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.

Monday, August 17, 2015

MBE Essentials: Torts Defenses

It's never too early to begin preparing for the bar exam. Starting early makes the entire process easier! Below are a few questions from my book MBE Essentials dealing with the topic of defenses in Torts.

What constitutes valid self-defense?

When a person reasonably believes that an attack against oneself is imminent, that person may use force as is reasonably necessary to protect against injury. Generally, there will be liability if an innocent third-party is injured by the person attempting to defend himself, but only if the person defending himself injures the third party intentionally. If one reasonably believes that his life is in danger then he may use deadly force to defend himself. There is a split of authority as to whether retreat is required prior to using deadly force; the modern trend requires an attempt at retreat if safe retreat is possible.

What type of force is allowable to protect property?


Reasonable force can be used to prevent a tort against real or personal property. Before such force, a request to desist must be given, unless such a request would clearly be futile. Once the tort has already been committed, one may not use force to reclaim the property, but one may use reasonable force if in hot pursuit of the person who has taken the property. Deadly force is never allowed to defend one’s property (unless one’s life is also threatened). If a piece of personal property is found to be on another’s land, the rightful owner of the property has the right to enter the land (it will not be trespass), but can only do so at a reasonable time and in a peaceful manner.

When is one entitled to the defense of necessity?

A person has a privilege to interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threated injury from a natural or other force, and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it. The two types of necessity are public and private necessity. Public necessity provides for the defense when harm to the public is threatened whereas private necessity allows for the defense when an act is solely to benefit a private individual or property.

**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


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Wednesday, August 12, 2015

MBE Fast Fact: Misrepresentation

In Contracts there are two types of misrepresentation to keep in mind, and the fine distinctions between them are exactly the type that the writers of the MBE are likely to test:

Fraudulent Misrepresentation: In this type of misrepresentation one party to the contract induces another to enter into the contract by asserting information that s/he knows is untrue. Here, if a contract is formed, the contract is voidable by the innocent party provided that the innocent party justifiably relied on the fraudulent misrepresentation. This is sometimes referred to as fraud in the inducement.

Nonfraudulent Misrepresentation: There can be a misrepresentation even if that misrepresentation is not fraudulent. In other words, a false statement is made by a party to the contract but that party does not know that the statement is false when the statement is made and there is not necessarily an intent to defraud. Here, again, the contract is voidable by the innocent party but only if the innocent party justifiably relied on the misrepresentation, and the misrepresentation was material. A misrepresentation is material if it would induce a reasonable person to enter into a contract, or if the person who made the misrepresentation knew that due to special circumstances the statement would be likely to induce the innocent party, even if it would not induce a reasonable person.

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:

Assault:

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.

Battery:

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).

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:

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

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.