## Thursday, April 12, 2018

### Intestate Distribution

When studying the subject of Wills for the UBE you'll need to learn quite a lot about how property is distributed when there is no will directing its distribution.  This is known as intestate distribution and  there are three different methods used:

Per Stirpes: Under a per stirpes distribution, the estate is divided by the number of members of the first generation who are either alive or are survived by issue.  Each member who is alive takes their share, and the shares of deceased members drop to the next generation. The shares that drop are divided by the number of members in the next generation.

Example:  Assume that T has 5 children, A, B, C, D, and E.  Further assume that these are T's only heirs and so if alive they would each get 1/5th of T's estate. At the time that T dies, A, who had 2 children, has already died, and B, who had 1 child, has also died.  C, D, and E, each of whom has 1 child, are alive at the time of T's death.

Under a per stirpes distribution, since C, D, and E are alive, they will each take their 1/5th share. Further B's only child will take B's 1/5th share. A's 2 children will share A's 1/5th share so each will take (1/5th)/(2), or 1/10th.

Now assume that at the time T died, A, B, C, D, E have all died.  Under per stirpes, as above, the children of B, C, D, and E would each get 1/5th, and the children of A would each get (1/5th)/(2), or 1/10th.

Per Capita with Representation: This distribution is very similar to per stirpes (and is sometimes called modern per stirpes, or American per stirpes).  The difference is important, however, when as above A, B, C, D, E  have all died prior to the death of T.  Under this system of distribution, the initial division into equal shares occurs at the nearest generation of descendants which has a member living at the decedent's death.  So, if A, B, C, D, and E have all died prior to T dying then the property will be divided equally among the children of each of them.  In other words, each will get 1/6th.

Per Capita at Each Generational Level:  This is the most important one to know for purposes of the UBE since this is the system followed by the Uniform Probate Code. Under this system of distribution, the initial division of shares occurs (as with per capita at each generation) at the first generational level at which there are living takers. But here the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level.

Example:  Assume again that T has 5 children, A, B, C, D, and E. A and B are both alive at T's death.  C, who has 3 children, died prior to T dying. D, who has 2 children, died prior to T dying. And E, who has 1 child, died prior to T dying.

Under a system of per capita at each generational level, A and B will each get their 1/5th share since they are alive. Then, the shares that will be passed down by all deceased members are combined.  So, the 3/5th that remain will be combined among the 6 children of C, D, and E, and each will get (3/5th)/(6) or 1/10th each.

## Friday, April 6, 2018

### The Final Judgment Rule and Interlocutory Appeals

You've got to be ready for some questions about appeals on the MBE.  It shows up in a few different contexts with one context focusing on whether interlocutory orders are reviewable immediately or instead whether only final orders are reviewable. The general rule to note (sometimes referred to as the final-judgement rule) is that only final orders are reviewable, but the inquiry doesn't end there.

Certain interlocutory orders are reviewable as of right; they include injunctions, appointments of receivers, and certain admiralty, patent infringement, and property possession cases.  In addition, the Interlocutory Appeals Act allows for discretionary review when the trial judge certifies that the interlocutory order involves a controlling question of law. Review of interlocutory orders is more likely if substantial ground for difference of opinion exists, and immediate appeal from the order may materially advance the ultimate termination of the litigation. It'll also be necessary that the court of appeals agrees to allow the appeal.

Another basis for immediate appeal prior to a final order is the Collateral Order Doctrine.  For this rule to apply, the claim or issue that is the subject of the appeal must be separable from and collateral to the main suit and too important of an issue to require deferring appellate review until a final judgment on the main suit has been rendered.

A few additional points to note: an order granting or denying the certification of a class action may be reviewed at the court's discretion within 14 days after entry of the order. In addition, in rare circumstances, the final-judgement rule may be avoided through a variety of appellate writs such as mandamus (compelling a judge to act) and prohibition (prohibiting a judge from acting).

## Monday, April 2, 2018

### MBE Percentiles, February 2018

The Illinois Board of Bar Examiners has released the results for the February 2018 bar exam and as usual with the specific state results, national MBE percentiles have been released.

There are 175 potential raw points on the exam and the highest scaled score that one can achieve is a 200.  On this exam, a scaled score of 135 would place you in the 60th percentile of all test takers.  Just 5 more scaled points (140) would jump you up to the 71st percentile.  At the very high end, a 165 scaled score on this exam would place you in the 98th percentile of all test takers.

If you're preparing for the MBE, that 140 scaled score is an excellent goal.

The table is below:

## Wednesday, March 28, 2018

### MBE Fast Fact: Obscenity

"I shall not today attempt to further define the kinds of material I understand to be embraced within that shorthand description ["pornography'] and perhaps I could never succeed in intelligibly doing so. But I know it when I see it."

So said Justice Potter Stewart in a 1964 Supreme Court opinion attempting to determine whether a movie was protected speech under the First Amendment or whether it fell outside the zone of protected speech because it was obscene.

You likely won't need to define pornography on the MBE, but you will need to understand the test for obscenity since obscene speech is not protected by the First Amendment. Here's what to know:

Speech is obscene if it describes or depicts sexual conduct that taken as whole by the average person does all 3 of the following:

~ Appeals to the prurient interest in sex. A community standard will be used to determine whether this element has been satisfied.

~ Is patently offensive and an affront to contemporary community standards.

~ Lack serious literary, artistic, political, or scientific value. Notably, here rather than a community standard, a national reasonable person standard is used to determine if this element is satisfied.

Another point to note, the state may adopt a specific definition of obscenity applying to materials sold to minors even though the material might not be obscene if the intended audience were instead adults.

## Tuesday, March 27, 2018

### The Powers and Limitations of the President

The President of the United States as part of the executive branch of government is granted certain powers by the Constitution, but those powers are far from absolute. For purposes of the MBE it's important to understand both the powers of the President as well as the limits placed upon whoever holds the position.

The following are the key points to keep in mind:

~ The President has the power to appoint all ambassadors, other public ministers and consuls, justices of the Supreme Court, and all other officers of the United States. Congress, however, vests the appointment of "inferior officers."  It should be noted that Congress may not appoint members of a body with administrative or enforcement powers (often tested).

~ The President can remove high level executive officers (for example, members of the cabinet), and may do so at will without any interference from Congress. Congress, however, may provide limitations on the power of the President to remove all other executive appointees. If Congress itself wants to remove executive officers it may do so but only through the impeachment process.

~ The President may grant pardons for all federal offenses but not for impeachment or for civil contempt. Congress has no power to limit the pardon power of the President.

~ The President can veto an act of Congress, but that act may still become law if the veto is overridden by 2/3 vote of each house.  Importantly, the veto power only allows the President to approve or reject a bill in total; there is no right granted to cancel part of a bill and approve other parts (a line-item veto). The President has 10 days to exercise the veto power. If not exercised in that time span the bill is automatically vetoed if Congress is not in session. If Congress is in session, the bill becomes law.

~ The President may act militarily in hostilities against the United States without a formal declaration of war by Congress.  The President, however, has no power to declare war.

~The President has the power to enter into treaties with foreign nations, but such treaties require the consent of 2/3 of the Senate.  If there is a conflict between a treaty and a valid congressional act, the one that occurred most recently prevails.  A treaty, however, never prevails over the Constitution.

~The President has the power to enter into executive agreements with foreign nations, and these agreements do not require consent from the Senate.  If a state law conflicts with an executive agreement, the executive agreement prevails, but if a federal law conflicts with an executive agreement, the federal law prevails.

~ The President is given a privilege to keep certain communications secret.  But in criminal proceedings, communications involving the President will be available where a need for such information is demonstrated.

~ The President has immunity from civil damages based on any action he took within the official responsibilities of the office but there is no immunity for acts that occurred prior to taking office.

~ The President is subject to impeachment. Grounds for impeachment include treason, bribery, and high crimes and misdemeanors. A majority vote in the House is needed to invoke charges against the President, and a 2/3 vote in the Senate is necessary to convict and remove from office.

## Monday, March 19, 2018

### Florida Bar Exam Essentials

Working on Florida Bar Exam Essentials.  These projects take time but I hope to have at least volume 1 out (covering all Florida multiple choice subjects) prior to the July exam!

## Thursday, March 15, 2018

### Defective Products

There are a variety of theories upon which one might sue for products liability. Among these theories are intent, negligence, strict liability, and breach of warranty. One commonality among every theory is that there must be proof that the product sold was defective and that it was defective when it left the defendant's control.  And because this element applies to all theories of products liability, it's important to understand well the rules regarding defective products.

There are three types of defects: manufacturing defects, design defects, and inadequate warnings.

Manufacturing Defects:  These defects occur when a product emerges from manufacturing different from and more dangerous than the products that were made properly. Importantly, you should note that with manufacturing defects, it's not required that all products within a line of products suffer from the defect; instead, only certain products within the line of products suffer from the defect, and those products are more dangerous that the products that are not defective.

Design Defects:  These defects occur when all products within a line of products have dangerous propensities that render them all defective based on a design defect in the product itself.

Inadequate Warnings: Along with design defects and manufacturing defects, a product might be defective as a result of the manufacturer's failure to provide adequate warnings as to the risk involved in using the product. Be careful with this one; if the risk is apparent to reasonable users then the manufacturer is not likely to face liability for failing to warn about such apparent dangers.

Along with understanding the various defects, you should also understand how each defect is proven. For manufacturing defects, defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect. For a design defect, plaintiff must show that defendant could have made the product safer and that doing so would not have been economically or otherwise infeasible.  And for inadequate warnings it'll need to be shown that there was a lack of warning as to a non-apparent danger; for example, manufacturers are not likely to be held liable for not warning buyers about the dangers of a knife since the dangers are apparent and for the knives to perform their function requires a danger inherent to the product.

## Wednesday, February 28, 2018

### Florida Bar Exam Essentials

I've had quite a few requests from students for this.  Hope to get it out soon for those preparing for the Florida exam!

## Saturday, February 24, 2018

### Good Luck!

Best of luck to all those who are preparing for the exam next week!! Posting will resume shortly to assist those who are planning to take the test in July.

## Monday, February 19, 2018

### Some Advice for the Final Week

If you're studying for the February MBE or MEE, the final week is a good time to review the outlines provided by the NCBE on its website for the subjects tested on these two exams.  If you notice anything on the outline that you don't feel like you've studied enough, go back to your outlines to better understand those concepts.  If a question on the MBE pops up testing it, it'll be fresh in your mind, and if it happens to show up on an essay, you'll be glad you reviewed it!

The MBE outline is @

http://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F201

And the MEE outline is @ http://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F183

Florida has posted something similar, so if you're preparing for the Florida Bar Exam, the outlines are @ https://www.floridabarexam.org/web/website.nsf/52286AE9AD5D845185257C07005C3FE1/125BA5AFD5EB7D2385257C0B0067E748.  Scroll to the bottom of that page, where they are listed under "Test Specifications...."

## Wednesday, February 14, 2018

UBE Essentials and MBE Essentials are now available for immediate download on the blog. For those in need of a resource for the final few weeks, I hope you'll find them helpful!

## Thursday, February 8, 2018

### Future-Advance Mortgages (Optional vs Obligatory)

There is no doubt that mortgages is a subject that you'll want to understand very well when preparing for Real Property on the MBE.  If you take a look at the subject-matter outline prepared by the National Conference of Bar Examiners ("NCBE"), under the topic on mortgages is listed a sub-topic of "future-advance mortgages."  A few important points to keep in mind to be prepared to answer these questions correctly:

Watch for a situation in which a lender advances funds to a borrower for a fixed amount.  The lender secures a mortgage on property not only for the amount of money that it has advanced, but also for the amount (or amounts) it agrees to advance in the future.

It's possible that the future advances might be obligatory in the sense that the lender is contractually obligated to advance the future funds. But it's also possible that the future advances will be optional in which case the lender will retain the option to later decline to make any advances. This distinction is the key to the analysis.

If payments under a future-advance mortgage are deemed obligatory then a junior lender's lien is junior both to amounts advanced to the debtor before the junior lien was recorded and to amounts advanced after the junior lien is recored.

So, for example, if lender 1 lends money to debtor and secures a future-advance mortgage which is recorded in which the lender is contractually obligated to advance more funds in the future, then lender 1 need not worry about lender 2 (a 2nd mortgagee) lending money to buyer after lender 1's first advancement of funds but prior to the future advancement of later funds. Lender 1 will have priority over not only the first advancement but also over future advancements even if those advancements occur after lender 2 has recored its interest.

But if lender 1 lends money to debtor and secures a future-advance mortgage which is recorded but the future advancements are deemed optional then lender 1 will have priority over the 1st advancement but will be junior to any later mortgagee that advances money to the debtor prior to any future advancements by lender 1, assuming that the later mortgagee records to put lender 1 on notice.

The policy behind the distinction is that in the case of an obligatory loan, the junior lender can protect itself by checking the records and ascertaining the maximum amount of the senior lender's loan. But when those future advances are optional, the junior lender cannot know whether subsequent advances will be made and the senior lender can protect itself by choosing not to make those advances if a junior lender will be senior regarding any optional future advances.

## Sunday, January 28, 2018

### The Rule Against Perpetuities

The dreaded Rule Against Perpetuities. The rule has been described both as a "technicality-ridden legal nightmare," as well as a "dangerous instrumentality in the hands of most members of the bar."

And with that said, it's tested on the MBE, so let's try our best to understand it.

First, the rule: No interest is valid unless it must vest, if at all, not later than 21 years after some measuring life at the creation of the interest.  But let's think of this in a more helpful way; if there is any possibility that an interest in property will not vest within 21 years of someone who is alive at the time that the interest is granted (a measuring life), then the common law Rule Against Perpetuities is violated.  And so in determining whether the rule has been violated you've got to come up with a hypothetical situation in which someone who has been granted a non-vested interest in property might have that property vest more than 21 years after all the measuring lives have died.

Let's say A grants property to B for "so long as no alcohol is consumed on the property, then to C." Here B has a fee simple subject to an executory limitation, and C has an executory interest. But the question is whether the executory interest granted to C is valid. The measuring lives here are A,B, and C.  It's possible that A, B, and C could die and then more than 21 years after the death of all, B's heirs will violate the condition causing the property to vest in C's heirs.  But that vesting will occur more than 21 years after the death of the measuring lives.  And so the executory interest in C violates the Rule Against Perpetuities, and the grant becomes a fee simple determinable.  If the condition is violated, the interest will revert back to A or A's heirs rather than shifting to C or C's heirs.

Or let's say that A grants property "to B for life then to B's children for life, then to B's grandchildren."  Assume that at the time of the grant to B, B has two children, C and D, and one grandchild, E.  Again, ask yourself whether it's possible that any of the granted interests might vest more than 21 years after all the measuring lives have died. The measuring lives here are A, B, C, D, and E.  Assume that a week after the grant C, D, E, and A all die.  Sometime later B has another child, F. Note that F is not a measuring life because F was not alive at the time of the grant. Then B dies.

So now F is alive and as per the grant, when B dies the property goes to F, B's child. No problem there since it was certain the property to F would vest within 21 years of a measuring life (here, B). F lives for another 25 years and then has a child, G.  Then F dies. Now the property is supposed to vest in G, B's grandchild.  The problem for G though is that all the measuring lives (A, B, C, D, and E) have been dead for more than 21 years.  If F were a measuring life, there would be no problem.  But F is not a measuring life as discussed above.  So, it was possible as per the grant that a granted interest would vest more than 21 years after the death of all measuring lives (as has happened here).  Because of that possibility, the interest granted to B's grandchildren violates the rule and should be stricken.

The rule is as horrible as everyone claims it to be.  And there are certain details not covered in this post that could be tested on the MBE.  But if you understand the above, you'll begin to understand how to analyze these problems, and the "legal nightmare" might be a bit less scary.

## Thursday, January 25, 2018

### UBE Essentials: Jurisdiction in Child Custody Cases

Jurisdiction is not just an issue that shows up in the subject of Civil Procedure on the UBE.  It also shows up in the heavily tested subject of Family Law.   Below is a sample from the chapter on Family Law from my book UBE Essentials covering this topic:

Q: What is the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)?

A: The purposes of the UCCJEA are to avoid jurisdictional disputes with courts of other states in matters involving child custody and visitation.  In addition, the Act aims to promote interstate cooperation, and to facilitate the interstate enforcement of custody and visitation orders.

Q: When does a court have jurisdiction to enter or modify a child custody or visitation order?

A: A court has jurisdiction to enter or modify such an order if the state is the child’s home state. In addition, jurisdiction is proper even if the state is not currently the home state of the child if the state was the child’s home state within the past six months and the child is absent from the state but a parent or person acting as a parent continues to live in the state.

Q: How is "home state" defined?

A: A child’s home state is the state in which the child lived with a parent (or a person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding. Note that if the child is younger than six months old, then the home state will be where the child has lived since birth, disregarding temporary absences.

Q: Are there other instances in which a court can have jurisdiction over a child custody or visitation order?

A: If when applying the above rule, no state has or accepts home state jurisdiction, then another court will have jurisdiction provided that the child and at least one parent (or person acting as parent) have a significant connection with the state and substantial evidence concerning the child is available in the state.  In addition, a court will have jurisdiction to enter or modify a child custody or visitation order if no other state has jurisdiction under any other test.

Q: Will a court that has jurisdiction over a child custody or visitation order ever lose that jurisdiction?

A: A court may lose jurisdiction but it will not lose jurisdiction until the court determines that neither the child nor the child’s parents (or persons acting as parents) continue to reside in the state or the child no longer has a significant relationship with the state and substantial evidence relating to the child is no longer available in the state.

Q: When might a court have emergency jurisdiction over a child custody or visitation matter?

A: A court has temporary emergency jurisdiction if the child has been abandoned or it is necessary in an emergency to protect the child because the child or a sibling or parent is subjected to or threatened with abuse.

## Saturday, January 13, 2018

### Tips for Preparing for the MBE

The following was my response to a question posed on a bar exam message board regarding how best to prepare in the remaining time for the February MBE.

(1): Train yourself so that the entire purpose of any question is to eliminate the answers that you know to be incorrect rather than to pick the answer that you know to be correct. After having taught this test for many years, I am certain that it is easier to spot the wrong answer than it is to pick the right answer. This is because the right answer isn't always entirely right (frustrating!) but rather it is more right than the others. You should set out to eliminate answers until there is only one answer left. Know the law well enough to know why the answers are wrong and you are well on your way to a significantly increased score.

(2): When implementing this strategy, you will still answer some questions incorrectly.  When that happens, note the rule of law that had you known you would have answered the question correctly. The MBE is all about testing the same legal issues over and over again while hiding the legal issues within varied fact patterns. Your goal should be to fully understand the rule of law so that the next time that an identical issue is tested within a different fact pattern you'll be able to use that rule to eliminate wrong answers and ultimately choose the "correct" one.

(3): Work on endurance and speed in the final month leading up to the exam. Performing well on this test requires more than memorizing legal knowledge. Or in language that you might recall from preparing for the LSAT, memorizing legal knowledge is a necessary condition to performing well, but not a sufficient condition. If there is one problem with the big bar-review companies (and for the most part I think they do a fine job), it's the percent of time dedicated to memorizing law at the expense of working on other variables such as test-taking strategies, endurance, speed, etc. You wouldn't learn how to play chess with competence by dedicating all of your time to studying the rulebook to the game. The same applies to the MBE; you've got to practice playing the game to increase your skill level.