MBE Strategies & Tactics Notes

CONSTITUTIONAL LAW 1. 2. Types of questions: a. Youre asked about the validity of a statute; or b. Youre asked to identify the best or worst argument for upholding or overturning a statute. Major powers of Congress: CREATES DICE a. Civil Rights b. Elections (Congressional) c. Admiralty d. Taxation e. Eminent Domain f. Spending/Taxing for General Welfare g. Defense h. Interstate Commerce i. Citizenship j. External/Foreign Affairs Commerce Clause applies to federal government, source. a. Congress can regulate 4 categories of activities involving interstate commerce: 1) Channels of interstate commerce, 2) Instrumentalities of interstate commerce, 3) Articles moving in interstate commerce, and 4) Activities substantially affecting commerce. b. Most CC questions on MBE involve the sale or distribution of an item, usually in a commercial setting. But if activity is non-commercial, theres stricter test; you must find a pretty obvious connection between the activity and interstate commerce. Doesnt apply to use of item once its left the stream of interstate commerce. c. If the activity being regulated involves use of an item after its finished traveling through interstate commerce, or if the activity being regulated is non-commercial, the statute under CC may have gone too far. d. While CC is source of federal power, its also a limitation on the states power. Only time you analyze state statutes impact on interstate commerce under CC is when theres no relevant federal legislation. Then you have to determine if a state regulation unduly burdens interstate commerce. If federal legislation exists, then analysis falls under Supremacy Clause. If theres no direct conflict between state and federal law, you have to determine whether Congress intended the federal law to occupy the entire field by looking at 4 factors: (PUSH Pervasiveness, Uniformity, Similarity, History) 1) Whether the subject matter is traditionally classified as local or federal; 2) How pervasive the federal regulation is; 3) How similar the state and federal laws are (the more they coincide the more likely it is that federal law was intended to supersede state law); and 4) Whether theres a need for uniform federal regulation. Welfare Clause gives Congress power to tax and spend for general welfare. Congress doesnt have power to enact any legislation that promotes the general welfare of the nation. Tax and spend, thats it. States have power to legislate for general welfare but only under police power. No federal police power. Contracts Clause prohibits states from passing any law which impairs the obligations of contracts. Usually correctly applied when state seems to be trying to escape its own obligation. a. As prerequisite for protection under this clause, the contract must have existed when statute was passed. States can regulate contract formation prospectively. b. If contract in question predates offending statute, KC is relevant. If postdated, then its irrelevant. c. Not all contract impairments are invalid under KC. d. State modifications of contracts will be permissible if the modifications: 1) Serve an important and legitimate public interest and 2) Are necessary to achieve that public interest; and IF 3) The contract impairment is reasonable under the circumstances.

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Privileges and Immunities Clauses - 2 PICs a. Privileges & Immunities of the 14thA applies to states; generally useless. 1) Voids state enactments which clearly infringe on the privileges of national citizenship. Protection is limited to the fundamental rights shared by all citizens, such as the right to travel freely from state to state, to petition Congress for redress of grievances, to vote for national officers, to assemble peacefully and to discuss matters of national legislation. 2) Reliance on this clause is usually wrong answer on MBE because the same rights protected are also protected by DPC and EPC of the 14thA both of which are stronger arguments. 3) If you see 14thA PIC as MBE choice for invalidating state statute, most likely wrong answer. b. Interstate Privileges & Immunities Clause of Article IV applies to states; has some effect. 1) Only PIC with some effect. 2) Prevents states from discriminating against out-of-state citizens and residents in matters concerning essential activities (i.e. jobs, owning property) and basic rights (i.e. medical care, court access), unless the discrimination is closely related to a substantial state purposes (i.e. protecting states natural resources) and there are no less restrictive means available to achieve the purpose. 3) Doesnt protect corporations or aliens, just out-of-state, human US citizens. Eleventh (11th) Amendment applies to individuals; very narrow. a. Forbids most actions in federal courts by private citizens for damages against the state. b. Doesnt prevent: 1) Suits by federal government against states; or 2) Suits by anyone against state subdivisions (counties, cities); or 3) Equity suits in federal court where state official violated s federal constitutional rights; 4) Suits against a state official for money damages as long as damages are to be paid out of the officials own pocket. c. Congress may not abrogate 11thA except where it passes statute giving private citizens the right to sue a state under the post-Civil War Amendments. Limited to measures that are fitted to remedying of actual constitutional violations by the states. Thirteenth (13th) Amendment applies to government and individuals. a. Outlaws any badges or incidents of slavery. b. Gives Congress power to prohibit virtually any discrimination against blacks, or whites (and it may cover other kinds of discrimination). c. 13thA is only amendment explicitly limiting private acts by individuals no state action is required. Federal power a. Congress can only act pursuant to its enumerated powers under Constitution. Thus any valid federal statute must be rationally related to an enumerated power, or it must be necessary and proper to effectuate an enumerated power. b. Congress has almost exclusive power over federally-owned lands under Property Clause; it controls Bankruptcy. Congress has state-like powers over DC (can regulate marriages, educations, and other state-oriented areas). c. Any valid federal law will have to be rationally related to one of the CREATES DICE powers, or necessary and proper to effectuate one of them. d. If Congress tries to legislate beyond powers, it violates 10th Amendment (which reserves to the states and people those powers not expressly delegated to Congress, nor prohibited to the states). e. No federal police power. Congress can use its commerce power for police-like activities like prohibiting interstate transportation of stolen property, misbranded goods, lottery tickets, etc. State power a. In order to be valid, a state statute must meet 3-part test: 1) Law must be enacted within states powers (i.e. police power); 2) It must not violate anyones Constitutional rights; and 3) It must not unduly burden interstate commerce. b. State police power is most common source of state authority; state legislation is enacted under police powers if it involves public health, safety, welfare, or morals. Very broad power. Due Process and Equal Protection a. Test to determine which one applies see if a classification is built into the statute (i.e. residents v. non-residents, men v. women, legitimate children v. illegitimate children, etc). If theres a classification, then EPC applies. If no classification, then DP.

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EPC 1) 2) 3)

4) 5) 6) c. DP 1)

If statute is a federal statute, theres no EPC problem because EPC doesnt apply to federal government EPC only applies to state action. If a state or federal government is enacting a law then you have state action. If private individual or group of individuals is involved, you need to look for 2 things 1) is there a nexus of government involvement (whether government encourages or benefits from private conduct), 2) Does private conduct have public function thats normally exclusively reserved to the state? If yes to either, then state action. Discrimination In order for statute to be held invalid, it must (1) be discriminatory on its face; or (2) be facially neutral but unequally administered; or (3) have the intent to discriminate. Statute wont be found invalid if discrimination results merely from its impact. If youre faced with newly enacted statute but arent told anything about its background, it can be held invalid only because its invalid on its face.

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2 types of DP problems: a) Procedural DP Addresses fairness of a procedure used to deprive someone of significant interest, usually in property but also in life or liberty. Ask if a notice and a hearing are necessary when a right is removed. There must be a law, whether federal, state, or local, under which person has a legitimate property interest. b) Substantial DP when state action substantially interferes with a fundamental right. Must meet SS. If right isnt fundamental, must meet RB. (i) Only personal rights are considered fundamental under SDP voting restrictions on age, residency, and citizenship are valid. 1stA rights, right of privacy (conception, procreation, marriage, abortion), and the right to interstate (and probably international) travel. (ii) MBE likes to ask you in SDP problems who has the burden of persuasion. If the impaired right is fundamental, then burden is on government to defend its action. If right is not fundamental, then burden is on person attacking government action. d. Levels of scrutiny 1) Strict scrutiny a) Applies only to: (i) Suspect classifications (based on race or alienage); or (ii) Classification relates to who may exercise a fundamental right. b) Fundamental rights: (i) Freedom of association; (ii) Interstate travel; (iii) Privacy (marriage, procreation, abortion); (iv) Voting; (v) Freedom of expression; (vi) Freedom of religion c) Must be necessary to promote a compelling governmental interest. 2) Intermediate scrutiny a) Applies to quasi-suspect classifications gender and legitimacy. b) A law must be substantially related to an important state interest to be valid. 3) Rational basis a) Applies to everything else. Poverty/wealth, age, mental retardation, etc. b) State needs only RB for discriminating against non-citizens for essential state functions can require police, public school teachers, probation officers, and others be US citizens. Freedom of Expression covers freedom of speech, press, assembly, and association. a. Any statute regulating freedom of speech or association must contain narrow and definite standards. No overbreadth or vagueness. If a statute prohibits not only unprotected speech but also protected speech, its unconstitutionally overbroad. b. Defamation, obscenity, and fighting words not protected speech.

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Clear and present danger test government can prohibit advocacy of illegal conduct if it meets clear and present danger test if (1) advocacy is intended to produce or incite imminent illegal action and (2) the advocacy is likely to produce or incite such action, it can be prohibited. d. Prior restraint government action that prohibits speech before it takes place. Presumptively invalid due to vagueness or placing too much discretion in public officials, i.e. those granting licenses to hold demonstrations (apply TPM test). Can be valid where the mere existence of communication is proven to create some special harm to society, i.e. prohibiting publication of planned army movement in wartime would be valid). e. Commercial speech speech whose primary goal is a commercial transaction. Somewhat protected, but subject to greater regulation than non-commercial speech, i.e. its permissible to prohibit misleading ads. f. Public speech time place, and manger regulations. If you determine that speech in given fact pattern is constitutionally protected, dont stop there. Its still subject to TPM regulations. g. Time, place, and manner to be valid, a TPM regulation: 1) Must be neutral as to content of speech, both on its face and as applied. Content-neutral. 2) Must further significant government interest not capable of accomplishment by less restrictive means; and 3) Must allow for adequate alternative channels for communication info. Freedom of Religion under 1stA government can neither outlaw or seriously burden a persons pursuit of religion (Free Exercise Clause) nor endorse or support a particular religion (Establishment Clause). Government has to be religion neutral. a. Any government action must conform with following Lemon test: 1) Government action must have a secular (non-religious) purpose; 2) Primary or principal effect of action must not be the advancement of religion; and 3) Government action must not foster excessive government entanglement with religion. b. Government cant prohibit you from believing in a certain religion but may burden the practice of your beliefs if burden meets the Lemon test. c. 1stA only protects those beliefs paralleling traditional religious views, so mere political or philosophical view wont be protected, while something as bizarre as devil worship will be. Court cant investigate the reasonableness of your religious views, but can determine how important a particular practice is to the exercise of religion. d. Aid to private, religious schools 1) Theres potential EC problem any time government helps out private, religious schools even if that help is on same scale as help given to public schools. 2) 2 guidelines (1) aid must be for secular instruction, and (2) aid to post-secondary schools (i.e. colleges) is more likely to be upheld than aid to elementary or secondary schools because theres less risk of religious indoctrination of college students. 3) Where any kind of government aid to a parochial school would require that government keep close surveillance on how the funds are dispensed, i.e. grants for salaries of teachers of secular subjects only, the entanglement required to monitor such a program which would otherwise be constitutional, is impermissible. Standing prerequisite for every case. If P doesnt have it, doesnt matter how legitimate his claim is, the case must be dismissed. Standing exists only if the action challenged has caused, or is imminently likely to cause, an injury to the party seeking review. a. Taxpayer standing taxpayers generally dont have standing, but there is very narrow exception which only applies to cases involving religion based on EC. Federal taxpayer can gain standing to challenge if he can show 2 things: (1) that federal tax was invalidly applied to him, making injury personal, or (2) that expenditures in question both exceeded a specific constitutional limitation on the taxing and spending powers, AND they were part of federal spending program. This restricts taxpayer standing to religion cases. b. When has standing to assert someone elses constitutional rights, this is possible only where is injured because someone elses constitutional rights have been violated, or where those who are injured cant assert their own rights. i.e. NAACP would have standing to file on members behalf so members wouldnt have to reveal their identities in case about compelling production of membership lists. Jurisdiction a. Congress has power to create courts inferior to SCOTUS and can control their jurisdiction as long as it stays within boundaries of Article III. Congress can also control appellate jurisdiction of

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SCOTUS, i.e. could stop SCOTUS from hearing abortion case. Only thing it couldnt do is monkey with SCOTUSs original jurisdiction (where an ambassador, a state, or US itself is a party.) b. Basis of federal court jurisdiction diversity jurisdiction (cases between citizens of different states with at least $75K in controversy), federal question jurisdiction (if case arises under federal statute, treaty, or Constitution, federal court has jurisdiction). Cases between state and citizen of another state. c. Means by which case can reach SCOTUS (1) whether source of case is federal court or highest state court, and (2) whether SCOTUS review is sought by appeal (review as of right) or by writ of certiorari (discretionary review). To get to SCOTUS at all, state court case must address a federal question. If state case rests on adequate and independent state grounds, even if it also addresses a federal question, SCOTUS wont review the case. 1) Appeal from states highest court cases where state court held federal statute/treaty invalid or held state statute valid in face of claim of invalidity under Constitution or federal law. 2) Writ of certiorari from states highest court cases where state court addressed constitutional or federal statutory claim (where there was challenge to constitutionality of a federal law, a challenge to a state statute on grounds of being unconstitutional or contrary to federal law, or any claim asserted under constitution or federal law). 3) Appeal from a lower federal court cases where lower federal court held federal statute invalid in civil action where US is a party; or found a state statute invalid under federal law or constitution. 4) Writ of certiorari from lower federal court any case, civil or criminal, regardless of whether constitutional issue is involved. d. Federal courts wont address political questions issues Constitution commits to other government branches and issues judicial process cant resolve, i.e. foreign relations because they are domain of President and Congress, so a lawsuit by any person or organization which challenged handling of foreign affairs wont be heard by federal court. e. Federal courts wont issue advisory opinions one that answers a legal question when none of parties before court has suffered or will face specific injury related to it. Federal court has jurisdiction only over cases and controversies. f. Federal courts wont hear claims that are moot or unripe. Case is moot if its been resolved or rendered academic before it reaches the court, but if an event is recurring but will always evade review, court will address issue anyway. Class actions can proceed as long as any of the claims remains valid even if the claim of the class rep becomes moot. Case is unripe if doesnt present immediate threat of harm. Separation of powers Congress makes the laws, President executes the law, and the judiciary interprets the laws. MBE questions where President attempts to impound funds appropriated by Congress remember that as long as Congress specifies that the funds are to be spent, executive branch must spend the funds, if not theres separation of powers violation. Bills of attainder law, either federal or state, that punishes without a trial, past or future conduct of specific individuals or named groups. Impermissible. Hallmark of bill of attainder punishment on basis of political beliefs or activities. Exam tactics a. If asked about validity of law, first check to see if its a federal or state law. b. If asked about Ps standing, ignore the issues see if the P has standing to bring claim, not whether his claim has merit. P must either have suffered or be imminently likely to suffer an injury due to the challenged action. c. Avoid answers that say a statute is constitutional because the Ps interest is a privilege not a right. Always incorrect. d. Con law on MBE frequently gives 2 questions on same fact pattern, one asking strongest argument for holding statute constitutional, and the other asking strongest argument for striking down statute. May help to look for common issue in answer choices strongest argument for one side is likely to be weakest argument for other. e. If youre faced with purely economic or social statute, remember theres no DP or EPC problem because statute will be subject only to the RB test.

CONTRACTS 1. Types of questions: a. s or s best argument or theory for recovery b. How contract terms should be construed (i.e. as conditions) c. How to characterize facts (i.e. if certain acts constitute offer, acceptance, contract) d. Whether will succeed e. Legal effect of additional facts f. If court decides for a specified party, the reason why g. How a goal could be accomplished (i.e. offer accepted or revoked) h. Which of 2 or 3 alternatives are correct, or would influence outcome of case. Common law v. UCC a. Common Law Modifications of Ks require consideration. An offer can be made irrevocable only with consideration offeree must pay for irrevocability and thus create an option K. Reasonable delay is only minor breach unless K provides time is of the essence or unless breaching party knew (when K was created) of some extraordinary fact which made deadline essential. If time is of the essence, any delay is major breach. Minor breach other party must perform and sue for damages Major breach other party doesnt have to perform and can still sue for damages. b. UCC Modifications of Ks require good faith. Merchants can make irrevocable or firm offers without consideration as long as offers are in writing and signed. Perfect tender rule every deadline must be met precisely and any delay is a major breach. Exception with notice to buyer, seller can cure defective performance if theres time left for performance. Even if time for performance has passed, seller can still cure if buyer rejected nonconforming tender that seller had reasonable grounds to believe buyer would accept. Unilateral v. bilateral contracts a. Unilateral offer for unilateral K seeks performance in return, not a promise. b. Bilateral offer for bilateral K seeks promise in return, not performance. Rewards modern view is that offeree need only complete performance with knowledge of a reward offer (or public offer of any kind) to earn the reward. Traditional rule is that public offer must have provoked offerees performance. Reward offer must be seeking unilateral contract. Consideration a. Any enforceable agreement requires consideration or a substitute (i.e. promissory estoppel). b. Consideration bargained-for exchange, plus either detriment to the promisee or benefit to the promisor, or typically both. Both parties must view the return promise (or performance) as the price of the contract. If they dont, theres no consideration. c. Gifts Promises to make a gift is unenforceable. Best way to distinguish gift from bargain is to look at whether or not promisor is getting something in return. If not, its gift and promise is unenforceable unless promissory estoppel applies. d. Surrendering an invalid claim can still be consideration if 2 requirements are met: (reasonableness and good faith) Reasonable person (person surrendering the claim) could believe the claim is well-founded (doesnt matter what other party believes, only belief of surrendering person matters); and It can be pursued in good faith. e. Consideration in unilateral Ks offerees performance is consideration for the agreement. f. Promissory Estoppel triggered by a gratuitous promise which is likely to, and does, induce the promisees reliance. Substitute for consideration. Lack of an otherwise enforceable K is prerequisite for promissory estoppel. g. Quasi-contract requires no enforceable contract. Courts apply this if has conferred benefit on and would be unjustly enriched if he were allowed to retain benefit without paying for it.

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There must be unjust enrichment and no enforceable K. Cant be unjust enrichment if performing party suffered no detriment. Conditions a. Condition an event, other than mere passage of time, that triggers, limits, or extinguishes an absolute duty to perform on behalf of one party to K. b. 2 ways to categorize conditions: How the condition came about express, implied, and constructive 1) Express condition parties explicitly included it in the K. Must be strictly complied with. Substantial performance wont suffice. If theres substantial, but not complete, performance, the nonbreaching party doesnt have to perform at all. 2) Implied condition Substantial performance is sufficient. If performance isnt complete, other party will be able to recover damages but still has to perform. 3) Constructive condition Substantial performance is sufficient. If performance isnt complete, other party will be able to recover damages but still has to perform. Time of performance 1) Condition precedent Event or act which must occur first to trigger parts absolute duty of performance. Is there an enforceable duty before the required event happens? If NO, then thats condition precedent. I.e. If Yankees make it to World Series, Ill buy your tickets for $500. Yankees making it to World Series is condition precedent to my duty to perform (buy tickets for $500) as well as your duty to tender tickets. 2) Concurrent condition Exists where each partys duty to perform is conditioned on the other partys performance. I.e. Laurel offers to sell Hardy his piano for $200, Hardy agrees. Hardys tendering the piano is condition to Laurels duty to pay, and Laurels tendering $200 is condition to Hardys duty to tender piano, so concurrent conditions. Concurrent conditions have to be capable of simultaneous performance. However, if theres agreement to whitewash someones fence for $100, this cant be concurrent condition since they cant be done at same time itll take awhile to whitewash fence and this performance would precede duty to pay. 3) Condition subsequent Discharges previously absolute duty to perform. I.e. insurance contract, where the insurance companys duty to perform is discharged if the insured doesnt sue within say 6 months of an accident. Very rare. Interpretation some MBE questions require you to interpret K provisions. Dont imply promises where parties have expressly dealt with set of circumstances in the K. If parties addressed a situation, or determined who should bear the risk of a certain kind of loss, court wont look outside K. Statute of Frauds if K falls within SoF categories it must be in writing to be enforceable. a. Contracts covered under SoF: Contracts of Suretyship (i.e. K to answer for anothers debt or default guarantee of performance); (if main purpose of surety is to further own interest, promise doesnt fall within SoF) Ks for sale of an interest in land (which includes leases of one year or longer); Ks for sale of goods worth more than $500 (UCC) (except specially manufactured goods, or where theres partial performance); Ks which cant be performed within a year; Ks for sale of securities; Ks for sale of personal property other than goods with value of more than $5,000 (regardless of cost), i.e. royalty rights (UCC). Ks in consideration of marriage b. MP SIGNS M Marriage P Personal property over $5,000 value S Suretyship I Interest in land; G Goods more than $500; N Not performable within a year; S Securities.

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Need to know when need for writing will be excused. At common law, there are 5 circumstances under which K within SoF will be enforceable even without a writing: 1) Full performance by both sides; 2) Seller conveys property to buyer; 3) Buyer pays all or part of the purchase price AND performs some act explainable only by the Ks existence (i.e. constructing buildings on land); 4) Promissory estoppel; 5) Waiver (i.e. by not affirmatively pleading SoF as a defense). Under UCC, courts will excuse need for writing under several circumstances: 1) Where a transaction in goods is involved, part performance removes the writing requirement (but only to extent of performance), 2) As does an admission in court by party denying the Ks existence. 3) Specially manufactured goods dont require writing once seller has started manufacture or made commitments to procure the goods. 4) Letter of confirmation can satisfy SoF if transaction is between merchants. Main purpose exception regarding Ks of suretyship (where one promises to pay for debts of another); if suretys main purpose was to further his/her own interest, promise doesnt fall within SoF. Even if K fails for noncompliance with SoF, party may be entitled to quasi-contract recovery for reasonable value of his part performance, and to restitution of any other benefits he may have conferred. Third party beneficiaries if promisee of contractual promise intends that her performance should benefit someone outside of K, then other person is called the intended third party beneficiary. Only intended beneficiaries have enforceable rights, not incidental beneficiaries. Even then, rights arent enforceable until they have vested. Until then, parties to K can modify or even rescind K without regard to beneficiary. Once rights vest, any modification requires beneficiarys consent. Rights cant vest until beneficiary knows about the K. Before a 3 rd party beneficiary finds out about K, it can be modified and rescinded with no regard to beneficiarys rights. a. Beneficiarys rights vest when: The beneficiary manifests assent to the promise; Beneficiary sues to enforce the promise; or Beneficiary justifiably relies on the promise to his detriment. Assignment and Delegation need to know what can or cant be assigned or delegated, and the effect of K prohibitions on assignment and delegation. a. Assignment under both common law and UCC, the only rights that CANT be assigned are those which would materially change the other partys duty, risk, or chance of receiving return performance. That includes personal services, rights under future contracts, requirements and output contracts, and assignments contrary to public policy (i.e. government pensions and alimony payments). All other rights can be assigned. b. Delegation determining what duties can be delegated is more complicated. Easiest way is with 2tier analysis: Is the duty impersonal? If not, it cant be delegated. 1) Impersonal duty is one in which the one receiving performance has no particular interest in limiting performance only to the one from who he expected performance. 2) Personal duties include services of people like lawyers, doctors, architects, and portrait painters. If duty is impersonal, does the delegation materially alter performance? If not, it can be delegated. c. K prohibitions on assignments and delegations An assignment of the contract impliedly includes a delegation of duties as well, unless circumstances suggest otherwise (i.e. K is only assigned as security for a loan, which would indicate that duties werent delegated as part of assignment of K.) Assignment and delegation rules apply when K contains nothing preventing transfer. K prohibition throws a wrench into the works but exactly what prohibition does depends on how its worded.

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Assignment of rights under this contract is prohibited or similar language assignment is valid. Other party can only sue for damages for breach of covenant. Under UCC assignment of right to receive payment cannot be prohibited, and any prohibition is invalid. 2) Assignment of rights under this contract is void or similar language Assignment is voidable at other partys option. Under the UCC, assignment of right to receive payment cannot be prohibited. 3) The contract prohibits assignment of the contract this bars only delegation of duties, not assignment of rights. While such provisions are upheld, theyre narrowly construed. Integration and Parol Evidence Rule in order to determine if PER bans evidence of contract terms, you have to determine if K is completely integrated. Under PER, a writing that is completely integrated cannot be contradicted or supplemented by prior written or oral agreements, or by contemporaneous oral agreements. a. Completely integrated agreement parties intended agreement to be a final and complete statement of their agreement. b. Need to know 2 things 1) what PER exceptions are, and 2) what happens if agreement isnt completely integrated. PER exceptions PER doesnt bar evidence of defects in K formation such as lack of consideration, fraud, and duress. Partially integrated agreement one that doesnt reflect the complete agreement of the parties. Even if court determines that K is only partially integrated, doesnt mean open season on evidence of other terms. Written agreement will be considered final on stated terms, and agreement may be supplemented by consistent, additional terms. Cant dispute anything in the writing because theyre fully integrated in writing and cant be contradicted. c. On MBE, if an answer choice addresses a material term that wasnt in written agreement, chances are the agreement was only partially integrated. Exam Tactics a. Check MBE Contracts questions to see if transaction in goods is involved. If so, UCC applies. 1 in 4 MBE Contracts questions involves sale of goods. b. Common law Ks: K modifications require consideration. (pre-existing duty rule) An irrevocable offer requires consideration in order to make it a valid option c. UCC Ks: No consideration is required for modifications as long as theyre made in good faith. Merchants can make irrevocable or firm offers without consideration, as long as offer is embodied in signed writing. d. Traditionally a K requires an offer, acceptance, and consideration (or some consideration substitute). If K exists, then promissory estoppel and quasi-contract dont apply. e. For non-merchant offer to be irrevocable, it must be supported by consideration (enforceable option K). f. 3rd party beneficiaries v. assignees A beneficiary is created in the K, and an assignee gains his rights later after creation of K, when a party transfers his K rights to the assignee. A person who doesnt have rights created and arising in the K cant be a beneficiary.

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CRIM LAW & PRO 1. Types of MBE questions to expect: a. Youre asked whether, under the facts given, the should be guilty; b. Youre asked the prosecutors or s best argument; c. Youre asked which of 4 precedents is the best one for the facts given; d. Youre asked the most serious crime for which the could be convicted; e. Youre asked which of 4 fact patterns most closely fits a certain type of crime (i.e. felony murder). Differences between degrees and types of homicides a. Common law doesnt recognize degrees of murder, so if MBE question wants to discuss degrees it will supply appropriate statute.

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Murder at common law, it is an unlawful killing (neither justifiable nor excusable) with malice aforethought. Malice doesnt mean intent. 4 elements of malice: 1) Intent to kill 2) Intent to cause serious bodily harm 3) Depraved heart actor disregards an unreasonably high risk of harm to human life recklessness, extreme negligence 4) Felony murder c. Voluntary manslaughter killing with adequate provocation. Killing in the heat of passion. Provocation must be enough to anger and should be of a type that would provoke reasonable person to kill. must not have cooled off when killing takes place, and a reasonable person would not have cooled off in these circumstances. d. Involuntary manslaughter 2 types: 1) Criminal negligence ignores a risk of harm to human life which is less than the risk represented by depraved heart murder. Gross negligence here, extreme negligence for murder. 2) Misdemeanor manslaughter misdemeanor equivalent of felony murder. Important crimes to know: a. Larceny trespassory taking and carrying away of the personal property of another with the intent to steal it. b. Robbery larceny from a person which is accomplished by force or fear c. Burglary the breaking and entering of the dwelling house of another at night with the intent to commit a felony therein. d. False pretenses e. Embezzlement f. Larceny by trick Intent must remember how intent applies to different crimes a. Conspiracy conspirators must intend to agree and must also intend that criminal goal of conspiracy be done. b. Accomplice liability accomplice must intend that his principal carry out the crime. If he offers help without that intent, hes not liable. c. Larceny trespassory taking must be done with intent to steal. If actor only intends to borrow, theres no intent to steal and no larceny. d. Burglary requires breaking and entering anothers dwelling at night with intent to commit felony therein. If he goes in and plays scrabble, no intent. If he mistakes house for his own, goes in and removes jewelry, no intent and no burglary. Even an unreasonable belief can be defense if it negates intent. e. Transferred intent - liable for one crime while intended to do another crime. Liable even if second crime isnt performed. Criminal Procedure a. Warrantless searches/exceptions to warrant requirement: (NEED to know!) 1) Search incident to lawful arrest 2) Inventory searches 3) Exigent circumstances 4) Plain view doctrine 5) Automobile searches 6) Consent searches 7) Stop and frisk 8) Regulatory inspections (actually need warrant for this one but requirements arent as stringent) b. 4th Amendment applies only to searches and seizures done by the police or by people working under the direction of the police. c. Custodial interrogations/confessions Miranda warnings are required only when police intend to conduct custodial (suspect is not free to leave) interrogation. If police arrest someone and have no intent to question, no Miranda. If suspect volunteers confession, no Miranda. Custodial interrogations can take place away from the police station and can be conducted of someone who isnt under arrest or even a suspect, but must be administered by police or agent of police. Exam Tactics

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d. e. EVIDENCE 1. 2. 3.

Causation always required for criminal liability. If s conduct didnt cause victims injury, no criminal liability. Forgiveness or condonation by victim, or return of stolen property, doesnt negate criminal liability; crimes are considered wrongs against state, not against individual. Person can object to search only if he has legitimate expectation of privacy as to place searched. Likely to be issue if something incriminating one person is seized from someone elses home, car, office, etc. If no expectation of privacy, no standing to challenge search. No privacy expectation in bank records. If question says jury believes testimony, treat testimony as FACT. Mistake of fact would negate intent to steal, but mistake of law isnt valid defense to larceny.

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Hearsay is an out of court statement offered for the truth of the matter asserted. Statements of present impression are admissible as exception to hearsay without requiring speakers availability. Know the requirements for substantive use of prior inconsistent statements, identifications, and prior consistent statements. a. If an answer choice on MBE mentions prior identification, prior inconsistent statement, or prior consistent statement, check to see if declarant is currently testifying. If hes not, answers cant be correct. b. Even if a prior inconsistent statement doesnt meet all requirements for admissibility, it will always be available as non-hearsay to impeach or rehabilitate a witness. Know the requirements of admissibility on items like authentication and expert testimony. a. Need to be familiar with minimums required to admit documents, photographs, expert testimony, and the like. b. Expert testimony is not needed to authenticate a photograph all thats needed is person who saw scene in question and can testify that photograph fairly and accurately represents or illustrates what its supposed to depict. c. Expert testimony isnt required to authenticate signature anyone personally familiar with individuals handwriting can testify to its authenticity as long as familiarity isnt acquired for purposes of litigation. d. Graphologist could authenticate handwriting by comparing handwriting samples, without any personal familiarity with the individuals handwriting but expert testimony isnt necessary if a lay witness meeting requirements testifies. Best Evidence Rule where the material terms of a writing are at issue, the original writing itself (including photocopies and carbon copies) must be produced. Copies and oral testimony concerning writings contents are permissible only on showing that original is unavailable and that its lack of availability isnt result of proponents serious misconduct. BER doesnt apply in collateral matters. a. Only 2 situations in which BER requires that original document, if available, be introduced: 1) The terms of the writing are being proven; or 2) The witness is testifying relying on the writing. b. Applies only to material terms, not collateral matters. Exam Tactics a. Former testimony is available both for impeachment and as substantive evidence. b. Self-serving answer choice is always incorrect. c. Res gestae answer choice is always incorrect. d. Hearsay exceptions that require unavailability: (FRE 804) (unavailability not required for most hearsay exceptions) 1) Prior testimony 2) Dying declarations 3) Declarations against interest 4) Statements of pedigree 5) Catch-all exception. e. Doctrine of limited admissibility evidence may be admissible for one purpose and not for another purpose. Evidence being offered to establish an identifying circumstances makes what

f. g. h. i. j.

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would be otherwise inadmissible evidence, into admissible evidence. If its offered only to show that is willing to commit robbery, not admissible, but if its offered to help ID , its admissible. 1) If witness testifies light was red, then upon CX is presented with depo statement that light was yellow, transcript is self-authenticating and evidence is admissible for both impeachment and substantive evidence. Admissible under former testimony. Inadmissible because probative value of evidence is outweighed by probability of undue prejudice sometimes its best choice, sometimes not. Keep in mind type of evidence typically excluded due to legal relevance problems shocking evidence. When an answer choice says inadmissible as hearsay not within any exceptions, it really means inadmissible under any other answer choice for this question. A prior ID is only admissible when the declarant is testifying, i.e. drawing sketch of a suspect. Subsequent remedial measures cannot be admitted to prove negligence or wrongdoing due to public policy reasons. Witness competence be careful not to confuse incompetence with bias (normally whats at issue when competence is raised). FRE has only 2 requirements: 1) Witness must have personal knowledge of the matter on which hell testify, and 2) He must declare that he will testify truthfully, by oath or affirmation. Expert testimony an expert may base his opinion on facts not in evidence and even on facts which could not be admitted as evidence because theyre inadmissible hearsay. 1) 3 types of information that expert may testify on: a) Personal observation; b) Facts presented to the expert at trial (i.e. answering a hypothetical question); or c) Facts introduced to the expert outside the courtroom (i.e. by technicians or consultants) of the type upon which experts in his field reasonably rely. Offers to settle or offers to pay medical bills 4 possibilities under FRE: 1) Offers and payment of settlements themselves inadmissible; 2) Admissions in conjunctions with an offer to pay a settlement inadmissible; 3) Offers and payment of medical bills inadmissible; 4) Admissions in conjunction with an offer to pay medical bills admissible.

PROPERTY 1. 5 key points to know about each interest/topic in NCBE outline: a. Nature and characteristics of the elements of Real Property; b. How a particular element can be created; c. How to classify the element; d. The rights of possession and rights of the user of the element; and e. The legal and equitable remedies stemming from that element. 2 distinct property subjects on MBE Real Property and Future Interests. Bona Fide Purchaser BFP status doesnt matter between original parties to transaction. Status as BFP (one who takes for value without notice of prior claims) is relevant on questions about recording statutes. Only relevant if subsequent purchasers are involved. Not relevant for whether P could sue for breach of title/contract. Marketable title existence and conveyance of marketable title are implied in land sale contracts, but once the deed takes effect, the terms of deed control. If vendor contracts to sell property and later conveys property via quitclaim deed, there are no covenants with QCD. Doctrine of merger the deed, not the contract, controls. Know real covenants and equitable servitudes if requirements are met, person can be bound by them even if they dont appear in his deed. Notice is important. Notice can be express or implied, i.e. mere physical appearance of a neighborhood can provide notice that a building restriction exists. Know differences between recording statutes. Pure notice and race-notice are easily distinguishable by one point whether or not a subsequent BFP is protected BEFORE he records. In both cases BFP must have no actual knowledge of prior conveyance at time he takes conveyance. If he does, he wont be BFP and conveyance wont be valid against prior purchaser. If MBE question says recording act requires good faith, its notice or race-notice. a. Pure race doesnt require good faith. Very rare and doesnt pop up on MBE too often. Easy to spot because first recorded conveyance wins (first in time).

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Pure notice BFP is protected from moment the conveyance to him takes place. Race-notice BFP isnt protected until he records his own interest. Most commonly tested on MBE. Watch for language such as No unrecorded conveyance or mortgage of real property shall be good against subsequent purchasers for value without notice, who shall first record. Exam Tactics Real Property a. Eliminate answers that are wrong on the facts, wrong on the law, and that are irrelevant. b. Joint tenant can unilaterally sever joint tenancy by any act disturbing one of 4 unities (time, title, possession, and interest); includes the act of one joint tenant in mortgaging property (under title jurisdictions) as well as act of alienation by any tenant (voluntary or involuntary). c. Recording is done for benefit of subsequent purchasers, doesnt affect parties currently in title; they can change their interests without recording. d. Transactions involving interest in land are covered by SoF which in turn requires a writing to evidence the agreement. e. Beware of answers stating X will prevail, BECAUSE, the fact that makes answer correct must be in the fact pattern!!! Otherwise, if answer says X will prevail, IF, the fact doesnt have to be in the question. With conditional answers need only determine if the fact provided is central to resolving the issue, if so its correct. f. Constructive notice is based on circumstances which appear in grantees chain of title. Most likely to trip you up is fact pattern containing evidence that somethings amiss in previously recorded deed when the deed itself doesnt appear in chain of title. If there isnt an indication of a problem in chain of title, then grantee has no notice. Watch out for inquiry notice. g. Questions asking which argument is most likely to succeed determine which answer choice most closely addresses greatest obstacle to success in case. At least one of the answer choices must address a central issue in order to be the best response! h. In order for zoning ordinance or covenant to violate the constitution, must be far outside the realm of standard restrictions. Exam Tactics Future Interests a. Future Interests outline (1) classification of estates; (2) problems of vesting (including class gifts); (3) RAP; and (4) Rules relating to restraints on alienation. 2 types of future interests questions (1) what interest is created by a given conveyance or devise, or (2) whether the interest created is valid. b. Future interests questions frequently involve RAP and class gifts. c. Need to know difference between class gift in inter vivos conveyance and class gift in will. d. Know rule on splitting mortgage payments between remaindermen and life estate holder when theres a mortgage on property which is possessed by life estate holder, life estate holder is responsible for interest payments and remainderman is liable for principal. e. Not enough to know that an interest violates RAP is void, must know what happens to the interest if its voided. You have to figure out the results of removing that interest from the conveyance, and do this by looking at what grantor/testator intended to create. f. Shifting executory interests violate RAP. g. If RAP is violated, the entire transaction is not voided; only the offending part of it fails. h. Dont confuse fee simple determinable with fee simple subject to condition subsequent. i. Only 2 general types of future interests that can be created in transferees remainders and executory interests. 1) Remainder takes upon the natural termination of the prior estate (i.e. death of life estate holder). 2) Executory interest holder divests the prior estate holder. If interest divests prior estate holder, it must be an executory interest. j. Class gifts Class gifts to grandchildren are usually valid if they appear in a will and invalid if they appear in an inter vivos conveyance. Check to see if the gift is created in will or conveyance. If its created by a will, and class involves grandchildren of testator, less likely to have to deal with unborn widows, fertile octogenarians, or any other problems. If its created by inter vivos, have to watch for interests which might arise to violate RAP. k. Under RAP, an interest must vest within a life in being plus 21 years to be valid. Try to see if you can think of any situation that wont satisfy RAP. If you can think of even one, RAP has been violated and interest is void.

TORTS 1. Types of MBE Torts questions: a. Questions asking s best claim. b. Questions asking s best defense. c. Questions asking you if will prevail. Test for negligence: (memorize) a. must fail to exercise such care as a reasonable person in his position would have exercised; his conduct must be a breach of the duty to prevent the foreseeable risk of harm to anyone in s position, and this breach must cause s damages. Res ipsa loquitur merely one means of proving negligence claim. Establishes a prima facie case of negligence only where direct evidence of the circumstances of the injury are unclear. If you have direct evidence of how a result came about, res ipsa loquitur doesnt apply. 3 elements of res ipsa loquitur: a. Event causing injury would normally not have happened in the absence of negligence; b. was in exclusive control of the instrumentality causing injury; and c. must not have voluntarily contributed to the event causing his injury. Defamation a. Only one situation where must prove special damages as part of his defamation claim: when his claim is based on slander and is for a slanderous statement not within the following four slander per se categories: (if claim doesnt fall within slander per se, he must prove special damages or claim will fail) 1) Statements accusing someone of a crime; 2) Statements alleging that someone has a foul or loathsome disease; 3) Statements adversely reflecting on a persons fitness to conduct her business or trade; and 4) Statements imputing serious sexual misconduct to someone (almost always a woman). b. Special damages pecuniary/economic damages, i.e. lost job, inheritance, gift, customer. c. Publication defamation requires that the statement be communicated to a 3 rd party (someone other than ). Strict liability not required; must show that either intended to communicate the statement to a 3rd person or that negligently publicized the statement to 3rd persons. If 3rd person learns of statement through no fault of , i.e. throws away letter and someone else finds it in the trash can, then s claim will fail. d. Qualified privilege addresses the level of fault will have to prove in order to prevail. If qualified privilege exists, will have to prove that not only was statement defamatory and published through s fault, but that it was made with malice. When no privilege exist and theres no special D which causes malice to be proven (i.e. media) defamation is never strict liability offense. At very least, P will have to prove negligence. 1) Malice knowing falsity or reckless disregard for the truth. 2) Qualified privilege protects a public or private interest, and any statements in furtherance of that interest. Such situations include a former employer warning a new employer about an employees tendency to steal, testifying to parole board about a prisoners shortcoming, et cetera. 3) Level of fault to be proven: a) Public figure, public issue, media malice; b) Public figure, private issue, media negligence; c) Private figure, media negligence; d) Non-media negligence. 4) If reasonably believed statement was true, he cant be liable for negligence, but if is media and issue is public, has more to prove and has to prove malice ( knew statement was false or evidenced a reckless disregard for its truth or falsity). Proving negligence wouldnt be enough. e. Truth is a complete defense. Invasion of Privacy a. Truth is not a defense. b. Invasion of privacy tort covers 4 distinct claims: (AFLIP Appropriation, False Light, Intrusion, Privacy) 1) Appropriation of s personality for s own commercial gain; 2) Intrusion on s affairs or seclusion; 3) Publication of facts which place in false light; and

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4) Public disclosure of private facts about . Strict liability Requires (absolute) duty, breach, causation, and damages. Only 3 ways a can be strictly liable: a. By keeping a wild animal; b. By conducting an abnormally dangerous activity; (abnormally dangerous activities cannot be performed with complete safety no matter how much care is taken, includes fumigation, use of explosives, blasting, excavating, and mining) c. By selling a defective product (strict products liability) Products liability there are 3 different ways in which someone who makes or sells a product can be held liable for harm that product causes: a. Strict products liability things to know: (CCC BoND Control, Changes, Causation, Business, No privity, Defect) 1) Defect product must have been defective; 2) Control condition must have existed when it left s control; (retailer can be liable for manufacturer-created defect even if he didnt know about it and couldnt have discovered it, but he can then seek indemnity from manufacturer) 3) Changes product must not be expected to undergo significant changes before it gets to the user (or it must not actually undergo significant changes); 4) Business seller must be in business of selling the product (cant be a casual seller or user); 5) Causation damage must result from the defect ( is liable for any harm to persons or property); 6) No Privity s duty extends to anyone foreseeably endangered by the product (which means no privity requirement). b. Breach of warranty express and implied warranty 1) who successfully sues someone for breach of warranty is entitled to benefit of bargain. 2) Privity is an issue with implied warranty but courts dont like denying recovery due to no Privity, and Privity unlikely to be an issue because of differences among the states as to whos covered. 3) Privity isnt required under express warranty. c. Negligence 1) Always available as an alternative theory when a product hurts someone. Negligence can be correct answer choice only if strict products liability isnt available (usually because one of requirements hasnt been met). 2) cant be liable for product-related negligence unless defect was discoverable by reasonable means. 3) If purchaser of a defective, unreasonably dangerous product learns about an available safety device but fails to install it, and the device was cheap and the danger from not installing the device is great, then purchaser may be found negligent for failing to install device. 4) No privity needed. 5) must have failed to exercise due care in order to be liable, cant be held liable for negligence of those preceding him in distribution chain. Nuisance a. Private nuisance only needs to prove an act by creating an unreasonable, substantial interference with s use or enjoyment of property. doesnt have to intend to interfere with s rights and doesnt have to be negligent about interfering with s rights in order to be liable. could have done everything possible to avoid interfering with s use and enjoyment of land and still be liable. Exam Tactics a. 3 important Torts categories 1) Intentional Torts 2) Negligence 3) Strict Liability b. Negligence was s conduct reasonable? If it was, cant be negligent, because negligence requires unreasonable behavior.

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Causation there can be more than one cause in fact. The fact that someone other than contributed to s damages doesnt in itself relieve of liability if s conduct was substantial factor in causing s damages. Try ignoring every actor except and were s damages/injuries within the risk created by s act? Intervening causes relieve original tortfeasor of liability only if results of intervening causes are unforeseeable. Intervening actor(s) may also be liable. Negligence of intervening actors wont relieve original tortfeasors of liability unless results of intervening negligence are unforeseeable. P is free to pick his D and mere fact he couldve sued someone else too wont exonerate D. If conduct is the proximate cause of damage, it must be cause in fact too. If there arent any intervening acts, proximate cause must exist as long as was negligent. Only time you should be concerned with proximate cause is when remote possibilities are involved.