversy exceeds 75k; pin each party's citizenship (domicile for people, state of incorporation plus principal place of business for corporations) and confirm no in-state defendant problem. |
| A complaint that pleads a claim arising under a federal statute or the Constitution, especially where the defendant's anticipated defense is the only federal ingredient. | Federal question jurisdiction | Apply the well-pleaded complaint rule - the federal issue must appear on the face of the plaintiff's own claim, not in a defense or counterclaim. |
| An out-of-state defendant, a forum-state plaintiff, and a deal or tort that reached into the forum by phone, mail, internet, or a single shipped product. | Personal jurisdiction - minimum contacts | Run International Shoe purposeful availment plus relatedness and fairness; classify the contacts as continuous and systematic (general) or claim-linked (specific), and check the long-arm statute first. |
| A diversity case where a state substantive rule (statute of limitations, tolling, standard of care, choice-of-law) collides with a federal practice, or a federal judge being asked to apply state law. | Erie doctrine | Ask whether the conflicting federal rule is a valid Federal Rule or statute on point (then it governs) or merely a judge-made practice; if the latter, apply the outcome-determinative test guided by twin aims and use state substantive law. |
| A solid federal claim joined with a related state-law claim, or an added party whose claim alone could not get into federal court. | Supplemental jurisdiction | Check for a common nucleus of operative fact under 1367(a); then apply the 1367(b) carve-out that bars plaintiffs from using supplemental jurisdiction to defeat complete diversity. |
| A defendant sued in state court who wants out, a 30-day clock, or an in-state defendant trying to remove a diversity case. | Removal | Confirm the case could have been filed in federal court originally, that all served defendants consent, and that the forum-defendant rule does not block a diversity removal; remove to the district embracing the state court within the deadline. |
| Facts emphasizing where defendants reside, where the events happened, or a forum-selection clause and a motion to move the case. | Venue and transfer | Test proper venue (district of any defendant's residence if all share a state, or where a substantial part of events occurred); then run 1404(a) convenience transfer versus 1406 cure of improper venue. |
| A would-be plaintiff or defendant who is missing, a party trying to bring in a third party for indemnity, or multiple claimants to one fund. | Joinder of claims and parties | Distinguish permissive joinder (same transaction plus common question) from compulsory joinder under Rule 19 (necessary and indispensable absentee), and spot impleader, interpleader, or intervention by the facts presented. |
| A representative suing on behalf of many similarly harmed people, or a defendant facing a wave of identical small claims. | Class action | Walk through numerosity, commonality, typicality, and adequacy, then the matching 23(b) category; note CAFA can supply diversity jurisdiction for large multistate classes. |
| A complaint attacked as too thin, a defense or claim left out of the first answer, or a party trying to add a claim after limitations has run. | Pleadings and amendment | Apply Twombly/Iqbal plausibility for a 12(b)(6) attack, and test amendment under Rule 15 including relation-back when the new claim arises from the same conduct. |
| A fight over whether material is relevant or proportional, a withheld document log, or a party that destroyed records. | Discovery scope and sanctions | Apply the relevance-plus-proportionality standard; separate work product and privilege from ordinary discovery, and weigh spoliation sanctions for lost electronically stored information. |
| A party arguing there is nothing for a jury to decide, affidavits and depositions attached, or a claim where the opponent lacks proof on an essential element. | Summary judgment | Ask whether any genuine dispute of material fact exists viewing evidence in the nonmovant's favor; the movant may simply point to the absence of evidence on an element the opponent must prove. |
| A motion made after the opponent rests or after a verdict, or a verdict attacked as against the weight of the evidence. | Judgment as a matter of law and new trial | Distinguish JMOL (no legally sufficient evidentiary basis) from a renewed JMOL (must have been raised pre-verdict) and from a new trial motion (verdict against the weight, or trial error). |
| A second lawsuit between the same parties over the same underlying events, or a plaintiff splitting a single injury into two suits. | Claim preclusion (res judicata) | Require a valid final judgment on the merits, the same claimants, and the same transaction; bar claims that were or could have been raised the first time. |
| A specific fact or issue already litigated and decided, now relitigated in a different claim, possibly by a new party using the prior loss offensively. | Issue preclusion (collateral estoppel) | Require that the issue was actually litigated, determined, and essential to a valid final judgment; analyze whether nonmutual offensive estoppel is fair against a party who had a full and fair earlier chance. |
| A case mixing a damages claim with an injunction, or a dispute over which issues the jury versus judge decides. | Seventh Amendment jury right | Separate legal claims (jury) from equitable ones (judge); when they overlap, common fact issues are tried to the jury first and bind the judge. |
Constitutional Law
| When you see… | Spot this issue | Your move |
|---|---|---|
| A plaintiff who is upset but not personally hurt, a taxpayer challenging spending, or an organization suing for its members. | Standing | Demand concrete and particularized injury in fact, causation traceable to the defendant, and redressability; note the narrow taxpayer exception for Establishment Clause spending and the test for associational standing. |
| A challenge to a law before anyone has been prosecuted, or a controversy that resolved itself while the case was pending (a released prisoner, an expired policy). | Ripeness and mootness | For ripeness weigh hardship of withholding review against fitness; for mootness check the exceptions - capable of repetition yet evading review, voluntary cessation, and class actions. |
| A private company, club, or individual accused of a constitutional violation, especially one performing a public-like function or entangled with the government. | State action | The Constitution restrains government, not private parties; look for the public function exception or significant state entanglement or encouragement before applying constitutional limits. |
| A federal statute regulating local activity, a channel or instrumentality of commerce, or an aggregate of small economic acts. | Commerce Clause power | Sustain regulation of channels, instrumentalities, and activities substantially affecting interstate commerce (aggregating economic activity), but flag mandates to engage in commerce as beyond the power. |
| A state or local law that taxes or burdens out-of-state businesses, favors local producers, or blocks interstate shipments, with no federal statute on point. | Dormant Commerce Clause | Strike facial or purposeful discrimination unless it survives strict scrutiny (no nondiscriminatory alternative); for evenhanded burdens apply the Pike balancing test, and check the market-participant exception. |
| The government taking a benefit, license, job, or property from a specific person without a hearing or notice. | Procedural due process | Identify a protected life, liberty, or property interest, then apply the Mathews v. Eldridge balance of private interest, risk of error, and government burden to decide what process was due. |
| A law restricting marriage, family, procreation, contraception, travel, or refusal of medical treatment. | Substantive due process and fundamental rights | Classify the right as fundamental (strict scrutiny - narrowly tailored to a compelling interest) or not (rational basis); tie privacy and autonomy claims to the recognized fundamental-rights line. |
| A law that classifies by race or national origin (strict), sex or legitimacy (intermediate), or anything else (rational), or a facially neutral law applied with discriminatory purpose. | Equal protection tiers | Pick the tier by the classification; for a neutral law with disparate impact require proof of discriminatory intent before heightened scrutiny applies. |
| A regulation that turns on the subject or viewpoint of speech, a prior restraint, or a permit scheme with official discretion. | First Amendment - content-based speech | Apply strict scrutiny to content-based rules and presume prior restraints invalid; demand narrow, definite standards and prompt review for licensing schemes. |
| A content-neutral rule limiting where, when, or how one speaks in a public forum (parks, sidewalks, streets), such as noise or parade-permit limits. | First Amendment - time, place, and manner | In a traditional or designated public forum require content neutrality, narrow tailoring to a significant interest, and ample alternative channels; nonpublic forums need only reasonableness and viewpoint neutrality. |
| Words alleged to incite imminent violence, true threats, obscenity, defamation, or fighting words; commercial advertising restrictions. | Unprotected and low-value speech | Match the category to its test - Brandenburg imminence for incitement, Miller for obscenity, and Central Hudson intermediate review for commercial speech. |
| Government money, displays, prayer, or programs touching religion - school prayer, holiday displays, aid to religious schools. | Establishment Clause | Analyze coercion and historical practice, and whether the government endorses or favors religion; school-sponsored prayer and denominational preferences draw the strictest review. |
| A neutral law that incidentally burdens a religious practice, or a law that targets religious conduct specifically. | Free Exercise Clause | A neutral and generally applicable law gets rational basis even if it burdens religion (Smith); a law aimed at religious practice gets strict scrutiny. |
| Government physically occupying land, a regulation wiping out all economic value, or an exaction conditioning a permit on giving up property. | Takings | Treat permanent physical invasions and total economic wipeouts as per se takings; otherwise apply Penn Central factors, and require nexus plus rough proportionality for exactions. |
| The President acting without or against Congress, a legislative veto, an appointment or removal dispute, or a delegation of lawmaking power. | Separation of powers | Apply the Youngstown framework (power highest with congressional approval, lowest against it); test appointments under the Appointments Clause and watch for unconstitutional legislative vetoes. |
Contracts & Sales
| When you see… | Spot this issue | Your move |
|---|---|---|
| A transaction in goods - movable tangible things - or a deal mixing goods and services, and especially a merchant on one or both sides. | UCC Article 2 applicability | Apply Article 2 to sales of goods; for hybrid contracts use the predominant-purpose test, and flag merchant-only rules (firm offers, the battle of the forms, implied warranty of merchantability). |
| A purported deal where one side claims no contract formed, a revocation crossing an acceptance in the mail, or an acceptance that adds terms. | Offer and acceptance / mailbox rule | Find a definite offer, power of acceptance, and assent; apply the mailbox rule (acceptance effective on dispatch) and, under the UCC, treat additional terms between merchants under 2-207 rather than the mirror image rule. |
| A promise to do something already owed, a gift dressed up as a bargain, or reliance on a promise with no exchange. | Consideration and substitutes | Require a bargained-for exchange with legal detriment; if absent, test promissory estoppel (foreseeable reliance) or, under the UCC, enforce good-faith modifications without new consideration. |
| An oral deal for land, a promise that cannot be performed within a year, a guaranty of another's debt, or a sale of goods of 500 or more, plus a party who never signed a writing. | Statute of Frauds | Require a signed writing showing the essential terms against the party to be charged; check exceptions - part performance for land, merchant confirmation, specially made goods, and admissions. |
| A signed written contract plus a party trying to prove an earlier or contemporaneous oral term that contradicts or adds to the writing. | Parol evidence rule | Bar prior or contemporaneous terms that contradict a final integration; allow evidence to interpret ambiguous terms, show a condition precedent, or prove fraud, mistake, or a separate consideration. |
| A seller's description, sample, or affirmation of fact, a buyer relying on the seller's expertise, or a contract with an 'as is' or disclaimer clause. | Warranties | Spot express warranties from affirmations, samples, and descriptions; imply merchantability from a merchant seller and fitness for a particular purpose from reliance, and test whether any disclaimer is conspicuous and effective. |
| Language like 'on condition that,' 'provided,' or 'if,' a duty triggered only by some event, or a party claiming it never had to perform. | Conditions | Classify the event as a condition precedent, concurrent, or subsequent; test whether it was satisfied, excused by waiver or estoppel, or excused to avoid forfeiture, before any duty to perform arose. |
| A party who performed imperfectly, a builder who deviated slightly, or one side withholding payment over a defect. | Material breach vs. substantial performance | Ask whether the breach was material (excusing the other side and allowing suit) or minor (other side must perform but may offset damages); under the UCC apply the perfect tender rule for single-delivery goods contracts. |
| One party clearly stating before performance is due that it will not perform, or reasonable grounds to doubt performance. | Anticipatory repudiation | Treat an unequivocal repudiation as an immediate breach allowing suit or suspension; the aggrieved party may demand adequate assurances and treat failure to respond as repudiation. |
| Goods damaged or destroyed in transit, a shipment versus destination contract, FOB terms, or a breaching party in possession. | Risk of loss (UCC) | Allocate risk by the contract terms - shipment contracts pass risk on delivery to the carrier, destination on tender at the destination; a breach by either side shifts risk to that party. |
| A supervening event - destruction of the subject, death of a key person, a new law, or a market collapse - that upends performance after formation. | Excuse - impossibility, impracticability, frustration | Excuse for objective impossibility or commercial impracticability from an unforeseen event whose nonoccurrence was assumed; frustration of purpose excuses when the deal's whole point is destroyed though performance is still possible. |
| A breach plus a plaintiff seeking lost profits or cover costs, consequential losses the breacher may not have foreseen, or a plaintiff who sat on its hands. | Expectation damages and limits | Award expectation (benefit of the bargain) measured with reasonable certainty; cap consequential damages by foreseeability (Hadley) and reduce for failure to mitigate. |
| A contract clause fixing a dollar amount payable on breach, especially a round number that looks like a penalty. | Liquidated damages | Enforce only if damages were hard to estimate at formation and the amount is a reasonable forecast; strike clauses that operate as a penalty. |
| A contract naming or benefiting an outsider, a party transferring its rights, or one delegating its duties to a stranger. | Third-party beneficiaries, assignment, delegation | Distinguish intended (can sue) from incidental beneficiaries and pin when their rights vest; allow assignment of rights unless it materially changes the obligor's risk, and bar delegation of personal-service duties. |
| A minor or intoxicated party, a mutual mistake about a basic fact, a misrepresentation, duress, or grossly one-sided terms. | Defenses to formation | Test capacity, mutual mistake on a basic assumption, fraud or misrepresentation, duress, and unconscionability (procedural plus substantive) as grounds to void or reform the deal. |
Criminal Law & Procedure
| When you see… | Spot this issue | Your move |
|---|---|---|
| A killing with facts about planning, provocation, recklessness, or a death during another felony. | Homicide grading | Sort intentional killings into murder (malice, premeditation) versus voluntary manslaughter (adequate provocation, heat of passion); sort unintentional into depraved-heart murder, involuntary manslaughter, or felony murder. |
| A statute that omits a mental state, a regulatory or public-welfare offense, or a defendant who made a mistake of fact. | Mens rea and strict liability | Match the act to the required intent (purpose, knowledge, recklessness, negligence); flag strict-liability offenses where mistake of fact is no defense and check whether mistake negates a specific-intent element. |
| A defendant who helped, encouraged, or stood by during another's crime, or a getaway driver. | Accomplice liability | Require intent to assist and to promote the crime; the accomplice is liable for the planned crime and other foreseeable crimes, and analyze any effective withdrawal before the crime occurs. |
| A plan that fell short, an agreement between two or more, an offer to pay someone to commit a crime, or an undercover officer who only feigns agreement. | Inchoate crimes - attempt, conspiracy, solicitation | For attempt require specific intent plus a substantial step; for conspiracy require an agreement and (in many jurisdictions) an overt act, noting that unilateral feigned agreement and the merger rules vary. |
| A defendant who used force claiming threat, a homeowner repelling an intruder, or an actor who was insane, intoxicated, or under duress. | Defenses - self-defense and others | Calibrate force to the threat (deadly force only against imminent deadly force, with retreat rules varying); separately analyze insanity tests, voluntary versus involuntary intoxication, and duress (no defense to murder). |
| A taking of property where the key fact is how possession or title passed - a trespassory taking, a breach of entrusted possession, or a transfer induced by a lie. | Larceny vs. embezzlement vs. false pretenses | Pin the moment and manner of acquisition - larceny needs a trespassory taking with intent to steal at that time, embezzlement a conversion of lawful possession, and false pretenses a transfer of title by fraud. |
| A breaking and entering of a structure, a taking by force or threat, or a theft escalated by a weapon. | Burglary and robbery | For burglary require entry of a structure with intent to commit a crime inside; for robbery require a larceny from the person or presence accomplished by force or intimidation. |
| Police entering a home, car, or person's effects, a warrantless search, or a defendant moving to suppress evidence. | Fourth Amendment - search and seizure | First find a search (reasonable expectation of privacy) or seizure; then require a warrant on probable cause unless a recognized exception applies, and exclude fruits of an illegal search. |
| A search with no warrant - incident to arrest, a car stop, consent, plain view, exigency, or a frisk on the street. | Warrant exceptions | Identify the specific exception and its limits - SITA reaches the arrestee's wingspan, the automobile exception needs probable cause, consent must be voluntary, plain view needs lawful vantage and obvious incrimination, and a Terry frisk needs reasonable suspicion. |
| A suspect questioned while in custody, statements made after arrest, or a defendant who asked for a lawyer and was questioned anyway. | Miranda and interrogation | Require custody plus interrogation to trigger warnings; analyze waiver, the effect of invoking counsel versus silence, and the public-safety exception, separating Miranda from voluntariness. |
| Post-charge questioning, a lineup after indictment, or deliberate elicitation by an informant once proceedings have begun. | Sixth Amendment right to counsel | Recognize the offense-specific right attaching at formal charge; suppress deliberately elicited statements about the charged offense taken without counsel, distinct from Miranda's custodial trigger. |
| A prosecutor offering an absent witness's statement, a lab report, or a co-defendant's confession naming the accused. | Confrontation and hearsay at trial | Bar testimonial statements of an absent declarant unless the defendant had a chance to cross-examine (Crawford); flag Bruton problems with a nontestifying co-defendant's confession. |
| A suggestive lineup, showup, or photo array, and an in-court identification challenged as tainted. | Identification procedures | Suppress identifications that are unnecessarily suggestive and create a substantial likelihood of misidentification, weighing reliability factors. |
| A second prosecution after acquittal, conviction, or mistrial, or charges under two statutes for one act. | Double jeopardy | Bar reprosecution for the same offense once jeopardy attaches; apply the Blockburger same-elements test and note the separate-sovereigns exception. |
Evidence
| When you see… | Spot this issue | Your move |
|---|---|---|
| Evidence that is logically probative but inflammatory - gruesome photos, prior bad acts offered loosely, or marginally useful proof. | Relevance and Rule 403 | Confirm the evidence makes a fact of consequence more or less probable, then weigh whether unfair prejudice, confusion, or waste substantially outweighs its probative value under 403. |
| Proof of a person's general disposition offered to suggest they acted in character, a defendant who 'opens the door,' or a victim's violent history in a self-defense case. | Character evidence | Bar propensity character in civil and the prosecution's case-in-chief; allow the accused to open character and the prosecution to rebut, and admit specific traits where character is an essential element. |
| Evidence of other crimes or wrongs offered against a defendant, especially a pattern, signature, or prior similar fraud. | Prior bad acts (404(b)) | Exclude other acts offered for propensity but admit them for a non-propensity purpose - motive, intent, identity, plan, absence of mistake - subject to 403 balancing and notice. |
| An out-of-court statement repeated in court, a written record, or assertive conduct offered to prove what it asserts. | Hearsay - threshold | Ask whether the statement is offered to prove the truth of the matter asserted; if offered for a non-truth purpose (effect on listener, notice, verbal act, state of mind shown by the words) it is not hearsay. |
| A party's own statement used against it, or a witness's prior inconsistent statement under oath, prior consistent statement, or prior identification. | Non-hearsay by definition | Classify party-opponent statements and qualifying prior statements of a testifying witness as non-hearsay exclusions under 801(d), not exceptions. |
| An excited utterance after a startling event, a statement of present sense impression, a statement to a doctor, or a business or public record. | Hearsay exceptions - availability immaterial | Match the statement to the 803 exception by its hallmark - contemporaneity, excitement, medical purpose, or routine record-keeping - and confirm the foundation for each. |
| A declarant who is dead, privileged, or absent, plus former testimony, a dying declaration, or a statement against interest. | Hearsay exceptions - declarant unavailable | First establish unavailability, then fit the statement to an 804 exception (former testimony with prior cross, dying declaration about cause of impending death, statement against penal or pecuniary interest). |
| A witness contradicted, shown to have a prior conviction, a bias, a prior inconsistent statement, or a reputation for untruthfulness. | Impeachment | Select the impeachment method and its limits - prior convictions under 609 (crimes of dishonesty admitted, others balanced), bias, sensory defects, prior inconsistent statements, and character for untruthfulness. |
| A witness drawing a conclusion, an expert relying on outside data, or scientific testimony challenged as unreliable. | Lay and expert opinion | Allow lay opinion rationally based on perception and helpful; admit expert opinion only with qualifications, reliable methods reliably applied (Daubert), and a proper basis, even on otherwise inadmissible data. |
| A document, photo, recording, or text message offered without proof of what it is, or testimony about a writing's contents. | Authentication and best evidence | Require enough proof that the item is what it claims to be (testimony, distinctive characteristics, chain of custody); apply the best evidence rule when proving the terms of a writing - an original or acceptable duplicate is needed. |
| Confidential communications between spouses, attorney-client, doctor-patient, or clergy, or a party trying to compel disclosure. | Privileges | Identify the privilege, its holder, and whether the communication was confidential and within the relationship; analyze waiver and exceptions (crime-fraud, joint clients, communications in furtherance of crime). |
| A defendant who fixed a hazard after an injury, an offer to settle, or payment of medical bills. | Subsequent remedial measures and settlement | Exclude later repairs to prove negligence (admit for ownership or feasibility if disputed) and exclude settlement offers and related statements to prove liability. |
| A witness who cannot remember and is shown a document, or a record made when memory was fresh but now forgotten. | Present recollection refreshed vs. recorded recollection | For refreshed recollection any item may jog memory and the witness testifies from memory; for recorded recollection the record itself is read in as a hearsay exception when the witness once knew but now cannot recall. |
| A fact treated as established without proof, or a burden that shifts once a basic fact is shown. | Judicial notice and presumptions | Take judicial notice of indisputable facts (conclusive in civil, permissive in criminal); apply a presumption to shift the burden of production until rebutted. |
Real Property
| When you see… | Spot this issue | Your move |
|---|---|---|
| A grant with conditional language - 'so long as,' 'but if,' 'to A for life' - or a gift to a class or to unborn or unascertained takers. | Present estates and future interests | Classify the present estate (fee simple absolute, defeasible fees, life estate) and its matching future interest (reverter, right of entry, remainder, executory interest); then test class gifts and contingencies. |
| A contingent future interest in a person not yet identified, an option to purchase land, or a gift that might vest far in the future. | Rule Against Perpetuities | Strike interests that may not vest within 21 years of a life in being at the grant; isolate the contingent remainder, executory interest, or option and find a validating measuring life or apply wait-and-see reform. |
| Two or more owners, a deed creating a right of survivorship, one cotenant who collects rent or pays the mortgage, or one who sells a share. | Concurrent ownership | Distinguish joint tenancy (survivorship, four unities, severed by conveyance) from tenancy in common; resolve contribution, accounting, ouster, and partition among cotenants. |
| A lease, an abandoning tenant, a tenant who stays past the term, an uninhabitable unit, or a tenant assigning or subletting. | Landlord-tenant | Identify the tenancy type and termination rules; analyze the implied warranty of habitability, constructive eviction, surrender and mitigation, and the consequences of assignment versus sublease for privity. |
| A right to use another's land, a driveway across a neighbor's lot, long-standing use without permission, or a landlocked parcel. | Easements | Classify the easement and its creation - express, implied from prior use, by necessity, or by prescription; analyze scope, the appurtenant versus in gross distinction, and termination. |
| A promise running with the land - a subdivision restriction, a use limitation - and a later buyer seeking to enforce or escape it. | Covenants and equitable servitudes | For damages test a real covenant (intent, notice, touch and concern, horizontal and vertical privity); for injunctive relief test an equitable servitude (intent, notice, touch and concern), and watch for a common scheme. |
| A person occupying land they do not own, a fence over the boundary, or continuous use spanning years across successive possessors. | Adverse possession | Require possession that is actual, open and notorious, hostile, exclusive, and continuous for the statutory period; analyze tacking, the effect of permission, and disabilities that toll the clock. |
| Two grantees claiming the same land, a buyer without notice, an unrecorded deed, or a donee who paid nothing. | Recording acts | Identify the act type (race, notice, or race-notice) and apply it - a subsequent bona fide purchaser for value without notice prevails under notice and race-notice statutes; note that donees are not protected. |
| A deed handed over with conditions, kept in a drawer, given to an escrow agent, or a description that is ambiguous. | Deeds and delivery | Require present intent to pass title for valid delivery; test the deed's formal requirements, the effect of escrow conditions, and whether the description adequately identifies the land. |
| A contract of sale, a defect in the chain, an encumbrance discovered before closing, or a dispute over risk between contract and deed. | Marketable title and the closing | Imply a covenant of marketable title in the land-sale contract; apply the doctrine of merger at closing, equitable conversion for risk of loss, and the deed covenants of title afterward. |
| A borrower in default, a property sold subject to or assuming a mortgage, multiple liens, or a deed given as security. | Mortgages and foreclosure | Distinguish lien from title theory, analyze 'subject to' versus assumption for personal liability, order priorities by recording, and apply redemption and the rules for surplus and deficiency on foreclosure. |
| An item attached to land or a building - a furnace, a trade fixture installed by a tenant, or a structure on someone else's land. | Fixtures | Decide whether annexed personalty became a fixture by intent, attachment, and adaptation; allow a tenant to remove trade fixtures before the lease ends without material damage. |
| Excavation that collapses a neighbor's land, a builder who removes support, or competing claims to a stream or groundwater. | Lateral and subjacent support / water rights | Impose strict liability for withdrawing support from land in its natural state and negligence-based liability for improvements; resolve water disputes under riparian reasonable use or prior appropriation. |
| A nonconforming use predating an ordinance, a variance request, or a regulation challenged as a taking. | Zoning and land-use limits | Protect a lawful prior nonconforming use, analyze area versus use variances and special exceptions, and flag when regulation crosses into a compensable taking. |
Torts
| When you see… | Spot this issue | Your move |
|---|---|---|
| An accident with a foreseeable victim, a professional, a child, or someone with special skills, and a question of how careful they had to be. | Negligence - duty and standard of care | Establish a duty to foreseeable plaintiffs (Cardozo zone of danger) measured by the reasonable-person standard, adjusting for professionals, children, and physical disabilities. |
| An injury whose cause is unexplained but the kind that usually involves negligence, an instrument in the defendant's exclusive control, or a balancing-of-burdens fact pattern. | Breach and res ipsa loquitur | Prove breach by the unreasonableness of the conduct (Hand balancing of burden against probability and severity); where direct proof is missing, invoke res ipsa from the type of accident plus exclusive control. |
| Multiple possible causes, an intervening event after the defendant's act, or an unusually severe or unforeseeable harm. | Causation | Prove actual cause (but-for, or substantial factor with multiple causes) and proximate cause (foreseeability); analyze superseding intervening forces and apply the eggshell-plaintiff rule for extent of harm. |
| A defendant who violated a safety statute and a plaintiff hurt in the way the statute aimed to prevent. | Negligence per se | Borrow the statutory standard when the plaintiff is in the protected class and the harm is the type the statute targets; the violation establishes breach, leaving causation and damages. |
| A guest at a party who slips, a customer in a store, a trespasser, a child near an attractive hazard, or a landowner defendant. | Premises liability / status of entrant | Classify the entrant - invitee (reasonable care plus inspection), licensee (warn of known hidden dangers), trespasser (no willful harm, plus the attractive-nuisance rule for child trespassers) - or apply the modern reasonable-care unitary standard. |
| Contact or apprehension - a punch, a near-miss swing, a confinement, or outrageous conduct causing severe distress. | Intentional torts to person | Match the tort to its elements - battery (harmful or offensive contact), assault (apprehension of imminent contact), false imprisonment (confinement), and IIED (extreme and outrageous conduct, severe distress), checking intent and transferred intent. |
| A defendant claiming the plaintiff agreed, a store detaining a suspected shoplifter, force used to protect self or property, or entry to save life. | Defenses to intentional torts | Analyze consent, self-defense and defense of others (proportional force), defense of property (no deadly force for property alone), the shopkeeper's privilege, and necessity (public complete, private with payment for damage). |
| A wild animal, a known-dangerous domestic animal, blasting, toxic storage, or other inherently risky activity that caused harm. | Strict liability - animals and abnormally dangerous activities | Impose strict liability for wild animals and the dangerous propensity of known domestic animals, and for abnormally dangerous activities (high risk, uncommon, not eliminable by care) for harm within the risk. |
| A defective product, a manufacturing flaw, a design that could be safer, a missing warning, and an injured user or bystander in the chain of distribution. | Products liability | For a commercial seller analyze manufacturing defect (deviation from spec), design defect (risk-utility or consumer expectation), and warning defect; strict liability needs no privity and reaches foreseeable users and bystanders. |
| A false statement about the plaintiff communicated to others, a public figure or public concern, or words harming reputation in business or by imputing crime or disease. | Defamation | Require a false defamatory statement of fact, of and concerning the plaintiff, published to a third party; layer constitutional fault - actual malice for public figures, negligence for private plaintiffs on matters of public concern - and analyze libel versus slander per se for damages. |
| Disclosure of private facts, an intrusion into seclusion, use of someone's name or likeness for profit, or a portrayal in a false light. | Privacy torts | Identify which of the four privacy torts fits - intrusion, public disclosure of private facts, false light, or appropriation - and check the newsworthiness and consent defenses. |
| An ongoing interference with the use and enjoyment of land - odors, noise, vibrations - or a harm shared by the whole community. | Nuisance | For private nuisance require a substantial and unreasonable interference with another's use and enjoyment; distinguish public nuisance (harm to the community) and the special-injury requirement for a private suit on it. |
| An employer and an employee who caused harm on the job, an independent contractor, or a car owner who lent the vehicle. | Vicarious liability | Hold an employer liable for employee torts within the scope of employment (frolic versus detour); generally no liability for independent contractors except for nondelegable or inherently dangerous duties. |
| A plaintiff who was also careless, assumed a known risk, or whose own conduct contributed to the injury. | Comparative and contributory fault | Apply the jurisdiction's regime - pure or modified comparative fault reducing recovery, contributory negligence as a complete bar with last-clear-chance, and express or implied assumption of risk. |
| A plaintiff frightened by a near-miss, a bystander who watched a loved one get hurt, or distress without physical impact. | Negligent infliction of emotional distress | Require the plaintiff to be in the zone of danger with physical symptoms, or, as a bystander, closely related, present at the scene, and contemporaneously aware of the injury. |
| A knowing misrepresentation relied on to financial loss, or a defendant who induced a breach of contract or disrupted a business expectancy. | Economic and dignitary - fraud and interference | For fraud require a knowing false statement, intent to induce reliance, justifiable reliance, and damages; for tortious interference require a valid relationship, the defendant's knowledge, intentional and improper inducement, and resulting loss. |
Business Associations
| When you see… | Spot this issue | Your move |
|---|---|---|
| A creditor cannot collect from the entity and the facts show commingling of personal and corporate funds, a grossly undercapitalized company, ignored corporate formalities, or the entity was used to perpetrate a fraud or injustice on the claimant | Piercing the corporate veil | Run alter-ego and instrumentality analysis: list the abuse-of-form factors plus the fraud-or-injustice element, then conclude whether the court reaches the shareholder personally; note courts pierce more readily for tort victims than voluntary contract creditors. |
| A director or officer sits on both sides of a transaction, takes a personal interest in a deal, or competes with the corporation | Duty of loyalty and self-dealing | State the conflicted transaction is voidable unless it satisfies a safe harbor: disclosure plus approval by disinterested directors, approval by disinterested shareholders, or proof the deal was substantively fair to the corporation; the burden is on the fiduciary. |
| A director or officer personally takes a business chance that is in the corporation's line of business, that the corporation had an interest or expectancy in, or that came to the fiduciary in a corporate capacity | Usurpation of a corporate opportunity | Apply the line-of-business and interest-or-expectancy tests; require the fiduciary to have offered it to the corporation first, and remedy with a constructive trust on the profits or the asset itself. |
| Shareholders attack a board decision that turned out badly, alleging directors were uninformed, inattentive, or wasted assets | Business judgment rule vs duty of care | Presume good faith and protect informed decisions under the business judgment rule; rebut only by showing gross negligence, lack of any rational basis, bad faith, or a disabling conflict, which then shifts to a fairness review. |
| A shareholder sues over harm to the corporation itself (mismanagement, waste, breach of fiduciary duty) rather than a personal injury distinct from other holders | Derivative vs direct shareholder suit | Classify as derivative, then check standing (contemporaneous and continuing ownership), the written demand on the board, and whether demand is excused as futile; recovery runs to the corporation. |
| A corporation acts outside its stated purpose or a party tries to escape a contract by claiming the act exceeded corporate powers | Ultra vires and corporate purpose | Note modern statutes abolish ultra vires as a defense to enforcement; the act binds, but raise it only through a shareholder injunction, a state proceeding, or a suit against the responsible directors. |
| A promoter signs a contract on behalf of a corporation not yet formed, then the entity later forms or fails to form | Promoter liability and pre-incorporation contracts | Hold the promoter personally liable on the pre-incorporation contract; the corporation becomes liable only by adoption or novation, and the promoter stays liable absent an express novation releasing them. |
| Articles were never properly filed or contained a defect, and a third party tries to hold the would-be shareholders personally liable | Defective incorporation and de facto status | Test for de facto corporation (good-faith colorable attempt plus exercise of corporate powers) or corporation by estoppel against a party who dealt with the business as a corporation; otherwise associates face personal liability. |
| A shareholder demands access to corporate books, records, minutes, or shareholder lists and the corporation refuses | Shareholder inspection rights | Distinguish unqualified access to basic records from records requiring a proper purpose; a written demand stating a purpose reasonably related to the shareholder interest compels production, and refusal exposes the corporation to fees. |
| The board declares (or refuses) a dividend, or pays out funds when the corporation is near insolvency | Dividends and distribution limits | Note declaration is within board discretion absent bad faith, but apply the solvency limits: no distribution that renders the corporation unable to pay debts as they come due or that leaves liabilities exceeding assets; improper distributions create director liability. |
| A majority or controlling shareholder approves a freeze-out merger, a sale of control, or a transaction that benefits the controller at the minority's expense | Controlling shareholder fiduciary duty | Impose a fiduciary duty of good faith and fair dealing on the controller; subject the conflicted transaction to entire fairness review (fair dealing plus fair price), with the burden on the controller. |
| A director who was sued for corporate conduct seeks reimbursement of defense costs or a judgment from the corporation | Director indemnification | Distinguish mandatory indemnification (director wholly successful on the merits) from permissive (good faith and reasonable belief the conduct served corporate interests); bar indemnification where the director is adjudged liable to the corporation absent court approval. |
| A purchase or sale of securities involves a material misrepresentation or omission, scienter, or trading on material nonpublic information | Securities fraud under Rule 10b-5 | Run the 10b-5 elements (misstatement or omission, materiality, scienter, reliance, connection to a sale, causation, damages) or the insider-trading theories (classical fiduciary duty and misappropriation); flag tippee liability turning on a personal benefit to the tipper. |
| A director, officer, or ten-percent holder of a reporting company buys and sells (or sells and buys) equity within a six-month window | Section 16(b) short-swing profits | Apply strict liability disgorgement of any profit on matched trades within six months, regardless of intent or actual inside information; compute by matching lowest purchase price against highest sale price. |
Agency & Partnership
| When you see… | Spot this issue | Your move |
|---|---|---|
| An agent makes a deal a third party seeks to enforce against the principal, and the agent either followed instructions, exceeded them, or the principal had cloaked the agent with a title or prior dealings | Actual vs apparent authority of an agent | Separate actual authority (express or implied from the principal's manifestations to the agent) from apparent authority (the principal's manifestations to the third party creating a reasonable belief); if neither, ask whether the principal ratified or is liable on an inherent-authority theory. |
| One partner signs a contract or borrows money without the others' consent, and a creditor wants to bind the partnership | Partner binding the partnership | Treat each partner as an agent who binds the partnership for acts apparently carrying on the ordinary business; the partnership escapes only if the partner lacked authority and the third party knew or had notice of the limitation. |
| An employee causes a tort while doing a job-related task, a frolic or detour, or an intentional act like a fight with a customer | Respondeat superior and scope of employment | Decide whether the conduct was within the scope of employment (kind of work hired to do, within authorized time and space, motivated at least in part to serve the employer); a frolic falls outside, a minor detour does not, and intentional torts bind only when foreseeably incident to the work. |
| A third party learns only after contracting that an agent acted for someone, or never knew there was a principal at all | Principal disclosed, partially disclosed, or undisclosed | Tie liability to disclosure status: with a fully disclosed principal the agent is not a party; with a partially disclosed or undisclosed principal both agent and principal are liable, and the third party may elect. |
| Two people share profits of a business without a written agreement, or one shares profits as repayment of a loan or as wages | Partnership formation by conduct | Apply the sharing-of-profits presumption of partnership, then rebut it where profits were received as debt repayment, wages, rent, or an annuity; no formal agreement or intent to form a partnership is required if they associate to carry on a business for profit. |
| A partnership cannot pay a creditor and the creditor pursues an individual partner, or a new partner joins an indebted firm | Partner liability for partnership obligations | Hold partners jointly and severally liable for all partnership obligations, but require the creditor to exhaust partnership assets first; an incoming partner is liable for pre-admission debts only to the extent of their capital contribution. |
| A partner takes a partnership opportunity, competes with the firm, or profits secretly from partnership business | Partner duty of loyalty and self-dealing | Apply the duty of loyalty: account for any benefit derived from partnership property or business, refrain from competing, and avoid adverse interests; remedy with disgorgement and a constructive trust on the secret profit. |
| A partner leaves, dies, or is expelled, and the question is whether the business continues or must be wound up and liquidated | Dissociation vs dissolution and winding up | Under RUPA distinguish dissociation (buyout of the leaving partner, business continues) from events causing dissolution and winding up; in an at-will partnership a partner's express withdrawal triggers dissolution unless the others elect to continue. |
| A former partner enters a transaction after leaving, and an old creditor without notice of the departure relies on the partnership | Apparent authority surviving dissociation | Bind the partnership for up to the statutory window after dissociation where the third party reasonably believed the dissociated partner was still a partner; cut off liability by giving notice to creditors and filing a statement of dissociation. |
| A partnership liquidates and must pay creditors, return capital, and split remaining profits or absorb losses | Distribution of partnership assets on winding up | Apply the priority waterfall: outside creditors and partner loans first, then return of capital contributions, then distribute remaining surplus as profits; losses charge against capital accounts in the profit-sharing ratio. |
| A limited partner participates in management or the general partner is also the only person running the business | Limited partner control and liability shield | Note a limited partner loses the liability shield by exercising control (under older RULPA reliance triggers liability; RULPA 2001 removes the control trap); confirm proper filing of the certificate to obtain limited liability at all. |
| An agent profits secretly, fails to disclose a conflict, or acts carelessly causing the principal loss | Agent duties to principal | Invoke the agent's fiduciary duties of loyalty, obedience, and care; require disgorgement of secret profits and bar the agent from acting adversely without the principal's informed consent. |
| The hiring party did not control the physical details of the work, the worker supplied own tools, set own hours, or was hired for a discrete project | Independent contractor vs employee | Apply the right-to-control test to classify the worker; if an independent contractor, the hiring party generally is not vicariously liable except for non-delegable duties or inherently dangerous activities. |
| A principal learns of an agent's unauthorized contract and then accepts its benefits, sues on it, or remains silent | Ratification of an unauthorized act | Find ratification where the principal, with knowledge of the material facts, affirms the whole act expressly or by accepting benefits; ratification relates back and binds the principal as if originally authorized. |
| Property is bought with partnership funds or titled in the firm name, and a partner or a partner's creditor claims it personally | Partnership property vs individual property | Treat property acquired with partnership assets or in the partnership name as partnership property owned by the entity; a partner has no transferable interest in specific assets, so an individual creditor reaches only the partner's transferable interest by charging order. |
Trusts & Estates
| When you see… | Spot this issue | Your move |
|---|---|---|
| A testator tears, burns, cancels, or draws lines through a will, or the original cannot be found after death while in the testator's possession | Will revocation by physical act | Require both the act and the simultaneous intent to revoke; apply the presumption of revocation when a will last in the testator's control is missing or found mutilated, and consider partial revocation by act where the jurisdiction allows it. |
| A testator revokes will two intending to reinstate will one, or revokes under a mistaken belief about law or fact such as that a new will is valid | Revival and dependent relative revocation | Analyze revival (does the jurisdiction automatically revive will one, or require re-execution or republication), then apply DRR to disregard a revocation premised on a mistaken assumption when doing so comes closer to the testator's intent. |
| Handwritten changes, crossed-out gifts, or inserted amounts appear on the face of an executed will | Interlineation and unattested alterations | Treat unattested interlineations as ineffective additions absent holographic-will recognition; a crossed-out gift may be a valid partial revocation by act, and DRR may restore the original gift if the failed substitute shows the testator preferred the old gift to intestacy. |
| A will is entirely or materially in the testator's handwriting, or an attested will has a missing signature, an interested witness, or improper attestation | Holographic and attested will formalities | Test attested wills for writing, signature, and two witnesses (with the interested-witness purging or supernumerary rules); validate a holograph if the material provisions and signature are in the testator's hand, and consider the harmless-error or substantial-compliance doctrine to excuse a defect. |
| A named beneficiary predeceases the testator, and the gift is to a relative who left surviving descendants | Lapse and anti-lapse statutes | Determine if the gift lapses, then apply the anti-lapse statute to substitute the predeceased beneficiary's descendants when the beneficiary was within the statutory degree of kinship; a contrary survivorship condition in the will defeats anti-lapse. |
| A specifically devised asset is no longer in the estate at death, or estate assets are insufficient to pay all gifts and debts | Ademption and abatement | Apply ademption by extinction to specific gifts that no longer exist (with exceptions for proceeds and replacements under the UPC), and order abatement to pay debts by exhausting intestate and residuary property before general and specific gifts. |
| A child is born or adopted after the will is executed, or the testator marries after executing a will that omits the new spouse | Pretermitted heirs and spouses | Give the omitted afterborn child or omitted spouse an intestate-type share unless the omission was intentional or provided for outside the will; distinguish an accidentally omitted child from one deliberately disinherited. |
| A surviving spouse is left little or nothing, or assets were funneled into trusts and non-probate transfers to defeat the spouse | Elective share and spousal protection | Compute the elective share against the augmented estate to capture will substitutes and lifetime transfers; let the spouse renounce the will and claim the statutory percentage regardless of the will's terms. |
| A settlor purports to create a trust but a question arises about an identifiable trustee, ascertainable beneficiaries, trust property, or intent | Valid trust creation and the three certainties | Confirm the elements (intent, res, ascertainable beneficiaries, valid purpose, and for testamentary trusts proper will formalities); note a trust does not fail for want of a trustee, but missing res or beneficiaries (outside charitable trusts) defeats it. |
| A trustee self-deals, buys trust assets, commingles funds, fails to diversify, or makes speculative investments | Trustee duties of loyalty and prudence | Apply the no-further-inquiry rule to self-dealing (voidable regardless of fairness) and the prudent investor rule to investment choices; require diversification and impartiality among beneficiaries, with surcharge for resulting losses. |
| A trust fails or its purpose is fully accomplished with property left over, or someone acquires property through fraud, breach of duty, or unjust enrichment | Resulting and constructive trusts | Impose a resulting trust returning property to the settlor or estate when an express trust fails; impose a constructive trust as an equitable remedy to prevent unjust enrichment by a wrongful holder, who must convey to the rightful party. |
| Beneficiaries or the settlor seek to modify or end a trust early, or changed circumstances frustrate the trust's purpose | Modification and termination of trusts | Apply the Claflin rule barring termination that defeats a material purpose; allow modification with settlor and beneficiary consent, or by court for unanticipated circumstances or to achieve the settlor's tax or administrative objectives, and apply cy pres to charitable trusts. |
| A decedent dies without a valid will, with surviving descendants in unequal generations, a spouse, or only collateral relatives | Intestate succession and per stirpes distribution | Distribute by the jurisdiction's representation method (strict per stirpes, per capita with representation, or per capita at each generation), set the spousal share, and apply the laughing-heir and escheat cutoffs for remote collaterals. |
| A grant or trust creates a contingent remainder, executory interest, or class gift that may vest too remotely, or uses an open class with conditions | Future interests and the Rule Against Perpetuities | Classify the interest, then test it against the Rule (vest or fail within a life in being plus twenty-one years); apply the wait-and-see or USRAP ninety-year reform and the fertile-octogenarian and unborn-widow traps. |
| A donor gives someone power to appoint property among objects, and the donee exercises it by a residuary clause, fails to exercise it, or appoints to a non-object | Powers of appointment | Distinguish general from special (limited) powers and presently exercisable from testamentary; determine whether a blanket residuary clause exercises the power, and send unappointed property to the takers in default or back to the donor's estate. |
Family Law
| When you see… | Spot this issue | Your move |
|---|---|---|
| A child is born to or conceived by a married woman, and the husband's biological paternity is later questioned, or another man claims to be the father | Marital presumption of paternity | Apply the strong presumption that the husband is the legal father of a child born during marriage; allow rebuttal by clear evidence or genetic testing, but weigh estoppel, the marital-presumption time bar, and the child's best interests before disestablishing paternity. |
| Divorcing spouses dispute who gets the house, retirement accounts, a business, or property one spouse brought into the marriage | Equitable distribution vs community property | Classify each asset as marital or separate first, then divide marital property equitably (not necessarily equally) using the statutory factors, or split community property equally; trace separate property and watch for transmutation and commingling. |
| A spouse seeks to enforce or set aside a prenuptial agreement waiving support or property rights | Premarital agreement enforceability | Test for voluntariness, full and fair disclosure (or knowing waiver) of assets, and substantive fairness; under the UPAA an agreement is unenforceable if involuntary or unconscionable when made without adequate disclosure, and some courts also review fairness at enforcement. |
| Parents dispute legal or physical custody, one parent alleges unfitness, or a non-parent such as a grandparent seeks visitation | Child custody and best interests | Apply the best-interests-of-the-child standard with the statutory factors, presume fit parents act in the child's interest (Troxel limits third-party visitation), and avoid using a parent's gender or out-of-state job as a sole tiebreaker. |
| A parent seeks to raise, lower, or terminate support after a job loss, a raise, remarriage, or a change in custody | Child support modification and guidelines | Compute support under the state guidelines (income shares or percentage), then modify only on a substantial and continuing change in circumstances; bar voluntary unemployment as a basis and note past-due installments are vested and not retroactively modifiable. |
| One spouse seeks maintenance after a long marriage, gave up a career, or supported the other through school | Spousal support or alimony awards | Identify the alimony type (rehabilitative, permanent, reimbursement, or lump sum) and apply factors like marriage length, standard of living, and earning capacity; note alimony generally terminates on the recipient's remarriage or either party's death. |
| Parents and child live in different states, or a parent removes the child to another state and files there | Jurisdiction over custody under the UCCJEA | Apply the UCCJEA home-state priority (the state where the child lived for six months before the proceeding) for initial jurisdiction, give the decree state exclusive continuing jurisdiction, and police interstate competition; reserve emergency jurisdiction for abandonment or abuse. |
| A support order must be enforced or modified across state lines, or two states have entered competing support orders | Interstate enforcement of support under UIFSA | Apply UIFSA's one-order rule giving the issuing state continuing exclusive jurisdiction over modification while the parties or child remain there; register the order for enforcement elsewhere and use long-arm provisions to reach an out-of-state obligor. |
| A marriage involves bigamy, close kinship, lack of capacity, fraud going to the essentials, or a couple who lived together holding out as married | Validity of marriage and impediments | Distinguish void marriages (bigamy, incest) from voidable ones (fraud, duress, nonage), check for common-law marriage where recognized, and apply the putative-spouse doctrine to protect a good-faith party to a defective marriage. |
| A petition alleges fault grounds like adultery or cruelty, or invokes no-fault separation, and a party raises a defense | Grounds for divorce and defenses | Note nearly all states allow no-fault divorce (irreconcilable differences or living apart), making fault defenses like recrimination and condonation largely obsolete, though fault may still bear on alimony or custody in some states. |
| A petition seeks to terminate a parent's rights for abandonment, abuse, or neglect, or a stepparent or agency seeks to adopt | Termination of parental rights and adoption | Require clear and convincing evidence of statutory grounds and that termination serves the child's best interests; secure the consent of both legal parents or proper notice, and apply the ICWA heightened standards for an Indian child. |
| One spouse earned a professional license, degree, or built a practice during the marriage while the other contributed support | Division of professional degrees and goodwill | Note most states do not treat a degree or license as divisible property but compensate the supporting spouse through reimbursement alimony; distinguish enterprise goodwill (often divisible) from personal goodwill (often not). |
| A custodial parent wants to move out of state or far enough to disrupt the other parent's visitation | Relocation of the custodial parent | Apply the relocation standard balancing the moving parent's good-faith reasons against the child's best interests and the impact on the other parent's relationship; allocate the burden per the jurisdiction and revise the visitation schedule. |
| A child is conceived by artificial insemination, IVF, or a surrogacy arrangement, and parentage of the donor or intended parents is disputed | Assisted reproduction and surrogacy parentage | Apply the rule that a consenting husband or intended parent is the legal parent and a sperm or egg donor is not; evaluate surrogacy contract enforceability under state law, which ranges from full recognition to voidness. |
Secured Transactions
| When you see… | Spot this issue | Your move |
|---|---|---|
| A creditor claims an interest in collateral but the question is whether the interest is even enforceable against the debtor | Attachment of a security interest | Require the three attachment elements: value given, the debtor has rights in the collateral, and either a security agreement authenticated by the debtor describing the collateral or the creditor's possession or control; without attachment there is nothing to perfect. |
| Two creditors claim the same collateral, or a creditor wants priority over later claimants and the lien is general | Perfection by filing a financing statement | Check the financing statement for the debtor's correct legal name, a sufficient collateral description, and filing in the proper office and state (debtor's location); a seriously misleading name error defeats perfection unless a standard search reveals it. |
| A seller or lender finances the debtor's acquisition of specific goods and there is a prior creditor with a blanket lien on after-acquired property | PMSI super-priority in goods | Award the purchase-money creditor super-priority by perfecting on time: a PMSI in equipment must perfect within twenty days of the debtor receiving the goods; a PMSI in inventory must perfect before delivery and notify earlier inventory secured parties. |
| Two perfected creditors claim the same collateral and neither has a PMSI | Priority between secured parties (first to file or perfect) | Apply the first-to-file-or-perfect rule: the secured party who first filed or first perfected, whichever is earlier, wins so long as there is no later gap in perfection; an unperfected interest loses to a perfected one. |
| A debtor sells encumbered inventory to a customer who buys in good faith without knowledge the sale violates a security interest | Buyer in ordinary course of business | Let the buyer in ordinary course take free of a security interest created by the buyer's seller, even if perfected and even if the buyer knows it exists; this is the central exception protecting retail customers of inventory financing. |
| A retailer finances a consumer's purchase of household goods and never files a financing statement | Automatic perfection of a consumer-goods PMSI | Recognize that a PMSI in consumer goods perfects automatically on attachment without filing; but note the unfiled interest loses to a good-faith consumer-to-consumer buyer for value (the garage-sale rule) absent a filing. |
| Collateral is sold, exchanged, or destroyed and the debtor receives cash, a trade-in, or insurance money | Proceeds of collateral | Note the security interest continues in identifiable proceeds and is automatically perfected for twenty days; preserve perfection beyond that through the same-office rule, a cash-proceeds exception, or a new filing, and trace commingled cash by the lowest-intermediate-balance rule. |
| A debtor defaults and the secured party seizes the collateral without going to court | Default and repossession self-help | Permit self-help repossession only if it can be done without a breach of the peace; a confrontation, entry over objection, or breaking in breaches the peace and exposes the creditor to liability, requiring judicial process instead. |
| After repossession the secured party sells the collateral, and a dispute arises over the price, notice, or the leftover debt | Disposition of collateral and surplus or deficiency | Require every aspect of the disposition to be commercially reasonable with proper notice to the debtor; a noncompliant sale shifts the burden to the creditor and may bar or reduce a deficiency, while any surplus goes to the debtor. |
| A secured party keeps the collateral to satisfy the debt instead of selling it | Strict foreclosure or acceptance in satisfaction | Allow the creditor to accept collateral in full or partial satisfaction only with the debtor's consent and without objection from other secured parties; bar strict foreclosure on consumer goods where the debtor has paid sixty percent, forcing a disposition sale. |
| The collateral is a bank deposit account, securities, or other investment property held by an intermediary | Control over deposit accounts and investment property | Note perfection in a deposit account as original collateral requires control (the secured party is the bank, becomes the customer, or signs a control agreement), and a party with control beats a party perfected another way. |
| Collateral becomes attached to real estate and a mortgagee or real-estate claimant competes with the secured party | Fixtures and the fixture-filing priority | Determine whether the goods are fixtures, then resolve priority by a perfected fixture filing in the real-property records; a PMSI in fixtures perfected by fixture filing within twenty days of attachment beats a prior recorded real-estate interest. |
| The debtor goes bankrupt or a judgment creditor levies, and a secured party's perfection timing is in question | Lien creditors and the trustee in bankruptcy | Compare the secured party's perfection date to the lien creditor's levy or the bankruptcy petition; an unperfected security interest is subordinate to a lien creditor, and the bankruptcy trustee uses strong-arm powers to avoid it. |
| A security agreement covers collateral the debtor obtains later or secures loans made after the original advance | After-acquired property and future advances | Enforce an after-acquired property clause (with the consumer-goods and commercial-tort limits) and validate future-advance clauses; the priority of future advances generally relates back to the original filing date. |
Conflict of Laws
| When you see… | Spot this issue | Your move |
|---|---|---|
| An actor domiciled in State A injures a victim in State B, or the conduct and injury occur in different states with different liability rules | Tort choice of law | Identify the forum's method: traditional vested rights (lex loci delicti, the place of the wrong) versus the Second Restatement most-significant-relationship test versus governmental interest analysis; apply the chosen approach to the contacts and the competing state policies. |
| A contract was made in one state, performed in another, or contains a clause choosing a particular state's law | Contract choice of law | Enforce a valid choice-of-law clause unless it offends a fundamental policy of a state with a materially greater interest; absent a clause, apply the place of contracting under vested rights or the most-significant-relationship factors of the Second Restatement. |
| The forum and the foreign state differ on a statute of limitations, burden of proof, or measure of damages | Characterization of substance vs procedure | Classify the issue as substantive (governed by the chosen foreign law) or procedural (governed by forum law); traditionally limitations were procedural and the forum's applied, but borrowing statutes and the Second Restatement may apply the foreign limitations period. |
| The forum's choice-of-law rule points to another state whose own choice-of-law rules point back to the forum or to a third state | Renvoi | Note most courts reject renvoi and apply only the foreign state's internal law, ignoring its conflicts rules; recognize the narrow exceptions (title to land and validity of divorce) where courts accept the remission to reach uniform results. |
| Applying the otherwise-governing foreign law would enforce something the forum finds deeply offensive, such as a penal or repugnant claim | Public policy exception | Let the forum refuse to apply foreign law that violates a strong local public policy and instead dismiss or apply forum law; reserve this for fundamental policy conflicts, not mere differences in the rules. |
| A party's home state is contested for jurisdiction, taxation, succession, or choice of law, and they moved, kept ties to an old state, or lacked capacity | Domicile determination | Find domicile by physical presence plus intent to remain indefinitely; a domicile of origin persists until a new one is acquired, and a person has exactly one domicile at a time for any given purpose. |
| A party seeks to enforce a sister-state judgment in the forum, or the judgment debtor attacks the rendering court's authority | Full faith and credit for judgments | Require the forum to recognize a sister-state judgment that is final, on the merits, and rendered with proper jurisdiction; permit attack only on jurisdiction or fraud, not on the merits, and bar relitigation of issues already decided. |
| A judgment from another nation, not a sister state, is offered for enforcement | Recognition of foreign-country judgments | Note the Full Faith and Credit Clause does not apply to foreign-nation judgments; apply comity and the Uniform Foreign-Country Money Judgments Recognition Act, refusing enforcement for lack of due process, no impartial tribunal, or fraud. |
| A dispute concerns title to, transfer of, or inheritance of land located in one state while the owner is domiciled in another | Property and the situs rule | Apply the law of the situs to all questions affecting interests in real property (validity, transfer, and succession of land); for movable personal property apply the situs at the time of the transaction or the decedent's domicile for succession. |
| A couple married validly in one state but the marriage would be void where they now live, or a divorce decree from another state is challenged | Marriage and divorce validity across states | Apply the place-of-celebration rule to uphold a marriage valid where performed unless it violates a strong forum public policy; recognize an ex parte divorce under FFC only if the rendering state was the petitioner's bona fide domicile. |
| A federal court sitting in diversity must decide whether to apply state or federal law, or which state's law applies | Erie and choice of law in diversity | Under Erie apply substantive state law and federal procedural law; under Klaxon the federal court applies the choice-of-law rules of the state in which it sits to pick which state's substantive law governs. |
| A single case presents multiple issues such as standard of care and damages caps that point to different states under interest analysis | Depecage or issue-by-issue analysis | Apply the most-significant-relationship test separately to each issue, so different states' laws may govern different questions in the same case rather than picking one state's law for everything. |
| The forum's limitations period has run but the foreign state's has not, or vice versa, and one party invokes a time bar | Defenses and statutes of limitations | Apply the traditional rule treating limitations as procedural (forum law governs), then check for a borrowing statute that imports the shorter foreign period and the Second Restatement approach treating a substantive bar as part of the governing law. |
| Two states have different rules and the facts implicate each state's policy, or only one state actually cares about applying its rule | Governmental interest analysis and true vs false conflict | Classify the conflict: in a false conflict apply the only interested state's law; in a true conflict apply forum law (Currie) or the comparative-impairment approach favoring the state whose policy would be most impaired if its law were not applied. |