Saturday, November 21, 2015

Malice Aforethought

Oftentimes when the MBE is testing the crime of murder, a statute is provided in the fact pattern and you'll be required to interpret that statute and draw a conclusion based upon your interpretation. You'll see terms like "first-degree murder," "second-degree murder," etc. But that's not the default rule on the MBE; rather, the default rule on the MBE is the common law, and common-law murder does not incorporate distinctions such as first-degree.

Murder under the common law is defined as the killing of another human being with malice aforethought. As with all legal rules, you'll want to parse the rule to ensure that all elements of the rule have been satisfied before drawing your conclusion. The first few elements are easy enough; you'll want to ensure that the victim has died and that the victim was a human being. The question will likely be testing the element of malice aforethought, so it's essential to understand what constitutes malice aforethought.

The 4 mindsets that will satisfy the malice aforethought requirement are:

(1): An intent to kill: If x intends to kill y (in other words, x actively desires the prescribed criminal consequences to follow his act), then murder is applicable.

(2): An intent to cause serious bodily injury: Note here that a person can be charged with murder under the common law even if it is not the desire of that person to kill another. Provided that x desires to cause y serious bodily injury, then if y dies as a result of the injury inflicted by x, x can be charged with murder.

(3): Reckless indifference for the life of another: This is sometimes referred to on the MBE as depraved heart murder. Even if there is no intent to kill, and there is no intent to cause serious bodily injury to another, one can be charged with murder if he acts recklessly, and the reckless act causes the death of another. An important distinction to note here is between recklessness and negligence. Causing the death of another through one's own negligence is not sufficient for a charge of murder (the more appropriate crime is involuntary manslaughter), but causing the death of another through one's own recklessness is sufficient. The key difference here is that a person acts recklessly if he is aware of a substantial risk that a certain result will occur as a result of his actions whereas he acts negligently if he should have been aware (even if not actually aware) of a substantial and unjustifiable risk that a certain consequence would result from his actions.

(4): Felony Murder: You'll want to look for a situation in which a death occurs during the commission of an inherently dangerous felony. If a death occurs during the commission of an inherently dangerous felony, and there is no intent to kill, no intent to cause serious bodily injury, and no reckless disregard for the life of another, then consider felony murder, as it will provide a basis for a charge of murder even if the highest degree of fault on the part of the person committing the felony is negligence.

Thursday, November 12, 2015

MBE Fast Fact: First Amendment: Overbroad vs. Void for Vagueness

I've stated on this blog in the past that the First Amendment is an important topic to know well when studying Constitutional Law. The terms "overbroad" and "void for vagueness" have similarities that make them very testable as small differences can materially distinguish one answer on the exam from another.

A statute is overbroad if the statute proscribes activities that may be constitutionally forbidden but in doing so also sweeps within its coverage speech that is protected by the First Amendment. A law limiting First Amendment rights must be crafted to limit only those rights not protected by the Constitution. If not crafted as such then it might well be overbroad and therefore unconstitutional.

In contrast, a statute may be void for vagueness if the conduct forbidden is so unclearly defined that people would have to guess at its meaning and would differ as to its application. Oftentimes if a question is testing the concept of vagueness a specific term within a law will be provided, but that term will not be defined. By not defining that term its meaning is left ambiguous and ambiguity leaves open the possibility that people will define the term differently thereby limiting their ability to correctly apply the law. If a reader of a statute is left to guess the meaning of a material term within a statute, consider whether that statute is void for vagueness.

Wednesday, November 4, 2015

Summary Judgment vs Motion for Judgment as a Matter of Law

The distinction between a summary judgment and a judgment as a matter of law (formerly known as a directed verdict) was showing up on the MBE even before Civil Procedure became a testable subject. Now that Civil Procedure is tested, it's even more likely to come up in one way or another.

A motion for summary judgment is a pretrial procedure to determine whether genuine issues of material fact exist within the case. A decision in favor of the moving party will resolve a lawsuit before there is a trial. Summary judgment is awarded if the undisputed facts and the law make it clear that it would be impossible for the opposing party (the non-moving party) to prevail if the matter were to proceed to trial.

A motion for judgment as a matter of law, on the other hand, is requested at the end of a plaintiff's case or after all the evidence has been completed. The moving party when making a motion for judgment as a matter of law is arguing that the evidence clearly reveals that s/he must prevail and that there is therefore no reason to send the case to the jury. In deciding whether to grant a motion for judgment as a matter of law, all the evidence is viewed in the light most favorable to the non-moving party. A motion for judgment as a matter of law if granted is usually granted because the judge concludes that the non-moving party has failed to offer the minimum amount of evidence to prove the case. In other words, no reasonable jury could decide in favor of the non-moving party.

Sunday, November 1, 2015

Re-taking the MBE

The average score on the July 2015 MBE fell 1.6 points from the previous year, reaching its lowest level since 1988, according to data provided by the National Conference of Bar Examiners. The mean score on this most recent exam was a 139.9, down from 141.5 in July 2014.

Some time ago I wrote an article focused entirely on re-taking the exam, and many are now in the position of facing the exam again after having taken it in July. I hope the article might provide some guidance, and it can be found @

Wednesday, October 28, 2015

MBE Essentials

Lots of results now coming in from the July exam. For those looking for an additional resource to help them learn the most essential areas of law tested on the MBE, consider supplementing with MBE Essentials! From the blurb on Amazon:

MBE Essentials is a resource that provides the essential content tested in each subject-area on the Multistate Bar Exam. The material in the resource is presented in a conversational question-and-answer format. The questions and answers are intended to teach the substantive law in a method far more effective than the way in which the law is presented in traditional subject-matter outlines. MBE Essentials contains chapters in each of the following subject areas: Contracts, Criminal Law, Criminal Procedure, Evidence, Real Property, Torts, Constitutional Law, and The Federal Rules of Civil Procedure.

Read reviews and look inside the book @

Monday, October 19, 2015

Process of Elimination

"You will not apply my precept," he said, shaking his head. "How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?"

The above quote is by Arthur Conan Doyle through his character Sherlock Holmes but the advice regarding reasoning by elimination applies quite well on the MBE, and really on any multiple choice test.

The writers of the MBE are adept at hiding the correct answer so it's often an easier task to spot an error in all incorrect answer choices than it is to spot the choice in which no error exists. This advice sometimes strikes my students as surprising when I direct them to not attempt to spot the correct answer but instead to get rid of all that is not correct so that the correct answer is all that remains.

Further, there is a mathematical basis for this approach. With 4 choices to choose from you have a 1/4 chance or 25% chance of answering the question correctly. But eliminate 1 of the incorrect choices and the probability of answering correctly on a random guess jumps to 33%. Eliminate 2 and you now have a 50% chance of answering the question correctly. The goal, of course, is to eliminate the 3 incorrect choices, but even if you don't make it that far, eliminating even 1 has increased your chances of guessing correctly on any individual question.

I'll note that this approach does not, however, allow a test-taker to know the law any less well than one would be required to know it if the initial goal were to spot the correct answer from the 4 given. To be able to spot the error in an answer choice requires a deep knowledge of the substantive law. In my opinion, however, it is slightly easier to see through those distractors than it is to pick which among the 4 answer choices has no errors.

And that slight edge can make a big difference on a bar exam where the difference between passing and not passing is often equivalent to the difference between a few points.

Thursday, October 15, 2015

MBE Fast Fact: Symbolic Speech

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people to peaceably assemble and to petition the government for a redress of grievances.

The First Amendment is heavily tested within the subject of Constitutional Law. Protection is not limited to verbal communications; rather, symbolic conduct is also protected provided the conduct is undertaken with the intent to communicate an idea.

The difficulty lies in determining whether symbolic conduct is intended to communicate an idea; if not then the conduct will not fall within the protection of the First Amendment. In analyzing such cases, the courts ask whether the speaker intended to convey a particular message and whether it is likely that the message was understood by those who viewed it. Assuming that the conduct is intended to communicate an idea (and is therefore deemed symbolic speech protected by the First Amendment) the following test should be applied in determining whether an attempt to regulate that conduct will be upheld:

A regulation of symbolic conduct that is meant to an express an idea will be upheld provided that the regulation furthers an important governmental interest. In addition, the governmental interest must be content-neutral in the sense that it is unrelated to the suppression of speech.

Finally, the incidental burden on speech must be no greater than is necessary to further the government's interest. In other words, the regulation must prohibit no more speech than is essential to further the government's interest.

Wednesday, October 14, 2015

MBE Percentiles (July 2015)

Nationwide MBE percentiles for the July 2015 exam have been released and they are pretty standard. The lowest scaled score listed (110) would place you in the 2nd percentile of test takers, while the highest scaled score listed (170) would place you in the 98th percentile of test takers.

The 50th percentile fell between a scaled score of 140-145, while a 150 scaled score would place you up in the 71st percentile.

More @

Wednesday, October 7, 2015

MBE Strategy: Extract the Principle

Along with developing a very deep knowledge of the testable law, understanding the test itself is essential for success on the MBE. There are quite a few strategies that I work on with students when working through MBE questions together. One of these strategies is to extract the relevant principle from each question. The writers do a very good job of hiding exactly what they are testing, but each question absolutely tests one specific legal principle.

If you answer a question incorrectly, your initial thought should be to understand the principle that the question was testing, because it will be tested again both in future practice questions, and perhaps on the MBE when you take it. The questions will not repeat, but the principles, or legal concepts, will. I recommend that whenever you answer a question incorrectly you write down the legal principle that the question was testing, and then go back to the part of the outline that explained that principle if you don't fully understand it.

You will, in time, begin to notice the same principles tested within a given subject. I often compare this to legal research. A good indication that you've adequately researched a legal issue is when you begin to come across the same cases over and over again. When studying for the MBE, beginning to note that the questions in a given subject are testing only principles that you've already seen in previous questions is a very good indication that you have prepared adequately for that particular subject.

More strategies to come soon......

Sunday, October 4, 2015

More Changes to the MBE

Though these newest changes will not affect anyone planning to take the exam in February or July of 2016, the NCBE has announced changes to the subject of Real Property that will take effect in February of 2017. From the NCBE:

"Effective with the February 2017 administration, there will be changes to the Real Property scope of coverage for the MBE and the MEE. The Real Property topics will be slightly reordered and revised.

New topics will include conflicts of law (I.D.4.); property owners’ associations and common interest ownership communities (II.A.6.); drafting, review, and negotiation of closing documents (V.B.3.); and persons authorized to execute real estate documents (V.B.4.).

Minor modifications will include providing specific examples of rules affecting future interests (I.A.2.e.); including security deposits in termination of tenancies (I.C.4.); providing more detailed zoning topics (II.D.1.–3.); and including as separate topics transfers of restrictive covenants (II.A.4.), transfers of easements, profits, and licenses (II.B.4.), and acceleration of loans before foreclosure (IV.E.2.).

Note that the Real Property topics will no longer include (1) application of Article 9 of the Uniform Commercial Code to fixtures (previously included in II.C.) or (2) abatement of devises (previously V.C.5."

See the announcement @

Wednesday, September 30, 2015

MBE Results

I don't yet have the data for the Summer 2015 exam but it looks to have been an especially difficult one. The NCBE claims that the addition of Civil Procedure has not made the test markedly more difficult because students do not perform significantly worse on that subject than they do on any other subject. But I don't think that tells the entire story; with an additional subject added to the exam, time is pulled from studying for the many other areas tested. And the results are reflecting this change:

"The average score on the multiple-choice portion of the July test fell 1.6 points from the previous year, reaching its lowest level since 1988, according to data provided to Bloomberg by the National Conference of Bar Examiners. The mean score on this summer's exam was 139.9, down from 141.5 in July 2014."

Read more @

Wednesday, September 23, 2015

MBE Fast Fact: Taxation

Taxation is not a heavily tested topic on the MBE, but it comes up on occasion in Constitutional Law questions in a variety of areas. One such area in which questions arise is where a state attempts to tax employees of the federal government. This could occur, for example, where federal employees are required to pay state income taxes.

It's important to remember that the federal government is immune from taxation by any state. But this immunity from taxation available to the United State is not necessarily available to employees of the federal government. When a question is posed raising this issue the correct analysis is to ask whether the United States is being taxed, in which case the tax should be deemed unconstitutional. If, on the other hand, you determine that the tax is personal to each employee (even if the employee is employed by the United States) then the tax should be upheld, provided it is not unconstitutional for a different reason (for example, the negative implications of the Commerce Clause).

Monday, September 14, 2015

Lien Theory/Title Theory/Joint Tenancies

Questions on the MBE may require understanding the distinction between a lien theory state and a title theory state. A typical example has a joint tenant mortgaging his interest in the property held in joint tenancy. According to the lien theory, the mortgagee is considered the holder of a security interest only and the mortgagor is deemed the owner of the land until foreclosure. In contrast, according to the title theory, legal title is in the mortgagee the moment that the property is mortgaged by the joint tenant.

As an example, let's assume that x and y are joint tenants with rights of survivorship. x decides to take out a loan from a bank, and in exchange for the loan, x gives the bank a mortgage on the property that he owns with y as joint tenants. Determining the interest that the bank receives will depend entirely on the rules above; namely, in a lien theory state the bank merely has a security interest and x is still deemed the joint owner of the property with y until foreclosure. In a title theory state, however, the mortgage severs the joint tenancy so that the the bank receives legal title to the property and becomes a tenant in common with y at the time of the mortgage.

Let's also assume that after the mortgage but before x defaults on the loan x dies. In a lien theory state, x and y remained joint tenants and as per the rights of survivorship, the moment that x died, y became the sole owner of the property. As such, there would be no property for the bank to foreclose upon. In a title theory state, however, the bank is a tenant in common with y so the death of x has no effect on the interest of the bank.

Monday, August 31, 2015

MBE Fast Fact: Future Interests

In the many years I've taught the bar exam, it would be tough for me to think of a topic that students dislike more than future interests. Certainly, there is more to know about future interests than that contained in this post, but the following are three types of future interest retained by the grantor that all students should understand well when preparing for the exam:

Reversions: A reversion is a future retained by the grantor who conveys less than he owns. For example, let's say that X, the grantor, owns property in fee simple, and he conveys that property to Y, the grantee, for life. X has only conveyed a life estate (a present possessory estate) even though X owned the property for an infinite duration. When Y dies, the property will not die along with him. Rather, the property will revert back to X.

Rights of Entry: Similar to a reversion, a right of entry is a future interest reserved by the grantor. However, the right of entry is reserved when the grantor grants to another a fee simple subject to condition subsequent (a present possessory estate). A fee simple subject to condition subsequent has the potential to last indefinitely, so it's not certain, as it is with a reversion, that the grantor will ever regain an interest in the property. For example, let's say that X grants property to Y but if the property is not used for farming purposes then X may reenter and retake the property. The future interest in X is not certain to vest; it will only vest if Y fails to use the property for farming purposes. At that point, X will use his right of entry to reenter and retake the property. In other words, a right of entry is always contingent.

Possibilities of Reverter: A possibility of reverter, like in the two previous examples, is a future interest reserved by the grantor. Unlike with the right of entry, the grantor here need not take any affirmative action by reentering the property in order to retake the property. For example, X grants property to Y for as long as Y uses the property for farming purposes. At that moment, Y has a fee simple determinable (a present possessory estate). Y is subject to the same obligation as in our previous example; namely, to use the property for farming purposes. But if Y fails to do so, X has no obligation to reenter the property; rather, the possibility of reverter will kick in, and the property will automatically revert back to X.

Monday, August 24, 2015

The Commerce Clause

Questions testing the Commerce Clause on the MBE are quite common. The Commerce Clause provides an avenue for Congress to pass regulations but it's important not only to understand the power granted to Congress but the limitations as to that power as well. Congress can pass laws that regulate interstate commerce provided the laws regulate the channels of interstate commerce, or the instrumentalities of interstate commerce. In addition the Commerce Clause stretches even further by allowing Congress the power to pass laws that regulate activities that have a substantial effect on interstate commerce.

When the activity that is the subject of the regulation is intrastate (does not cross state lines) rather than interstate (crosses state lines), any regulation by Congress attempting to regulate such activity will be upheld only if the activity is deemed economic or commercial, and there is a rational basis for concluding that the activity will have a substantial effect on interstate commerce. Stated otherwise, if the activity is noncommercial and intrastate, the Commerce Clause is unlikely to provide an appropriate avenue for Congress to regulate that activity.

And even if Congress has not passed a law regulating interstate commerce, a state law that discriminates or unduly burdens interstate commerce will likely be held in violation of the Commerce Clause. This is often called the Dormant Commerce Clause, and it limits the state's ability to pass laws discriminating against interstate commerce, even if Congress has passed no conflicting law, unless the law furthers an important non-economic state interest and there are no reasonable nondiscriminatory alternatives, the state is acting as a market participant, or the law involves government action regarding the performance of a traditional state-government function. Note that if a non-conflicting state law does not discriminate against interstate commerce, it may still be a violation of the Commerce Clause (as per the Dormant Commerce Clause) if the law burdens interstate commerce, and the state's interest in passing the law does not outweigh that burden.