Strategies & Tactics for the MBE 2/II (Bar Review Series)

Front Matter
Title Page
Copyright Page
About Wolters Kluwer Legal & Regulatory US
Summay of Contents
Table of Contents
Preface
Civil Procedure
Civil Procedure Questions by Topic
Chapter 1: Jurisdiction and Venue
I. Federal Subject Matter Jurisdiction
A. Federal-question jurisdiction
1. Federal-question jurisdiction generally
2. Amount-in-controversy requirement in federal-question cases
3. Federal question as negating the relevance of whether there is diversity
4. Does the federal question appear on the face of the well-pleaded complaint?
5. Additional party in case, who is not a defendant or plaintiff as to the federal-question claim
B. Diversity jurisdiction
1. Garden-variety diversity jurisdiction, between citizens of different states
a. Complete diversity normally required
b. Circumstances under which citizenship of defendant matters
c. Time as of which diversity must exist
d. Diversity involving corporations
e. Diversity involving trusts or estates
f. Diversity involving partnerships and other unincorporated associations
g. Diversity not relevant to state-court actions
2. Alienage jurisdiction
3. Devices to create or destroy diversity
4. Amount in controversy requirement in diversity cases
5. Federal court’s power to abstain from hearing certain cases qualifying for diversity jurisdiction
C. Supplemental jurisdiction (“SJ”)
1. SJ generally
2. SJ where the “anchor claim” is based solely on diversity
a. SJ asserted as to claims by an original defendant against an original plaintiff (i.e., counterclaims)
b. SJ asserted as to a third-party claim by an original defendant (i.e., a third-party plaintiff) against a third-party defendant
c. SJ asserted as to a claim by third-party defendant against anyone
d. SJ asserted as to claim by the original plaintiff against a third-party defendant
e. SJ and the amount in controversy, when multiple Ps’ claims are aggregated
3. SJ where the “anchor claim” raises a federal question
a. SJ for a state-law claim that’s closely related to the anchor claim, and the state-law claim is against the same defendant as the anchor claim
b. SJ for a state-law claim that’s closely related to the anchor claim, and the state-law claim is against an additional party (i.e., one is not a defendant to the anchor claim) who is not diverse with the plaintiff(s)
4. Situations in which the court considers whether to use its discretion to decline to exercise otherwise-available SJ
D. Removal to the federal courts
1. Requirement that the federal court to which removal is made would have had subject matter jurisdiction over the action had it initially been filed in that court
2. What party or parties may remove?
a. Requirement that the removing party must be a defendant
b. Requirement that the removal not be made by a citizen of the state where the action is pending, if no federal question is present
3. To what court may the action be removed?
4. When should some or all claims be remanded to the state court?
E. Time for raising objection to lack of subject-matter jurisdiction, and waiver of such objections
II. Personal Jurisdiction
A. Requirement of minimum contacts between D and the forum state
1. The requirement of “minimum contacts” generally
2. The “purposeful availment” standard
3. The requirement that it not be “fundamentally unfair” to require D to defend in the forum state
4. The requirement of minimum contacts with the forum state when the suit is in federal court, and includes a federal-question claim
5. Consent as a basis for personal jurisdiction
B. General jurisdiction — special requirements for
1. General jurisdiction based on residency
2. General jurisdiction based on presence in the forum state at the time of service
C. Specific jurisdiction — requirements for
1. Minimum contacts always required
D. In Rem and Quasi in Rem jurisdiction
E. How to raise a challenge to the lack of personal jurisdiction
1. Motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2)
a. Preservation of right to appeal denial of the dismissal motion
F. Special procedural contexts raising the issue of personal jurisdiction
1. Class actions
2. Situations where nationwide service of process may be authorized
III. Service of Process and Notice
A. Service of Process
1. Methods of accomplishing service
a. Service on an individual
b. Service on a corporation
2. Territory within which service may be made — use of the local state long-arm to determine where and how service may be made in a federal-court action
3. Territory within which service may be made — third-party claims
4. Deadline for objecting to improper service
5. Request by plaintiff that defendant waive service
B. Notice
1. Constitutional requirements as to
IV. Venue
A. Venue generally
1. Districts in which venue is proper
B. Forum non conveniens — dismissal based on
1. Requirements for dismissal based on forum non conveniens
2. Use of forum non conveniens dismissal when alternative forum is a non-U.S. jurisdiction
C. Transfer for convenience
1. To judicial district where the action “might have been brought”
a. No transfer to state court
2. Significance of forum-selection clause
D. Procedure for asserting venue-related objections
Chapter 2: Law Applied by the Federal Courts
I. State Law in Federal Court (Including Erie v. Tompkins Problems)
A. Situations in which the state law in question is “substantive,” so that Erie applies
1. Use of state-law conflict-of-law principles in a federal-court action
2. State procedural rules that nonetheless reflect a strong state substantive policy
3. State procedural rules that are outcome-determinative
B. Situations in which the state law in question is purely procedural, so that Erie does not apply
Chapter 3: Pretrial Procedures
I. Preliminary Injunctions and Temporary Restraining Orders
A. Preliminary injunctions
1. Requirements for granting
B. Temporary restraining orders
II. Pleadings
A. Pleadings generally
1. The complaint
a. The “plausibility” standard for pleading a cause of action
b. Pleading special matters (e.g., fraud)
2. The answer
a. Defenses that are “affirmative defenses”
b. Defenses that are not affirmative defenses
c. When and how to present defenses — “in the responsive pleading” vs. by motion
d. Deadline for raising certain defenses
3. The reply
4. Third-party practice
5. Requirement that the Real Party in Interest be named in the complaint
B. Amended and supplemental pleadings
1. Deadline for amending as of right
2. Waiver of the right to amend a pleading
3. Situations in which the amended pleading relates back to the date of the original pleading
III. Rule 11
IV. Joinder of Parties and Claims, Including Class Actions
A. Joinder of parties
1. Joinder of plaintiffs
2. Joinder of defendants
a. Persons who must be joined if feasible
3. Intervention
4. Interpleader
B. Joinder of claims, generally
1. Counterclaims
a. Compulsory counterclaims
b. Permissive counterclaims
C. Class actions
1. Requirements for case to be certified as a federal class action
2. Interlocutory appeals of trial court orders granting or denying class action certification
V. Discovery, Disclosure and Sanctions
A. Discovery generally
1. The parties’ Rule 26(f) discovery planning conference
2. The scope of discovery, generally
3. Earliest time at which discovery is permitted
4. Various types of discovery
a. Interrogatories
b. Depositions
c. Orders for medical examinations
B. E-Discovery
C. Documents that are non-discoverable on account of privilege or work-product immunity
1. Privilege
2. Work-product immunity
D. Automatic disclosure
1. Where automatic disclosure is or isn’t applicable
2. Exception for material to be used at trial, but “solely for impeachment”
E. Sanctions for conduct regarding pleadings or discovery
VI. Adjudication without a Trial
VII. Pretrial Conference and Order
A. The Pretrial conference
1. Deadline for holding the pretrial conference
Chapter 4: Jury Trials
I. Right to A Jury Trial
A. The Seventh Amendment right to a jury trial
1. Trial of legal and equitable claims in same case so as to protect the right to a trial jury
2. Use of additur or remittitur as violation of Seventh Amendment right to a jury trial
B. The need to make a demand for a jury trial
1. Deadline for making the demand
II. Selection and Composition of Juries
A. Number of jurors
1. Minimum number of jurors at start of trial
2. Minimum number of jurors needed when the verdict is rendered
B. Unanimity of jurors in reaching a verdict
C. Jury selection
1. Excuse of prospective juror for cause
a. Excuse generally
b. Excuse on account of juror bias
2. Excuse of prospective juror by means of peremptory challenge
III. Requests for and Objections to Jury Instructions
A. Requests for jury instructions
B. Objections concerning jury instructions
1. Need to make objection in order to preserve issue
a. Exception where court has rejected the request in a definitive ruling
2. Deadline for making objection
3. Plain error exception when objection deadline is missed
Chapter 5: Motions
I. Pretrial Motions
A. Motions addressed to face of pleadings
1. Motions for judgment on the pleadings
2. Motions to strike from a pleading
B. Motions to dismiss, under Rule 12(b)
1. Waiver of certain defenses by failure to raise them in a timely way
C. Motions for summary judgment
1. Summary judgment motions generally
2. Burden imposed on movant
a. Burden imposed on movant, generally
b. Burden imposed on movant, where witness credibility is at issue
3. Burden imposed on nonmovant
a. The burden on the nonmovant, generally
b. The burden when facts are unavailable to the nonmovant
II. Motions for Judgment as a Matter Of Law (“JML”)
A. Pre-verdict JML motions (a/k/a “motion for directed verdict”)
1. Standard for granting a JML motion, under FRCP 50(a)(1)
2. Deadline for making the JML motion
B. Post-verdict motion for JML (a/k/a Judgment Notwithstanding the Verdict or “JNOV”)
III. Posttrial Motions
A. Motions for a new trial
1. Standard for granting the new-trial motion
2. Deadline for making the motion
3. Motion for new trial on some (rather than all) of the issues
4. Remittitur as a substitute for granting a new trial
B. Motions for relief from judgment
Chapter 6: Verdicts and Judgments
I. Defaults and Dismissals
A. Default judgments
1. Default judgments generally
2. Proper service as a pre-condition to a default judgment
3. Notice requirements for entry of default judgment
4. Entry of the default judgment by the clerk vs. by the judge
B. Dismissals
1. Voluntary dismissals
a. Time within which the dismissal motion must be made
b. The two-dismissal rule
II. Jury Verdicts — Types and Challenges
III. Judicial Findings and Conclusions
A. Requirement that judge make findings of fact and conclusions of law
IV. Effect of Judgments
A. Which jurisdiction’s preclusion rules apply
1. First judgment is by a state court
2. First judgment is by a federal court
B. Claim preclusion (a/k/a merger and bar)
1. The requirement that the “same claim” be present in the second suit
a. Personal-injury claim and property-damage claim arising out of the same transaction
b. The requirement that the plaintiff have been able to seek the same remedy in the first action as he is seeking in the second action
c. The requirement that the party seeking the benefit of claim preclusion (or that party’s privy) in the second action must have been a party to the first action
2. The requirement that the judgment in the first action be valid and final in order to have claim-preclusive effect on the second action
C. Issue preclusion (a/k/a collateral estoppel)
1. The requirement that the issue have been “actually litigated”
D. “Mutuality” in both Claim and Issue Preclusion
E. What is included in the prior “judgment” for purposes of the preclusion rules?
Chapter 7: Appealability And REVIEW
I. Availability of Interlocutory Review
A. Situations in which interlocutory review (review without a final judgment) is or may be available
1. Orders involving injunctions
2. Situations involving the “collateral order” doctrine (including orders granting or denying claims of civil immunity)
3. Judges’ discretion to allow an interlocutory appeal
II. The Final Judgment RULE
A. The final judgment rule generally
B. Situations in which appeal is allowed despite the lack of a final judgment
C. Situations in which appeal is not allowed because there is no final judgment, and no exception to the requirement of a final judgment applies
1. Temporary restraining orders
2. Grants or denials of motions for summary judgment
a. Denials of summary-judgment motions, generally
b. Grants of partial summary judgment
3. Miscellaneous situations
III. Deadline for filing Notice Of Appeal
IV. The Scope of Review
A. Review of bench trials
1. The “clearly erroneous” rule
B. Review of jury trials
Civil Procedure Answers
Constitutional Law
Constitutional Law Questions by Topic
Chapter 1: The Supreme Court’s Authority and the Federal Judicial Power
I. The Supreme Court’s Authority and the Federal Judicial Power
A. Supreme Court review of state court decision
1. “Independent and adequate state grounds”
a. Violations of both state and federal constitutions
B. Supreme Court’s jurisdiction
II. Congress’s Control of Federal Judicial Power
A. Limits on judicial power imposed by Congress
Chapter 2: Powers Of The Federal Government; The Separation Of Powers
I. Powers of the Three Federal Branches
A. Powers of the three branches
1. Congress’s powers
a. Federal property
2. President’s powers
a. Status as CEO of the U.S., and power to issue “Executive Orders”
b. Power to issue pardons
3. The federal judiciary’s powers
II. The Federal Commerce Power
A. Does the activity in question “substantially affecting” commerce?
B. The Tenth Amendment as a limit on Congress’s power
1. Tenth Amendment not a source of state authority
III. The Taxing And Spending Powers
A. The taxing power
1. The taxing power generally
2. Validity of tax that has a regulatory purpose or effect
a. Adverse economic consequences no problem
b. No relation needed between activity taxed and how funds are spent
B. Spending power
1. Spending to achieve general welfare
C. The taxing and spending powers taken together
IV. The War, Treaty and Foreign Affairs Powers
A. The treaty power
V. The Separation of Powers
A. Separation of powers generally
1. President can’t make the laws
a. Delegation by Congress to the Executive Branch
2. Presidential Commissions
3. The veto power, and Congress’s power to override it
4. Appointment and removal of executive personnel
5. Congress’s power to regulate executive branch members’ job performances
Chapter 3: Two Limits on State Power: The Dormant Commerce Clause and Congressional Action
I. The Dormant Commerce Clause
A. Dormant Commerce Clause generally
1. As a prohibition on protectionism
2. As a prohibition on unduly burdensome regulations
3. As a prohibition on discrimination against foreign commerce
II. Congressional Pre-Emption and Consent; The Supremacy Clause
A. The Supremacy Clause and federal pre-emption
1. Direct conflict
a. Where Congress forbids and the state allows
b. Conflict between federal and state aims
2. Congressional pre-emption
a. Where there is federal occupation of the field
i. Pre-emption of state common law
3. Where there is no conflict between the federal and state schemes
B. Consent by Congress to the state regulatory scheme
Chapter 4: Intergovernmental Immunities; Interstate RELATIONS
I. Tax and Regulatory Immunities
A. Several types of immunities
1. Federal immunity from state regulation
II. The Full Faith and Credit Clause
A. Effect of Clause
1. Obligation of second state to enforce collection of money judgment issued by first state
2. Where first state’s judgment constitutes an error of law
Chapter 5: The Due Process Clause
I. Substantive Due Process — Economic and Social Welfare Regulation
A. Economic and social welfare regulation
1. Easy test to satisfy
II. Substantive Due Process — Regulations Affecting Fundamental Rights
A. Abortion
1. Requirement of parental consent where patient is a minor
2. Public funding of abortion
III. Procedural Due Process
A. Process required
1. Stage at which hearing must be provided
Chapter 6: Equal Protection
I. Economic and Social Laws — The “Mere Rationality” Test
A. Applies where government makes a classification
B. Non-suspect, non-fundamental rights (economic and social legislation)
1. “Grandfather clause” as rational classification
2. Non-suspect classes
a. Status as convicted criminal
II. Suspect Classifications, Especially Race
A. Classifications based on race
1. Requirement that discrimination be purposeful
a. Peremptory jury challenges
III. Middle-Level Review (Gender, Illegitimacy and Alienage)
A. Classifications based on gender
IV. Fundamental Rights
A. Voting rights
1. Fifteenth Amendment
B. Ballot access
1. Where ballot restriction may be unfair to new parties or independent candidates
C. Necessities
1. Education as a necessity
Chapter 7: Miscellaneous Clauses
I. The “Taking” Clause
A. The “Taking” Clause generally
1. Taking vs. regulation
II. Ex Post Facto Laws
A. Constitutional prohibition
1. Applies to penal regulations only
III. Bills of Attainder
Chapter 8: The “State Action” Requirement; Congress’S Enforcement of the Civil War Amendments
I. State Action
A. “State involvement” doctrine
1. Entanglement or entwinement as a form of state involvement
II. Congressional Enforcement of Civil Rights
A. Congress’s power to reach private conduct
1. Thirteenth Amendment
a. “Badges of slavery”
Chapter 9: Freedom of Expression
I. General Themes
A. Analysis of content-based government action
1. “Viewpoint neutrality” not enough
II. Time, Place and Manner Regulations
A. Three-part test for time, place and manner regulations
III. Defamation and Invasion of Privacy
A. Other state-law tort claims as possible First Amendment violation
IV. OBSCENITY
A. Regulating secondary effects of adult speech
1. Regulation of red-light districts
V. Freedom of Association, and Denial of Public Benefits or Jobs
A. Denial of public benefit or job
1. Denial of license
2. Speech critical of superiors or otherwise inappropriate
a. Where speaker is in a non-policy-making role
b. Where speech interferes with speaker’s job performance
VI. Special Problems of the Media
A. Media’s right of access to government-held information
Chapter 10: Freedom of Religion
I. The Establishment Clause
A. Three-part test
1. Incidental benefit to religion not fatal
II. The Free Exercise Clause
A. Generally-applicable laws
1. State need not tolerate serious impairment of important state interest
Chapter 11: Justiciability
I. Standing
A. Cases not based on taxpayer or citizen status
1. Requirement of an “injury in fact”
B. Third-party standing
II. Ripeness
A. A reasonable probability of harm required
III. The Eleventh Amendment and Suits Against the States
A. The Eleventh Amendment generally
1. Congress can’t override
a. Exception for Congress’s use of power to enforce the post-Civil-War amendments
Constitutional Law Answers
Contracts
Contracts Questions by Topic
Chapter 1: Offer and Acceptance
I. Validity of Particular Kinds of Offers
A. Public offers and advertisements
II. The Acceptance
A. Method of acceptance
1. Offer invites either promise or performance
a. Acceptance by shipment of non-conforming goods
b. Accommodation shipment
2. Notice of acceptance of unilateral contract
III. Acceptance Varying from Offer
A. UCC view
1. “Additional” term in acceptance
a. Both parties are merchants
i. Does the proposed term materially alter the contract?
2. Contract by parties’ conduct
a. “Acceptance by conduct” can occur in non-UCC contracts
IV. Duration of the Power of Acceptance
A. Irrevocable offers
1. “Firm offers” under the UCC
a. Effect of firm offer if not by a merchant
2. Part performance or detrimental reliance
a. Where offer was for a unilateral contract
Chapter 2: Consideration
I. The Bargain Element
A. Promises to make gifts
1. Existence of condition
a. Mixture of bargain and gift
II. The “Detriment” Element
A. Generally
1. Motives irrelevant
B. Pre-existing duty rule
1. Modification to contract terms
a. Where modification is a response to unanticipated circumstances
2. Duty owed to third person rather than to promisor
3. Agreement to accept part payment of debt
a. Disputed debt
b. Cashing of check tendered as settlement
4. Other settlements
III. Illusory, Alternative and Implied Promises
A. Implied promises
IV. Requirements and Output Contracts
A. Requirements and output contracts generally
1. UCC approach
a. Obligation to behave in good faith in setting output or requirements
Chapter 3: Promises Binding without Consideration
I. Promissory Estoppel
A. Possible applications
1. Promise to perform business service
a. Promise to make a loan
Chapter 4: Mistake
I. Mutual Mistake
A. Three requirements for avoidance
1. Allocation of risk by parties
II. Reformation as Remedy for Error in Expression
A. Generally
1. Reformation not a remedy for underlying disagreement about deal
Chapter 5: Parol Evidence and Interpretation
I. Total and Partial Integrations
A. The parole evidence rule generally
II. Situations where Parol Evidence Rule Does not Apply
A. Existence of a condition on effectiveness of contract
III. Interpretation
A. Extrinsic evidence in the case of ambiguous terms
IV. Trade Usage, Course of Performance, and Course of Dealing
A. Used to interpret even a complete integration
Chapter 6: Conditions, Breach, and Other Aspects of Performance
I. Express Conditions
A. Satisfaction of a party
B. Need to check whose duty was conditional
1. Right to waive condition
a. Waiver by receiving and keeping benefit
II. Constructive Conditions
A. Waiver of constructive condition
III. Substantial Performance
A. Material breach in contracts for the sale of goods
1. “Perfect tender” rule under the UCC
a. Rule not applied very strictly
2. Right to cure lack of perfect tender
IV. Excuse of Conditions
A. Where a party hinders the occurrence of a condition
1. Implied promise of cooperation
Chapter 7: Anticipatory Repudiation and Other Aspects of Breach
I. Anticipatory Repudiation
A. What constitutes repudiation
1. Statement of grudging willingness to perform
II. Other Aspects of Repudiation
A. Retraction of repudiation
1. Final acts
a. Cancellation followed By new contract with someone else
B. Special UCC rules
1. Party has choice of remedies
Chapter 8: Statute of Frauds
I. Suretyship
A. Main purpose rule
II. Satisfaction By a Memorandum
A. UCC
1. Confirmation as sufficient memorandum
Chapter 9: Remedies
I. Equitable Remedies
A. Two types
1. Specific performance as remedy
B. Limitations on equitable remedies
1. Requirement that money damages be inadequate remedy
2. Difficulty of enforcement
a. Personal service contract
II. Expectation Damages
A. Formula for calculating
1. Breaching supplier of services
B. “Reasonable certainty”
1. Profits from a new business
C. Breaching seller of property
III. Suits in Quasi-Contract
A. Breaching plaintiff
1. Construction cases
a. Lesser of “cost to owner” and “change in value to owner”
2. UCC gives partial restitution to breaching buyer
a. Exception for actual damages proved by seller
IV. Liquidated Damages
A. Reasonableness of estimated amount
V. Damages in Sales Contracts
A. Where goods not accepted
1. Seller’s damages for breach
a. Lost profits
i. “Lost volume” seller
Chapter 10: Contracts Involving More than Two Parties
I. Assignment
A. Contract terms prohibiting assignment
B. Assignee vs. obligor
C. Rights of successive assignees of the same claim
II. Delegation of Duties
A. Delegatee’s liability
1. Assignment of “the contract”
a. Delegator remains liable
III. Third-Party Beneficiaries
A. When beneficiary may sue
1. Intended beneficiaries may sue
2. Incidental beneficiaries may not sue
B. Discharge or modification by the original parties
C. Defenses against the beneficiary
1. Promisor may invoke conditions to his duty
Chapter 11: Impossibility, Impracticability, and Frustration
I. Impossibility of Performance
A. Three classes
1. Destruction of subject matter
2. Supervening illegality
II. Impracticability
A. Modern view of impracticability
1. Allocation of risk by parties
a. Implicit allocation
i. Risk of technological breakthrough
ii. Foreseeability and relative expertise
III. Frustration of Purpose
A. Factors to be considered
1. Foreseeability
a. Allocation of risk by parties
IV. Restitution and Reliance where the Parties are Discharged
A. Restitution
1. Time for measuring benefit
Chapter 12: Miscellaneous Defenses
I. Misrepresentation
A. Non-disclosure
1. Failure to correct other party’s basic mistake
II. Unconscionability and Adhesion Contracts
A. Unconscionability
1. Remedies for unconscionability
Contracts Answers
Criminal Law and Procedure
Criminal Law Questions by Topic
Chapter 1: Actus Reus and Mens Rea
I. Actus Reus
A. Omissions
1. Existence of legal duty
a. Special relationship
II. Mens Rea
A. “Knowingly”
1. Knowledge of attendant circumstances
2. “Practically certain” standard for unintended effects
B. “Recklessly”
1. Must be aware of risk
C. Strict liability
1. Factors affecting whether offense can be a strict liability offense
D. Vicarious liability
1. Constitutionality
a. Where D has no control over offender
Chapter 2: Responsibility
I. The Insanity Defense
A. Tests for insanity
1. M’Naghten “right from wrong” rule
II. Intoxication
A. Voluntary intoxication
B. Involuntary intoxication
Chapter 3: Justification and Excuse
I. Duress
A. Not available for homicide
II. Self-Defense
A. Degree of force
1. Deadly force
B. Effect of mistake as to need for self-defense
1. Reasonable mistake
III. Entrapment
A. “Predisposition” test
Chapter 4: Attempt
I. Impossibility
A. Factual impossibility
1. Not accepted
a. Combined with accomplice liability
b. Robbery cases where V is not intimidated
B. “True legal” impossibility
1. Where intended acts could never have constituted the offense
Chapter 5: Conspiracy
I. Mens Rea for Conspiracy
A. Intent to commit the object crime
II. The Conspiratorial Objective
A. Substantive liability without “aiding and abetting”
III. Plurality
A. Inconsistent disposition
1. Common-law view
2. Modern/ Model Penal Code “unilateral” view
IV. Punishment
A. Cumulative sentencing allowed
Chapter 4: Accomplice Liability and Solicitation
I. Accomplices — The Act Requirement
A. Liability for aiding and abetting
1. When words alone are enough
2. Failure to intervene
II. Accomplices — Mental State Required
A. Mental state needed for a crime where reckless indifference suffices
III. Guilt of the Principal
A. Conviction of principal for use of innocent agent
Chapter 7: Homicide and Other Crimes against the Person
I. Murder — Generally
A. Intent-to-kill murder
1. Ill-will unnecessary
B. Intent-to-do-serious-bodily-injury murder
1. “Serious bodily injury” defined
C. “Reckless indifference to value of human life,” i.e., “depraved heart” murder
1. Great recklessness required
a. Omission to act
II. Felony Murder
A. “Inherently dangerous” felony
1. The list of “inherently dangerous” felonies: arson, burglary, rape, robbery, and kidnapping
2. Requirement that felony be independent of the killing
B. Causal relationship
1. Robberies, burglaries and gunfights
a. Victim or police officer kills bystander
2. Arson
C. Accomplice liability of co-felons
1. “In furtherance” test
III. Manslaughter
A. Voluntary manslaughter
1. Requirements for voluntary manslaughter, generally
a. Defenses available
i. Voluntary intoxication
ii. Lack of proximate cause
B. Involuntary manslaughter
IV. Assualt and Battery
A. Assault
1. Intent required for
2. Duty to retreat
V. Rape
A. Rape defined
1. Without consent
a. Mistake no defense
VI. Kidnapping
A. Definition of kidnapping
1. Asportation
a. M.P.C. “substantial distance” rule
2. Confinement must be against V’s will
Chapter 8: Theft Crimes
I. Larceny
A. Trespassory taking
1. Larceny by trick
a. Intent to steal required
B. Personal property
1. No minimum value
C. Intent to steal
1. Claim of right
a. Grievance not enough
D. Carrying away (“asportation”)
E. Concurrence of taking and intent
1. Continuing trespass
II. Burglary
A. Breaking
B. Entry
III. Robbery
A. Requirement of taking by force or fear
1. Threat to third person
IV. Arson
A. Nature of offense
1. Act posing great risk of fire
a. Failure to take action
i. D’s failure to put out fire D started
Criminal Law Answers
Criminal Procedure Questions by Topic
Chapter 1: Constitutional Criminal Procedure Generally
I. State Procedures and the Federal Constitution
A. State protections going beyond those of the federal constitution
Chapter 2: Arrest; Probable Cause; Search Warrants
I. Areas and People Protected By the Fourth Amendment
A. Guests
1. Guest staying in hotel room
II. The “Plain View” Doctrine
A. Aerial observation
III. Probable Cause Generally
A. Only evidence heard by magistrate used
1. Incorrect affidavit
a. Honest police error
Chapter 3: Warrantless Arrests and Searches
I. Search Incident to Arrest
A. Protective sweep
1. Can’t search too-small spaces
II. Automobile Searches
A. Two special exceptions
1. Field search for contraband
III. Consent Searches Generally
A. Consent generally
B. D need not know he can refuse consent
1. Where D is unaware of police’s motive in requesting consent
IV. Inspections and Weapons Searches
A. Searches in schools
1. Where law enforcement agency is involved
Chapter 4: Confessions and Police Interrogation
I. Voluntariness
A. Voluntariness generally
1. Involuntariness requires police coercion
II. What Constitutes Interrogation
A. Volunteered statements
1. Voluntary custodial statements
B. Police allow situation to develop
1. Police set up situation
Chapter 5: Lineups and Other Identification Procedures
I. The Privilege against Self-Incrimination in Identification Procedures
A. General rule as to when privilege applies to ID procedures
B. Courtroom identifications
Chapter 6: Formal Proceedings
I. Grand Jury Proceedings
A. Self-incrimination and immunity
B. Attorney’s presence in grand jury room
C. Use of illegally-obtained evidence
II. The Trial
A. Burden of proof in criminal cases
1. General rules of allocation
a. Burden as to proving elements of the crime
i. Standard of proof
b. Burden as to proving affirmative defenses
B. Motion for directed verdict
1. Standard for granting
C. A witness’s Fifth Amendment privilege against self-incrimination
D. D’s Confrontation Clause rights
1. Confession implicating someone else, used during joint trial
III. Sentencing
A. Sentencing generally
IV. Double Jeopardy
A. When jeopardy attaches
B. Overlapping offenses
1. Where lesser included offense is tried first
2. Where prosecution is unable to try both charges at once
Criminal Procedure Answers
Evidence
Evidence Questions by Topic
Chapter 1: Basic Concepts
I. Conditions for Admitting Evidence
A. Relevant
1. Definition
2. Exclusion
B. Offering testimonial evidence
1. Testimony by trial judge
C. Making and responding to objections
1. Hearing outside of presence of jury
Chapter 2: Circumstantial Proof: Special Problems
I. Character Evidence
A. Character is essential element of case
1. Other aspects of other-crimes evidence
a. Rule 403 balancing
II. Methods of Proving Character: Reputation, Opinion, and Proof of Specific Acts
A. FRE
1. D’s good-character evidence
a. Prosecution’s right of rebuttal
III. Liability Insurance
A. General rule
1. Offered for other purposes
IV. Settlements and Plea Bargains
A. Settlements generally
Chapter 3: Examination and Impeachment of Witnesses
I. Present Recollection Refreshed and Other Techniques
A. Does not constitute evidence
II. Impeachment by Prior Bad Acts
A. Federal Rule
1. May bring out on cross
a. Applies to any witness
III. Impeachment By Prior Inconsistent Statement
A. General rule
B. Special rules from FRE 613
1. “Extrinsic evidence,” and the “explain or deny” and “interrogate” rules
a. Application to hearsay declarants
IV. Impeachment By Contradiction; The “Collateral Issue” Rule
A. Collateral issue rule
Chapter 4: Hearsay
I. Definition
A. Definition
1. Hearsay may be by the present witness
a. Statement about what declarant previously said
B. Illustrations of hearsay
II. Special Issues
A. “Truth of matter asserted”
1. Verbal acts
Chapter 5: Hearsay Exceptions and Exclusions
I. Admissions
A. Personal admissions
1. Question may not say “admission”
II. Spontaneous, Excited, or Contemporaneous Utterances (Including Statements about Physical or Mental Condition)
A. Statements made for purposes of medical diagnosis or treatment
1. The statement may include references to the cause of the bodily condition
B. Declaration of present mental, emotional, or physical condition
1. State of mind directly in issue
2. Offered to prove subsequent event
3. Need for inference
III. Past Recollection Recorded
A. Exception under the FRE
1. Four requirements
IV. Records of Regularly Conducted Activity (A/K/A “Business Records”)
A. Person supplying info
1. Consumer complaints or reports
V. Public Records and Reports
A. Public records and reports
1. Federal Rule
a. Matters observed under duty
B. Absence of public record
VI. Declarations against Interest
A. Generally
Chapter 6: Privileges
I. The Attorney-Client Privilege
A. Generally
1. Client
B. Professional relationship
1. Fee arrangements not covered by privilege
II. The Privilege against Self-Incrimination
A. Negative inference allowed in civil cases
Chapter 7: Real and Demonstrative Evidence, Including Writings
I. Authentication
A. Authentication of writings and recordings
1. Signature or handwriting
a. Authentication by non-expert
b. Authentication by comparison with exemplar
2. Phone conversation
a. Incoming calls
II. The “Best Evidence” Rule for Recorded Communications
A. Communications covered
1. Other “real” evidence not covered
B. Proving the contents
III. Summaries of Voluminous Writings
A. Summaries generally
Chapter 8: Opinions, Experts, and Scientific Evidence
I. Expert Witnesses
A. Basis for expert’s opinion
1. Inadmissible evidence
a. Proponent and expert can’t disclose
B. Opinion about defendant’s mental state
Chapter 9: Burdens of Proof, Presumptions, and Other Procedural Issues
I. Presumptions
A. Effect of presumptions in federal civil cases
1. Instructions to jury
II. Judge-Jury Allocation
A. Issues of fact
1. Technical exclusionary rule
a. Rules of evidence not binding
Chapter 10: Judicial Notice
I. Adjudicative Facts
A. Must take if requested, and may take without a request
1. Discretionary notice
Evidence Answers
Real Property
Real Property Questions by Topic
Chapter 1: Adverse Possession
I. “Hostile” Possession
A. Boundary disputes
II. Continuity of Possession
A. Continuity of possession generally
1. Temporary or seasonal gaps in possession
Chapter 2: Freehold Estates
I. The Fee Simple
A. Fee simple defeasible
1. Fee simple determinable
2. Fee simple subject to condition subsequent
II. The Life Estate
A. Duties and powers of life tenant
1. Duties
a. No right to commit waste
b. Duty to pay current operating expenses
i. Duty to pay taxes
c. Duty to pay of mortgage interest and principal
Chapter 3: Future Interests
I. Possibility of Reverter; Right of Re-Entry
A. Possibility of reverter and right of re-entry
1. Possibility of reverter
II. Remainders
A. Contingent remainders
1. Unborn or unascertained
a. Remainder “to A and her heirs or assigns” is vested
III. The Rule against Perpetuities (RAP)
A. Applicability of Rule to various estates
1. Options to purchase land
a. Right of first refusal
Chapter 4: Concurrent Ownership
I. Joint Tenancy
A. Severance
1. Conveyance by one joint tenant
a. Motive for severance irrelevant
2. Rights of creditors of deceased joint tenant
II. Tenancy in Common
A. Tenancy in common
1. Conveyance by one co-tenant
a. Grant of mortgage or judgment lien
Chapter 5: Landlord and Tenant
I. Tort Liability of Landlord and Tenant
A. Landlord’s liability
1. Common law
a. Assignment of interest by L
II. Transfer and Sale By Lessor; Assignment and Subletting By Lessee
A. Generally allowed
1. Distinguish assignment from sublease
B. Running of benefit and burden
1. Purchase options in leases
C. Agreement by the parties about transfer
1. Generally enforced
a. Condemnation awards
Chapter 6: Easements and Servitudes
I. Creation of Easements
A. Easement by prescription
1. Adverse use
II. Scope of Easements
A. Development of dominant estate
1. Remedy for misuse
III. Repair and Maintenance of Easements
A. Dominant owner’s rights
1. Limited right to contribution
IV. Transfer and Subdivision of Easements
A. Transfer of benefit
1. Transfer of easements appurtenant
V. Licenses
A. Definition
1. Where agreement is oral
VI. Equitable Servitudes/Restrictive Covenants
A. Intent to benefit plaintiff’s parcel
B. Running of benefit and burden
1. Requirement that subsequent grantee be on notice of burden
C. Developer’s building plan
1. Plan filed without restriction
VII. Modification and Termination of Covenants and Servitudes
A. Modification and termination generally
1. Effect of passage of time
Chapter 7: Land Sale Contracts, Mortgages, and Deeds
I. Land Sale Contracts
A. Statute of Frauds
B. Marketable title
1. Time for measuring marketability
a. Effect of outstanding mortgage
C. Remedies for failure to perform
1. Damages
a. Where no earnest money deposit
2. Specific performance
a. Breaching buyer
3. Deposit
a. Where deposit is a reasonable estimate of damages
D. Equitable conversion
1. Effect of pending contract
2. Risk of loss
II. Mortgages and Installment Contracts
A. Nature of mortgage
1. Sale of mortgaged property
a. Assumption by buyer
2. Redemption of mortgage
a. Who has right to redeem
3. Priorities (allocation of foreclosure proceeds)
a. Judgment lien creditor’s status
i. Two-property scenario
III. Deeds
A. Formalities
1. Identification of parties
B. Delivery of deed
1. Delivery to agent of grantee
2. Revocability of delivery
C. Covenants for title in warranty deed
1. Present vs. future covenants
D. Undisclosed condition in house
Chapter 8: Recording Acts
I. What Instruments must Be Recorded
A. What instruments must be recorded
1. Contract of sale
II. Who is Protected By the Recording Act
A. Who is a bona fide purchaser (BFP)?
B. The “gave value” requirement
1. Judgment creditors
C. Recording first in a race or race-notice state
III. Purchaser must Take “Without Notice”
A. Notice to subsequent claimants
1. Record notice
a. Imputed knowledge
i. Mortgage and note
B. Purchaser from one without notice
1. Donee who takes from person protected by act
2. Status of one who lends to a person protected by act
Chapter 9: Rights Incident to Land
I. Nuisance
A. Private nuisance
1. Failure to abate the nuisance
II. Water Rights
A. Drainage of surface waters
1. When one party wants to get rid of the water
III. Air Rights
A. Other air-rights issues
1. Right to sunlight
Real Property Answers
Torts
Torts Questions by Topic
Chapter 1: Intentional Torts against the Person
I. Battery
A. Intent
1. Intent to create apprehension of contact
2. D must intend contact
3. D must intend contact with a “person”
B. Harmful or offensive contact
1. Contact beyond level consented to
C. Extends to personal effects
1. Indirect contact
II. Assault
A. Actual contact or apprehension of contact
B. Imminence of contact
III. Intentional Infliction of Emotional Distress (“IIED”)
A. “Extreme and outrageous”
B. Actual severe distress
C. Suits by public figures
Chapter 2: Intentional Interference with Property
I. Trespass to Land
A. Intent
1. Involuntary entry onto land of another
2. Effect of mistake
II. Conversion
A. Forced sale
Chapter 3: Defenses to Intentional Torts
I. Self-Defense
A. Degree of force
B. Injury to third person
II. Defense of Others
A. General rule
1. Unreasonable mistake
III. Necessity
A. Private necessity
1. Compensation for actual damage
Chapter 4: Negligence Generally
I. The reasonable Person
A. Physical and mental characteristics
1. Children
B. Anticipating conduct of others
1. Anticipating negligence by the other
a. Inadequate parental supervision
2. Anticipating criminal or intentionally tortious acts by the others
a. Premises liability
C. Actual negligence by D
1. D’s failure to supervise customers or others
II. Malpractice
A. Malpractice generally
1. When expert testimony is or isn’t needed
III. Violation of Statute
A. Statute must apply to facts
1. Legislature’s intent to protect against the particular type of risk at issue
IV. Res IPSA Loquitur
A. P’s failure to exclude other causes
1. Object falling from window
B. Effect of res ipsa on burden of production
1. Where res ipsa is not mentioned in question
C. Rebuttal evidence
1. Where rebuttal shows some other explanation
Chapter 5: Actual and Proximate Cause
I. Causation in Fact
A. “But-for” test
1. Must be tied to D’s negligence
a. Rescue scenarios
2. Successive incidents, allocation of causation between
II. Proximate Cause — Foreseeability
A. How tested on the MBE
III. Proximate Cause — Intervening Causes
A. Foreseeability rule
B. Foreseeable intervening causes
1. “Second collision” scenarios
C. Responses to defendant’s actions
1. Escape
D. Third person’s failure to discover, warn about or avoid the danger
Chapter 6: Joint Tortfeasors
I. Joint Liability
A. Joint-and-several liability generally
1. Meshing with P’s comparative negligence
II. Contribution
A. Contribution generally
1. Amount
III. Indemnity
A. Negligent vs. intentional tortfeasor
Chapter 7: Duty
I. Emotional Distress
A. Emotional distress without physical impact
1. General rule of no recovery where no bodily harm
a. Exceptions
i. Negligent handling of corpse
b. Recovery by an “at risk” plaintiff
i. Where P suffers bodily harm
II. PUre Economic Loss
A. Traditional rule
1. Rationale
Chapter 8: Owners and Occupiers of Land
I. Trespassers
A. General rule of liability to
B. Exceptions to general rule
1. Discovered trespassers
2. Children
II. Licensees
A. Social guests
III. Invitees
A. Duty of due care
1. Effect of warning
a. Torts by third persons
Chapter 9: Damages
I. Punitive Damages
Chapter 10: Vicarious Liability
I. Employer-Employee Relationship
A. Torts by non-employees (e.g., guests and customers)
Chapter 11: Strict Liability
I. Wild or Dangerous Animals
A Non-trespass liability
1. Wild animals
II. Abnormally Dangerous Activities
A. Common scenarios
1. Nuclear reactor
2. Construction activities
B. Requirement that D “carry out” the activity
1. D uses an independent contractor
Chapter 12: Products Liability
I. Negligence
A. Classes of defendants
1. Manufacturers
2. Retailers
II. Warranty
A. Express warranties
1. UCC scenarios
III. Strict Product Liability
A. Retailers and other non-manufacturers
1. Retailer’s fate linked to manufacturer’s fate
B. Bystanders and other non-user plaintiffs
IV. Design Defects
A. Negligence predominates
1. Reasonable alternative design
2. Component makers
V. Duty to Warn
A. Unknown and unknowable dangers
1. Adequacy of warning
VI. Who May be a Defendant
A. Services
Chapter 13: Nuisance
I. Private Nuisance
A. Interference with use or enjoyment of land
B. Unreasonableness
1. Noise and unattractive sights
Chapter 14: Defamation
I. Defamatory Communication
A. Opinion
1. Liability for statement of opinion
II. Publication
A. Requirement of publication generally
1. Must be intentional or negligent
2. Must be understood
III. Fault
A. Constitutional decisions
1. Private figures
a. P must prove at least negligence
i. D must have had serious doubts about statement’s truth
Torts Answers