Tuesday, February 20, 2018

Final Week Discount

All books (MBE Essentials, UBE Essentials V1, and UBE Essentials V2) have been discounted for this final week of study.  When ordering, just enter the discount code "February" to receive the discount!

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 @


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

MBE Essentials and UBE Essentials Available for Immediate Download

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. 

Friday, January 12, 2018

Essay Blueprint

I've included here a note I send to students when we first start working together on essays that outlines my recommendations for effectively analyzing legal issues. Thought the blog readers might find it helpful as well!

For every issue that you spot in your initial read-through of the fact pattern, you should create an IRAC to analyze the issue. So, for example, if you spot 7 issues in the initial read-through, you should create 7 IRAC’s to analyze all those issues.

And each IRAC should contain the following.
(1): A statement of the issue. You should be concise with the issue statement; the idea here is merely to allow the graders to know that you’ve spotted an issue that they have placed into the facts.

(2): Rule statements: In the same paragraph in which you stated your issue you should state all of the law that you will need to later analyze the issue. Think ahead, here. All of your later analysis should be supported by some rule of law, so write down all of the law that you’ll need to later analyze the facts. Then skip a line.

(3): Analyze the facts using the rules you’ve stated in step 2 above. First, provide the graders with transition words such as “here,” or “as per the facts,” or “in this case.” The words aren’t important but it’s important that you let the graders know that you are moving on from stating the law to analyzing the facts. Then begin to analyze. This is where many of the points are earned; you want to use the rules that you previously wrote down in step 2 and attach them to the facts provided in order to solve the issue that you stated in step 1. Then skip a line.

(4): Provide the graders with another transition word such as “thus,” “therefore,” or “accordingly,” and then draw a conclusion that follows from your analysis in step 3.

A very simple example:
The issue is whether x committed a battery against y. Battery is the intentional harmful or offensive contact of another with causation. Contact is harmful if it causes injury or pain and it is offensive if it would be considered offensive by a reasonable person. The contact with the plaintiff can include anything connected to the plaintiff.

Here, we are told in the facts that y suffered an injury after x forcefully shoved y into the wall. This contact which was direct against y since x shoved y would likely be deemed harmful since y was injured when he broke his arm. Furthermore, the contact would likely be deemed offensive since a reasonable person in the position of y is likely to be offended by the forcefulness of the contact. In addition, it is not disputed that the injury to y was caused only by x’s act of shoving y into the wall.

Thus, because contact was made directly from x to y, and because x caused y harm by acting in a way that was both harmful and offensive, it is likely that a court would find that a battery was committed. 

Thursday, January 4, 2018

MBE Fast Fact: Cruel & Unusual Punishment

Regarding Criminal Procedure, by far the most important amendments to understand well for the MBE are the 4th, 5th, and 6th.  But every test has its curveballs and you could likely see questions on the 8th Amendment's prohibition against cruel and unusual punishment as well.

It's tough to pin down exactly what is meant by "cruel and unusual" but a helpful definition defines it as punishment that is grossly disproportionate to the seriousness of the crime committed.  Here are some important points to keep in mind that apply this principle:

--After a conviction for murder, the death penalty can be imposed only under a statutory scheme that gives the the judge or jury enough information and guidance in making the decision.  The statute cannot be vague and all mitigating evidence must be considered.

--The death penalty cannot be imposed for the crime of rape if the rape was neither intended to result nor did result in death.  In addition, the death penalty will not be imposed upon one convicted of felony murder unless the felony murderer acted with reckless indifference to the value of human life.

--A prisoner cannot be executed if the prisoner is insane at the time of execution, even if the prisoner was sane at the time that the crime was committed.

--The death penalty cannot be imposed upon a person who is intellectually disabled.

--Execution of those who were under 18 at the time they committed the offense violates the 8th Amendment.  Similarly, a mandatory life imprisonment without the possibility of parole on a person who was a minor at the time the offense was committed would be cruel and unusual pubishment.

Thursday, December 28, 2017

Preliminary Injunctions vs. Temporary Restraining Orders

There are quite a few similarities between preliminary injunctions and temporary restraining orders.  And like with so many other concepts in Civil Procedure, the differences among similar concepts are likely to be tested.  Here are some points to keep in mind so that you can distinguish between these different types of injunctions.

Preliminary Injunctions: 
It's often stated that a party will seek a preliminary injunction to preserve the status quo while the suit is pending.  The adverse party (the party that will be burdened by the injunction) must be given notice and an opportunity to be heard.  There are some specific elements that must be satisfied before a preliminary injunction will be granted. It must be true that the plaintiff will suffer irreparable harm if the injunction is not granted. Further, the harm to the plaintiff must outweigh the harm to the defendant and the plaintiff must show that s/he is likely to be successful on the merits of the action.  Finally, it must be true that public interest favors granting the injunction. The granting of a preliminary injunction is within the equitable discretion of the judge and this is why the element requiring irreparable injury is important to analyze carefully. If the party seeking the injunction has an adequate remedy at law (for example, if money damages will suffice), it is unlikely that the preliminary injunction will be granted.

Temporary Restraining Orders: 
There are times when irreparable injury might occur if required to wait for the hearing on a preliminary injunction. In such instances, a party may seek a temporary restraining order to preserve the status quo until the hearing on the preliminary injunction. Again, there are some requirements to keep in mind. The adverse party (the party that will be burdened by the order) must generally be given notice. Importantly, though, a temporary restraining order that will last a maximum of 14 days may be imposed without notice if the following three elements are satisfied: the party seeking the order states specific facts in an affidavit or verified complaint of the irreparable injury that will occur if the order is not granted; the party seeking the order certifies in writing the efforts made to notify the adverse party and the reasons why notice should not be required; and the party seeking the order provides security to pay for any damages incurred by the adverse party if the court later finds the adverse party to have been wrongfully restrained.

It's worth noting that although a temporary restraining order may be issued without notice of a hearing under some circumstances, a person must have actual notice of the order before that person may be held in contempt for violating it.