Virginia Bar Exam Blog

2006-07-22T23:11:00.000-04:00

GOOD LUCK!!
You know you know your stuff... Dont stress any more! You know your stuff!!
Don't study after lunch on Monday, get a massage, get your stuff ready to bring to the exam, and TRY to get to bed early... Have your mom call you in the morning, just in case you over sleep... RELAX!! You know that you're smarter than the guys drooling next to you...
Let me know how it goes when you recoup from your hangovers!

Helpful?

2006-07-21T21:36:00.000-04:00

Hi there - Please let me know if you look at this blog and if it is helpful... if no one is using this blog, although I would love to help, alas.... I will stop posting outlines and ideas :)
Thanks!

Criminal Law Outline

2006-07-21T21:31:00.000-04:00

CRIMINAL LAW & PROCEDURE

FOR ALL CRIMES YOU NEED:
ACTUS REUS
MENS REA
Transferred intent: Homicide, battery, arson
Corporations can’t have mens rea
CONCURRENCE
Actus Reus must occur at same time that D has mens rea.
CAUSATION (sometimes)
For homicide, V must die.

SPECIFIC INTENT CRIMES
Solicitation
Attempt
Conspiracy
First Degree Murder
Assault (Attempted Battery theory)
Larceny
Robbery
Burglary
Forgery
False Pretenses
Embezzlement

MPC INTENT STANDARDS
Purposely: With the conscious object of engaging in certain conduct or causing a certain result
Knowingly: With awareness that the conduct is of a particular nature, or knowing that the conduct will very likely cause a particular result
Recklessly: With knowedge of a substantial and unjustifiable risk that is being consciously disregarded
Criminal Negligence: Failure to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care.

CRIMES AGAINST THE PERSON
HOMICIDE
MURDER
i. ELEMENTS:
1. The unlawful killing
2. Of a human being
3. With malice aforethought
ii. THE KILLING OF A HUMAN BEING WITH
iii. MALICE AFORETHOUGHT
1. Intent to kill
a. Intentional use of a deadly weapon authorizes an inference of intent to kill.
b. Counts even if mercy killing
2. Intent to commit serious bodily injury
3. Wanton/reckless conduct (depraved heart)
4. During the commission of an inherently dangerous felony (BARRK)
iv. Degrees
1. First degree is usually premeditated.
2. Felony murder will usually be first-degree murder.
FELONY MURDER
i. D must actually be found guilty of the underlying felony.
ii. Felony must be distinct from the killing itself (i.e. not the battery that caused the death).
iii. Death must have been a foreseeable result of the felony.
iv. Death must have been caused before the D’s “immediate flight” ended.
1. Once D reaches a place of safety – no longer felony murder.
v. D usually not liable when a co-felon is killed because of resistance by V or the police.
vi. D not liable for felony murder when an innocent party is killed UNLESS the death is caused by D or his accomplice.
1. Under the “proximate cause” theory, D WILL be liable if the innocent party is killed by V or police.
VOLUNTARY MANSLAUGHTER
i. ELEMENTS:
1. Common-law murder BUT
2. D was provoked.
ii. ADEQUATE PROVOCATION
1. Will be adequate only if:
a. It was a provocation that would arouse sudden and intense passion in the mind of a reasonable person, causing him to lose control AND
b. D was in fact provoked AND
c. There was no cooling off period AND
d. D did not in fact cool off btwn the provocation and the killing.
iii. IMPERFECT SELF-DEFENSE
1. In states recognizing this rule, it will allow murder to be reduced to voluntary manslaughter IF:
a. D killed in self-defense, but HE started the fight, OR
b. D killed in self-defense because he believed it was necessary, but that belief was unreasonable.
INVOLUNTARY MANSLAUGHTER
i. UNINTENTIONAL KILLING
1. V was killed because D was criminally negligent (although he did not intend V’s death).
2. Less “reckless” than required for depraved heart murder.
ii. MISDEMEANOR MANSLAUGHTER
1. Killing happened while D was committing an unlawful act that doesn’t count qualify it for the felony murder rule.
2. Usually must be “malum in se” not just “malum prohibitum”
BATTERY
ELEMENTS:
i. An unlawful application of force
ii. To the person of another
iii. Resulting in either bodily injury OR an offensive touching.
Does not have to actually be skin-to-skin contact – anything connected to D’s person can touch anything connected to V’s person.
i. Example: D causes his dog to attack V)
Aggravated battery (some states):
i. Battery w/ a deadly weapon
ii. Battery resulting in serious bodily harm
iii. Battery of a child, woman, or cop
ASSAULT
ELEMENTS:
i. THEORY 1: An attempted battery.
ii. THEORY 2:
1. The intentional creation of
2. a reasonable apprehension of
3. imminent bodily harm.
Mere words are not enough to be assault.
i. BUT words can negate assault: “(Shaking fist) I’d punch you if you weren’t a girl.”
Aggravated assault:
i. With a deadly weapon
ii. With intent to rape or maim
RAPE
ELEMENTS:
i. Sexual intercourse
ii. By a man
iii. With a woman not his wife
iv. Without her consent
Incapable of consent = no consent
“Slightest penetration is sufficient”
KIDNAPPING
ELEMENTS:
i. Some movement of the victim OR
ii. Concealment of the victim in a “secret” place.
Aggravated kidnapping:
i. For ransom
ii. For the purposes of committing other crimes
iii. Child stealing
MAYHEM
ELEMENTS:
i. Dismemberment or disablement
ii. Of a body part

CRIMES AGAINST PERSONAL PROPERTY
LARCENY
ELEMENTS:
i. A taking
ii. And carrying away
iii. Of tangible personal property
iv. From the possession of another
v. By trespass (includes consent obtained by fraud)
vi. With intent to permanently deprive that person of her interest in the property
vii. At the time of the taking.
Intent
i. The intent to permanently deprive the person of the property must exist when it is taken! Can’t change mind later.
1. BUT “continuing trespass”: If original taking was WRONGFUL but no intent to permanently deprive, and D later changes her mind and decides to keep it, then it’s still larceny.
a. This will not apply if original taking was NOT wrongful (i.e. D thought it was hers).
ii. Intent to put the property at a substantial risk of loss is enough.
Compare embezzlement: No taking from the possession of another, because the person already has possession (bailee).
i. Low-level employee stealing = larceny
ii. Upper management stealing = embezzlement
EMBEZZLEMENT
ELEMENTS:
i. The fraudulent
ii. Conversion
iii. Of personal property
iv. Of another
v. By one in lawful possession of that property.
An intent to defraud is required.
i. Not embezzlement if D believed it was hers.
If D intends to return THAT SAME EXACT property, it’s not embezzlement.
i. BUT intent to return the same or similar property is still embezzlement (even money)
FALSE PRETENSES
ELEMENTS:
i. Obtaining title
ii. To personal property of another
iii. By an intentional false statement
iv. Of a past or existing fact
v. With intent to defraud the other.
Compare: Larceny by trick
i. That’s where mere possession of the property is given up – here, title is actually passed.
V must actually be deceived by the misrepresentation, and must be a major factor in V passing title to D.
RECEIVING STOLEN PROPERTY
ELEMENTS:
i. Receiving possession and control
ii. Of “stolen” personal property
iii. Known to have been obtained in a manner constituting a criminal offense
iv. By another person
v. With the intent to permanently deprive the owner of his interest in it.
Possession
i. Manual possession is not necessary.
ii. If the property is put in a location designated by D while she arranges to fence it, that’s good enough.
“Stolen”
i. Property must actually be stolen when D receives it.
ii. CanNOT be property recovered from a robbery, then the police are using it as part of a sting operation.
1. BUT if D believes it’s stolen and it’s not, can be convicted of attempted stolen property.
ROBBERY
ELEMENTS:
i. A taking
ii. Of personal property
iii. Of another
iv. From the other’s person or presence (including his vicinity)
v. By force or threats
vi. With the intent to permanently deprive V of it.
Force or threats must be of immediate death or physical injury to the victim, a member of his family, or some person in the victim’s immediate presence.
V must actually feel threatened (can’t just give up her property b/c she feels sorry for D).
EXTORTION
Obtaining property by means of threats to do harm or expose information.
Under some statutes, crime is complete when threats are made.

CRIMES AGAINST REAL PROPERTY
ARSON
Elements:
i. The burning
ii. Of a dwelling house
iii. Of another
iv. With malice.
Mere charring is sufficient, but blackening by smoke or water damage is NOT enough.
An explosion is not arson unless it causes a fire.
BURGLARY
Elements:
i. The breaking
ii. And entering
iii. At night
iv. Into the dwelling house
v. Of another
vi. With intent to commit a felony therein.
1. Intent must be present at time of entry.

CRIMES AGAINST THE PUBLIC
FORGERY
ELEMENTS:
i. Making or altering
ii. A writing with apparent legal significance (i.e. a contract, not a painting)
iii. So that it represents something it is not
iv. With intent to defraud
NOTE that it must be something it is not, not merely inaccurate:
i. Warehouse receipt with a wrong amount on it = not forgery
ii. Fake warehouse receipt = forgery
UTTERING A FORGED INSTRUMENT
ELEMENTS:
i. Offering as genuine
ii. An instrument that may be the subject of forgery and is false
iii. With intent to defraud.

“HELPING” CRIMES
ACCOMPLICE LIABILITY
Elements:
i. Give aid, counsel, or encouragement
ii. To the principal
iii. With the intent to encourage the crime.
iv. Mere knowledge that a crime will result is NOT enough.
An accomplice is liable for the crimes he did or counseled AND any other crimes that were foreseeable/probable.
If an accomplice withdraws from the crime BEFORE it becomes unstoppable, he is not liable.
i. Withdrawl = REPUDIATION and ATTEMPT TO NEUTRALIZE any assistance. Telling the cops or taking other action to stop the crime is also sufficient.
Levels
i. Principal = convicted of main crime
ii. Accessory before the fact = convicted of main crime
iii. Accomplice (present at the scene) = convicted of main crime
iv. Accessory after the fact = separate crime of being an accessory after the fact
ATTEMPT
Elements:
i. A substantial step toward an act
ii. Done with intent to commit a crime
iii. That falls short of completing the crime
Must intend to do something that, if completed, would actually be a crime.
Abandonment is NO defense: Crime is complete once D has INTENT and makes a SUBSTANTIAL STEP
Substantial step must be more than mere preparation.
Merges w/completed crime
CONSPIRACY
Elements:
i. An agreement between two or more persons
ii. An intent to enter into the agreement
iii. Intent by at least two persons to achieve the objective of the agreement
iv. Majority of states: Overt act (mere preparation OK)
Conspirators are liable for all crimes committed by co-conspirators so long as they were:
i. Committed in furtherance of the objectives of the conspiracy AND
ii. Were foreseeable
Conspiracy terminates when the wrongful objective is complete.
i. Acts of concealment and other things happening after do not count.
Withdrawl
i. Still liable for conspiracy, but possibly not for subsequent crimes committed in furtherance.
ii. Requirements for withdrawl:
1. Notify all co-conspirators
2. Give notice in time for members to abandon the plan
3. Try to neutralize any assistance given
Separate sub-conspiracies:
i. Chain type: All members liable for all crimes
ii. Hub-and-spoke type: Members only liable for crimes committed in furtherance of their sub-conspiracy
NO conspiracy if person pretended to agree in order to tell the police
Agreement can be inferred from joint activity
A corporation can’t conspire
Traditional view – if all persons D conspired with are acquitted, then D can’t be convicted of conspiracy.
i. BUT if alleged conspirators are never prosecuted because they can’t be found, that’s different.
SOLICITATION
Elements:
i. Inciting, counseling, advising, or commanding another
ii. To commit a crime
iii. With the intent that he commit the crime.
iv. NOTE – if solicitee agrees, it becomes a conspiracy.
Merges w/completed crime

DEFENSES
SELF-DEFENSE
Deadly force is only available IF:
i. She is without fault
ii. She is confronted w/unlawful force
iii. She is threatened w/imminent death or great bodily harm.
If D kills in self-defense but one of these three requirements were not met, some states allow a conviction for manslaughter instead of murder (“imperfect self-defense”).
Requirement of retreat before using deadly force:
i. MINORITY of states say must retreat UNLESS:
1. It’s in V’s house
2. It happens while V is making a lawful arrest
3. Assailant is in the process of robbing V
Right of aggressor to use self-defense:
i. Can use it if the original V suddenly escalates a minor fight into deadly force OR
ii. If the original aggressor withdraws and TELLS V that she is withdrawing.
DEFENSE OF OTHERS
Only requirement is that it REASONABLY APPEARED that the person being attacked would have had a right to use force to defend herself.
DEFENSE OF PROPERTY
Only non-deadly force may be used to prevent the taking.
After the taking is happening, no force is permitted to get it back UNLESS V is in hot pursuit.
INSANITY
M’NAUGHTEN
i. Mental disease or defect caused D EITHER to:
1. Not know what he was doing was wrong OR
2. Not understand the nature and quality of his actions
IRRESISTIBLE IMPULSE
i. Because of a mental illness, D was unable to control his actions or conform his conduct to the law.
MPC SUBSTANTIAL CAPACITY
i. D’s mental disease or defect made him lack the substantial capacity to EITHER:
1. Appreciate the criminality of his conduct OR
2. Conform his conduct to the requirements of law.
DURHAM PRODUCT
i. D’s crime was the product of his mental illness (crime would not have been committed but for the disease)
DIMINISHED CAPACITY (some states)
i. D may assert that as a result of a mental defect short of insanity, he did not have the metnal state required for the crime charged.
ii. Some states allow only for specific intent crimes, others for general intent.
INTOXICATION
VOLUNTARY
i. Defense ONLY to specific intent crimes.
INVOLUNTARY
i. Treated the same way as insanity.
ENTRAPMENT
Only available if:
i. The criminal design ORIGINATED w/the police AND
ii. D was not predisposed to commit the crime before the cops contacted him.
MISTAKE
Even an unreasonable mistake can negate a specific intent crime, if it means D lacked the intent.
Mistake of law no excuse UNLESS:
i. There was reasonable reliance on a statute or judicial decision OR
ii. D’s mistake of law caused him to lack the specific intent necessary.
INFANCY
Under age 7 – no liability
7-14 – rebuttable presumption of no mens rea
Over 14 – treated as adults
NECESSITY
Commission of the crime was necessary to avoid an imminent and greater injury to society, from an OBJECTIVE standpoint.
BUT causing the death of another person is never justified.
NOT a defense if the person created the situation where he had to choose the lesser of two evils.
Necessity must involve pressure from natural or physical forces.
DURESS
D only committed the crime because he reasonably believed that another person would IMMINENTLY inflict death or great bodily harm upon him or a member of his family if he didn’t commit the crime.
NEVER a defense to causing the death of another person.
CRIME PREVENTION
COPS
i. Can use deadly force ONLY if:
1. It is necessary to prevent a felon’s escape AND
2. The felon presents a danger of death or serious bodily harm.
ii. Can use non-deadly force if:
1. It reasonably appears necessary to effect an arrest.
CIVILIANS
i. Can use non-deadly force IF:
1. A crime was in fact committed AND
2. The person has reasonable grounds to believe the person actually committed the crime.
ii. Can use deadly force ONLY if:
1. The person harmed was actually guilty of the crime AND
2. The person threatens human life.

CRIMINAL PROCEDURE

EXCLUSIONARY RULE
Prevents the introduction of evidence obtained in violation of a D’s 4th, 5th, or 6th Amendment rights.
FRUIT OF THE POISONOUS TREE
All evidence obtained as a result of excluded evidence is also excluded, EXCEPT:
i. If it was obtained from an independent source.
ii. There was an intervening act of free will by D.
1. Example: D was illegally interrogated but then comes back to the station after leaving, and confesses.
iii. Inevitable discovery
1. Cops can show they would have found the evidence anyway.
iv. Where it is being used in grand jury or civil proceedings.
v. Where police were acting in good faith on a facially valid search warrant UNLESS:
1. It was so defective they should have realized it,
2. It was so lacking in probable cause it could not reasonably be relied on,
3. The affiant lied to or misled the magistrate,
4. The magistrate has “wholly abandoned his judicial role”
vi. It is being used to impeach D’s credibility when he is taking the stand at trial.
1. This includes:
a. A voluntary confession that violated Miranda
b. Evidence obtained from an illegal search
2. Goes in for impeachment ONLY not as substantive evidence.
NOTE: D cannot have a witness’ in-court identification excluded on the ground that it is fruit of an unlawful detention.
HARMLESS OR REVERSIBLE ERROR
If illegally evidence is admitted, the conviction still won’t be overturned on appeal if the gov’t can show BEYOND a reasonable doubt that the error was harmless.
NOTE denial of a right to counsel at trial is never harmless.

4TH AMENDMENT
UNREASONABLE SEARCH & SEIZURE

PHYSICAL ARRESTS/STOPS
ARREST - PROBABLE CAUSE REQUIRED
i. An arrest must be based on probable cause
ii. Probable cause = Trustworthy facts or knowledge sufficient for a reasonable person to believe D has committed, or is committing, a crime.
iii. A warrant is never required for arresting a person in a public place!
BRIEF DETENTIONS – LOWER STANDARD
i. Stops
1. A stop is permitted w/o a warrant if P has:
a. A reasonable suspicion of criminal activity,
b. Supported by articulable facts (not just a ‘hunch’).
2. The stop can be no longer than necessary to conduct a limited investigation to try and verify the suspicion.
3. May request D give his name, and may arrest him for not complying.
ii. Frisks
1. A frisk is then permitted if P has:
a. A reasonable suspicion
b. That D is armed and dangerous.
iii. Stopping cars on the road
1. P must have a reasonable suspicion to believe the law has been violated OR
2. There are special law enforcement needs involved.
a. These include roadblocks that:
i. Stop cars on the basis of some neutral, articulable standard (every car) AND
ii. Are designed to serve purposes closely related to driving (i.e. testing for drunk drivers, NOT to search for illegal drugs).
3. After lawfully stopping, P may order occupants out, and frisk them if he thinks they have weapons.
4. Cops may stop a car if they really think they committed a traffic violation, even if they secretly just want to check out a suspicious driver!
SEARCH & SEIZURE
GOVERNMENTAL CONDUCT
i. Only acts by the gov’t count here. No problem if private party seizes your stuff.
REASONABLE EXPECTATION OF PRIVACY
i. Unless D has a reasonable expectation of privacy in the property/area searched, then he does not get 4th amendment protection.
ii. Whether someone has an expectation of privacy is based on the totality of the circumstances.
iii. You will ALWAYS Have an EofP if:
1. You owned or had a right to possession of the premises searched,
2. The place searched was in fact your home, even if you did not have the legal right to be there (homeless),
3. You were an overnight guest of the owner of the place searched (incl. Hotel).
iv. There is no ReofP in things held out to the public.
1. This includes account records held by a bank.
WITH A WARRANT
i. WARRANT REQUIREMENTS
1. The warrant must be:
a. Issued by a neutral and detached magistrate
b. On a showing of probable cause
c. Which is reasonably precise with respect to:
i. The place to be searched
ii. The items to be seized
2. A warrant will be held invalid if:
a. A false statement was included in the affidavit by the affiant, AND
b. The affiant intentionally or recklessly lied in the statement, AND
c. The false statement was material to the finding of probable cause.
d. BUT if P relied in good faith on the warrant, the evidence is still admissible!
ii. SCOPE OF WARRANT
1. If it’s not reasonably precise as to place to be searched and stuff to be seized, the warrant is unconstitutional and invalid.
2. Police may NOT search 3d parties found on the premises, not named in the warrant.
3. BUT police can seize any contraband or fruits/instrumentalities of crime they find, even if it’s not in the warrant.
iii. PROPER EXECUTION
1. Only POLICE not private citizens can execute a warrant.
2. upon arrival police must:
a. Knock
b. Announce their purpose
c. Wait a reasonable time for admittance.
d. BUT if Ps believe announcing would be dangerous, futile, or inhibit the investigation, they can just go in.
WITHOUT A WARRANT
i. INCIDENT TO LAWFUL ARREST
1. P may search:
a. The D himself
b. Any areas into which he might reach to obtain weapons or destroy evidence (wingspan).
i. This includes entire passenger compartment of car but not trunk.
2. Search must be contemporaneous in time and place with the arrest.
3. If D is brought into the station, Ps may make an inventory search of his belongings AND his impounded vehicle.
4. If arrest not lawful, search not lawful either.
ii. AUTOMOBILE
1. This is where:
a. P has probable cause
b. To believe the car contains
c. Fruits, instrumentalities, or evidence of a crime.
2. Ps may search the whole vehicle AND any container that might reasonably contain the item for which they had probable cause to search.
a. So if searching for illegal immigrants, can’t look inside small tupperware container.
b. This includes packages belonging to a passenger.
3. If the search is valid, Ps may tow the car to the station and search it later.
iii. PLAIN VIEW
1. Ps may make a warrantless seizure if:
a. They are legitimately on the premises,
b. Discover evidence, fruits or instrumentalities of a crime, or contraband,
c. Which is seen in plain view,
d. And it is immediately apparent that the item is evidence, contraband, or the fruit/instrumentality of a crime.
2. If Ps have a warrant to search for a gun in a home, and open a drawer where a gun could be, and see drugs, that would be a legitimate plain view seizure.
a. Key is they are only entering and looking in places they have a right to look.
iv. CONSENT
1. Consent must be voluntary and intelligent.
2. Knowledge of the right to withhold consent is not required.
3. Person consenting must have a right to enter the premises.
a. Example: Homeowner maybe can’t consent to au pair’s room where it has a separate, locked door.
4. Scope of the search may be limited to to the scope of the consent – but includes all areas where a reasonable person would think it extends.
5. One joint owner can consent, even if property of another joint owner is seized.
v. STOP & FRISK
1. Person stopped on an articulable and reasonable suspicion can be searched via:
a. A patdown of outer clothing
b. UNLESS the P has specific info suggesting a weapon is hidden somewhere else.
2. During frisking P can seize anything that, based on its “plain feel,” could be a weapon or contraband.
vi. EXIGENT CIRCUMSTANCES
1. Ps in “hot pursuit” of a fleeing felon can make a warrantless search and seizure, and may even follow him into a private home.
2. Ps can seize “evanescent evidence” likely to disappear before a warrant is obtained.
3. These things may also justify warrantless searches:
a. Contaminated food or drugs
b. Children in trouble
c. Burning fires
PERSONS OR PLACES SEARCHED
i. PUBLIC SCHOOLS
ii. PROBATIONER
iii. BORDER SEARCHES
1. The 4th Amendment does NOT apply to border searches.
2. Also, aliens searched abroad by U.S. officials have no 4th Amendment rights.
iv. WIRETAPPING
1. Always requires a warrant.
2. Valid wiretapping warrant requires:
a. Probable cause
b. Names of persons to be involved in the conversation
c. A particular description of the conversation to be overheard
d. A time limit that is relatively short
e. A termination of the wiretap once the desired info has been obtained
f. A report to the court afterward showing what conversations were intercepted.
v. BODY SEARCHES

5TH AMENDMENT
COMPULSORY SELF-INCRIMINATION
DOUBLE JEOPARDY
INCRIMINATING STATEMENTS
Privilege against self-incrimination protects compelled testimonial evidence
i. Anytime a person is asked a question where his response might furnish a link in the chain of evidence needed to prosecute him, he can refuse to answer.
ii. MUST be claimed in a civil proceeding to prevent it from being waived in a later criminal proceeding.
iii. Does not apply to physical evidence (i.e. being forced to give a hair sample).
iv. CanNOT claim if there is NO possibility of incrimination (i.e. statute of limitations has run).
MIRANDA
i. Custodial interrogation
1. Triggered when person is:
a. In custody AND
b. Accused of a crime AND
c. Is about to be interrogated.
2. D is in custody when he has a reasonable belief that he could not leave.
3. Interrogation = any words or conduct by Ps that they should know would likely elicit a reasponse from D.
ii. Warning
1. Must be given prior to interrogation, and must tell D:
a. He has the right to remain silent,
b. Anything can and will be used against you in court,
c. He has the right to the presence of an attorney,
d. And if he cannot afford an attorney, one will be provided for him.
2. If D decides to remain silence, police may NOT badger him, and must scrupulously honor the right.
a. BUT the Supreme Court has allowed later questioning on an UNRELATED crime.
3. If D unambiguously asserts that he wants a lawyer, all questioning must cease until the lawyer gets here.
a. Ps can’t wait until lawyer talks to D, leaves, and then start questioning him again.
iii. Waiver
1. Must be knowing, voluntary, and intelligent.
iv. Terminate
1. D can terminate the interrogation at any time by re-invoking his Miranda rights.
Voluntary confessions obtained w/o Miranda warnings CAN be used to impeach D’s testimony if he takes the stand – but do NOT come in as substantive evidence.
At trial, P may NOT comment on D’s decision to remain silent.
DOUBLE JEOPARDY
When it attaches:
i. Jury trial – on the empaneling and swearing of the jury
ii. Bench trial – when the first witness is sworn
Exceptions
i. Hung Jury
ii. Mistrial
iii. When there was manifest necessity to abort the original trial
iv. When the first trial ended at D’s behest, on some ground not constituting acquittal on the merits
v. When the first trial ended b/c D made a plea bargain, then breached it.
Same Offense or lesser included, unless new evidence
i. Does NOT apply if at least one additional element must be proven.
ii. Cannot do a subsequent trial for a lesser included offense.
Does not apply to separate sovereigns
i. One state and another state can both try D for the same crime
ii. State gov’t and fed gov’t can both try D for the same crime
iii. State gov’t and LOCAL gov’t can’t both try D.
Does not bar appeals by P IF an appeal would not require a retrial.

6th AMENDMENT
SPEEDY TRIAL
PUBLIC TRIAL
TRIAL BY JURY
RIGHT TO CONFRONT WITNESSES
ASSISTANCE OF COUNSEL

RIGHT TO COUNSEL
AFTER ARREST
i. The 6th Amend. Only provides a right to counsel once judicial proceedings begin – so there’s no 6th amend. right to counsel when you get arrested. That comes as part of the 5th Amend Miranda rights.
RIGHT AT POST CHARGE-LINEUP OR SHOW-UP
i. If this is violated, the witness can still make an in-court identification if it’s from an independent source (i.e., a chance to see D at the time of the crime).
ii. BUT no right to counsel at photo Ids
iii. Also no right when fingerprints or handwriting samples are taken
CRITICAL STAGES OF A PROSECUTION
i. Right to counsel comes in at all critical stages of prosecution, which include:
1. Preliminary hearings to determine probable cause to prosecute
2. Arraignment
3. Post-charge lineups
4. Guilty plea and sentencing
5. Misdemeanor trials when imprisonment is actually imposed
6. Felony trials
7. Overnight recesses during trial
8. Appeals as a matter of right.
WAIVER & RIGHT TO DEFEND ONESELF
i. Waiver must be knowing and intelligent
ii. Doesn’t matter if he’s incapable of representing himself competently
EFFECTIVE ASSISTANCE OF COUNSEL
i. Effective assistance is generally presumed.
ii. Counsel is ineffective if D can prove:
1. Deficient performance by counsel,
2. Which would have led to a DIFFERENT RESULT in the proceeding if performance was not defficient.
3. D must point out specific deficiencies she is claiming.
iii. If D can show
RIGHT TO A SPEEDY TRIAL
Whether a trial is “speedy” is evaluated by a totality of the circumstances, including:
i. Length of delay
ii. Reason for delay,
iii. Prejudice to D
This right attaches once D has been arrested OR charged.
i. SO if D is walking around free while prosecution gathers evidence to arrest him, that’s not a speedy trial issue.
RIGHT TO A JURY TRIAL
SERIOUS OFFENSES > 6 MOS.
i. Minor offenses with max term of 6 mos. or less don’t require a jury.
ii. For criminal contempt proceedings, cumulative penalties totalling more than 6 months triggers the right to a jury trial.
NUMBER & SELECTION OF JURORS
i. Must be at least 6.
ii. A unanimous verdict isn’t necessarily needed, but if there’s only 6 jurors, they must be unanimous. 9-3 is probably the limit for 12 jurors.
iii. D does not have the right to proportional representation of the community on HIS particular jury.
1. Can only show violation of jury trial right if there is underrepresentation of a distinct and numerical group in the community.
iv. D can challenge peremptory strikes based on race or gender in this way:
1. Show facts or circumstances that raise an inference that exclusion was based on race or gender.
2. Then P must come forward with a race-neutral explanation for the strike.
3. Then judge decides if P is sincere.
v. D is entitled to questioning potential jurors about racism if race is bound up in the case, or he is accused of an interracial CAPITAL crime.
DEATH PENALTY – SELECTING JURORS
i. If the jury is to decide whether D should get a death sentence, D must be allowed to ask whether potential jurors would automatically give the death penalty on a guilty verdict.
1. These jurors would not be able to perform their duty by considering mitigating factors.
RIGHT TO CONFRONT WITNESSES
OBSERVE WITNESS DEMEANOR AND OPPORTUNITY TO CROSS-X
RIGHT NOT ABSOLUTE
i. DISRUPTIVE DEFENDANT
ii. CO-DEFENDANT’S CONFESSION
1. If both are being tried together, and one has given a confession that implicates the other, the right of confrontation prohibits its use at trial UNLESS:
a. All portions relating to the other D can be eliminated AND
b. The confessing D takes the stand and subjects himself to cross-X AND
c. The confession of the non-testifying co-D is being used to rebut the D’s claim that his was obtained coercively.
GUILTY PLEAS
These implicate the 6th Amendment because what they really are are waivers of a jury trial.
At a guilty plea ceremony, the judge must tell D Personally:
i. Of the nature of the charge he is pleading guilty to,
ii. The maximum possible penalty and any mandatory minimum,
iii. That D has a right not to plead guilty,
iv. That by pleading guilt D waives his right to a trial.
A record must be taken of the giving of the guilty plea, and the record must indicate that the plea was voluntary and intelligent.

8TH AMENDMENT
CRUEL & UNUSUAL PUNISHMENT
PUNISHMENT PROPORTIONATE TO OFFENSE
A punishment that is grossly disproportionate to the seriousness of the crime charged violates the 8th Amend.
The death penalty for rape of an adult woman has been found to violate this standard.
DEATH PENALTY
Not inherently violative of 8th Amendment
Jury must be allowed to consider mitigating circumstances
Can be imposed for felony murder IF:
i. D participated in a major way AND
ii. Acted w/reckless indifference
Jury can consider effect on victim’s family
Cannot be imposed on:
i. Retarded
ii. Minors (when crime committed)
STATUS CRIMES
A law that makes it a crime to have a given “status” (i.e. not an act) violates the 8th Amendment.

14TH AMENDMENT
DUE PROCESS
SHOCKS THE CONSCIENCE
A method of obtaining evidence that “shocks the conscience” violates Due Process.
i. Example: Requiring surgery to remove a bullet.
IDENTIFICATIONS
Identifications that are unnecessarily suggestive and where there is a substantial likelihood of misidentification violate due process.

Richmond Bar Review

2006-07-21T21:26:00.000-04:00

Has anyone heard of this course? Any comments? Thanks.

http://www.richmondbarreview.com/main.htm

CONSTITUTIONAL LAW

2006-07-15T12:03:00.000-04:00

CONSTITUTIONAL LAW

Strict Scrutiny à Must be necessary to achieve a compelling gov’t purpose
Intermediate Scrutiny à Must be substantially related to an important gov’t purpose
Rational Basis à Must be rationally related to some legitimate gov’t purpose

THE JUDICIAL POWER – HEARING JUSTICIABLE CASES
ADVISORY OPINIONS
A federal court may not render an advisory opinion. There must be specific present harm or threat of specific future harm.
Parties must show:
i. they have engaged in, or wish to engage in, specific conduct,
ii. and that the challenged action poses a real and immediate danger to their interests.
RIPENESS
A case is not yet ripe if there is no immediate threat of harm.
MOOTNESS
A case is moot if there is no longer any immediate threat of harm.
i. Exception:
1. Controversies capable of repetition, yet evading review, are not moot.
2. Class actions – if issue becomes moot as to class representative, the class action can still continue if other members’ claims are still viable.
STANDING
A person must have a concrete stake in the outcome of the case to have standing.
i. Elements:
1. Injury
a. She has been or will be directly and personally injured by the allegedly unlawful gov’t action. Injury need not be economic.
2. Casuation
a. There must be a causal connection between the injury and the conduct complained of.
3. Redressability
a. A decision in the litigant’s favor must be capable of eliminating the harm.
Common standing issues
i. Standing to enforce gov’t statutes
1. Available only if P is within the “zone of interests” Congress meant to protect.
ii. Third-party standing to assert the rights of others
1. Available only when:
a. It is difficult for the third party to assert her own rights OR
b. A special relationship exists (i.e. doctor-patient)
iii. No Taxpayer or Citizen standing
1. A person cannot get standing merely as a taxpayer or citizen of the U.S. à interest too remote.
2. Exception: A taxpayer can challenge taxing and spending measures on First Amendment Establishment Clause grounds (spending to establish religion)
a. SPENDING power must be involved – not giving surplus property to a religious group.
ADEQUATE AND INDEPENDENT STATE GROUNDS
The Supreme Court will not hear an appeal if the decision rested on adequate and independent state law grounds, even if federal issues are involved.
ABSTENTION
Unsettled question of state law
i. A federal court will allow states to interpret their own laws first
Pending state proceedings
i. Federal courts will not enjoin pending state criminal proceedings (and in some cases pending civil proceedings involving an important state interest).
POLITICAL QUESTIONS
Criteria for whether it’s a political question:
i. A “textually demonstrable” constitutional commitment of the issue to the political braches
ii. Lack of manageable standards for judicial resolution
iii. A need for finality in the action of the political branches
iv. Difficulty or impossibility of devising effective judicial remedies
Typical cases that ARE political questions:
i. “Republican Form of Gov’t” clause of Art. IV
ii. Challenges to congressional procedures
iii. President’s conduct of foreign policy
Typically NOT political questions:
i. Legislative apportionment
ii. Arbitrary exclusion of a congressional delegate
iii. Production of presidential papers and communications
ELEVENTH AMENDMENT
Federal courts may not hear a private party’s claims against a state government.
i. Exceptions:
1. D state consents
2. Actions against state officers for injunctions or personal damages, but not damages that will come out of state coffers.
Does not bar suits against county or city gov’ts.
United States gov’t may sue a state w/o its consent – BUT a state may not sue the US gov’t.
State gov’ts may sue each other.

THE LEGISLATIVE POWER
SOURCES OF POWER
COMMERCE CLAUSE
i. Congress has the exclusive power to regulate all foreign and interstate commerce.
ii. Can regulate anything that has a “substantial effect” on interstate commerce.
SPENDING
i. Congress may spend for any public purpose à “for the common defense and general welfare.”
TAXING
i. For tax to be valid, must bear some reasonable relationship to revenue production – can’t be a veiled attempt to regulate.
WAR
i. Power to declare war extends to economic regulations in the postwar period to avoid wartime disruptions.
ii. Can raise armies, create military tribunals
INVESTIGATORY POWER
i. Congress can investigate anything it has power to legislate over.
PROPERTY POWER
i. Congress has power over the properties of the U.S.(including Washington D.C.)
ii. Congress can also take property for public use (eminent domain)
CITIZENSHIP
i. Congress can establish uniform rules of naturalization.
POWER TO OUTLAW BADGES OF SLAVERY
i. 13th Amend – so can outlaw private action discriminating against blacks
NECESSARY AND PROPER CLAUSE
Power to make all laws “necessary and proper” to carrying out its enumerated powers.

THE EXECUTIVE POWER
DOMESTIC POWERS
Appoint all ambassadors, consuls, and Supreme Court justices w/ Senate approval
Right to remove all high-level, purely executive officers
i. BUT Congress may limit President’s power to remove all other appointees (cannot be absolute bar, but can be for cause)
Right to pardon for federal crimes
Veto acts of congress (can be overriden by 2/3 vote of each house)
EXECUTIVE ORDERS
Most likely to be valid if with consent of Congress
If against express will of Congress – may be invalid as violating separation of powers
EXTERNAL AFFAIRS
Pres cannot declare war, but can deploy armies
Pres has supreme power to represent the U.S. in foreign relations.
Power to enter into treaties w/consent of 2/3 of the Senate.
Executive agreements = agreements btwn Pres and a foreign head of state
i. Need not get consent of Senate
ii. Can be used for any purpose that treaties can be used for

STATE v. FEDERAL SYSTEM
1. PREEMPTION
a. If a state law conflicts with a federal law, the state law is invalid.
b. If there is not a federal law on point, but the state law prevents achievement of a federal objective, it will be invalidated.
c. If there is not a federal law on point, but if Congress intended to “occupy the field,” the state law will be invalidated.
i. Factors showing intent to occupy the field:
1. Comprehensive federal scheme
2. Creation of an agency to administer the laws
3. Historically federally-regulated subject matter
4. Need for uniform national regulation
2. INTERSTATE COMPACT CLAUSE
a. If states make an agreement that increases their power at the expense of federal power (banding together) it must get congressional approval.
3. TAXATION/REGULATION ISSUES
a. Federal taxation/regulation of state entities
i. Valid if applies to both public and private sector (i.e. minimum wage laws)
ii. Invalid if applied ONLY to state activity – violates 10th Amendment (i.e. forcing states to take title to nuclear waste)
1. Exception: Civil rights
2. Exception: Conditions on federal grants, if state has option to accept or decline the $$$
iii. States may not commandeer state officials to enforce federal laws (gun law case)
b. State taxation of federal gov’t
i. Nondiscriminatory, indirect taxes are permissible if they do not unreasonably burden the federal gov’t (i.e. state tax on federal workers’ wages)
ii. States may not regulate federal workers while performing their federal functions.
4. PRIVILEGES & IMMUNITIES CLAUSE, ART. IV AND 14TH AMENDMENT
a. Difference:
i. Art IV – prohibits discrimination by a state against non-residents.
ii. 14th Amend – states may not deny their citizens privileges & immunities of national citizenship (i.e. right to travel)
b. Corporations and aliens not protected here
c. Only “fundamental liberties” are protected:
i. Civil liberties
ii. Right to earn a livelihood (commercial activity)
d. A law that discriminates against out of staters may be valid if:
i. The state has a substantial justification for the different treatment, AND
ii. There are no less restrictive means to solve the problem.
iii. NOTE: Protecting in-staters’s interest is not a justifiable reason.
5. DORMANT COMMERCE CLAUSE
a. A state may not discriminate against or unduly burden interstate commerce.
b. To be valid, a state regulation that substantially affects interstate commerce:
i. Must pursue a legitimate end,
ii. Must be rationally related to that legitimate end,
iii. And the regulatory burden imposed by the state on interstate commerce, and any discrimination against interstate commerce, must be outweighed by the state’s interest in enforcing the regulation.
iv. NOTE: If no substantial effect, no need to apply this test à law is valid.
c. For laws that discriminate against out of staters:
i. Law will be invalid UNLESS
ii. It furthers an important, noneconomic state interest AND
iii. There are no reasonable, nondiscriminatory alternatives, OR
iv. The state is a market participant.
d. For laws that treat in-staters and out-of-staters alike, but which burden interstate commerce (truck tires):
i. Will be valid UNLESS
ii. The burden outweighs the promotion of a legitimate state interest, AND
iii. There are no less restrictive alternatives available.
e. A TAX that affects interstate commerce will be valid IF:
i. There is a substantial nexus to the taxing state (significant or substantial activity in the taxing state) AND
ii. The tax is fairly apportioned according to a rational formula, AND
iii. The tax is fairly related to the services or benefits provided by the state.
f. Commodities in interstate transit may NOT be taxed along the way, except for when they start and where they begin.
i. Instrumentalities of interstate commerce (trucks, planes) may be taxed if:
1. They have a taxable situs in the state (like an airline hangar) AND
2. The tax is fairly apportioned (big users pay more than small users).

INDIVIDUAL RIGHTS
1. SOURCES
a. 14th Amendment applies the Bill of Rights to the states
b. The 13th Amendment prevents badges of slavery and involuntary servitude
c. The 14th Amendment prevents states from depriving any person of life, liberty or property without due process of law.
d. 15th Amendment prevents both federal and state gov’ts from denying a citizen the right to vote b/c of race.
e. Sec. 5 of the 14th Amendment gives congress the power to adopt appropriate regislation to enforce rights guaranteed by the Bill of Rights.
f. Under the Commerce Clause, Congress can prohibit private racial discrimination that might have a substantial effect on interstate commerce.
g. Congress also has inherent power to protect the rights of nat’l citizenship.
2. STATE ACTION – ANALYZE FIRST
a. There will be state action if:
i. The entity is performing a traditionally exclusive public function (even if the state itself is not doing it) OR
ii. The state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.
3. SPEECH
a. PRIOR RESTRAINT ON SPEECH
i. Heavy burden to justify
ii. Must show that some special societal harm will result w/o the prior restraint.
iii. Any system for allowing prior restraints must:
1. Have standards that are narrowly drawn, reasonable, and definite AND
2. Injunction must promptly be sought, AND
3. There must be prompt and final determination of the validity of the restraint.
b. VAGUENESS OR OVERBREADTH
i. If a regulation punishes a substantial amount of protected speech in addition to its plainly legitimate sweep it is invalid as overbroad.
1. If the regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are NOT constitutionally protected.
ii. If a reasonable person could not tell what speech is prohibited and what is not, it is unconstitutionally vague.
1. This is also the case with laws that give unfettered discretion to officials in applying them.
c. CONTENT-NEUTRAL REGULATION
i. Content neutral regulations must:
1. Advance important interests unrelated to the suppression of speech AND
2. must not burden substantially more speech than necessary to further those interests.
d. TIME, PLACE, MANNER RESTRICTIONS
i. For public forums, must be:
1. Content-neutral,
2. Are narrowly-tailored to serve an important gov’t interest, AND
3. Leave open alternative channels of communications.
ii. For non-public, gov’t-owned forums, must be:
1. Viewpoint-neutral AND
2. Reasonably related to a legitimate gov’t purpose.
e. COMMERCIAL SPEECH
i. Commercial speech is covered by the 1st Amend, but may be regulated if the regulation:
1. Directly advances
2. A substantial gov’t interest
3. In a way that is reasonably tailored to achieve that objective.
ii. BUT if it proposes unlawful activity or is fraudulent, no protection
f. SYMBOLIC ACTS AS SPEECH
i. Can be regulated if:
1. Gov’t has an important interest in the regulation independent of the speech aspects AND
2. The incidental burden on speech is no greater than necessary.
g. CAMPAIGN CONTRIBUTIONS AS SPEECH
i. Gov’t can limit election campaign contributions IF:
1. The rules are closely drawn to match a “sufficiently important interest.”
ii. Laws may limit donations to a political candidate BUT not donations to supporting a political issue (i.e. ballot referendum).
iii. Laws may not limit the amount a candidate or group can spend on a campaign.
h. SPEECH THAT DOESN’T GET 1ST AMEND PROTECTION
i. Fraudulent/misrepresentational commercial speech
ii. Commercial speech that proposes an unlawful activity
iii. Speech that creates a clear and present danger of imminent lawless action
1. Must show that imminent illegal conduct is LIKELY and
2. that the speaker INTENDED to cause it.
iv. Fighting words
1. Personally abusive words that are likely to incite imminent physical retaliation in an average person
2. BUT can’t punish only fighting words of a certain viewpoint (i.e. insults on the bases of race)
v. Obscenity
1. Appeals to the prurient interest in sex, using a local standard,
2. Is patently offensive and an affront to contemporary local standards AND
3. Lacks serious artistic, literary, political, or scientific value, using a nat’l reasonable person standard.
vi. Non-obscene, adult material as to children
1. Gov’t can’t completely ban non-obscene material b/c children might get it, BUT can restrict sale to children.
2. Also, can completely ban child porn even though not obscene.
vii. Liquor-related ads
1. Under the 21st Amend, states have broad power to regulate liquor. Regs in this area usually set aside only if irrational.
4. FREEDOM OF ASSOCIATION
a. Infringement of this right is OK if:
i. It is justified by a compelling state interest, unrelated to the suppression of ideas, AND
ii. It’s the least restrictive means of achieving that interest.
b. Loyalty oaths
i. OK if they are not overbroad or vague:
1. Promise not to advocate overthrow of the gov’t is too vague
2. Promise not to advocate UNLAWFUL overthrow of the gov’t is NOT too vague
c. Restrictions on behavior of gov’t employees
i. Can prohibit them from taking an active part in political campaigns
ii. Cannot fire them for belonging to a political party (except where it’s relevant, i.e. working for a political campaign).
d. Disclosure of membership lists
i. Gov’t cannot force disclosure of every member in exchange for a gov’t benefit.
5. RIGHT TO PROPERTY – TAKINGS CLAUSE (5TH AMEND)
a. Allows gov’t to take private property for public use, if just compensation is paid.
i. Public use = rationally related to a legitimate public purpose
b. Taking vs. merely burdening w/ regulation
i. An actual, physical appropriation or physical invasion is almost always a taking.
ii. Use restrictions that deny ALL economic use of the land are a taking.
iii. Regulations that merely decrease the value of property may or may not be a taking, the court will apply a 3-part balancing test:
1. The social goals to be promoted
2. The diminution in value to the owner
3. The owner’s reasonable expectations regarding the property
c. If there is a taking, the gov’t must pay FMV as determined by the loss to the owner, not the gain to the gov’t.
6. RELIGION
a. ESTABLISHMENT CLAUSE
i. Prevents gov’t from preferring one religion over another UNLESS:
1. It is narrowly tailored
2. To promote a compelling interest (interest almost never compelling)
ii. Gov’t religious displays or other endorsements of religion are OK ONLY if it:
1. Has a secular purpose,
2. Has a primary effect that neither advances nor inhibits religion, AND
3. Does not produce excessive gov’t entanglement w/ religion.
iii. Grants to religious schools
1. The Court will apply the 3-part test above more strictly if the school involved is a grade or high school, than colleges etc.
b. FREE EXERCISE CLAUSE
i. This clause prevents the state from punishing someone on the basis of religion.
ii. Cannot deny benefits or impose a burden based on religion absent a compelling interest – BUT the Supreme Court has NEVER found an interest to be compelling enough.
iii. Laws of general application can be applied to religious people UNLESS it was specifically designed to interfere with religion (goat sacrifice v. peyote).
1. No requirement that they be given exemptions.
iv. Gov’t cannot deny unemployment benefits to people who are forced to quit their jobs for religious reasons.
7. RETROACTIVE LEGISLATION
a. IMPAIRMENT OF CONTRACT
i. Only stop states from enacting a law that substantially impairs contracts already in existence – feds aren’t bound by this.
b. EX POST FACTO LAWS
i. A state cannot retroactively change criminal laws if it:
1. Makes criminal an act that was innocent when done
2. Prescribes greater punishment than when the act was done
3. Reduces the evidence required to convict a person from when the act was done
c. BILLS OF ATTAINDER
i. A legislative order to criminally punish someone (without a trial)
8. EQUAL PROTECTION
Remember! Equal Protection only limits STATE action… but grossly unreasonable discrimination by the FEDERAL gov’t may violate Due Process.
a. CLASSIFICATION OR FUNDAMENTAL INTEREST
i. FUNDAMENTAL RIGHT
1. Burdens a fundamental right for some but not others à Strict Scrutiny
a. If it burdens a fundamental right for EVERYONE it’s a substantive due process problem (still strict scrutiny).
2. Fundamental rights:
a. Right to interstate travel
i. Includes right to be treated equally after moving to a new state
b. Right to vote
i. Residency requirements of 30 days of less are OK
ii. Requirement of property ownership usually not OK (except water dist. Etc.)
iii. Restrictions on right to get on ballot à Must be a reasonable, nondiscriminatory means of promoting important state interests.
c. Right to privacy
i. Marriage
ii. Use of contraceptives
iii. Abortion
iv. Sexual relations
v. Right to raise one’s children a certain way
vi. Right to read obscene material in one’s home
3. Special rules for abortion:
a. Pre-viability à No undue burden on right to abortion
b. Post-viability à May prohibit abortion unless woman’s life is threatened
ii. CLASSIFICATION
1. Suspect classà Strict scrutiny
a. Race
b. National Origin
c. Legal aliens
i. EXCEPTION: participation in gov’tal processes/public policy (cops, teachers)
2. Quasi-suspect à Intermediate scrutiny
a. Gender (gov’t must also show an exceedingly persuasive justification for the law)
b. Legitimacy
c. Education for illegal alien children
3. Other classes à rational basis
a. National origin IF issue is participation in gov’tal processes
b. Illegal aliens
c. Age
d. Disability
e. Wealth
b. SCRUTINY
i. Strict scrutiny à necessary for a compelling gov’t interest, least restrictive means
ii. Intermediate Scrutiny à substantially related to an important gov’t purpose
iii. Rational basis à rationally related to some legitimate gov’t purpose
c. To get strict scrutiny based on discrimination based on a suspect class or quasi-suspect class, INTENT to discriminate MUST be shown by:
i. Discriminatory intent on the face of the law OR
ii. Discriminatory application of a law that is facially neutral OR
iii. A discriminatory motive behind the law.
iv. A law that merely happens to have an unintentional, discriminatory effect does NOT count as intent!!
d. Remember – affirmative action gets strict scrutiny BUT the state’s interest in remedying particular, specific instances of past discrimination is “compelling.”
e. Federal alienage classifications are NOT subject to strict scrutiny, need only NOT be arbitrary and unreasonable.
9. PROCEDURAL DUE PROCESS
a. LIFE, LIBERTY OR PROPERTY INTEREST
i. Must be some legitimate claim or “entitlement” to the benefit to make it a property right
b. LEVEL OF PROCESS DUE
i. Three part balancing test:
1. The importance of the interest to the individual,
2. The value of specific procedural safeguards to that interest,
3. The government interest in fiscal and administrative efficiency.
10. SUBSTANTIVE DUE PROCESS
a. Burdens a fundamental right for EVERYONE à substantive due process à strict scrutiny
i. Burdens a fundamental right for some but not others à Equal protection problem à still strict scrutiny.
b. Fundamental rights:
i. Right to interstate travel
1. Includes right to be treated equally after moving to a new state
ii. Right to vote
1. Residency requirements of 30 days of less are OK
2. Requirement of property ownership usually not OK (except water dist. etc.)
3. Restrictions on right to get on ballot à Must be a reasonable, nondiscriminatory means of promoting important state interests.
iii. Right to privacy
1. Marriage
2. Use of contraceptives
3. Abortion
4. Sexual relations
5. Right to raise one’s children a certain way
6. Right to read obscene material in one’s home
c. Special rules for abortion:
i. Pre-viability à No undue burden on right to abortion
ii. Post-viability à May prohibit abortion unless woman’s life is threatened

Civil Procedure Outline

2006-07-08T10:37:00.000-04:00

®CIVIL PROCEDURE

DOES THE COURT HAVE JURISDICTION OVER THE PARTIES?
- Two steps:
o Satisfy long-arm statute if applicable
o Satisfy Due Process
- For Due Process must get ONE of:
o Domicile in state
o Present in state when served
o Consent to jurisdiction
o MAYBE put product into the stream of commerce that caused harm in forum state (Asahi)
§ Split of authority as to whether this is enough
o Approximation of presence in state sufficient for jurisdiction:
§ Contacts factors:
· Minimum contacts with forum state, resulting from purposeful availament
· Foreseeability that D would be haled into court there
§ Weighed against Fairness factors:
· Relatedness between the minimum contacts and the harm done
· Forum not so inconvenient as to put D at a severe disadvantage
· State’s interest in providing a forum for its citizens.
- If Due Process satisfied, the forum need not be convenient.
o Exception: If location puts D at a SEVERE disadvantage in the litigation.
- In rem jurisdiction
o Contact must still meet the Due Process test
o Property at issue is present in the forum state

DOES THE COURT HAVE AUTHORITY OVER THE SUBJECT MATTER?
- Diversity jurisdiction
o Requirements:
§ Amount in controversy EXCEEDS $75K AND
§ Complete diversity
o Domicile for diversity purposes:
§ Individual
· Arrival in state
· With intent to remain indefinitely
§ Corporation
· ALL states where incorporated AND
· The one state where principal place of business is located
o Use “nerve center” (HQ) unless all “muscle” activity all in one state
§ Unincorporated association
· Citizen of every state where a member is a citizen
§ Decedents, minors and incompetents
· Where they are citizens, not executor/guardian/etc.
o Amount exceeding $75K
§ Not counting costs
§ Must be a good faith estimate
§ Not OK unless it is clear to a legal certainty that P could not recover more than $75K.
§ Actual award of less than $75K is irrelevant for subject matter jurisdiction, BUT P may be liable to pay the D’s costs even if she wins.
§ Injunctions – measure value by EITHER:
· Value to P
· Cost to D to comply
§ Aggregation
· One P can aggregate all the claims against one D.
· If suing more than one joint tortfeasor, need not divide number among number of tortfeasors.
· Class actions: Split of authority:
o 9th Circuit: OK if only REPRESENTATIVE’S claim is over $75K
o Other courts: EVERY class member’s claim must be over $75K.
- Federal question jurisdiction
o Well-pleaded complaint must be based on a right or interest grounded in federal law
§ P is enforcing a federal right
o Whether federal DEFENSES will be raised is irrelevant
o No diversity/amount in controversy requirements
- Supplemental Jurisdiction
o When underlying claim is a Federal Question
§ Claims joined by PLAINTIFF
§ That arise from the same “common nucleus of operative fact” as the underlying claim
§ Court has discretion to hear or not hear:
· Was federal question dismissed early in the proceedings?
· Is the state law claim complex?
· Would state law issues predominate?
o When underlying claim can be either FQ or Diversity
§ Claims joined by ANYONE BUT THE PLAINTIFF
§ That arise from the same nucleus of operative fact as the underlying claim
§ Court has discretion to hear or not hear.
- Removal
o Only Ds may remove
o ALL Ds must agree to remove
o Must remove to federal district that embraces state court where it was originally filed
o For diversity cases only: Can’t remove if ANY D is a citizen of the forum state.
o Must remove no later than 30 days after service of the first removable document.

IS THE COURT THE PROPER PLACE TO RESOLVE THIS DISPUTE?
- Venue
o In diversity cases:
§ Where all Ds reside, OR
§ Where a substantial part of the claim arose, OR
§ If no district meets these, where all Ds are subject to personal jurisdiction
o In all other cases:
§ Where all Ds reside, OR
§ Where a substantial part of the claim arose, OR
§ If no district meets these, where any D can be found.
- Residence
o Individuals à residence = domicile
o Corporations reside in EVERY district where they would be subject to personal jurisdiction.
- Improper or inappropriate venue
o Transfer
o Forum Non Conveniens
§ Where transfer is impossible b/c it’s a foreign country or state system
§ Factors court will look at:
· Public factors
o What law applies
o What community should be burdened with jury service
o Need for fact finder to visit site of events
· Private factors
o Where witnesses and evidence are

WHAT LAW GOVERNS THE DISPUTE?
- Erie Doctrine
o Federal courts must apply state substantive law to nonfederal causes of action
o Federal procedural rules can be applied
- Steps of analysis:
o Is there a federal law on point that directly conflicts w/ state law?
§ YES à Apply the federal law as long as it is valid (FRCPs are presumed valid so long as it is arguably procedural)
o If no federal law is on point, but the judge wants to follow federal practice/customs, she can only do so if it is truly procedural and not substantive. If substantive, must apply state law.
§ Steps to analyzing if it’s substantive:
· Would it determine the outcome of the case?
o If yes à probably substantive
· Does either federal or state system have a strong interest in applying its rule?
· Will applying the federal rule cause people to flock to state court (forum-shopping)?
§ Well-established as substantive in these situations:
· Statutes of limitations
· Rules for tolling statutes of limitations
· Choice of law rules

WAS SERVICE PROPER?
- Ways of service:
o Papers given to P personally
o Process left at Ds usual place of abode with a person of suitable age and discretion who resides there
o Service on D’s agent
o Process mailed to D, who returns waiver of formal service form
§ If refuses to waive, may be charged with cost of personal service
o Any way permitted by state law in either:
§ The state where the federal court sits OR
§ The state where service is being made.
o Immunity from service when D in state only to appear in another case.

ARE THE PLEADINGS PROPER?
- Complaint
o Statement of subject matter jurisdiction
o Statement of the claim
o Demand for relief
o Special matters that must be pleaded with particularity:
§ Fraud
§ Mistake
§ Special damages
- Defendant’s response
o Answer
§ Respond to allegations of complaint (admit, deny, or lack sufficient info)
§ Raise affirmative defenses
o Rule 12(b) motion
§ Waived if not raised in first response:
· Lack of personal jurisdiction
· Improper Venue
· Insufficiency of process
· Insufficient service of process
§ Other ones
· Motion for a more definite statement (must be filed before a responsive pleading)
· Motion to strike
· Lack of subject matter jurisdiction
· Failure to state a claim
· Failure to join indispensable parties
- Counterclaim
o Compulsory
§ Arises from the same T/O as P’s claim
o Permissive
§ Against the same P, but from a different T/O
o Supplemental jurisdiction (if needed) for compulsory
- Cross-claims
o Offensive claims against a co-party
o Must arise from the same T/O as original claim
o Not compulsory
o Supplemental jurisdiction (if needed)
- Amendments and supplemental pleadings
o P can amend once before D answers as a matter of right
o D can amend once w/in 20 days of serving his answer
o Further amendments at discretion of court to allow
o Amendments relate back to original filing date
§ BUT if you are changing the D, only relates back if you sued the wrong D but the right D knew about it.
- Rule 11
o Certification
§ Must sign all papers certifying that:
· To the best of her knowledge AND
· After a reasonable inquiry
· The legal contentions are either warranted by law or a nonfrivolous argument for changing the law.
§ Paper is considered re-certified every time it is “presented” to the court
o Sanctions
§ Party alleged to have violated Rule 11 gets a 21-day grace period to fix the problem.

ARE THE PROPER PARTIES AND CLAIMS BEFORE THE COURT?
- Joinder of parties
o Compulsory joinder – necessary parties should be joined if possible
§ Necessary parties:
· W/o them, court can’t grant complete relief
· Absentee’s interest may be harmed if she is not joined
· Absentee claims an interest that could subject a party to multiple obligations.
· Joint tortfeasors are not necessarily necessary parties!
o Permissive joinder – if joinder of necessary party not feasible, court must either proceed without absentee or dismiss.
§ Whether to proceed or dismiss:
· Is there an alternative forum available?
· What is the actual likelihood of prejudice?
· Can the court shape relief to avoid that prejudice?
- Joinder of claims
o Class actions
§ Requirements:
· Class so numerous that joinder is impracticable
· Common questions of law or fact
· The claims of the representative are typical of the class claims
· Representatives will fairly and adequately represent the interests of the class
· If damages class action:
o Common questions must PREDOMINATE
o Class action must be the best way to handle dispute
o Must provide notice to all reasonably identifiable class members, with ability to opt out
§ Types:
· Prejudice – class treatment necessary to avoid harm to other members of class (race to courthouse)
· Injunction/declaratory judgment
· Damages
§ Once certified as a class, court approval required for:
· Settlement
· Dismissal
o Intervention
§ Absentee wants to join as either a P or D.
· Court can realign if it thinks she joined on the “wrong” side.
§ Intervention as of right
· Her interest may be harmed if she can’t intervene, and she’s not adequately represented now
§ Permissive intervention
· Her claim or defense and the pending case have at least one common question.
§ Supplemental jurisdiction (if needed) for intervenor
· Won’t usually get it if intervenor will mess up diversity, even for intervention as of right.
o Impleader
§ Claims involving a third-party defendant brought in by D
§ Must be for indemnity or contribution
§ Other claims
§ Supplemental jurisdiction (if needed) for these
o Interpleader
§ Person with property wants to bring everyone who claims that property into one lawsuit
· Court can enjoin anyone who doesn’t participate from suing elsewhere
§ Rule 22 interpleader
§ Statutory interpleader

HAVE THE PARTIES PROPERLY PROPOUNDED AND REPLIED TO DISCOVERY?
- Types of discovery
o Depositions
o Interrogatories (to parties only)
o Requests to produce
o Physical or mental examinations (requires court order)
o Requests for admission
o Required disclosures
- Scope of discovery
o Anything reasonably calculated to lead to admissible evidence
o Privileged matter not discoverable
o Work product or trial preparation materials not discoverable
§ BUT can discover facts (not mental impressions) if there’s no other way to get the info and there is exceptional need
- Enforcement of discovery rules (sanctions)
o Total or partial failure to provide discovery: Motion to compel plus costs and certify good faith attempt to obtain discovery.
o Sanctions include:
§ Treat matters as admitted
§ Disallow evidence on an issue
§ Establish the issue adverse to the violating party
§ Strike the pleadings
§ Dismiss the cause of action or the entire action (bad faith)
§ Enter a default judgment (bad faith)
§ Hold in contempt
· NOT available for refusal to submit to a physical or mental exam

CAN THE DISPUTE BE RESOLVED WITHOUT A TRIAL?
- 12(b)(6) – failure to state a claim
o Assuming all allegations are true, would P be able to win a judgment? If no, dismiss.
- Dismissal
o Voluntary
§ P can dismiss once without prejudice à second, probably can’t refile even if first filing was in state court.
o Involuntary
- Summary judgment
o The moving party must show:
§ No issues of disputed fact AND
§ Entitled to judgment as a matter of law
o Partial summary judgment may be granted

IF THERE IS A TRIAL, WHO WILL DECIDE THE MATTER?
- 7th amendment right to jury trial for:
o Actions at law
o NOT equitable actions.
o P must demand a jury trial
- Jury selection
o Each side has unlimited strikes for cause
§ Each side gets 3 no-cause strikes
§ Strikes MUST be used in a race and gender-neutral way
- If there is a jury, can its verdict be disregarded?
o Judgment as a matter of law
§ By D à at close of P’s case
§ By P à at close of all evidence
o Renewed motion for judgment as a matter of law
§ Must have moved for JMOL initially
o Motion for new trial
§ Grounds:
· Prejudicial error at trial makes judgment unfair
· New evidence that could not have been obtained by due diligence for the original trial,
· Prejudicial misconduct of party, attorney, third party, or juror
· Judgment is against the weight of evidence

CAN THE DECISION BE APPEALED?
- Final judgment before appeal can be taken
o Nothing left for court to do on the merits
- Exceptions to the final judgment rule
o Pretrial orders involving temporary remedies
o Final judgment on collateral matters
o Interlocutory orders of great importance that may be determinative of the ultimate decision

IS THE DECISION BINDING IN FUTURE CASES?
- Res Judicata
o Claim preclusion
o Already settled by a judgment on the merits
- Collateral estoppel
o Issue preclusion
o Issue must have been actually litigated and essential to the first judgment
- Who is bound by the judgment?
o Can only assert collateral estoppel AGAINST someone who was a party to the original action (required by due process)
o BUT some jurisdictions allow collateral estoppel to be asserted BY someone who was not a party to the original case if the other party had a fair and full opportunity to litigate it in the first trial.
§ When used defensively: A sues B and C, separately, as joint torfeasors. In action Aà B, court finds A was contributorily negligent. In A à C, C wants to collaterally estop on issue that A was contributorily negligent.
§ Can also be used OFFENSIVELY if not UNFAIR. Factors:
· Party had full and fair opportunity to litigate in first case
· Could foreseee multiple suits
· New party could not have joined easily in first suit
· There are no inconsistent judgments on record.

More Motivation

2006-07-06T20:56:00.000-04:00

PMBR

2006-07-05T19:04:00.000-04:00

OK, now I feel like one of those people sitting at a PMBR desk, but here are my 2 cents on PMBR and the MBE. If you have been reading my blog, you know that I have kinda become a crazy bar exam taker. I have taken 4 bar exams (including some of the what are know as the "toughest" bar exams, Cali and NY). I feel like I have to write this in my blog because I truly believe it to be true - PMBR IS WORTH GOLD! Although Cali and NY dont reveal your MBE score if you pass, the other 2 bar exams I took, I received about 160 raw on the MBE... You must have a high IQ, I was told... but hell no! I was an average law student, and an even more average bar studier... but I will tell you this. If you do well on the MBE you can fail everything else. For exam, one of my fellow Cali study-buddies figured out that with just a 142 raw on the MBE you can litterally fail every essay and every PT with a 60 and still pass.

So this is my 2 cents advice... no matter what you read on other blogs or what your friends think, unless they have more bar exam taking experience than me, listen to what I am about to say...

1. Take the PMBR 6 day and 3 day

2. For the 6 day, dont just do the questions at home and then come in for the lecture (worse yet, do the questions at home and review the answers at home). This is why... the bar exam is not just about answering questions. It's about timing. It's about being able to concentrate 110% while the person next to has whooping caught. It's about being up and functioning at 9AM. Also, the PMBR lecturers dont just read the answers out of the book. They give you advice and mini-pep talks... which is good.

3. For the 3 day, dont just do the simulated exam the 1st day and then review the answers at home the 2nd and 3rd day..

4. Of course, you dont have to take any of this advice, but I promise you that is what got me through 4 bar exams...

If anyone has any thoughts, please post them!!

HAPPY 4TH OF JULY WEEKEND!!

2006-07-02T20:47:00.000-04:00

HAPPY 4TH OF JULY WEEKEND! I remember that this was my last weekend of "freedom". This marked the begining of crunch time... so, I took full advantage of partying my ass off this weekend.

I hope that everyone is having a blast... Dont worry if you start really getting nervous from now forward. It happens to everyone! But look on the bright side. Only about 3 weeks of this my butt is hurting from sitting, my fingers are sore from writing and my brain is about to bust from all this studying! It will all be over soon!

GOOD LUCK WITH CRUNCH TIME!!

Contracts Revised Outline

2006-07-01T13:03:00.000-04:00

UCC OR COMMON LAW?
- Goods à UCC
o Goods = movable, tangible property
§ Growing crops to be severed by seller
§ Unborn animals
§ Fixtures that can be removed without material harm to the land
- Services à Common law
- Real Property à Common law
- Mixed à Predominant purpose test or split it up

WAS THERE AN OFFER?
- Elements of a valid offer:
o Objective intent to be bound
o Definite and certain terms
o Communication to offeree
- Preliminary negotiations v. offers
- Advertisements v. offers
- Invitations to deal v. offers
- Real estate offer must identify LAND and PRICE
- Goods offer must have QUANTITY (or req./output)
- Employment offer must have DURATION

WAS THE OFFER REVOKED?
- Possible means of revocation:
o Direct communication to offeree (effective on receipt) OR
o Offeree finds out offeror acting inconsistently with the offer being open
- Published offers à revoked by same means of publication
o Offeree receipt irrelevant
- Irrevocable offers
o Merchant’s firm offer under the UCC
§ No more than 3 mos
§ Signed by a merchant
§ Promising to hold offer open
o Option for value
o Detrimental reliance on offer
§ Offeror must have reasonably expected reliance
o Unilateral offer where offeree has begun performance
§ Must get a reasonable time to complete performance
§ Mere preparation doesn’t count

DID THE OFFER TERMINATE?
- Lapse of time
o Reasonable time if no time specified
- Offeree dies or goes insane
- Destruction of contract subject matter
- Subject matter becomes illegal

WAS THE OFFER REJECTED?
- Rejection by making a counteroffer
o Mere inquiry v. counteroffer
- Rejection is effective when received
- Options à Offeree can reject and then still accept later until option expires
o Exception: Offeror detrimentally relies on offeree’s rejection

WAS THERE AN ACCEPTANCE?
- Only offeree may accept – no assignment of offers
o Exception: Options for value can be assigned
- Common law à Mirror image rule, otherwise counteroffer
- UCC à Acceptance =
o Objective intent to accept UNLESS the acceptance is made expressly conditional on the offeror’s taking new or different terms (counteroffer) OR
o Both parties start to perform
- Mailbox rule
o No mailbox rule for option acceptance
o Letter must be properly addressed and stamped
o Invalid if offer expressly said no mailbox rule
- Inconsistent responses from offeree
o Sends acceptance, then rejection à mailbox rule applies, offer accepted UNLESS rejection arrives first and offeree relies
o Sends rejection, then acceptance à whichever arrives first is effective
- Acceptance by unauthorized method still an acceptance, if actually received by offeror while offer is still open
- When silence can be acceptance
o Offeree agreed to it in advance
o Offeree silently takes offered benefits

IF THERE IS A CONTRACT, WHAT ARE THE TERMS?
- UCC à 2-207
o Additional terms not in offer:
§ At least one party not a merchant à terms of offer govern
§ Both merchants à Additional terms become part of contract UNLESS:
· New terms materially alter contract
· Offer expressly said acceptance limited to terms
· Offeror objects w/in a reasonable time
· Offeror has already said he wouldn’t accept those terms
o Different terms from those in offer:
§ At least one party not a merchant à terms of offer govern
§ Both merchants à Split of authority
· Same as additional terms
· Knockout rule
o No contract but performance begins à terms are the ones on which the writings agree plus UCC gapfillers
- Common law à will always be terms of the offer b/c of mirror image rule
- Parol evidence rule

IS THERE A THIRD PARTY INVOLVED?
- Intended beneficiary
o Traits:
§ Identified in the contract OR
§ Receives performance directly from the promisor (manure in the pool) OR
§ Has some relationship with the promisee evidencing intent to benefit
o When rights vest:
§ When his assent is requested by the parties, and given
§ When he brings a suit to enforce the promise
§ When he detrimentally and justifiably relies
o Only creditor, not donee, beneficiary can sue promisee
- Assignment
o Assignment only permitted if it does not substantially change obligor’s DUTY or RISK
o Clause forbidding assignment v. clause voiding attempted assignments
§ No-assignment clauses construed as not covering assignments of rights to get paid
o Gratuitous assignments are revocable UNLESS:
§ Obligor has already performed
§ A token chose is delivered
§ An assignment of a simple chose is put in writing
§ The assignee can show detrimental reliance
o A gratuitous assignment may be AUTOMATICALLY revoked by:
§ Death of assignor
§ Bankruptcy of assignor
§ Notice of revocation by the assignor to the assignee or the obligor
§ Assignor takes performance directly from obligor
§ The same right assigned to someone else instead
o Serial assignments of the same right for consideration:
§ First in time to give consideration usually wins.
§ BUT someone else may win IF he’s a BFP w/o notice AND:
· Subsequent assignee gets the first judgment against the obligor
· The obligor pays the subsequent assignee directly
· Subsequen assignee gets delivery of a toke chose
· The subsequent assignee is a party to a novation releasing the assignor
· The subsequent assignee has an estoppel claim against the prior assignee
- Delegation
o Delegating party remains on the hook unless there’s a novation
o Duties that may not be delegated:
§ Those that involve personal judgment and skill
§ Delegations that would substantially change the obligee’s required performance (esp. requirements contracts)
§ Ones involving a special trust of delegating party
§ Those contractually restricted
o Obligee becomes a third-party beneficiary of the contract between delegator and delegate

IS THERE A DEFECT IN CONTRACT VALIDITY?
- No consideration
o Irrelevant for UCC
o Exception: “Moral” obligation
§ OK for consideration IF:
· Old promise unenforceable b/c of a technical defense AND
· New promise is made in writing
· OR is partially performed
· OR the past act was made at promisor’s request
§ If this is a new promise to pay an old debt, enforcement limited to amount of NEW promise.
o Promise not to sue is consideration IF:
§ Claim is valid OR
§ Person believed in good faith she had a valid claim
o Seal à minority of states. Seal is BS.
- Illusory promise
o Condition entirely within promisor’s control
o Right to cancel with no notice
o Gratuitous suretyships before debtor gets the $
o Promisor can choose several options and one is of no detriment
- Pre-existing legal duty w/ no new consideration
o Irrelevant for UCC so long as change was made in good faith
o Exceptions to pre-existing duty rule:
§ “New” promise is a ratification of an otherwise voidable contract
§ The pre-existing duty is owed to a third person
§ There is an honest dispute over whether the pre-existing duty is really owed
- Illegality
o If the purpose behind the contract was illegal (boat rental to run drugs), contract is voidable by the innocent party IF:
§ He was unaware of the purpose at first OR
§ Did not facilitate the purpose and it did not involve serious moral turpitude

WAS PERFORMANCE DISCHARGED?
- Condition precedent never occurred à No duty
o One party prevented condition from happening à condition is excused
o Waiver of condition
- Accord and satisfaction à Old duties discharged
- Material breach à other party’s duties discharged
o Minor breach may allow other party to delay, but not completely abandon, performance
o IF PARTY A HAS SUBSTANTIALLY PERFORMED THEN PARTY A CANNOT ALSO HAVE MATERIALLY BREACHED (exception: perfect tender rule)
o Breach as to one unit of a divisible contract still entitles the party to payment for other, performed units
§ Divisible contract:
· Performance is divided up in the TERMS of the contract
· Same number of parts for each party
· The performance of each part is the agreed equivalent of the corresponding part
o Breach of one unit of an installment contract is a material breach as to the whole contract only if it substantially impairs the value of the entire contract.
- Anticipatory repudiation à other party’s duties discharged
o Must be a definite repudiation, not mere expression of doubt
- Reasonable request for an adequate assurance of performance, which is not given à other party’s duties discharged
- Impossibility
o Discharges both parties if NO ONE could have performed on the contract due to intervening impossibility, not just the obligor.
§ Exception: Impossibility discharges a contract requiring an individual’s unique personal service if the individual to perform is incapacitated or dead. Exception does not apply to non-unique services (mechanic contracts to service your car)
o Parties can be reimbursed for part performance in quasi-contract
o Contract to build a house à house destroyed after part performance à no impossibility
- Frustration of purpose
o Elements:
§ A supervening event
§ NOT reasonably foreseeable at the time of contracting
§ Completely or almost completely destroys the purpose of the contract
§ AND the purpose was understood by BOTH parties.
- Discharge by lapse
o When there is an executory contract and neither side ever performs, eventually their duties lapse.

WAS THERE A PRE-EXCHANGE BREACH?
- Material breach discharges other party’s performance, but minor breach only allows suit for damages.
o Considerations for major v. minor breach:
§ Amount of benefit received by non-breaching party
§ Adequacy of compensation for damages
§ Extent of part performance by the breaching party
§ Hardship to the breaching party
§ Negligent or willful behavior
§ Likelihood that breaching party will complete performance
- To put someone into material breach, non-breaching party must show he was willing and able to perform.
- Special breaching rules under the UCC for sales of goods:
o Perfect tender rule
§ If not perfect, can reject all or any commercial units
§ MUST NOTIFY S OF REJECTION!
§ Must take care of the goods until S gets them
o Must reject before acceptance occurs
§ Acceptance cannot occur before reasonable opportunity to inspect
o Revocation of acceptance
§ B can only revoke acceptance IF:
· He accepted them on reasonable belief defect would be cured OR
· The defects were latent.
· Must revoke w/in a reasonable time AND before any substantial change in the condition of the goods.
o Seller right to cure
§ Must notify B of intent to cure
§ If time for performance has passed, S can still cure IF he reasonably believed B would accept the goods. Then he has a reasonable time to cure.
o Installment contracts
§ B CANNOT reject a defective installment if the defect can be cured.
o Shipment of non-conforming goods is a simultaneous acceptance and breach UNLESS S includes a notice that they are offered as an accomodation (counteroffer)

WAS THERE A POST-EXCHANGE BREACH?
- Goods destroyed – risk of loss issue
o Seller is a merchant à Risk passes when the buyer takes physical possession of the goods
o Seller a non-merchant à Risk passes on tender of delivery
o Shipment contract à Risk passes upon delivery to the carrier
o FOB/destination contract à Risk passes when tendered to buyer
o Defective goods à Risk of loss doesn’t pass until goods are accepted despite defects OR defects are cured
o Rightfully revoked acceptance à Risk of loss is on S from the beginning of the transaction, to the extent of defiencies in B’s insurance
o Breach by buyer à ANY loss occurring within a commercially reasonable time after S learns of the breach falls on B to the extent of any deficiency in S’s insurance
- Breach of warranty of title/infringement
o B who provides specifications for custom goods to S holds S harmless against patent infringement claims
- Breach of implied warranty of merchantability
o For merchants only
o Fit for ordinary purposes
o Disclaimers must be conspicuous and used the word “merchantability”
- Breach of implied warranty of fitness for a particular purpose
o Can be disclaimed by language like “as is”
- Breach of express warranties
o Express warranty = Became part of the basis of the bargain
o A visual sample is an express warranty

IS THERE A DEFENSE TO ENFORCEMENT OF THE CONTRACT?
- Statute of Frauds
o MYLEGS contracts must be in writing signed by the party to be charged
§ In consideration of Marriage
§ Contracts that can be performed in one Year
§ Interests in Land (leases more than a year)
§ Executors’ promises to pay estate debts out of their own pockets
§ Sale of Goods for $500 or more
§ Suretyships
o SWAP removes it from the Statute of Frauds
§ Specially-made goods
§ Written merchant’s confirmation
§ Party Admits the contract in court
§ Performance
o Requirements of writing
§ Identity and signature of party to be charged (or his agent’s)
· Letterhead OK
§ Identification of contract subject matter
§ Terms and conditions of deal
§ Recital of consideration if required
o UCC ONLY: Merchant’s confirmatory memo will suffice
§ Parties reach oral deal, one sends confirmatory memo to the other, this is enough even though not signed by the party to be charged
- Fraud
o Contract is voidable if innocent party reasonably relied on a material misrepresentation
o Puffing v. fraud
- Unconscionability
o Shocks the conscious
o Contracts of adhesion
o Unconscionability tested at the time the contract was made
o Usually wrong MBE answer
- Mutual Mistake
o Elements:
§ Mistake by BOTH parties
§ Concerns a basic assumption on which the contract was made
§ Nobody assumed the risk of mistake
· Fixed-price contract is per se assumption of risk that prices will change
o If satisfied, contract is voidable
- Unilateral Mistake
o No defense, BUT no snap-ups à Offeree knew or had reason to know of the mistake
- Latent ambiguity
o Neither party aware of ambiguity à No contract unless both parties intended same meaning
o Both parties aware of ambiguity à No contract unless both parties intended the same meaning
o Only one party aware of ambiguity à Binding contract based on what the ignorant party reasonably believed was the meaning (Frigaliment)
- Statute of Limitations
o 4 years from breach of UCC contract

WHAT REMEDIES UNDER THE CONTRACT?
- Sales of goods
o Buyer breaches à Seller gets deficiency in resale plus costs
o Seller breaches à Buyer gets difference between cover and contract price
o Specific performance for unique goods UNLESS already sold to a BFP
o Lost volume sellers get lost profits
o Replevin of goods:
§ B can replevy identified, undelivered goods from S IF:
· B has made at least part payment AND EITHER
· S becomes insolvent w/in 10 days of receiving B’s payment OR
· The goods were for household purposes.
§ S can replevy from B when:
· The goods were bought on credit AND
· B was insolvent when he bought them AND
· S makes demand w/in 10 days of B’s receipt.
- Sales of land
o May get specific performance since all land is presumed unique UNLESS already sold to a BFP
o Seller can also get specific performance even though $$ not unique
- Services contracts
o Specific performance never available BUT court may enjoin D from working elsewhere
- Liquidated damages clauses
o Valid ONLY if:
§ Damages were difficult to ascertain when the contract was formed AND
§ The amount agreed upon was a reasonable forecast of actual damages OR
§ (UCC ONLY) The amount is close to what the actual damages really were.
- Remember duty to mitigate damages
o Employment contracts: Employee must use reasonable diligence to find a like position.
o Construction contracts: Must cease work, not keep building and racking up costs.

IF NO CONTRACT OR UNENFORCEABLE CONTRACT, IS QUASI-CONTRACTUAL RELIEF AVAILABLE?
- Promissory estoppel
o Promisor must have reasonably expected promisee would detrimentally rely AND
o The reliance is of a definite and substantial character
- Unjust enrichment
o One party has conferred a benefit on the other
o With a reasonable expectation of being compensated and
o The benefits were conferred at the request of the other person and
o Not rewarding damages would result in unjust enrichment.
- Quasi-contractual relief may exceed the contract price!

REMEDIES FROM REMEDIES LECTURE

DAMAGES
EXPECTATION DAMAGES
CONSEQUENTIAL DAMAGES
i. Must have been foreseeable at the time the K was entered into.
LIQUIDATED DAMAGES
i. Valid so long as, at the time of contracting:
1. Actual damages would have been hard to guesstimate AND
2. the amount stipulated was a reasonable forecast of the actual harm.
PUNITIVE DAMAGES are NEVER allowed in K actions.
RESTITUTION/UNJUST ENRICHMENT
MONEY RESTITUTION
i. Nonbreaching party can recover the value of her performance, even if greater than the K price!
ii. Breaching party can recover benefit conferred minus damages to non-breaching party
RESCISSION
Grounds for rescission:
i. Mistake
1. Mutual
a. Always will grant rescission
2. Unilateral
a. Sometimes will grant recission IF:
i. Mistake goes to the basis of the bargain AND
ii. Hardship to the mistaken party outweighs harm to the other party
ii. Misrepresentation
1. Innocent
2. Fraudulent
iii. Illegality
iv. Impossibility of Performance
v. Lack of capacity
1. Minors
Defenses
i. Laches – unreasonable delay by P in initiating his claim, that results in prejudice to D
ii. Unclean Hands – P cannot be guilty of unfair dealing w/respect to the transaction sued upon
iii. Election of Remedies
1. A suit for damages affirms the K if sought first (so P can’t then ask for rescission). BUT no problem if K seeks rescission first.
iv. Estoppel
REFORMATION
Grounds for reformation
i. Mistake
1. Mutual
2. Unilateral
ii. Misrepresentation
Defenses
i. Laches – unreasonable delay by P in initiating his claim, that results in prejudice to D
ii. Unclean Hands – P cannot be guilty of unfair dealing w/respect to the transaction sued upon
iii. Sale to BFP
iv. Parol Evidence rule, Statute of Frauds and negligence are NOT good defenses
SPECIFIC PERFORMANCE – “I’m Doing Fine Mom & Dad”
A valid K must exist, with all conditions satisfied.
Are the legal remedies inadequate?
i. Damages too speculative
ii. Damages too small to compensate for injury
iii. Irreparable injury
iv. Unique chattle or sale of land involved
Are the terms of the contract sufficiently definite and certain to grant specific performance?
i. Must be able to tell how it was supposed to be performed.
ii. Greater certainy than required in an action for damages.
Is a specific performance decree feasible?
i. Is there jurisdiction over the parties and property? Watch for land outside state.
ii. Too much need for supervision by the court?
iii. Personal services contract can’t get specific perf.
Is there mutuality of obligation?
i. Old rule – could only get specific perf if other party would be entitled to it as well.
ii. New rule – mutuality of performance – court must be able to ensure counter-performance by P.
Defenses?
i. Laches – unreasonable delay by P in initiating his claim, that results in prejudice to D
ii. Unclean Hands – P cannot be guilty of unfair dealing w/respect to the transaction sued upon
iii. Freedom of speech (would prior restraint violate 1st Amend?)
iv. Hardship – terms of K are onerous
v. Statute of Frauds – no valid K

REMEMBER THE UCC ALWAYS REQUIRES GOOD FAITH!

More Contracts...

2006-06-25T21:17:00.000-04:00

UCC: Article 2
· Subject matter sensitive:
o Sale of goods
§ Art 2 has NO application is the good is sale in land or interest in land, personal services, intangible
o Parties must both be merchants:
§ Any person who makes a livelihood dealing with the subject matter or makes affirmative representations that is how he make a livelihood even if not true

1. Offer and Acceptance:
Did the parties form an agreement?
1. Can you find an offer?
2. If you can find an offer, at the time acceptance was attempted, was the offer still outstanding?
3. If you found an offer and the offer was still outstanding, was their a defective acceptance?
· Courts want to find a contract – positive bias in contract formation → objective theory of contract formation
· What a reasonable person would believe whether there was a contract

Offer: 1. Can you find an offer?
3 elements of an offer:
1. Intent - must be an intent to form a present contract – manifestation to presently enter into a contract
· Obligations may not mature for 6 years, but the intent is to form a contract now for performance in 6 years
· State of mind:
o An objective test – would a reasonable person understand that there was an offer?
· Preliminary negotiations:
o At the point 1 of the parties thinks he has a contract, the other party thinks there is only preliminary negotiations.
2. Content - the offeror must set forth the essential terms of her proposal
· The offeror must set forth the essential terms, identifying the parties, the subject matter, time for performance and price.
· Under the CL a communication that lacked ANY of the essential terms was too indefinite as a matter of law to constitute an offer.
o But trend is to conclude a contract has been formed.
o CL reform – if there is total silence in the contract on 1 of the essential terms of the bargain a ct will attempt will treat their total silence as a mutual manifestation to trade on a reasonable term
§ What is a reasonable term?
· If the parties have done business before – look to prior history
· Never done business before – look to common trade or business
o If ambiguous term – then no ct can apply a reasonable term
o UCC – if both of the traders are merchants and the subject matter is goods, then the code provides great flexibility in settling the essential terms:
§ 1. Merchants are free to adopt term setting machinery which will fix the content the essential terms in the future
§ 2. Agreeing to agree on the future on price – binding
§ 3. Ct will imply a reasonable term
3. Communication – Communication of the offer and its terms by the offeror to the offeree
· There must be communication of the offer –
o Rewards

2. If you can find an offer, at the time acceptance was attempted, was the offer still outstanding?
· An offeror is in complete control of the offer
o At a specific time, on occasion of a specific event, no matter how unreasonable
o If life of offer is silent –
§ A lapse of time – reasonable time only
· Produce – very limited time because perishable
· Tray of diamonds – open for a very long time because not perishable and price not very volatile
§ Death or destruction of subject matter terminates the offer by operation of law –
· Fire destroys the house
· Death or insanity or legal incapacity of the offeror or offeree
· Supervening illegality of the proposed subject matter – government intervenes the transaction illegal
· Termination by rejection – rejection as a matter of law terminates an offer
· Revocation by the offeror – even if the offeror states a time when the offer will expire, an offer is inherently irrevocable at any time prior to acceptance
o 3 exceptions:
§ 1. Purchase an option over the offer – an option is always a separate contract with its own offer, acceptance and consideration, though usual of nominal economic value. It is irrevocable under the terms of the option
§ 2. Cut off the power of revocation under the theory of estopple – if offeree changes his position in foreseeable reliance of the offer, offeror may be estopped from revoking the offer due to foreseeable detrimental reliance of the offer
§ 3. A merchant’s firm offer (UCC) – only the offeror needs to be a merchant. If goods are the subject matter than an offer that is in signed writing by a merchant trader is irrevocable according to its terms.
· Up to 90 days even if the writing states a longer time

3. If you found an offer and the offer was still outstanding, was their a defective acceptance?
· Was there a defective acceptance?
· An acceptance must amount to – to a present unconditional unequivocal assent to each and every term of the offer
· If the response has this quality then at what time is the contract is form?
· Mailbox Rule: the contract is formed when the acceptance is dispatched if it is communicated in any commercially reasonable manner (any mode that is at least as fast and reliable as the one utilized by the offeror). Contract is formed the moment the acceptance is placed in the channel of communication even if the offeror is not aware that formation has taken place.
o All risk of delay or misplacement if borne by the offeror
· Rejection Counter Offer Rule - If the acceptance is any way different than the offer, not only is no contract formed, but the offer is revoked as well.
o Acceptance must be a mirror image of the offer
· Incorporation by Reference: revives the original offer
· A mere request made by the offeree to the offeror that the offeror consider other different terms which makes quite clear that the offeree is not rejecting offer does not create a contract nor reject the offer.
· Merely making explicit terms that were in the contract or making reference to an annex of the offer does not trigger the rejection counter offer rule.
o Implied merchantability
· UCC – if goods are the subject matter of the attempted exchange and both parties are merchants, then additional terms by the offeree in the acceptance, there will be a contract unless:
o 1. There must be an acceptance by the offeree
o 2. If an offeror may not be bound by other terms of the offer by making a take it or leave it offer
§ Even if the offeree accepts with “additional” terms, the contract will be formed with only the take it or leave it terms of the original offer
o 3. If the offeror does not make an ironclad offer and the offeree makes changes in its acceptance, then a contract will be formed. However, what are the terms?
§ Whether or not the new terms are consistent or inconsistent with the original terms
· If consistent – a contract is formed and the additional terms form the new contract unless the offeror promptly rejects the additional terms in writing.
· If consistent – the new terms are not included unless the offeror expressly accepts them
o If the terms materially shift the economic advantage of the original offer
o Shift the incidents of law – shift the risk
o Per se rule – if any term of the acceptance would impair a remedy which would otherwise be available upon a breach of the contract
§ Arbitration clause

Unilateral Offer:
· A promise for an act
· Acceptance can only be made by total completion of an act
· An offer can still be revoked until completion of an act, but there are 2 protections available to the offeree:
o 1. Rule of Construction – whenever possible, a ct will construe an offer as inviting formation in the bilateral mode (for UCC)
§ Seller’s prompt shipment of the goods
§ OR the promise to promptly ship the goods
o 2. Common law rule – once the offeree the begins the substantial performance of the requested act, he does not form a contract, but he does cut off the power of the offeror to revoke so as to give him the reasonable opportunity to complete the act requested
§ Must have substantial performance by the offeree
§ Offeree is under no obligation to complete the act once it is started

Mistake and Ambiguity: Can preclude the formation of an agreement
· Ambiguity: when language betrays: either precludes the formation of an agreement
o 1. Latent/Hidden Ambiguity:
§ If at the formation stage of the bargain neither trader recognizes that a term is ambiguous and it affects an essential terms of the contract and each party has subjectively attached a different definition to that term their bargain is flawed by latent ambiguity and there can be no contract because the ct cannot give favor to one reasonable definition over another reasonable definition of a term.
o 2. Patent/Obvious Ambiguity:
§ If both parties are at fault for not clarifying an obvious ambiguous term there can be no contract.
§ When one of the parties is not at fault, the other party is guilty of fault because the ambiguity was obvious to that party. Protect the interest of the innocent party and give the definition of the term of the non-faulting party and a contract is formed.
· Mistake: here ambiguity is not the problem, but that the terms do not convey the actual intention of 1 or more of the parties.
o 1. Mistake by the parties:
§ When both parties share a mistake (mutual mistake):
· Each party has the equity of recession and can refuse to perform his party of the promise depending on the gravity of the mistake:
o If the mistake goes to the essence of the contract then can rescind the contract
o If the mistake does NOT go to the essence of the contract, then the parties cannot rescind the contract
· Where are the parties due to the mistake?
o Executory (neither parties have performed)
o If both parties have already performed, there is little remedy
§ When 1 party is mistaken (unilateral mistake):
· When only party is mistaken –
o Mechanical miscalculation – may provide grounds to relieve the mistaken party
§ Will depend on the state of mind of the non-mistaken party and whether she has formed a commercially reasonable expectation
· If the non-mistaken party had no reasonable grounds to suspect the mistake and did not have notice of the mistake, then the contract is formed and the mistaken party has no defense
· If the non-mistaken party has notice that there was a mistake, he cannot leap upon the mistake of the other party. The mistaken party may be able to rescind the contract.
o Error in business judgment – no defense to either party
§ The knowing party does not need to inform the unknowing party
§ The knowing party however may not deceive the unknowing party
o 2. Mistake by a 3rd party intermediary:
§ 3rd party made a mistake in transmission – same rules as mechanical miscalculation apply

Parol Evidence Rule:
· The parties formed an agreement and reduced the agreement into writing. One of the parties wants to bring in evidence not found in the written agreement.
· Is there an integrated writing?
o Parol evidence only protects an integrated writing
o An integrated writing shows the full and final intent of the parties. If the parties did not form the agreement with that intent, then the parol evidence rule has no application.
o The ct will determine whether the agreement looks as if it is the full and final intent of the parties
o What is the evidence the parol evidence rule is trying to bring in?
§ Parol evidence is any evidence of any promise, representation or understanding between the parties that formed the integration that was arrived prior to or contemporaneous with the formation of the integrated writing.
§ Evidence of a subsequent modification is not parol evidence.
§ What is the impact on the agreement of the parol evidence?
· Evidence may not be brought in which contradicts a term in the written agreement
· If it defines an ambiguity or defines a term, then the evidence may be admitted
· Notwithstanding that parol evidence contracts, varies or adds to the terms of the written agreement, there are 3 exceptions when parol evidence may be admitted:
o 1. Proof of Fraud
o 2. Partial Integration
§ CA – if the party seeking to introduce the parol evidence can show any reason why the term was left out in the writing, it goes to the jury
§ More strict jurisdictions – look to the writing. Does it look like an integrated contract?
o 3. Collateral Agreement
§ “2nd Agreement” –
· The judge must determine that the proposed 2nd agreement is of far lesser importance than the integrated writing
· No term of the alleged collateral agreement may contract the terms of the integrated writing
o If the integrated writing states that it is the final contract or that all the terms are present in the contract, then the 2nd agreement cannot be introduced
· There must be some nexus between the 2 agreements and a reasonable reason that there were 2 separate agreements

6 Basic Contracts Issues

2006-06-23T19:26:00.000-04:00

I know this sounds crazy, but contracts is my favorite subject, so I guess I will start with sharing parts of my contracts outlines... since I cant figure out how to link stuff (technologically retarded), I will end parts of my outlines as posts. Hope this is helpful!!

6 Basic Contracts Issues:
1. Did the parties form an agreement?
• The law of offer and acceptance – there can be no true contract unless the words of the parties manifest a mutual objective assent to be bound by the terms of an agreement.
• Ambiguity language or mistake of the parties.

2. If the parties formed an agreement, is their agreement a contract?
• Is their bargain a contract?
• The presence of valuable consideration – bargained for legal detriment on both sides
o Promissory estopple
• Defenses to enforcement – voidable v. void

3. Do the terms of that contract or the subsequent actions of either of the parties confer any rights or impose any duties upon non-traders?
• Do the terms of that contract or the subsequent conduct confer any rights upon any non-parties?
• 3rd party beneficiaries
• Assignees and delegates of duties – subsequent parties of the formation of the contract

4. Have the performance obligations created by the contract matured?
• Conditions – express (created by the terms in the bargain)
• Implied in fact – necessary physical inference from what the parties obviously assumed
• Conditions implied at law – constructive conditions – arise by operation of law
• Every condition modifies a promise – the condition does 1 of 3 things:
o Before – condition precedent
o Simultaneously – condition concurrent
o After – condition subsequent – always express, never implied – will extinguish what up until that time was an obligation of the contract

5. If the contract obligations have matured, has performance been excused?
• Have the obligations been preformed and performed on time?
• Have they been excused? Excusable non-performance:
o 1. Where the performance obligations have become objectively impossible
o 2. Where the performance obligations have become commercially impracticable
o 3. Frustration of Purpose – subsequent to formation of contract circumstances have so dramatically altered that the performance of other party have no value

6. If performance has not been excused, the contract has been breached. What are the remedies?
• If the performance obligations have not been excused and have not been formed, the contract has been breached.
o Present material breach
o Breach by anticipatory repudiation
o Breach by voluntary disablement
• Remedies, damages, restitution and reimbursement
• No adequate remedy at law – sue in equity
o Declaratory judgment
o Specific performance decrees
o Injunctive assistance

Motivation... these posters make me laugh!

2006-06-21T19:21:00.000-04:00

The Study Group

2006-06-19T21:15:00.000-04:00

Ok, so it's official... I am going to sign up for The Study Group. I have only received a few comments on which bar exam course is the best (or what people think is the best/the worst/the ugly)... Maybe no one reads this blog... Has anyone out there taken the VA bar exam or taken The Study Group?

I have taken Barbri, and I totally think that they suck, but maybe they are ok for VA? I was shock (I mean shocked!) when I passed a bar exam taking Barbri (i.e. We aren't going to do Con Law because it hasnt been on the essays in 20 years. Test takers begin. Open the bar exam booklet, and what's the 1st essay question? A FULL blown Con Law essay! I almost fell over...)

Having said that, unlike NY or Cali, VA doesnt seem to have many options except for The Study Group, Micromash and Barbri...

If ANYONE has ANY thoughts to this, I would REALLY appreciate it!!

Surfing Today

2006-06-18T12:46:00.000-04:00

OK - maybe I am officially procrastinating or lazy today, but I have been surfing some other bar exam blogs... saw this one, and boy, do I get it! I felt like this too... but CHIN UP!!

Studying for the Texas Bar Exam Current mood: lethargic

Ok so I remember all those comments from those that have already had the joy of studying for the bar that this summer was really going to suck. But did I believe them? Well, I thought maybe they were just a little whiny and needed some sympathy.

HOWEVER - studying for the bar sucks. Things I have noticed in the first week of studying.

1. I need to stock up on my sweat pants/stretchy waist band baggy ass pants cuz all I do for 10+ hours a day is sit at my desk, get up for more Dr.Peppers, pee, and eat. This is NOT good.

2. I resolve to shower daily! I get up in the morning. Go to the bathroom. Down a Dr. Pepper and sit at my desk. 10 freakin@?!&^@#@* hours later its starts to get dark. Im still in the same stretchy pants and T-Shirt I went to bed in the night before. FUCK! I guess I will shower at night. BTW - I DID brush my teeth this morning at least!

3. Im NEVER going to get some ass this summer. I had a mission to meet some of those hot astronauts boys since Im like a mile from NASA now but Im thinking that may not work out. Hello Mr. Purple!!

4. I HAVE TO come up with a work out routine. Even if its going for a walk for 30 minutes. I will go insane if I keep this up for 6+ weeks. Holy shit. Any suggestions?

5. Im going to totally lose my ability to drink. Which may be a good think but DAMN when this is over I want to be able to have a few Southern Comfort on the Rocks before I start spewing or passing out.
So, Shower, Very well, work out, in new stretchy pants, and sip on a little sumpin sumpin to keep my tolerance up!

And let the fun begin!!

MBE Tips

2006-06-18T12:17:00.000-04:00

I saw this on another blog and thought that it might be helpful:

SUGGESTIONS FOR THE MBE
Many of the professional companies tell you to do fifty in a row. That would make sense if you knew the law, but starting out you probably don't, so that advice doesn't make sense. Micromash does a neat thing in that it tells you the answer instantly after you answer the question. The problem is that it keeps the clock running, so your time per question gets skewed. I conclude there are two good ways to approach the mbe practice: real time and study time

STUDY TIME
Study time means do one, two, or at most ten mbe's in a row and correct them. Look at the answer and UNDERSTAND why you got it wrong. There are a number of reasons for wrong answers. The best one is that you don't know the law, because you can learn the law by copying down the rule of law on a piece of paper each time you miss for that reason. Maybe even copy rules down on the ones you get right. Recitation is key. The second best reason to miss an MBE is because you didn't read carefully enough. Easy to fix; just read more carefully. You will note, for example that the torts mbe's don't always mention what the cause of action would be. They trip you up by throwing in negligence or strict liability because they know you will often answer by instinct. They will put an answer perfect for strict liability in there and it's about negligence, so you are wrong.

The worst reason of all is because the facts or too convoluted. Some MBE's are not answerable because there are too many parties and events. I counted in one PMBR question 7 parties, 5 events, and 11 dates. Great for math majors and chess players, bad for me. Cross them out and guess.

REAL TIME
Try to do at least fifty. I have found that I do mbe's very quickly, and the longer I spend on them the worse I do. Sorting out which ones you should spend more time on is something I'm working on. I second-guess myself and get it wrong, or I read more carefully and avoid the trap-door. There is a delicate balance that perhaps comes with experience. Some experts say you should avoid guessing on instinct; this is true, but if your instinct is combined with a rule that you are stating in your head, this is probably the best you can get. Argue with yourself. Think about which area of law they are testing and which fucked-up little wrinkle they think they got you on. I have heard that the real mbe is easier than the practice ones in commercial products, although California's requires a higher score than most. Therefore, when you come across an mbe that doesn't really explain why an answer is wrong (and I gott a hand it to the bar examiners, it's very tough, almost an art form to write an mbe that is demonstrably incorrect on three answers, which is why sometimes their answers are complete bullshit...an arbitrary line drawn in the sand...kind of like a lot of SCOTUS decisions)ignore it. Go for the low-hanging fruit. Do NOT go into law school over-achiever mode. While it's my instinct too, and I've scored some 80's because of it, this test is about passing. Period.

So, for example, this morning I went over to the coffee shop and finished the last fifty mbe's from a PMBR sample exam. My overall score was about 109, which if you add the 31 raw score points to make it equivalent to the actual mbe, is 140, a passing score. I was nonetheless a little pissed off. I thought the afternoon questions were harder and it seems PMBR makes the questions unecessarily difficult for the dual purpose of training their customers as well as scaring the shit out of them so they buy their stuff...I'm kind of ambivalent about that tactic. Rigorous training is good, but that whole "sink or swim" Navy SEAL trial-by-fire school of education isn't the best way to approach things. Some poster on "GIRL WALKS INTO A BAR EXAM" said it well. "Your supposed to help us, not fuck us up!"I finished my badly made cappacino, tossed the PMBR exam into the trash, and went home....

So, in short
1. do a hundred a day, same subject unless you get so bored you want to stab yourself in the eye with a pencil...
2. Go slowly and understand why you got it wrong. If their answer makes sense.
3. If you are still reading the explanation ten minutes later, it isn't your fault. Move one.
4. Use different sources. Barpassers, Micromash, PMBR, Barbri all have mbe books you can get, and they are different. The one common thing is that they test the law.
5. Use the process of elimination.
6. scribble in the books...circle parties and important dates and facts. Don't get cheap. Just buy more books. You probably spent upwards of a hundred grand to get here...you don't want to spend fifty bucks for a book?
7. Get addicted to them. Think of it as a game. And in a way, it's the best game, because mbe's are as objective as things get in the bar exam. No petty tyrants to fuck you up for not doing things stylistically the way they like it.

Love the mbe.

Help Wanted!!

2006-06-18T09:59:00.000-04:00

Ok, I am trying to figure out how I can link my outlines to this blog.. Can't cut and paste them because they are too long.

If anyone knows, I am happy to share my outlines!

Thanks!

Comments on Comments

2006-06-16T22:38:00.000-04:00

Again, I am happy to share notes, outlines and any advice, but PLEASE send comments to the comments link attached to the envelope. Thanks again!

How to Memorize

2006-06-16T22:32:00.000-04:00

Someone asked me how I memorized for the CA bar exam... maybe this will help someone :)

Honestly studies so differently than anyone I know.

1. I listened to all the Fleming tapes and PMBR CDs. You can order the Crim Pro CD if you call them too. My worst subjects are crim pro and con law, so I really needed the extra CD.
I really learn from listening and not reading, but if you can memorize things from reading then go for it. I really just high lighted and wrote notes in the margins when going through Fleming's outlines while listening to the tapes. I found that I really retained a lot that way. Then I would write out everything Fleming would say during his essay critiques. That was my "solidifying" what I had learned in this lecture.

2. Then I would issue spot and write out a few essays (including the ones for essay critique). After writing my essay, I would compare it to the sample essays. Any points that I didnt really get or thought that I wasnt too concrete on, I would make a mini-outline on that part. For example, search without warrants has always been a huge problem for me. So I outlines that entire section.

3. Then I would search of essays on that topic and try to relate my mini-outlines to that particular essay. If I still didnt get it, I would outline the section again, but with more detail on subsections (i.e. Stop and Frisk).

4. That's all I really did for essays and memorizing...

5. I always did AT LEAST 50 MBE Qs a day. I found them to be a bit relaxing and a change of pace after listening to Fleming's annoying voice and writing all day... I pretty much HATE essays, so doing multiple choice questions was awesome for me. I always read the entire answer. I also made mini-charts for certain topics that I found confusing ( i.e. marital v. spousal exclusion --- 2 column chart --- who it covers, what it covers, when it expires). Then I would plaster these charts all over my study room... I know, crazy! Another good chart was homicde through mis-d manslaughter, what intent required, any defeneses, intoxication (put intoxication in a separate column because it comes up so often).

Seriously, that's all that I did. I think that more than what you know, it's how you put it down on paper that is more important.

Hope that helps...

How to Keep Your Head On!

2006-06-13T20:15:00.001-04:00

With all the subjects you have to do, the lectures you have to attend, the homework you have to do, sometimes you get into such a strick study mode that you forget to review. Always review a past subject at least every 3-4 days, that way you wont forget what you already learned.

I found that keeping track of how many hours, how many questions (MBE, essays, issue spotting, etc) for each subject on a spread sheet kept me in track. Even if you just issue spot one essay, you keep the subject fresh in your mind.

Hope this tip helps!

Example:
Subject: Date: 1/2...... 1/3 ........1/4 .......1/5.......... 1/6
Con Law.......20Q, 1E ..............................................1 I
Crim Law ...................30Q 2I............ .................10Q

Input Needed!

2006-06-12T21:36:00.000-04:00

So, what courses did everyone decide to take? Any advice on your bar course would be very helpful. Please post your opinions... Thanks!

Tip of the Week

2006-06-10T14:58:00.000-04:00

HOW TO PREPARE FOR THE BAR EXAM:BARWRITE TIP OF THE WEEK

Using an outline is always key in studying law, and studying for the bar exam is no exception. If your bar review course provides a short outline for every subject on your bar exam--one or at most two pages long--that is the outline to learn. Start from a barebones outline and sparingly add other rules.

Make sure that you can state and explain every rule on your outline. Practice applying that basic law to fact patterns. Learn to recite the outline to yourself from memory. When you outline your practice essays, use the rules from your short outline.

Resist the temptation to use outlining to waste time. There are many activities that feel like hard work, and they are hard work, but that do not teach you enough law to be worth spending time on in your short bar-preparation period. Do not make new long outlines, do not copy out old outlines by hand or in the computer, and do not outline page upon page of class notes.Here is a sample barebones outline for Contracts. This is your starting point. Just write one or two rules for each term on this outline, and you are on your way.

I. Formation of contract
A. Mutual assent
B. Consideration
C. Substitutes for consideration: detrimental reliance; statutory substitutes.
D. Defenses to formationE. Third-party beneficiaries. Assignment and delegation.
II. Statute of frauds
III. Parol evidence rule
IV. Conditions
V. Remedies
VI. Other defenses
VII. Discharge of duties

Good Luck!

Comments on Comments

2006-06-09T23:18:00.000-04:00

Nothing much to update on... Thought that this was kinda funny. But really, I am SO happy to reply, but please leave your comments under the comments section with the letter (not the one below). I get an email reminder with the top comments and it is easier for me to reply.

Hope that your studying is going well. Share your pains and thoughts!

Keep up the HARD work!

2006-06-04T01:02:00.000-04:00

Saw this on another site and thought it was funny. But is it true or what!

I hope that this site is helpful to someone. If there is anything you would like me to add, please leave a comment and I will definitely try my best!

Sample Outline From The Study Group

2006-05-31T01:00:00.000-04:00

A rep from The Study Group sent me 2 samples of their outlines. The 1st is called the "Bar Points" - a shorter outline. The 2nd is a Crim Law outline. I thought that they were very good and wanted to pass them on. I liked the format of the Bar Points and the charts and examples in the Crim Law outline...

OK - I cant figure out how to upload PDF files, so if you are interested, please post your email and I will send it to you.

Response to Comment Posted 5/24

2006-05-30T00:36:00.000-04:00

Here is the question:

Probably something brief like "how I passed the NY bar exam and what test takers should look out for". Whenever you get a chance to reply -- no rush.

How I passed the NY bar exam:
1. I took Pieper's class live (evening class). I honestly think that he is the best course out there because:
a. Unlike Barbri where each subject is taught by a different prof (sometimes not even from the jurisdiction where you are taking the exam), Pieper teaches all the classes himself.
b. Because Pieper teaches everything himself, he is able to combine subjects when doing hypos in class, like the bar exam itself. (Example: Family law and Wills of Family law and Property - Divorce and Property distribution). I found this very helpful because it got my mind out of "the subject of the day" mode and made doing essays that much easier.

2. I did both the 6 day and 3 day PMBR.
a. The 6 day is great because it jump starts your bar review studying. It generally is before Barbri or Pieper starting. It also helps because by the time you get to the 6 MBE subjects in whatever class you are taking, you have an idea on the subject (I certainly did not remember civ pro from 1L year).
b. The 3 day is great because it is generally right before the bar exam and is a great refresher and teaches more "tricky tricks" of the MBE. Also, it's another chance to do a full length MBE exam.
c. DON'T just get the books or go to the 3 day just to do the exam. GO to all the classes. They teach substantive stuff and tricks which are very helpful.
d. I think that the MBE is more about learning HOW to answer the questions than really learning.

3. DON'T stress!! Stress is only the product of bad planning and preparation. Just do what you need to do and you won't run out of time. I PROMISE!
a. Go to lecture everyday
b. Do 50 MBE questions everyday
c. By the 2nd month, issue spot at least 2 essays everyday
d. DO take a day off a week the 1st month

4. Active learning is the way to go. Don't just read outlines... can you retain 200 pages of an outline? If yes, then you are a champ. For me, forget retaining 200 pages, I can't even focus for 2 pages! That's why I issue spotted and read as many sample essays as possible. What you get wrong from the essays, go back to the outlines and read that part of the outline.

What test takers should look out for:
Not really sure what to say on this. I guess, don't compare yourself to other people taking the exam. I NEVER followed the suggested study schedule. You have been through 3 years of law school and you KNOW how to study... Don't let people psych you out... The above info is just how I study the best...

Also, this is a marathon and not a sprint. DON'T burn yourself out. I think that one of the hardest things for me was being constant and studying so hard for 2 months. By July 4th weekend I was like, can I take the test already? Slow and steady wins the race really applies to the bar exam.

Make sure that you have your hotel reservations and car service ready for the exam. You don't want to be scrambling the week or night before the exam.

Oh, the day before the exam, I quit at lunch time. Books AWAY! If you don't know by then, you are NOT going to know it and you will just stress yourself out and you will forget what you really do know. I got a massage and a well needed manicure the day before the exam. I rented my favorite movie and watched it. And EARLY to bed!! You have to be fully functional and awake from about 8-5 for 2 days straight. Get your ID and pens/pencils ready the night before, along with your sweater and put them by the front door.

Also, about 2 weeks before the exam, I studied during exam hours. Example, I pretended that I was taking the exam. Up at 7AM, studying 9-12, lunch 1-2, studying 2-5 (just like what I would be doing on exam day).

Hope this helps. If there is anything I missed, let me know.

GOOD LUCK!!

Officially Starting the Long Trek!!

2006-05-29T23:11:00.001-04:00

The long weekend was great... Partying, relaxing and taking some time for myself. Now that I'm back, it's time to really start thinking about taking this bar exam. I will be working for the 1st time while studying for the bar exam. The other times I had either just graduated from law school or was taking some time off from work and taking a night class or just studying on my own. This time, I will be working the whole time. That's why I am starting now for the February 2007 exam. (Why can't I ever spell February?)

From what I have read and heard from others, I think that I am going to go with The Study Group. Because I will be studing for the VA exam from NY, I need a home study course. So The Study Group and Micromash are my only real alternatives (REFUSE to do Barbri - I think that they are aweful!) Because I am an audio studier, I need something that "lectures" at me. Micromash doesn't have an audio portion - only reading stuff from the computer software and books. That won't do it for me... start zoning out if I don't "actively" learn (ie. following the books and taking notes while being letured at). So TSG is the way to go for me... Does anyone have any other thoughts?

Of course, PMBR red and blue book... but no classes this time. Pretty confident on the MBE (169 for NY - got my score because of NJ). But definitely will do both the red and blue books again... Feel like I can teach the damn class at this point... (Have done both books twice.)

Well, any suggestions or words of advice would be great!

Taking the Weekend OFF!!

2006-05-26T01:47:00.000-04:00

Hi to all! OK, I am taking the weekend off... no studying, no thinking about studying and definitely no thinking about the bar exam.

February is a long ways away... I suppose once this weekend is over, I should start seriously thinking about finding a bar course... if anyone has any suggestions on this, please post it.

Have a GREAT weekend!!

Typical Schedule

2006-05-25T12:24:00.000-04:00

Some people have asked what my typcial day would look like, so here it is.
Of course, if there was a subject that really didnt get, (such as when I took NY I totally did not get NY civ pro), I would spend additional days on it...

8 AM Rise and Shine/Shower/Eat Breakfast - we're still hygenic at this point
9 AM-1 Attend or Listen to Lecture
1-2:30 Lunch & Break Time or Nap
2:30-6:30 100 MBE Qs (2 hours to do & 2 hours to correct)
6:30-7 Break - usually to chat with friends - havent spoken to anyone all day!
7-8 Review "trouble" spots of the day (make mini outlines)
8-9:30 Dinner/Break
9:30-11:30 Issue spot 3 essays (20 mins each) and read sample essays (20 mins each)
Midnight - BED TIME

I suggest making up a schedule that you think that you can follow and be realistic. Dont say ok, 8AM - Midnight Review
Midnight - 2AM Essays
Dont go to bed

Remember that this is a marathon, not a sprint. You cant burn out too early. Otherwise you just wont be able to build up the last month.

I also am a true believer in sleep and rest. That's why my schedule has so many breaks, especially towards the end of the day when my brain is fried. I also need like 8-9 hours of sleep a night, that's why in bed at midnight.

Also, except for the last 3 weeks before the exam, I ALWAYS take Sunday off and a weekday afternoon or evening off to do errands that cant be done on a Sunday. I usually took it on Thursday when I started feeling burnt out... An afternoon or day off means a more productive week.

Hope this helps!

Some Information About the Exam

2006-05-25T01:22:00.000-04:00

This information is from the VA Board of Bar Examiner's Website (see Sidebar):

When and Where?
Feb 27-28 either in Richmond or Norfolk

What Subjects?
MBE Subjects + VA State Essay Subjects:
Agency
Partnerships
Conflict of Laws
Personal Property
Constitutional Law
Professional Responsibility
Contracts
Real Property
Corporations
Sales
Creditor's Rights
Suretyship
Criminal Law and Procedure
Taxation
Domestic Relations
Torts
Equity
Trusts
Evidence
Uniform Commercial Code
Federal Practice and Procedure
Virginia Pleading, Practice, and Procedure in law and equity (including appellate practice)
Local Government Law
Wills and Estate Administration

Filing Deadlines:
Preceeding December 15 for the February exam

2004 Statistics for NCBEX:
53% passed in February 2004
In Feb 2004 - 60% of 1st time takers passed and 47% of repeaters passed

Hope this info helps!

The 1st Entry

2006-05-24T16:16:00.000-04:00

OK - I am pretty much technologically retarded, but couldn't find a blog out there for the VA bar exam... and looking at sites like JDJive and others, it seems as though there should be.

I am planning on taking the February 2007 VA bar exam, and need lots of help, advice and support. Have never lived in VA and know nothing about the VA bar exam, but need to take it for work and stuff.

I hope that you find this blog helpful, and PLEASE if you have suggestions let me know.

A Bit About Me:
I have taken the NY bar exam and passed and have been practicing for a couple of years. Now, I need to start my long and miserable journey of taking another bar exam.

I live in NY but may have to move to VA for personal reasons. That is why I am taking the VA exam.

A Bit About This Blog:
I hope that people post interesting information they have and share any advice, bar courses, outlines, etc...

This can be a place to complain and get support... We're all on the same journey.