Tuesday, December 12, 2017


Lots of trespassers on the MBE.  And as such there are some rules to know so that you can apply them to questions testing the many different angles that the writers of the test can choose to focus on in the questions.

In these questions the trespasser will be the plaintiff suing the landowner for damages resulting from harm caused to the trespasser. Step one is to determine whether the trespasser is discovered or undiscovered.  If the trespasser is undiscovered (or unanticipated), then the landowner has a duty to refrain from willful or wanton misconduct.  In other words, not much of a burden here on the landowner to prevent harm to those who are entering the landowner's land without consent from the landowner and without knowledge as to their entering. No amount of negligence will suffice.

On the other hand, there will be times when a landowner knows that trespassers have been on his/her land in the past and these trespassers are known as discovered trespassers.  The burden, though still rather slight, is increased here since the landowner has knowledge of the entrance.  If the landowner maintains an artificial (as opposed to natural) condition on the land and if that condition is unlikely to be noticed by a discovered trespasser (for example, if it's concealed), then the landowner must either make that condition safe or warn the trespassers of the condition but only if the condition involves a risk of death or serious bodily harm to the trespasser.  If the landowner carries on dangerous activities on the land, then the landowner should exercise reasonable care in the exercise of such activity.

Lastly, the rules change if the trespasser is a child.  A landowner should exercise ordinary care to avoid foreseeable risk of harm to children caused by dangerous conditions on the property.  Note that here a distinction is generally not made between artificial and natural conditions as it was above.  The landowner here may be liable if the plaintiff can show that there was a dangerous condition on the property that the landowner should have been aware of, the owner knew or should have known that children frequent the area, the condition on the land is likely to cause injury, and the expense of remedying the situation, on balance, would be reasonable when compared to the magnitude of the risk posed.  This specific rule as it relates to trespassing children is known as the attractive nuisance doctrine.

Thursday, November 30, 2017

Forum Analysis (First Amendment)

Every subject on the MBE has its hot topics (topics that are heavily tested on the MBE) and one of those topics within Constitutional Law is the First Amendment. Entire courses in law school are dedicated to this one amendment and so the depth makes it especially difficult to prepare for during the short bar prep period.  But a very helpful start when tackling this topic is to understand the difference between content-based restrictions on freedom of speech, content-neutral restrictions on freedom of speech and restrictions on freedom of speech that primarily affect conduct related to speech rather than the content of the speech itself. The focus here will be on the latter but first a bit about content-based restrictions, and content-neutral restrictions.

For the most part (with some exceptions) content-based restrictions on freedom of speech are presumptively unconstitutional.  To be valid, restrictions on content must be necessary to achieve a compelling government interest. Content-neutral restrictions require a lower level of scrutiny; namely, such regulations are generally subject to intermediate scrutiny whereby they must advance important interests unrelated to suppression of speech and must not burden more speech than necessary.

Unlike with content-based and content-neutral regulations on speech, the government generally does have the power to regulate conduct associated with speech.  But that power is not absolute and will depend very much on the forum in which the speech is taking place. And that's where forum analysis comes in.

Public Forums and Designated Public Forums: Public forums are reserved for those areas that have historically been open to speech-related activities (streets, sidewalks, etc.). In addition, there are areas that have historically not been open to speech-related activities but which have been been open by the government for speech-related activities on a limited basis (schoolrooms, recreations groups, etc.), and these are known as designated public forums. The test for public forums and designated public forums is the same: the government may regulate speech in these forums with reasonable "time, place, and manner" regulations that are content neutral, narrowly tailored to serve important government interests, and leave open alternate channels of communication.

Limited Public Forums and Nonpublic Forums: Unlike with the forums mentioned above, there are areas that the government has not historically opened for speech-related activity but which are opened for a very specific activity (for example, opening up a school gym to host a debate). These areas are deemed to be limited public forums.  There are also areas that are have not historically been open for speech-related activity and are not open for such on even a limited basis (jails, military bases, etc.), and these are known as nonpublic forums. There is more leeway here for government regulation; specifically, the government can regulate speech in such forums provided that the regulation is viewpoint neutral and reasonably related to a legitimate government purpose.

**note:  There are some outlines that interchange the words "limited" and "designated" public forums.  These forums are quite similar and if there is any distinction to be made it is that with a designated public forum, the forum has been open more frequently for speech-related activity, whereas with a limited public forum, the forum is generally open for a very specific purpose.

Friday, November 10, 2017

Legal Analysis

Most if not all people sitting for a bar exam have heard of the acronym "IRAC."  When analyzing a legal issue it's said that you should first state the issue, then state the rule that will resolve the issue, then analyze the rule, and finally draw a conclusion based on the analysis.  I highly recommend this approach for a bar exam; it's clear, and efficient.

But it's not a skill that comes easy, which is why many people struggle with bar exam essays.  Many of the points to score on essays come from the analysis aspect of IRAC and to perform well at legal analysis requires lots of practice.  The analogy I often use to explain how best to analyze a legal rule is to treat the rule as if it were a car engine, or a television set, or a computer, and if your goal was to figure out whether the piece of electronics contains all the necessary parts or if there is something missing that is preventing it from working properly.  Only once you've analyzed all the parts could you be confident in drawing a conclusion as to whether the item contains all the parts required for it to work properly.

For example, let's take a simple intentional tort, battery.  A common definition that one might read for this tort is that battery is a harmful or offensive contact with the person of another without the other person's consent.  To analyze this rule you need to look at each individual part of the the rule. Break the rule up into its component parts. Was the act harmful or would it be deemed offensive by a reasonable person? Was there a contact? Was the contact with the person of another? Did the other person give consent to this contact? Was there perhaps some kind of implied consent? Etc.

Once you've addressed all of the individual components of the rule, and only once you've addressed them, are you then prepared to conclude whether or not there has in fact been a battery.

That, in short, is legal analysis. It'll take you far on a bar exam in which the objective is to score points because the approach will allow you to analyze the rules in a way that it'll make it difficult for the grader not to award them!

Thursday, November 2, 2017

The Privileges and Immunities Clause (Art. IV vs The 14th Amendment)

As anyone who has or is preparing for the bar exam knows (or will know once it's covered) there are two privileges and immunities clauses.  Although the Privileges and Immunities Clause of Article IV is tested far more often, it's good practice to understand the differences so that you don't confuse them in the questions on the exam.  Let's focus on those differences:

Privileges and Immunities Clause of the 14th Amendment:

This is the one that students have told me they've been advised not to worry too much about. I agree with that advice, and yet questions pop up on occasion.  States may not deny their citizens the privileges and immunities of national citizenship.  Some examples of these rights are the right to petition Congress for redress of grievances, the right to vote for Federal officers, and, importantly, the right to interstate travel. Note that corporations are not protected by this clause.

Privileges and Immunities Clause of Article IV: 

This is tested far more often and as such there is more to discuss here.  The Privileges and Immunities Clause of Article IV prohibits intentional discrimination by a state against nonresidents of the state when the discrimination concerns fundamental rights such as rights relating to important commercial activities or rights relating to civil liberties.  Note well this qualification, though:  if the discrimination applies to a right that is not commercial and does not involve civil liberties (for example the right of nonresidents to pay the same amount as residents for a recreational hunting license) then this clause is not the correct one to analyze.

But let's assume that the right does affect an important commercial activity or civil right. In that case, the state law regulating that right might still be valid but only if the state has a substantial justification for the different treatment of residents and nonresidents.  The state will want to show that the nonresidents either caused the problem or are part of the problem that the state is attempting to solve and that there are no less restrictive means by which the state might undertake to solve the problem.

Here, as in the Privileges and Immunities Clause of the 14th Amendment, corporations are not protected.  In additions, Aliens are not protected.

Friday, October 20, 2017

Contract Damages

Contract damages can quickly become confusing since there are so many of them and each tends to apply in specific situations. This post will provide a short summary of some of the most commonly tested damages:

Compensatory Damages: These damages pop up all the time on MBE questions. Essentially the goal is to put the non-breaching party in the position s/he would have been in had the contract not been breached.  You may see different terms here that all amount to compensatory damages. For example, expectation damages, benefit-of-the-bargain damages, etc., are all forms of compensatory damages. Assume that x contracts to purchase 100 widgets from y at a price of 2$ per widget. Y breaches and x has to go out and buy the 100 widgets from z for a price of 3$ per widget. X has now spent 100$ more (300$ rather than 200$) than x would have spent had y not breached the contract so x gets to collect 100$ from y in compensatory damages. After collecting the 100$ from y, x will have paid 200$ (300$-100$) which is exactly what x expected to pay when entering into the contract with y. Or, stated otherwise, x is in the position x would have been in had y not breach the contract.

Reliance Damages: You should consider reliance damages when compensatory damages are too speculative to measure.  Reliance damages will award the plaintiff the cost of performing the contract rather than any expectation the plaintiff may have had. In other words, reliance damages are designed to put the plaintiff in the position the plaintiff would have been had the contract never been formed rather than in the position the plaintiff would have been had the contract been performed but had not been breached.

Consequential damages: Consequential damages are damages that a plaintiff might receive in addition to compensatory or reliance damages.  These damages are recoverable only if at the time the contract was made a reasonable defendant would have foreseen the damages as a probable result of the breach.  The key word here is foreseeability and that word should always appear in an analysis of consequential damages.  Note that in a contract for the sale of goods (UCC) only the buyer may receive consequential damages.

Incidental Damages: When working through a UCC question you should consider incidental damages. These damages include expenses reasonably incurred by the buyer and seller in a contract for the sale of goods.  For example, the buyer might recover for expenses incurred by inspecting the goods or holding the goods after they were rightfully rejected, while the seller might recover for expenses incurred storing, shipping, or re-selling goods that were wrongfully rejected by the buyer.

Liquidated Damages: These are the damages that the parties stipulate to in the event of a breach.  These damages must be in an amount that is reasonable in view of the actual or anticipated harm caused by the breach. If the amount is deemed unreasonable, the courts will construe the liquidated damages clause as a penalty and will not enforce the clause.

Wednesday, October 11, 2017

UBE Essentials: Corporations & LLCs

Attached is a sample page from the chapter on Corporations and LLCs from my book UBE Essentials.  UBE Essentials contains chapters on every subject tested on the UBE and is available on Amazon @ https://www.amazon.com/UBE-Essentials-Sean-Silverman/dp/1544887574/ref=sr_1_1?ie=UTF8&qid=1507770681&sr=8-1&keywords=ube+essentials

Wednesday, October 4, 2017

An Approach to Answering MBE Questions

I wrote a post for the Bar Exam Toolbox outlining my approach to answering MBE questions.  Hope you'll find it helpful!  Read more @

Tuesday, September 26, 2017

MBE Percentiles (July 2017)

As they do each administration, the Illinois Bar Examiners have released nationwide MBE percentiles for the July 2017 exam.  My thoughts on the numbers:

The data we don't have is the number of points that any given raw score was scaled up to achieve any given scaled score.   Looking at the data, a 140 scaled score would place in you in the 47th percentile in July 2017. In comparison, a 140 scaled score would have placed you in the 69th percentile on the February 2017 exam.  This indicates that on average students scored higher in July 2017 than in February 2017 since the same scaled score places you in a lower percentile in July.

Some other points to note: A 145 scaled score would place you in the 58th percentile, a 150 the 68th percentile, and a 155 the 78th percentile. The 90th percentile requires somewhere between a 160-165 scaled score. The top percentile listed (99th) required a 175 scaled score and the lowest percentile (1st) was a scaled score of 105.

Friday, September 22, 2017

Shareholders' Lawsuits

Lots of people struggle with the subjects that fall under the category of "business associations."  Corporations is one of those subjects and it's tested frequently on the Multistate Essay Exam.  A large number of the questions dealing with corporations include issues regarding shareholders, and this post will address one of those issues.

Direct Actions by a Shareholder:

There are times in which a shareholder might feel that a fiduciary duty was breached by either a director or an officer of the corporation and that the shareholder is affected directly by the breach.  The shareholder (rather than the corporation itself) is affected directly if the shareholder suffers the most immediate and direct damage and if the defendant's duty of care ran directly to the shareholder rather than to the corporation. If a shareholder sues in such a situation that is known as a direct action by the shareholder, and considerations are important because in a direct action by the shareholder, recovery is for the benefit of the individual shareholder and not the corporation.

Derivative Actions by a Shareholder:

I see derivative actions tested a bit more frequently than direct actions.  In a derivative action, the shareholder is asserting the corporation's rights (rather than the rights of the individual shareholder).  Recovery here generally goes to the corporation rather than to the shareholder, and yet interestingly the corporation is still named as the defendant.  There is a process here to keep in mind if a shareholder is to bring a derivative action.

The shareholder must have been a shareholder at the time of the act or omission complained of or must have become a shareholder through transfer by operation of law from one who was a shareholder at that time. In addition, the shareholder must adequately and fairly represent the interests of the corporation.  Assuming these requirements are satisfied, the shareholder must make a written demand on the corporation to take suitable action and the derivative proceeding may not be commenced until 90 days have elapsed from the date of that demand.  The 90-day requirement will not be enforced, however, if the shareholder has been notified that the corporation has rejected the demand or if irreparable injury to the corporation would result if required to wait 90 days.

If a majority of directors (at least 2) who have no personal interest in the controversy find in good faith after reasonable inquiry that the suit is not in the best interest of the corporation, then the suit may be dismissed on motion by the corporation.  To avoid such dismissal, the shareholder will have the burden to prove that the decision was not made in good faith after reasonable inquiry.  The burden will shift to the corporation, however, if it's not true that a majority of directors had no personal interest in the controversy.  In that case, the corporation will have the burden to prove that the decision was made in good faith after reasonable inquiry.

Once the derivative action has ended, the court may order the corporation to pay the plaintiff's reasonable expenses if it finds that the action has resulted in a substantial benefit to the corporation. If, however, the court finds that the action was maintained without reasonable cause, the court may order the plaintiff to pay reasonable expenses to the defendant.

Monday, September 18, 2017

July 2017 Florida Bar Exam

Some data by school for passage rates on the July 2017 Florida Bar Exam:

Thursday, September 14, 2017


Some of the most difficult questions within the subject of Criminal Law are found within the topic of inchoate offenses.  Within these offenses are the following crimes: solicitation, conspiracy, and attempt.

Like most aspects of Criminal Law, the elements will guide the analysis.  The following are the aspects of solicitation that often pop up in the questions and therefore should be known well:

Solicitation requires that a person incite, counsel, advise, urge, or command another to commit a crime with the intent that the person solicited commit the crime.  The fact that the person must intend that the other commit the crime makes this a specific-intent crime.  Importantly, it is not required that the person solicited actually respond affirmatively and commit the crime.  So, for example, if x commands y to commit a crime and x intends for y to actually commit that crime, the fact that y denies x's command has no bearing on the analysis as to whether x has committed the crime of solicitation; the crime is in the command itself.

It is also not a defense that the person solicited is not convicted of the offense solicited, nor is it a defense that the offense solicited could not in fact have been successful.  Withdrawal is always worth considering in Criminal Law, and with solicitation most jurisdictions have held that withdrawal is not a defense.   One important defense to note, however, is a situation in which the solicitor could not have been found guilty of the completed crime because of a legislative intent to exempt the solicitor.  For example, a minor female cannot be guilty of solicitation for the crime of statutory rape by urging an adult male to have intercourse with her because the legislative intent is to not find the minor guilty of statutory rape in such a situation once the crime is completed.

Let's assume that the person solicited actually completes the solicited crime. In such an instance both the person solicited and the solicitor can be held liable for that completed crime.  Similarly, if the person solicited commits acts which would qualify for the crime of attempt, both the person solicited and the solicitor can be liable for attempt. And finally if the person solicited agrees with the solicitor to commit a crime but then chooses not to commit it, don't forget that both the solicitor and the person solicited might be liable for conspiracy. In all of these circumstances, though, the solicitor will not be liable both for the solicitation and the completed crime.  The crime will merge with the solicitation so that the solicitor will be liable either for the solicitation or the completed crime but not for both.

***Note: Although the default rules on the MBE require a knowledge of the common law, its important to note that under the Model Penal Code one can renounce (i.e., withdraw from) the solicitation if the solicitor prevents the commission of the crime such as by persuading the person solicited not to commit the crime.

Tuesday, September 12, 2017

MBE Scores Slightly Up

The national average score on the July 2017 Multistate Bar Exam rose 1.4 points over the July 2016 average.

Thursday, August 31, 2017

Automatic and Temporary Perfection of a Security Interest

To review, there are 5 ways to perfect a security interest as per the rules in Article 9 of the UCC.  The previous 2 posts have discussed 3 of those ways (filing, possession, and control), and this post will discuss the remaining 2, automatic perfection, and temporary perfection.

Automatic Perfection:  The rules you'll need to know about automatic perfection are very limited.  Only a purchase money security interest ("PMSI") in consumer goods is automatically perfected.  A seller of goods has a PMSI when the security interest is retained to secure at least part of the purchase price of the goods.  So, if a seller of consumer goods lends money to the buyer and retains a security interest to secure that loan (i.e., ensure repayment) then that security interest will be automatically perfected with no further action required to perfect it.  It's important to note that not all PMSI's are eligible for automatic perfection.  If the PMSI is in inventory or equipment, for example, then you should not apply the rule regarding automatic perfection; it should only be applied to consumer goods.  In addition, there is an exception for motor vehicles to keep in mind:  a security interest in motor vehicles can be perfected only by notation on the vehicle's certificate of title.

Temporary Perfection:  The first place to begin when discussing temporary perfection of a security interest is with proceeds.  A security interest in proceeds from original collateral is continuously perfected for 20 days from the debtor's receipt of the proceeds.  This is automatic perfection but the security interest will become unperfected after 20 days unless the statutory requirements are followed.  The security interest, however, will continue beyond the 20 days if:

(1): The security interest in the original collateral was perfected by filing a financing statement, a security interest in the type of collateral constituting the proceeds would be filed in the same place as the financing statement for the original collateral, and the proceeds were not purchased with cash proceeds of the collateral.


(2): The proceeds are identifiable cash proceeds.


(3): The security interest in the proceeds is perfected within the 20-day temporary perfection period.

In addition to proceeds, there are a few other types of security interests eligible for 20-day temporary automatic perfection.  The first deals with instruments, negotiable documents, and certificated securities.  Where new value is given under an authenticated security agreement for instruments, negotiable documents, or certificated securities, perfection is valid for 20 days after attachment; nothing further is required to perfect temporarily.

In addition, where a creditor has perfected a security interest by possession and delivers to the debtor instruments, negotiable documents, certificated securities, or goods in the possession of a bailee, perfection will continue for 20 days after which the creditor must re-perfect (since the creditor no longer has possession).

An example here might be helpful:  Assume that the creditor possesses a promissory note as collateral for a loan given by the creditor to the debtor.  The note has been perfected by possession but at some point the creditor must give the note to the debtor so that the debtor can present it for payment.  Perfection of the security interest will not be lost on that note the moment that the creditor stops possessing it, but the creditor will need to perfect (for example file or re-possess) the note within those 20 days or else lose perfection.

Thursday, August 24, 2017

Perfection of a Security Interest by Possession or Control

In the last post I discussed how one might perfect a security interest by filing a security agreement.  There are 5 ways in total to perfect a security interest, and this post will be focus on 2 of the remaining 5, possession and control.


Security interests in most types of collateral can be perfected by possession.  There are some types of collateral, however, that cannot be perfected by possession and they should be kept in mind.  The types of collateral that cannot be perfected by possession are general intangibles, non-consumer deposit accounts, non-negotiable documents, electronic chattel paper, certificate of title goods, and accounts.  In other words, to perfect a security interest in these types of collateral will require perfecting by a method other than possessing the collateral.

If perfecting by possession, the security interest will be perfected from the moment of possession and will continue as long as possession is retained.  When the collateral is being possessed by a bailee, possession will begin the moment a bailee authenticates a record acknowledging that it is holding the collateral for the benefit of the secured party.


As with possession, there are certain types of collateral that can be perfected by control, and here they are rather limited. They are non-consumer deposit accounts, electronic chattel paper, and investment property. Regarding non-consumer deposit accounts, a bank in which a non-consumer deposit account is maintained will automatically have control over the deposit account.  If the secured party is not such a bank, it may obtain control over a non-consumer deposit account by putting the deposit account in the secured party's name or by agreeing in an authenticated record with the debtor and the bank in which the deposit account is maintained that the bank will comply with the secured party's orders regarding the deposit account without requiring the debtor's consent.

As to electronic chattel paper (chattel paper stored in an electronic medium such as a computer), it is controlled when a system is put in place to show the transfer of interests in the chattel paper which reliably establishes the secured party as the assignee.

And finally, there is investment property.   One can gain control over a certificated security (such as a stock or bond represented by a certificate) by taking possession of the certificate if it is in bearer form.  If, however, the certificate is in registered form, the secured party must take possession and the certificate must be indorsed to the secured party or registered by the issuer in the name of the secured party.

If the investment property is a securities account rather than a certificated security, then one will obtain control over that account if the owner of the account instructs the securities intermediary that the secured party has the same rights in the account as the owner or if the owner instructs the intermediary that the intermediary may comply with the secured party's orders without the owner's further consent.