Sunday, June 18, 2017

Alienage Jurisdiction

Questions on the MBE come up quite often testing your understanding of diversity jurisdiction.  One of the difficulties of this topic is that there seems to be an endless amount of angles to test.

Here's one more:

As a quick review, diversity jurisdiction requires diversity of citizenship in which the dispute involves citizens of different states within the United States.  No plaintiff can be a citizen of the same state as any defendant or diversity will be destroyed and jurisdiction in the federal court will be improper unless there is another basis for claiming that subject matter jurisdiction is proper (such as federal question jurisdiction.)

A lesser known rule allows for subject matter jurisdiction over alienage cases in which the dispute is between a citizen of a U.S. state and a citizen of a foreign country. Importantly, this basis for jurisdiction will not apply if the citizen of the foreign country (an "alien") has been admitted to the United States for permanent residence and is domiciled in the same state as the U.S. citizen. In other words, when such occurs, diversity is destroyed just as it would be if the case involved a plaintiff and defendant, both of whom were citizens of the same U.S. state.

It should also be noted (and this comes up in questions as well) that there is no subject matter jurisdiction over cases by an alien against an alien; there must be a citizen of a U.S state on one side of the suit to qualify for alienage jurisdiction.

Wednesday, June 14, 2017

Future Interests

Future Interests has got to be one of the most dreaded topics in Real Property.  It takes some time and struggling to get this stuff but as an initial matter it's important to understand which type of future interest goes with which type of present possessory estate.  That's the first step in understanding this very difficult concept. So, let's begin there:

Bellow #s  will be listed as follows:

Present possessory estate--->future interest associated with that estate

(1): Fee simple absolute--->No future interest

(2): Fee simple determinable-->Possibility of reverter

(3): Fee simple subject to condition subsequent--->Right of entry

(4): Fee simple subject to executory interest--->Executory interest

(5): Life estate-->Remainder.

As an explanation if you look at (2) above, that means that if a fee simple determinable is granted to someone (let's call that person y) then the future interest associated with that grant is a possibility of reverter.  Assume that grantor x grants to y property so long as y uses the property for farming.  Such a grant fits the definition of fee simple determinable, and so y has been granted a fee simple determinable as a present possessory estate.  X, the grantor, retains a possibility of reverter as a future interest.  If y fails to satisfy the stated condition by not using the property for farming then the possibility of reverter will force the property to revert back to x and x's future interest (a possibility of reverter) will become a present possessory estate (a fee simple).

The same logic can be applied for all of the above, though there are some slight differences depending upon the present estates and future interests.

It's quite complex but it certainly helps to know the above as you begin to delve deeper into this area.

Monday, June 5, 2017

Appeals: A Quick Summary

Quite a lot to know about appeals when preparing for Civil Procedure questions on the MBE. I've written a bit about this previously but this post will summarize the important points to keep in mind:

The federal courts have subject-matter jurisdiction over appeals from all final decisions of the federal district trial courts.  However, as a general matter the federal courts do not have subject-matter jurisdiction over appeals from interlocutory matters (those matters that have not reached final judgement) of the federal district trial courts.

But there are exceptions, and one important exception deals with injunctions.  The federal courts, for the most part, do have subject-matter jurisdiction over appeals from interlocutory orders that grant, deny, or modify an injunction.   And in addition to this specific rule regarding injunctions, the collateral order doctrine provides that a federal trial judge's interlocutory order is reviewable if it conclusively determines claims of right distinct from and collateral to the rights asserted in the action and would be effectively unreviewable if the litigant were required to wait for an appeal.

Regarding the scope of review by a federal court, an alleged error at trial is reviewable on appeal only if preserved on the record.  And even if an error is preserved, it may be unreviewable if a court determines that the issue preserved constitutes harmless error (an error that does not affect the substantial rights of the parties).

Finally, as to the standard of review by an appellate court, this will depend upon whether the alleged error at trial concerned an (1) interpretation of law, (2) an exercise of the court's discretion, or (3) a finding of fact.

Specifically, the appellate court will exercise de novo review of a trial court's conclusions of law. In other words, the appellate court will exercise its own judgment on decided legal issues.  If reviewing a trial court's discretionary ruling that do not implicate legal issues, an appellate court will overturn such discretion by the trial court if the appellate court determines that there has been an abuse of discretion or plain error.  And when reviewing findings of fact by the trial court, an appellate court will only overturn such factual findings if such findings were made by a court (not a jury) and if such findings are clearly erroneous.

Thursday, June 1, 2017

Working Through Practice Questions

Probably the advice that I give most often to students is that when an MBE question is answered incorrectly, note the specific rule that the question was testing.  And by note I mean write it down somewhere and divide these rules by subject.  So, for example, all Property rules together, all Contracts rules together, etc.

Another way to think about this is that each question is designed to test an abstract legal concept. The MBE tests abstract legal concepts through the use of concrete fact patterns.  The fact patterns will always change but the abstract concepts will remain the same.

And so the goal is to fully understand the abstract concept that was tested in any given question.  If you answered a question incorrectly and you did so because you did not fully understand the concept that was tested in that question then the next time that concept is tested in a new fact pattern it's likely you'll answer it incorrectly again.

Essentially, learning the concept provides you with the foundation to answer correctly future questions testing that concept regardless of whatever facts are provided in a given question.

Tuesday, May 30, 2017

Studying Strategies

There are some message boards entirely dedicated to students preparing for the bar exam. Occasionally I'll answer questions on these boards and I thought it might be helpful to post some of those questions here.  Here is one that just popped up, along with my response:

Is it a mistake to be annotating and reviewing flashcards, in addition to a full bar review course?

It's not overkill unless it is preventing you from doing other things that would help you to pass the exam. In other words, I've never heard anyone complain after passing that they knew too much law that wasn't required!

But keep in mind that essay writing for a bar exam is as much about skill as it is about knowledge. Nobody would get very good at Chess (for example) by simply memorizing the rules of the game.

Understand the skill of legal analysis either by writing essays that your bar prep company can grade, or simply by reading the essays that have been released and paying close attention to the way that the model answers analyzed the questions!


Tuesday, May 23, 2017

MBE Fast Fact: The Right to a Speedy Trial

Though not tested all that frequently in Criminal Procedure questions, the right to a speedy trial is tested enough that I recommend knowing a couple of key points here. This right attaches once a person has been formally accused of a crime by the government. If the right is violated, the result will be a complete dismissal of the charges against the accused. There is a balancing test that courts use to determine whether the right has been violated. Consider the following factors in any question testing the right to a speedy trial:

--The length of the delay
--The reason for the delay
--The defendant's assertion of his or her right to a speedy trial
--The prejudice to the defendant resulting from the delay.

Regarding that last factor, there are quite a few ways that defendant might be prejudiced by the delay.  Perhaps evidence is lost and the loss is caused by the delay. In addition, an undue delay might cause witnesses to be less able to recollect facts that will form the basis of testimony.  Even excess anxiety caused to the defendant resulting from the delay will suffice.

Sunday, May 7, 2017

MBE Fast Fact: The Taxing Power

I remember my Constitutional Law professor in law school mentioning that Constitutional Law can be broken down into two main areas: powers and limitations. I think he had a point.

There are quite a few congressional powers and one of those powers is the power to tax.  Specifically, Congress has the power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare. And so with this rule in mind, it follows that a congressional act purporting to be a tax will be upheld if it raises revenue or if it was intended to raise revenue as raising revenue is deemed to be providing for the common defense and general welfare.

In addition, as long as Congress has the power to regulate the activity taxed, the necessary and proper clause can form a basis for Congress to tax that activity.

So, in short, it's best to remember that if Congress has the right to regulate an activity (as per a power granted to it in the Constitution) then the tax is very likely to be upheld as per the necessary and proper clause.  But even when Congress does not have the power to regulate an activity taxed, a tax will likely be upheld if its dominant intent is to raise revenue.

Friday, April 28, 2017

A Few Thoughts:

As difficult as it is studying for a bar exam, the formula for passing isn't that complex. There are two components needed: you need to know the law, and you need to be skilled at applying the law that you know. The biggest mistake people make is to dedicate too much time to one component at the expense of the other. 
If you were learning how to play chess it wouldn't be enough to know the rules of the game. But many people go into the exam having spent too much time learning the rules and not enough time practicing how to play. But then it comes time to play the game. And you need to be really good at it. Not an expert, but really good. You're just not going to be very good at playing the game unless you've practiced how to play it by working through enough MBE questions, essays, etc.
And yet if all you've done is practice but have never taken the time to adequately learn the rules, your skills may be top-notch but you won't be able to use those skills to apply the correct law on the exam. 
Remember the two components: know the law, and know how to apply it. Nothing here is meant to imply that getting good at this game is easy. But approaching it with the correct strategy makes it far more likely you'll achieve the level required to pass!

Saturday, April 22, 2017

Choice of Law in Contracts

Conflict of Laws is not a subject that is tested on its own on the MEE.  It does, however, show up as a sub-issue in essays testing other subjects and so it's important to understand well how this subject applies to the other subjects that might show up on the bar exam. Different areas of substantive law have different approaches to determining choice-of-law.  This post will focus on how to apply choice-of-law if faced with a contracts issue.  To gain full credit on these issues, you should discuss the various approaches that a court might take in determining which law will apply.

The crux of the issue here is that there will be laws that conflict (for example, the laws of different states), and the court will need to decide which law to apply. Sometimes, there is an express choice-of-law provision in the contract.  If so, that provision will generally apply and the court will apply the law as directed by the contract. The provision will not apply, however, if it is contrary to public policy or if there is no reasonable basis for the parties' choice.  Further, it will not apply if consent to the provision was given as a result of fraud, mistake, duress, etc.

The First Restatement of Contracts directs us to apply the law of the state where the contract was made for issues concerning the validity of the contract and construction of the contract.  The law of the place where the contract is to be performed governs issues relating to performance of the contract.

The Second Restatement of Contracts directs us to apply the law of the state with the most significant relationship to the contract.  There are quite a lot of factors that can be used to determine which state has the most significant relationship, including the following: the place of contracting, negotiation, and performance; the location of the contract's subject matter; and the domicile, residency, nationality, place of incorporation, and place of business of the parties.  Note that specific types of contracts have specific rules (for example, life insurance contracts are controlled by the law of the insured's domicile) but all of these specific rules can be overcome if the factors point to another state having a more significant relationship which will warrant applying the law of that particular state.

Finally, there is an interest analysis.  When applying the interest analysis, it should first be assumed that the forum will apply its own law.  If the forum has no interest in the litigation but another state does have an interest then this is known as a "false conflict." The forum should apply the law of the other state. If, on the other hand, the forum and another state both have an interest then we have a "true conflict" and the forum will apply its own law if it determines that it has a legitimate interest in the litigation.

Tuesday, April 11, 2017

UBE Essentials Now Available on Amazon

UBE Essentials combines the two volumes of the book MEE Essentials into one book.  As such, the resource contains every subject currently tested on the Uniform Bar Exam.

Specifically, there are chapters in each of the following subjects:

--Corporations & Limited Liability Companies
--Conflict of Laws
--Family Law
--UCC Article 9 Secured Transactions
--Civil Procedure
--Criminal Law
--Criminal Procedure
--Constitutional Law
--MPRE Essentials

I hope you'll find the resource helpful! It can be purchased @

Tuesday, April 4, 2017

MBE Percentiles (February 2017)

MBE Percentiles have been released for the February 2017 exam. The maximum scaled score on the MBE is 200 scaled points. For this exam a scaled score of 140 would place you in the 69th percentile.  Five more scaled points to a 145 is a jump of 12 percentile points to the 81st percentile.  To score in the 90th percentile would require a scaled score between 150-155.  Finally, the top percentile (99th) required a scaled score of 165.

Source of data @

Saturday, April 1, 2017

Types of Collateral

Article 9 of the UCC (Secured Transactions) is difficult.  The complexity makes it daunting in the relatively short time available for students to learn it for the bar exam. But an important first step in getting a grip on this subject is to understand the different categories of collateral that can form the basis of a security interest.  The rules throughout this subject will often refer back to these categories (for example, some rules only apply to consumer goods, a type of tangible collateral) and building this foundation by simply understanding the types of collateral can set you up to far better understand the subject as a whole.

In total there are 3 main categories with sub-categories within each one to keep in mind.  The three main categories are tangible collateral, intangible collateral, and proceeds.

I:  Tangible Collateral (often referred to as "goods"):

(1):  Consumer goods:
These are goods bought or used for personal, family, or household purposes.

(2):  Inventory:
These are goods held for sale or lease and goods consumed by a business.

(3):  Farm products:
These are goods used or produced in farming that are in the possession of or used by a farmer.

(4): Equipment:
These are goods that do not fit within any of the 3 above categories.

II:  Intangible Collateral

(1): Instruments:
Instruments include notes, drafts, and certificates of deposit.

(2):  Documents:
Documents include bills of lading and warehouse receipts.

(3)  Chattel Paper:
Chattel paper are records evidencing both a monetary obligation and a security interest in specific goods or a lease of specific goods.

(4):  Accounts:
These are rights to payment for goods, services, etc.

(5):  Deposit Accounts:
These are savings accounts, passbook accounts, etc.

(6):  Investment Property:
These include stocks, bonds, mutual funds, brokerage accounts, etc.

(7):  Commercial tort claims:
These are tort claims filed by organizations and tort claims filed by an individual that arose out of the individual's business and do not involve personal injury.

(8):  General intangibles:
These are intangibles not fitting within any of the above 7 types of intangibles.

III: Proceeds

Proceeds include whatever is received upon the sale, exchange, collection or other disposition of collateral or other proceeds.  Insurance payable by reason of loss or damage to collateral is also deemed to be proceeds unless it is payable to someone other than the debtor or secured party.

Sunday, March 26, 2017

The Uniform Child Custody Jurisdiction and Enforcement Act

An area of some complexity that shows up in Family Law is jurisdiction for child custody cases.  And when I'm working with students who are preparing for the MEE, it's an area we spend some time on because it's important to know it well should it show up on the exam.  In other words, it could amount to a large percentage of the points in any given essay.

The Act to understand well in this regard is the Uniform Child Custody Jurisdiction and Enforcement Act which is far too many words and so after mentioning it once in an essay, just call it the UCCJEA.  The purpose of the Act is to avoid jurisdictional disputes with courts of other states in matters of child custody and visitation as well as promote interstate cooperation. It also aims to facilitate the interstate enforcement of custody and visitation orders.

And so a question may be raised in a fact pattern as to which state has jurisdiction to initially enter or to modify a child custody or visitation order.  First, we look to the home state of the child. A child's home state is the state in which the child lived with a parent (or a person acting as parent) for at least six consecutive months immediately before the commencement of the proceeding.  If the child is less than six months old then the home state will be the state where the child has lived since birth disregarding temporary absences.  A court in the home state of the child will have jurisdiction to enter or modify a custody or visitation order

It's possible, though, that a child had a home state (had been living in the state for at least 6 consecutive months) and within the last six months has moved out of state.  A court in the state that was recently the child's home state will have jurisdiction to enter a custody order if a parent or person acting as a parent continues to live in that state.

Further, it's also possible that no state will satisfy the home state test as stated above.  If no state has or accepts home state jurisdiction then a court will have jurisdiction to enter or modify a custody or visitation order if that court sits in a state in which the child and at least one parent (or persons acting as parents) have a significant connection and if substantial evidence concerning the child is available in that state.

When analyzing jurisdiction for these purposes, I would first look to apply the home state rules and then move on to the significant connection test if necessary.  And then note that the court that made the initial custody or visitation determination has exclusive continuing jurisdiction over the matter until neither the child nor the child's parents (or persons acting as a parent) continue to reside in the state or the child no longer has a significant connection with the state and substantial evidence relating to the matter is no longer available in the state.

Even if a court has jurisdiction as outlined above, the court may choose to decline jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court in another state is a more appropriate forum.  Finally, note that under some extreme circumstances, a court may have temporary emergency jurisdiction even if the general jurisdiction rules as outlined above are not satisfied.  This should be applied sparingly, though; a court will have temporary emergency jurisdiction if the child has been abandoned or if it is necessary in an emergency to protect the child because the child, the child's sibling(s), or the child's parent is threatened with or subjected to abuse.

Tuesday, March 21, 2017

Actual, Apparent, and Inherent Authority

If you happen to get a Partnerships essay on the MEE, the chances are quite high that Agency issues will be mixed within.  And a very common Agency issue deals with the authority that an agent (for example a partner in a partnership) has to act for the principal (for example, the partnership).  This post will review three types of authority that should be known well going into the exam:

Actual Authority:  Actual authority is the authority that the agent reasonably believes s/he possesses based on the principal's dealings with the agent.  This type of authority may be express or implied.  Express is pretty straight-forward; look for an agency agreement and if the authority is stated within that agreement then express authority has been granted to the agent.  Implied authority is that which the agent reasonably believes s/he has as a result of the principal's actions even if there is no express agreement stating as such.

Apparent Authority: Apparent authority arises from the reasonable beliefs of third parties.  In other words, if a principal directly or indirectly holds out another as possessing certain authority and such holding out induces reasonable reliance by another that the agent has such authority, the agent will have apparent authority to act on behalf of the principal even if as between the agent and principal the definition of actual authority (either express or implied) has not been satisfied.  One way to think about this is that the principal will be estopped from denying that the agent has authority to act for the principal if the principal has acted in a way that would lead a reasonable person to believe that such authority was in fact granted.

Inherent Authority:  Even if the agent has no actual or apparent authority, the agent might still have the inherent authority to act on behalf of the principal.  Sometimes, courts wish to protect innocent third parties rather than the principal when an agent acts on behalf of the principal.  As such, the law will hold the principal liable for the acts the agent.  A very common example of inherent authority is respondeat superior in which an employer will be held liable for the acts of an employee that occur within the scope of the employee's employment.

There is more to say on this topic for sure (for example, how authority is terminated.)  Future posts will delve deeper into this commonly tested area.

Sunday, March 12, 2017

Limited Liability Companies

Limited Liability Companies ("LLC's") is a trendy topic on the MEE.  So much so that the most recent update to my book MEE Essentials will contain a more in-depth discussion of this topic.  A foundational area to understand here is the differences between member-managed LLC's and manager-manager LLC's.

Member-Managed LLC's:
With this type of management structure, each member owes to each other member as well as to the LLC duties of care and loyalty.  In addition, each member must discharge their obligations consistent with good faith and fair dealing. Most importantly to remember here is that there are obligations that members have that they do not necessarily have under other management structures such as will be listed below (under manager-managed LLC's).

Regarding the duty of loyalty, a member must account to the LLC for any benefit derived in connection with the LLC's business and must refrain from dealing adversely with the LLC (unless the transaction is deemed fair by the LLC).  Further, the members must refrain from competing with the LLC's business.  These acts, however, may be authorized even though they would generally violate the duty of loyalty if authorization is provided by the other members after full disclosure has been provided to the other members.

Under the duty of care, members must act with the care that a person in a like position would exercise under similar circumstances, in a manner reasonably believed to be in the best interest of the LLC.  This standard shows up elsewhere and is known as the 'business judgement rule.'

Manager-Managed LLC's:
Here, the duties of loyalty and care are different for managers and members.  Although both retain the obligation of good faith and fair dealing, only the managers are subject to the duties of loyalty and care as discussed above for member-managed LLC's.  Further, only the members may authorize or ratify an act by a manager that would otherwise violate the duty of loyalty.

Lastly, it should be noted a member-managed LLC is presumed unless the operating agreement of the LLC provides otherwise.