Monday, May 25, 2015

MBE Essentials

If you're preparing for the July 2015 bar exam, consider supplementing with MBE Essentials!

MBE Essentials is a resource that provides the essential content tested in each subject-area on the MBE. The material in the resource is presented in a conversational question-and-answer format with each question and answer 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. Though the resource is not meant to be your primary study tool, it'll provide you with an excellent opportunity to solidify the knowledge you are learning in your primary bar-review course.

The resource is available to download here on the blog and samples are provided here as well. The book is also available on Amazon with an opportunity to look inside the book at some of the content.

I hope you find it a helpful addition to the resources you are using to prepare for the exam!


Tuesday, May 19, 2015

MBE Fast Fact: Fixture Filings

Article 9 of the UCC (Secured Transactions) can creep its way into Real Property questions on the MBE. Thankfully, if it does show up, it'll show up in a very limited context. The questions will play out with a seller of personal property lending money to a purchaser to purchase the personal property, and the seller taking out a Purchase Money Security Interest ("PMSI") as security for the loan. The item of personal property is then affixed by the purchaser to the purchaser's real property which is subject to a mortgage. The purchaser defaults on all loans, and then it must be determined whether the seller or the mortgagee has priority as to the sale of the fixture.

The important rule to keep in mind is the following: Even if the seller records his security interest after the mortgagee records his mortgage on the real property, the seller can still gain priority over the mortgagee as to the fixture, if the seller files what is called a fixture filing. The seller must record his security interest within 20 days after the item of personal property is affixed to the land.

If seller made that UCC filing in the required time period, seller may remove those fixtures that were the subject of the filing; if not, seller's security interest in the fixture is subordinate to the earlier mortgage on the property so that if the mortgagee forecloses, seller's interest in the item of personal property may be lost in the foreclosure sale.

Wednesday, May 13, 2015

MBE Fast Fact: Citizenship

When analyzing diversity jurisdiction for purposes of Civil Procedure, along with the required jurisdictional amount (more than $75,000) you'll need to ensure that every plaintiff is a citizen of a different state from every defendant. This requirement is known as complete diversity, and the analysis requires that you understand how to determine the citizenship of individuals and entities to ensure that the requirement has been satisfied. There are 3 categories to keep in mind here:

(1): Individuals: The state of citizenship of a natural person depends on the permanent home to which s/he intends to return. Note also that the citizenship of a child is that of his/her parent(s).

(2): Corporations: A corporation is a citizen of every US state and foreign country in which it has its principal place of business. The principal place of business is the US State or foreign country from which its high level officers control and coordinate the activities of the corporation.

(3): Unincorporated Associations and Limited Liability Companies: Those businesses in this category (which includes partnerships) are deemed citizens of each state of which any member of the association is a citizen.

It's important to remember that complete diversity is required. So that if analyzing the citizenship of an unincorporated association, for example, be sure to note if there are multiple states of which the association will be deemed to be a citizen. If any of those states is the same as the citizenship of the opposing party, complete diversity has not been satisfied.

Thursday, May 7, 2015

Changes to the New York Bar Exam

Big changes are coming to the New York Bar Exam in 2016. After much debate, the New York Court of Appeals confirmed that beginning in July 2016 the New York Bar Exam in its current state will be no more, and from that point forward, New York will administer the Uniform Bar Exam.

More info here:

http://www.nytimes.com/2015/05/06/nyregion/new-york-state-to-adopt-uniform-bar-exam.html?_r=0

And an official statement here:

http://www.nycourts.gov/ip/bar-exam/pdf/FINAL%20REPORT_DRAFT_April_28.pdf

Tuesday, May 5, 2015

MBE Essentials: Privileges and Immunities Clause

Here are 3 questions on the Privileges and Immunities Clause from my book, MBE Essentials . The book is available both here on the blog (to download), and for purchase at Amazon.

What is prohibited by the Article IV Privileges and Immunities Clause?

A12: Be sure when addressing a question testing the Privileges and Immunities Clause to first determine if you are being asked about Article IV or the 14th Amendment. For purposes of the MBE, Article IV is far more common. The Article IV Privileges and Immunities Clause prohibits discrimination by a state against non-residents of that state. The only types of discrimination, however, that are prevented by this clause are those involving commercial activities and civil rights (often called fundamental rights). Note also that corporations and aliens are not protected by this clause.

What are the exceptions to the Article IV Privileges and Immunities Clause?


A13: Even if there is discrimination in regards to commercial activities or civil rights by a state against a non-resident, that discrimination may be valid if there is a substantial justification for the different treatment. In order to prove the substantial justification, a state will need to prove that non-residents have caused the problem that the state is attempting to solve and that discriminating against non-residents is the least restrictive means of solving the problem.

What is prohibited by the 14th Amendment’s Privileges and Immunities Clause?

A14: This clause provides that states may not deny their citizens the privileges and immunities of national citizenship (the right to vote for federal office, the right to travel, etc.) As with Article IV, corporations are not protected by this clause.


**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on amazon.com @ http://www.amazon.com/MBE-Essentials-Sean-Silverman/dp/1495948706/ref=sr_1_2?ie=UTF8&qid=1399472981&sr=8-2&keywords=sean+silverman


Or you can purchase and download it right here on the blog:
Buy Now

Monday, April 27, 2015

February 2015 MBE Percentiles

The nationwide MBE percentiles for the February 2015 exam have been released. The numbers on this one are interesting. For example, on this particular exam, a scaled score of 145 is way up in the 75th percentile. In comparison, on the July 2014 exam a scaled score of 145 was the 54th percentile. At the far ends, the 99th percentile score this time is a 170, and the 6th percentile is a 115

The complete percentile information for this exam is below.

Sunday, April 26, 2015

MBE Fast Fact: Notice of Assignments

Let's take a common situation where x enters into a contract with y whereby x will be providing a product to y, and y will be paying x for that product. Prior to payment x assigns his right to payment to z, and further provides y with notice of the assignment to z. Y submits payment to x rather than to z, and then claims its obligations under the contract have been fulfilled. Z, who never receives payment because payment went to x, sues y for payment. What should result?

The key to understanding such an issue is to understand that (provided the right was assignable, and it almost always is), the assignee (here, z) becomes the real party in interest and is therefore entitled to performance under the contract. Further, once the obligor (here, y) has notice of the assignment he is bound to render performance to the assignee. If after receiving adequate notice the obligor pays the assignor (here, x) instead of the assignee, then the obligor will be required to pay the assignee even though payment has already been submitted to the assignor.

All that said, here y will be required to submit payment to z as the right to payment was assigned to z, and y was on notice of the assignment.

Sunday, April 19, 2015

MBE Fast Fact: The Mailbox Rule

The mailbox rule (under the common law of contracts) has the potential to be very confusing. But if you note the following, then questions testing this concept shouldn't be too bad:

The rule is meant to set forth a determination as to whether acceptance of an offer is effective. The simplest situation is where the acceptance is by mail, and only an acceptance is mailed. In such a case, the acceptance becomes effective at the moment of dispatch, unless the offeror has expressly stated that acceptance will become effective only once it is received. (And on the MBE, the offeror does sometimes state that!) As is often the case in contract law, the offeror has the final word, so if the offeror states that the mailbox rule does not apply (by claiming acceptance is only valid upon receipt,) then don't apply the rule for that particular question. Note, also, that the mailbox rule does not apply in the case of an option contract (when consideration has been provided to hold the offer open). In an option contract, acceptance is effective upon receipt by the offeror rather than dispatch by the offeree.

A second scenario involves the offeree dispatching a rejection in the mail, and then changing his mind and dispatching an acceptance before the rejection is received by the offeror. Here, the rejection will be effective, unless the acceptance is received first.

Lastly is the situation in which the offeree sends an acceptance and then sends a rejection. Because acceptance was first dispatched you should merely apply the general mailbox rule that acceptance is effective upon dispatch. But there is one twist: If the rejection arrives prior to the acceptance (unlikely), then the rejection will be effective.

Monday, April 13, 2015

MBE Fast Fact: Buyer's Acceptance Under the UCC

When dealing with a question implicating the UCC rather than the common law, it's important to remember that the doctrine of substantial performance does not apply, and instead the Perfect Tender Rule applies. This means that if the goods delivered by the seller fail to conform to the contract in any way, the buyer may reject all the goods delivered, reject some of the goods and accept some of the goods, or accept all of the goods.

As such, it is equally important to understand exactly what constitutes acceptance in such circumstances because the moment of acceptance is also the moment that the buyer loses the ability to reject the goods. A buyer accepts under the UCC under 3 circumstances:

--After a reasonable opportunity to inspect the goods, the buyer indicates to the seller that the goods conform to the requirements of the contract or that the buyer will keep the goods even though they do not conform as required.

--The buyer fails to reject the goods within a reasonable time after tender of delivery or fails to seasonably notify the seller of the rejection.

--The buyer acts in a way that indicates that the buyer is the owner of the goods, or, stated otherwise, acts inconsistent with the seller's ownership of the goods.

One further note here: If none of the 3 above apply, and buyer rightfully rejects the goods, the buyer still has an obligation to hold the goods with reasonable care at the seller's disposition and to follow any reasonable instructions given by the seller as to the rejected goods. If the seller fails to give instructions, the buyer may reship the goods to the seller, store them for the seller's account, or resell them for the seller's account and retain any expenses incurred in following the instructions of the seller.

Sunday, April 5, 2015

Buyer's Insolvency

Assume that the seller has entered into a contract with the buyer, but after entering into that contract the seller learns that the buyer is insolvent and will not be able to pay for the goods. A question becomes whether seller at that point must deliver the goods to the buyer and then later sue when buyer fails to pay, or instead whether seller can avoid delivering the goods entirely. UCC 2-702 addresses this question.

Where the seller discovers the buyer to be insolvent he may refuse delivery, or if necessary, stop delivery of goods that have already been delivered to the carrier service. (For the specifics on stopping delivery see rule 2-705)

Sometimes, however, the seller will not discover the insolvency until the buyer has already received the goods. In such instances, the seller may reclaim the goods upon demand made within 10 days after the receipt. Note that if misrepresentation of solvency has been made to the seller in writing within three months before delivery, then the ten day limitation does not apply.

Also very important for purposes of the MBE is that the seller's right to reclaim goods is subject to the rights of a buyer in ordinary course or other good faith purchaser for value. In other words, if the buyer has sold the goods to a bona fide purchaser ("BFP"), then seller will be required to seek other remedies from buyer, as the ability to reclaim the goods will have been lost upon that sale.

Sunday, March 29, 2015

Trusts

Trusts is a subject tested on the state essay portion of many bar exams. It's not thought of as an MBE subject, but it is testable in the area of Real Property. Fortunately, for purposes of the MBE, the material is very basic. It's enough to know the following:

A trust is a relationship whereby a settlor conveys property to a trustee, and the trustee holds legal title to that property. The beneficiaries hold equitable title with equitable rights attached. At the time that the settlor conveyed the property, he/she must have owned the property and had the intent to create a trust.

A trust can be created in one of two ways: by will or by an inter vivos transfer of the property. It should be noted that the settlor may choose to act as trustee in which case the trust will be created if the settlor declares that he is holding the property in trust. As is the case with any transfer of real property, if the property transferred is real property, then the trust agreement must be in writing to satisfy the statute of frauds. If a settlor creates a trust during his lifetime, and then transfers property in his will to that lifetime trust, it is known as a pour over trust.

Occasionally questions will test charitable trusts. A charitable trust must have a charitable purpose, and must have indefinite beneficiaries (as opposed to a private trust in which the beneficiaries must be definite). Further, it may be of indefinite duration (the Rule Against Perpetuities does not apply). Occasionally, a trust will be set up for a charity and at some point the purpose of the trust will become impracticable or impossible. In such instances, the court will apply the cy pres doctrine which allows the court to select an alternative charity. Generally, charitable trust are enforced by the attorney general of the state.

Thursday, March 19, 2015

MBE Fast Fact: Recapture of Chattels

Within the area of intentional torts, the topic of recapture of chattels tends to cause some difficulty. And with good reason: it's somewhat of a gray area of law with different outlines stating different types of analysis. Here's what should be known for purposes of the MBE:

It's important when analyzing recapture of chattels to determine exactly how the chattels came into the possession of the person from whom the chattel is now being recaptured. Assume that X is the owner of the chattel, and that Y is now in possession of X's chattel.

If Y's possession of the chattel began lawfully, then X may only use peaceful means to recapture the chattel. To the contrary, X may only use force to recapture the chattel from Y if X is in hot pursuit of Y, and if Y has obtained the chattel unlawfully.

How might this play out in a question. Assume that Y has come into possession of X's chattel lawfully. For example, assume X has given a piece of property to Y, and that now Y refuses to return it. If X attempts to recapture the property and uses force in doing so, Y may have a claim against X for battery, even though X was merely attempting to recapture property that belonged to X. This is because the use of force on the part of X would not be allowed in such a situation, so that if X claimed recapture of chattels as a defense to a claim of battery, the defense would fail.

Monday, March 9, 2015

MBE Fast Fact: Interference with Business Relations

A tort that shows up with some regularity on the MBE is the tort of interference with business relations. As is the case with all intentional torts, the key to answering questions correctly that are testing this tort is to know the elements of the tort. They are as follows:

--A valid contractual relationship between plaintiff and a third party, or a valid business expectancy of plaintiff with the third part

--Defendant's knowledge of that relationship or expectancy

--Intentional interference of the relationship or expectancy by defendant that induces a breach of the relationship or expectancy

--Damages to plaintiff.

But the analysis does not end there. Defendant's conduct may be privileged where it is a proper attempt to obtain business for defendant. Defendant's conduct is far more likely to be deemed privileged in this respect if the conduct is one that merely interferes with plaintiff's expectancy of business and not an already-existing business relationship. In addition, the analysis should run in favor of finding a privilege if defendant used commercially acceptable means of persuasion rather than illegal or threatening tactics, or if defendant is a competitor of plaintiff seeking the same prospective clients. It's also important to note that if the third party has contacted defendant seeking business advice, and the defendant provides such advice, providing such advice is unlikely to be deemed actionable by plaintiff as an interference of plaintiff's relationship with the third party, even if the the advice ultimately leads to the third party forming a business relationship with defendant rather than plaintiff.

Sunday, February 22, 2015

Good Luck!

Best of luck to all sitting this week for the bar exam!!

Posting to resume shortly in preparation for the July '15 exam.

Monday, February 16, 2015

MBE Fast Fact: Wrongful Birth vs Wrongful Life

Let's be sure to distinguish these concepts as they do show up on the MBE:

In short, wrongful life means the the child sues the mother or others for being born. Wrongful birth, on the other hand, means the mother sues others (very often a doctor who fails to inform the mother of the potential for a disability) for being burdened monetarily with a disabled child. Wrongful birth cases are nearly always medical malpractice tort cases.

For purposes of the MBE, it's most important to remember the following: Most states reject a claim of wrongful life, and of the few states that do permit it, some would limit recovery to the special damages attributable to the disability.

In contrast, a cause of action for wrongful birth will be permitted in many states. Though allowable, damages will generally be limited to expenses incurred as a result of the child's disabilities.