Thursday, December 1, 2016


Very good advice on a podcast from the Bar Exam Toolbox regarding the MBE can be found @

In general, these podcasts provide some really great advice and information.

Tuesday, November 29, 2016

MBE Fast Fact: Privileges in Federal Court

I'm sometimes asked by students about how to apply rules regarding privileges in Evidence questions on the MBE since the Federal Rules of Evidence have no specific privilege provisions.   Privilege in the federal courts is governed by common law principles as interpreted by the courts.  There are some privileges, however, that are currently recognized and should always be applied on the MBE.  These include the attorney-client privilege, spousal immunity, the privilege for confidential marital communications, the psychotherapist(or social worker)-client privilege, and the clergy-penitent privilege.

Further guidance is provided by rule 501 of the Federal Rules of Evidence.  That rule provides that in the trial of a civil proceeding in which state law provides the rule of decision, the rules of privilege shall be determined in accordance with state law.  In other words, in such an instance (where state law governs the rule of decision), if a state law recognizes a given privilege, the federal court must recognize the privilege as well.

Tuesday, November 22, 2016

Wharton's Rule

It's likely that when preparing for the MBE and working through criminal law you'll come across a rule called Wharton's rule   I've noticed in working with students that the rule is tough to pin down and can get a bit convoluted.  But understanding the policy behind it helps to simplify it. 

Wharton's rule states that there can be no conspiracy to commit a crime unless the agreement to commit the crime involves at least one person who is not essential to the commission of the crime to which the conspirators agreed.  An example should help:

The crime of bigamy is committed when a person marries someone while already legally married to another.  Assume that x agrees to marry y even though y is already married to z.  Further assume that this marriage then takes place.  

The crime of bigamy has been committed but because conspiracy does not merge with the crime, an additional question is presented as to whether conspiracy to commit bigamy was committed when the agreement took place.  Bigamy requires at least two parties though (in this case x and y) and so Wharton's rule states that because the crime requires two people, conspiracy to commit the crime will require that at least 3 people agree to commit it.

And the policy behind this rule has a rational basis.  If it weren't the case that at least 3 people were required for conspiracy to commit bigamy then every time bigamy was committed there would also be a conspiracy to commit the crime.   And so since the crime of bigamy in this case could not have been committed by either x or y acting alone, neither x nor y can be found guilty of conspiracy to commit the crime. 

Monday, November 14, 2016

The Right to Travel

In the most recent post, I wrote about the fundamental right to vote.  Another fundamental right that shows up in MBE questions (not all that frequently) is the fundamental right to travel. And to reiterate, these fundamental rights are important both for substantive due process and for equal protection. In either case, if a law impairs such a right, the law will only be valid if it passes strict scrutiny.

An individual has a fundamental right to travel from state to state and to be treated equally after migrating to the new state.  It's important to note, though, that not every restriction on the right to cross state lines is an impairment on the fundamental right to travel.   An example to illustrate a restriction that would not be an impairment on the fundamental right to travel would be a penalty incurred by a parent who has abandoned his/her children by leaving the state and not paying child support.  In addition, often states will impose durational residency requirements for receiving certain benefits within the state.  It's questionable whether strict scrutiny is necessary here (in other words, it's questionable if such a residency requirements is an impairment on the fundamental right to travel).  It's probably best to keep the following in mind:  A one-year residency to receive full welfare benefits is invalid, as is a one-year residency to receive state-subsidized medical care.  Likewise, a one-year residency to vote in state is invalid.  On the other hand, a 30-day residency requirement to vote in state is valid, as is a one-year residency to obtain a divorce.

Note also that international travel is not a fundamental right.  It's best instead to apply rational basis scrutiny to ensure that any regulations impairing international travel are not arbitrary.

Thursday, November 3, 2016

The Right to Vote

Fundamental rights are important both in terms of the Equal Protection Clause and in terms of substantive due process.  If these rights are denied to everyone the correct analysis is substantive due process; if, on the other hand, they are denied to some individuals rather than everyone, then the proper analysis is equal protection. In either case, though, whenever a fundamental right is at issue, the proper analysis is strict scrutiny.  In other words, any government action that is going to affect a fundamental right must be necessary to serve a compelling government interest.

One such fundamental right is the right to vote, and there are a few key things to keep in mind regarding this specific fundamental right:

Residency Requirements:  Reasonable time periods for residency are valid.   Though reasonableness can be tough to evaluate, 30 days residency has been held to be valid for purposes of voting.

Property Ownership:  Conditioning the right to vote on ownership of property is almost always invalid. One exception deals with special purpose elections (voting for officials who do not exercise normal governmental authority but instead deal with matters of special interest in the community).

Poll Taxes: Poll taxes are unconstitutional.

Primary Elections: States may require early registration to vote in primaries. States cannot, however, prohibit political parties from opening their primary elections to anyone, whether or not registered with the party.

One Person One Vote: This principle applies whenever any level of government decides to select representatives to a governmental body by popular election from individual districts.  An exception, again, is for special purpose elections.

Gerrymandering: Race and other suspect classifications cannot be the predominant factor in drawing the boundaries of voting districts unless the plan satisfies strict scrutiny.

Tuesday, November 1, 2016

Helpful Link

Not too long ago the Federal Rules of Civil Procedure were updated and these updates are now tested on the MBE.  A good percentage of the testable content deals with discovery (especially that of electronically stored information), but the Amendments span a wider area than just discovery.  A very helpful summary of the information can be found at the following link:

Saturday, October 22, 2016

The Top Five: Eminent Domain and Leasehold Estates

Eminent domain questions come up with some regularity, especially so because this topic can be tested both in Property and in Constitutional Law.  A subtopic that comes up requires an understanding as to what happens to a leasehold if leased realty is taken by eminent domain.  The following are some points to remember:

(1):  If leased property is taken by eminent domain, the leasehold and the reversion merge in the taker  (often the state) and so the leasehold is terminated.

(2):  Once the leased property is taken by eminent domain there is no longer an obligation for the lessee to pay rent.

(3):  Both the lessor and lessee will be entitled to "just compensation" once the property has been taken by eminent domain.

(4):  The measure of "just compensation" provided is as follows:  The lessor is entitled to receive the value of the leased property (including the value of rent to be received) minus the value of the leasehold interest that has already been conveyed to the lessee.  The lessee is entitled to receive the value of the leasehold.

(5):  In a sense, the lessee benefits from the eminent domain as the obligation to pay rent ceases. As such, the rent that the lessee otherwise would have been required to pay is generally deducted from the value of the leasehold when determining the amount at which to compensate the lessee.

Saturday, October 15, 2016

Property Owners’ Associations and Common Interest Ownership Communities

Changes are coming to the MBE in February 2017 in the subject of Real Property.  The only guidance we have is the update provided by the NCBE, though unfortunately it's quite vague.  From now till February, though, I intend to post information and links that might clarify the areas mentioned as updated Real Property content, though necessarily there is a bit of guesswork that goes into trying to determine what exactly might be tested.

One such update states that the test will now include questions on property owners associations and common interest ownership communities.  Questions on the topic of common interest ownership communities may likely test the differences between condominiums and cooperatives, and some helpful information regarding this distinction can be found @

Regarding property owners' associations, an excellent link explaining the basics of homeowners' associations can be found @

Thursday, October 13, 2016

Preparing for the Florida Bar Exam

It's about that time to start preparing for the February bar exam.  My tips for getting started are published @

Sunday, October 2, 2016

MBE Percentiles (July 2016)

The MBE percentile chart has been released from the July 2016 exam.  The numbers are as we are used to seeing though I think it worth noting the jump in percentile from a 145 scaled score to a 150 scaled score.  An increase of 5 scaled points in this range results in a jump from the 57th percentile to the 70th percentile.   Similarly, 5 scaled points from a 140-145 results in an 11 point percentile jump from the 46th percentile to the 57th percentile.  The complete chart is below.

Tuesday, September 27, 2016

MEE Essentials Volume 2

MEE Essentials Volume 2 is now available at Amazon.  Between volumes 1 & 2 all subjects tested on the Multistate Essay Exam are covered.  I hope you find it a helpful supplement as you begin to prepare for the exam!

Tuesday, September 6, 2016

UCC Acceptance and Accommodation

A common question that tends to trip up students when we're working together on practice questions deals with the concept of accommodation under the UCC.  To understand these rules it's important to first understand that there are multiple methods of accepting an offer when the contract is for the sale of goods under the UCC.   If the seller chooses to accept in a method other than by shipment of the goods (for example, by directly notifying the buyer that the seller accepts) then the rules regarding accommodation do not apply. And if the goods are later sent and do not conform to the contract then that is a breach of contract and the buyer will have a variety of options, one of which is to sue for breach.

If the seller chooses to ship the goods without first notifying the buyer that the seller has accepted prior to shipment then that, too, might constitute an acceptance of the offer.  But if the seller seasonably notifies the buyer that the shipment is offered only as an accommodation to the buyer, such a shipment will not be treated as an acceptance.  Rather, the shipment will be treated as a counter-offer.

The buyer will then have a few options if the seller has shipped nonconforming goods.  The buyer can keep the non-conforming goods in which case there is a contract for the goods as they are at the price the seller has indicated.  The buyer can also reject the shipment thereby preventing a contract from forming.  Importantly, however, the option is not available here for the buyer to hold the seller in breach because without an acceptance of an offer by the seller there can be no breach of contract.

Thursday, September 1, 2016

Another Change to the MBE

Nothing of great significance here, but the NCBE has quietly announced on its page that beginning in February 2017, the MBE will be scored out of a total 175 points as opposed to 190 points.  The test will still consist of 200 questions but with this change 25 of the questions as opposed to 10 of the question will remain unscored, used only as potential questions for future exams.

This news won't affect anything in regards to studying for the exam, but I thought it an interesting change worth mentioning.

Sunday, August 28, 2016

Conflicts of Law: Real Property

Changes are coming to the MBE in February of 2017.  One such change is stated by the NCBE in its MBE subject-matter outline as "conflicts of law related to disputes involving real property."  This is rather vague and perhaps as we get closer to the exam we'll know more about the specifics that need to be known for these questions but there are a few points that I'd think should be known even as we wait to learn more.

The general rule governing conflicts of law in the subject of real property is that such property is subject to the laws of the place where the property is situated (sometimes called the "law of the situs").  The law of the place where the property is situated governs the disposition of real property and this will be true whether the disposition is by descent, deed, or any other method.

In addition, contracts related to real property are often governed by the law of the place where the property is situated. It's important to note, though, that if the real property is merely incidental to the contract and if the contract is of a personal nature, then the traditional conflicts of law rules regarding contracts will apply rather than the specific rules regarding real property.

More or on this change as well as the other changes to the content of the test in the months to come......

Wednesday, August 17, 2016

Standards of Review

Though the NCBE has not yet released any official Civil Procedure questions (that have actually shown up on previous exams) there are enough practice questions now floating around so that we can have a pretty good idea of the topics that are of special importance.   One topic that is showing up often requires an ability to specify what standard of review an appellate court should employ. In general, sometimes the appellate court gives great deference to the trial judge's ruling while in other circumstances far less is given.   Specifically, the following standards should be understood well for federal civil procedure questions:

De Novo:  This standard applies for questions of pure law.  If the issue reviewed by the appellate court is an issue of law, the appellate court will conduct a "de novo review."  Essentially, this means that the court will analyze the issue from scratch without giving any deference to the trial court's analysis.

Clearly Erroneous:  This standard applies for questions of fact.  Questions of fact decided by the trial court must not be set aside unless clearly erroneous.  Here, more deference is given to the trial court; the appellate court must give due regard to the trial court's decision regarding questions of fact.

Abuse of discretion:   When decisions are committed to the trial court' discretion, the appellate court will not reverse such discretionary decisions unless the appellate court believes that the trial court has abused its discretion.  This standard gives the greatest deference to the trial court.

Harmless Error Doctrine:  Though this isn't a standard of review in the same sense as the above three, it's worth noting as it is a means of assessing the seriousness of any errors that may be found by an appellate court.  Under this doctrine, even if the appellate court decides that a particular trial court's ruling was incorrect, the appellate court will not reverse the trial court's decision if the appellate court believes that the error was unlikely to have changed the outcome of the trial.