Saturday, July 25, 2015

Good Luck!

Best of luck to all those preparing for the July bar exam next week!!

Posting to resume shortly in preparation for the February 2016 exam.

Monday, July 20, 2015

The Erie Doctrine

Pretty safe bet that within the Civil Procedure questions on the MBE next week there will be at least one question testing the Erie Doctrine.

As per the doctrine, a federal court in a diversity case will apply federal procedural law, but must apply the substantive law of the state in which the federal court sits. And because the determination as to whether to apply state or federal law depends entirely on whether the law to be applied is deemed procedural or substantive, it's important to understand how to go about making that determination.

Courts will generally use the "outcome determinative test" in determining if a law is procedural or substantive. A law that substantially determines the outcome of the litigation is deemed substantive and the state law will be applied by the federal court. But if a law is arguably procedural, the federal court will generally err on the side of applying the federal procedural law.

**Note that the Erie Doctrine is only an issue when the case is in federal court on the basis of diversity jurisdiction. If instead there is federal-question jurisdiction, then federal law applies even to substantive issues as per the Supremacy Clause.

Friday, July 3, 2015

Civil vs. Criminal (Assault and Battery)

The fact that both assault and battery show up both in civil law (Torts) as well as in Criminal Law makes these topics tricky if the distinctions are not known well. Based upon what I've seen in practice questions, the following should be known about each:


In Torts, assault is an intentional tort that requires an act by the defendant creating a reasonable apprehension in plaintiff of an immediate harmful or offensive contact to plaintiff's person. In addition, causation is required, but damages are not required.

In Criminal Law, there are two ways to commit the crime of assault. One way is nearly identical to the definition set forth above in Torts. A criminal assault is an intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm. But there is another definition of criminal assault to note carefully. Assault is also an attempt to commit a battery. This is a specific-intent crime so be sure to apply all the rules you've learned regarding specific-intent crimes to criminal-assault. In addition, note that a person can be guilty of criminal assault even if the plaintiff was not put in apprehension of harm because all that is required is that defendant intended to commit a battery upon plaintiff.


In Torts, battery is harmful or offensive conduct to plaintiff's person with both intent and causation. Once again, damages are not a required element.

In Criminal Law, battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Importantly, unlike in Torts, criminal battery need not be intentional. Unlike criminal assault, criminal battery is a general intent crime.

Monday, June 29, 2015

MBE Essentials

As we enter the month of July, consider supplementing your bar review 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.

Sunday, June 21, 2015

MBE Fast Fact: Leaseholds and Eminent Domain

It's not uncommon at all for the NCBE to combine topics they've listed in the MBE subject matter outline when creating questions in a given subject area. One such area you should be aware of deals with eminent domain and leaseholds.

The Fifth Amendment (applicable to the states via the Fourteenth Amendment) provides that private property may not be taken for public use without just compensation. When approaching a question implicating the government taking private property for public use, the crucial issue is whether the government action is a taking (which requires the government to pay just compensation), or merely a regulation (which does not require the government to pay compensation). On the MBE, you should note that actual or physical appropriation of property will nearly always amount to a taking. In addition, if a government regulation permenently denies a landowner all economic use of his land, the regulation will amount to a taking, unless the question provides that the act being regulated is a prohibited nuisance.

But a twist in a question might occur when the person claiming entitlement to just compensation is a lessee of the property being taken rather than an owner. The rule to note is the following: If the entire leasehold is taken by eminent domain, the tenant's liability for rent is extinguished as both the leasehold and the reversion merge at that moment and there is therefore no longer any leasehold estate. In addition, the lessee is entitled to just compensation. On the contrary, if the taking is only temporary or partial then the tenant is not discharged from paying rent but is still entitled to just compensation for the taking (usually a share of the condemnation award with the owner of the property).

Friday, June 12, 2015

MBE Essentials: Hearsay

Hearsay is of course a very heavily tested topic within the evidence questions on the MBE. Here are a few questions and answers from my book MBE Essentials focusing on this topic:

What is meant by “truth of the matter asserted"?

If a statement is offered for the truth of the matter asserted then it is offered to prove the content of the statement. If the reason for offering the statement is for any reason other than to prove the content of the statement offered, then, although it may be excluded by some other rule of evidence, the rule against hearsay will not prevent that statement from getting admitted.

What are some examples of statements offered that are not offered for the truth of the matter asserted?

Any statement offered for a reason other than to prove the truth of the content of that particular statement is not subject to the rule against hearsay. That said, there are some common types of statements often tested on the MBE that fall within this category. If a statement is offered, but it is offered merely because it is itself a legally operative fact, then that statement is not hearsay. For example, a statement might be offered to show that there was an acceptance of an offer in a contract, and there is no hearsay problem with such a statement, because it is being offered to show there was an acceptance, and it is not being offered to prove the truth of whatever was stated in that acceptance. In addition, a statement might be offered to show its effect on the listener. For example, a statement might be offered to show that a person was on notice about a dangerous condition and was therefore negligent in not fixing that condition once on notice. Such statements are not hearsay, as they are being offered to prove notice, and not to prove truth of the matter asserted. Statements might also be offered as circumstantial evidence of the declarant’s state of mind. For example, if evidence is offered that the declarant stated that a purple elephant demanded he kill his wife, such a statement can be offered to develop a defense of insanity. Such a statement would not be hearsay, as it is not being offered to prove that a purple elephant did, in fact, demand that defendant kill his wife (ie., the truth of the matter asserted).

Which statements are not hearsay even though they are offered for the truth of the matter asserted.

There are two types of statements that fall within this category. The first type is prior statements by witnesses, and the second type is admissions by a party opponent. Let’s first address prior statements by witnesses. If a prior inconsistent statement of a witness is offered, it will not be hearsay provided the statement was made under oath at a prior proceeding. Further, if a prior consistent statement by a witness is offered it will not be hearsay if the statement is offered to rebut a charge that the witness was lying or exaggerating, and this will be true regardless of whether that prior consistent statement was made under oath. Lastly, if a statement is offered, and that statement is a prior identification of a person after perceiving the person, the statement is not hearsay.

**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on @

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

Sunday, June 7, 2015

The Top Five: Tenants in Common

There are a lot of angles the MBE can take when testing tenants in common. This post summarizes the areas I see them go most often in the questions:

The distinguishing factor between a tenancy in common and a joint tenancy is that a tenancy in common has no right of survivorship. Tenants can hold different interests in the property, (for example tenant 1 owns 75% while tenant 2 owns 25%), but all tenants have a right to possession of the entire 100%. Interests are entirely alienable, devisable, and inheritable. The following are five specific rules to know regarding co-tenancies:

(1): Though each tenant has the right to possess all of the property, no tenant has the right to exclusive possession of any part of the property. Therefore, if one co-tenant claims exclusive control (and only if one co-tenant claims exclusive control), then the other co-tenant can claim s/he has been ousted and bring a possessory action against the tenant claiming exclusive control.

(2): A co-tenant in possession has the right to retain profits from his/her own use of the property. However, net rents from third parties and net profits gained from exploitation of the land must be shared with co-tenants, even those who are not possessing the land at the time those rents or profits are generated.

(3): A co-tenant may encumber his/her interest (for example, by a mortgage), but may not encumber the interests of another co-tenant. The mortgagee can only foreclose on the mortgaging co-tenant's interest.

(4): Any co-tenant has a right to judicial partition either in kind (physical division of land among co-tenants), or by sale and division of the proceeds from the sale.

(5): A co-tenant who pays more than his/her pro-rata share of necessary repairs is entitled to contribution from the other co-tenants, provided the other tenants were notified as to the need for repairs. However, in contrast, there is no right of contribution from other co-tenants for the cost of improvements to the property that do not meet the standard of necessary repairs.

Friday, May 29, 2015

Character Evidence

Character evidence is a complicated area of Evidence Law. Evidence is a subject that requires a lot of practice through questions but the foundation first has to be built. The following is a summary of character evidence for purposes of the MBE.

In a civil case, evidence of character offered by either party to prove the conduct of a person is only admissible if character is directly at issue in the case. For example, one situation in which character is directly at issue is in a case of defamation. Here, character of plaintiff will be at issue, because a determination of plaintiff's character will be required to determine whether the statements made by defendant about plaintiff's reputation were true or false. As such, character evidence is admissible

In a criminal case, the rules are more complicated. First, the prosecution can not initiate evidence of bad character of the defendant to show that because of those character traits defendant is more likely to have committed the crime. The defense, on the other hand, can introduce evidence of defendant's good character to show his innocence of the alleged crime. This evidence can only be introduced through opinion or reputation evidence. Be careful to ensure that the character trait defendant is introducing is pertinent to the case; only pertinent character traits may be offered by defendant.

This now provides the prosecution with two possibilities for rebuttal. The prosecution can cross examine the witness who testified to defendant's good character, and can ask that witness whether he knows of, or has has heard of, specific instances of defendant's misconduct. The prosecution may also call its own witnesses to testify to the defendant's bad reputation or to give their opinions of defendant's bad character.

Defendant can also introduce reputation and opinion evidence of a bad character trait of the alleged victim when it is relevant to show defendant's innocence (often when defendant is claiming self-defense).

The prosecution again has two options to rebut that evidence. The prosecution can introduce reputation or opinion evidence of the victim's good character, or introduce reputation or opinion evidence of the defendant's bad character.

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 and foreign country in which it has been incorporated as well as the one US state or 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:

And an official statement here:

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 @

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.