Essential Bar Memorization

Question 1

What are the 3 steps for attachment (and sub-requirements for one of the steps)?

Answer 1

(VAR) (CPA) (Nat motioning to VAR)

• (1) Value given by secured party (loan itself works)
• (2) Agreement to create a security interest. Ways to show an agreement:
  
  • Creditor takes control of certain types of collateral
  • Creditor takes possession of the collateral
  • Authentication (i.e. signing) by debtor of a security agreement describing the collateral (super-generic – “all of debtors property” doesn’t work. Describing by Art 9 collateral type generally does work except for consumer goods)
• (3) Rights in the property on the part of the debtor

Question 2

What are the 5 methods of perfection? What is a prerequisite to perfection?

Answer 2

Prerequisite to perfection is attachment

(FACT P) – fact, penalty

• Filing a financing statement (names/address of parties, description of collateral (can be super-generic for purposes of financing statement. Filing statement is invalid if mistake in name is seriously misleading. FS is filed with secretary of state unless it involves land. Valid for 5 years. Filing does work for deposit accounts and money)
• Automatic Perfection – PMSI in consumer goods
• Control (same discussion as for attachment)
• Temporary Perfection – 20 days of perfection in proceeds. After 20 days:
• Possession (doesn’t work for intangibles)

Question 3

Common Law Murder definition and ways to satisfy

Answer 3

The unlawful killing of another with malice aforethought.

Malice/intent can be proved with any of these 4 states of mind:

• (1) Intent to kill
• (2) Intent to commit serious bodily harm
• (3) Reckless indifference to an unjustifiable high risk to human life
• (4) felony murder – intent to commit an inherently dangerous felony

Question 4

Approach for 1st Amendment Religion Issue. What are two kinds of suspect laws, and what is approach for each?

Answer 4

Law limiting religion = free exercise issue

Law is valid if generally applicable. Law is presumably invalid (strict scrutiny) if it specifically targets religious practices

Law supporting religion = establishment clause issue

Lemon test = law is invalid unless it has:

• (1) secular purpose
• (2) primary effect that neither advances nor inhibits religion
• (3) no excessive gov’t entanglement with religion

Question 5

What are the 3 Main analytical approaches to choice of law questions?

Answer 5

(VMI – Virginia Military Institute)

(1) Vested Rights Approach/First Restatement
(2) Most Significant Relationship Approach/Second Restatement
(3) Interest Analysis Approach

Question 6

All Hearsay Exclusions and Exceptions (and when declarant needs to be unavailable)

Answer 6

(CEV ODFS EMPBT)

* = declarant must be unavailable

Doesn’t meet Definition

• Circumstantial evidence of declarant’s state of mind
• Effect on listener/reader
• Verbal acts or legally operative facts

Exclusions (nonhearsay)

• Opposing party statement
• Dying declaration (criminal=homicide only)*
• Former testimony of declarant (w/opp.+motive)*
• Statement against interest*

Exceptions (hearsay but still admissible)

• Excited utterance
• Medical treatment/diagnosis
• Present sense impression
• Business record/public record
• Then-existing physical or mental condition

Question 7

Procedural Devices to End Case at trial

Answer 7

Pre-answer motions (e.g. 12b6 failure to state a claim upon which relief can be granted. SMJ, PJ, etc.)

Summary judgment – No genuine dispute of material facts exists and that the moving party is entitled to judgment as a matter of law. Typically happens after discovery but before trial.

Judgment as a Matter of Law – A reasonable jury would not have a legally sufficient basis to find for the nonmoving party (evidence is viewed in the light most favorable to the opposing party). Typically happens during trial.

Renewed Motion for Judgment as a Matter of Law – Filed within 28 days of entry of judgment for the other side. (must have brought a JMOL claim).

Motion for a New Trial – Filed within 28 days of judgment. Can be granted because of an error during the trial or because the verdict is against the weight of evidence.

Question 8

Intermediate Review – what is the test? What categories apply?

Answer 8

Test: Gov. must show discrimination substantially related to important interest

Categories:

• Gender
• Legitimacy (children out of wedlock)

Question 9

What are the 4 types of tangible collateral or goods (and definitions)? Whose perspective do you use to determine which it is?

Answer 9

(1) Consumer Goods – goods bought for personal, family, or household purposes
(2) Inventory – goods held for sale or lease, and goods consumed by a business
(3) Farm Products – goods, including crops and animals, used are produced in farming that are in the possession of or used by a farmer
(4) Equipment – goods that are not consumer goods, inventory, or farm products (catch-all). Also, things that sounds like equipment (e.g. durable goods used by business such as factory machinery)

Perspective: category into which tangible collateral is placed depends on the primary use to which the debtor puts the property

Question 10

Strict Scrutiny Review – what is the test? What categories apply for Equal Protection?

Answer 10

Test: Gov. must show discriminationnecessary for compelling interest

Equal Protection categories:

• Race
• Alienage (non-citizen). Does notapply to Federal gov. Also, states/local govt’s can require citizenship where“integral to democratic self-governance”
• National Origin
• Religion

Question 11

Erie Doctrine – In a diversity case, should federal court apply state or federal law? (and what is process)

Answer 11

(1) Is there a federal law on point (e.g. constitution, federal statute, FRCP)? If yes, and if law is valid (presumptively is), apply federal law.
(2) No federal law on point. If law is procedural, apply federal law. If law is substantive, apply state law.

Clearly substantive (SEC)

• Statute of Limitations
• Elements of Claim or Defense
• Choice of Law

Everything else – balancing test between these 3:

• (1) If law is outcome determinative, it is substantive
• (2) Balance of interest between state and federal gov’t
• (3) Forum shopping deterrence

Question 12

What is the 3 paragraph structure for a choice of law answer?

Answer 12

P1: Describe choice of law

• “the issue presented is which state’s law will govern the outcome of this litigation. The governing law will be selected by the forum court using the ___ (fill in the applicable choice of law approach

P2: Describe the Choice of law approach

• Vested Rights/1st Restatement – “under this approach, the court will apply the law of the state mandated by the applicable vesting rule. That rule is selected according to the relevant substantive area of law.”
• Most Significant Relationship/2^nd Restatement – “under this approach, the court will apply the law of the state which is most significantly related to the outcome of the litigation. To determine this, the court will consider connecting facts and policy principles.”
• Interest Analysis – “under this approach, the court will consider which states have a legitimate interest in the outcome of the litigation. The forum court will apply its own law as long as it has a legitimate interest. If the forum state has no legitimate interest, it will apply the law of another interested state”

P3 Apply the choice of law approach

• Vested Rights/1^st Restatement
  
  • Categorize the substantive area of law
  • State the applicable vesting rule
  • Apply the vesting rule to determine governing law
  • Apply the governing law to determine result
• Most Significant Relationship/2^nd Restatement
  
  • Discuss connecting facts
  • Discuss policy principles
  • Choose governing law based on most significant relationship
  • Apply the governing law to determine result
• Interest Analysis
  
  • Discuss which states have legitimate interests
  • Characterize the type of conflict (false conflict=only one state has interest; true conflict=two or more states have a legitimate interest)
  • Choose governing law based on type of conflict (false conflict=apply law of interest stated; true conflict=if forum is interested, apply forum law)
  • Apply the governing law to determine result

Question 13

What is necessary to show discrimination under Equal Protection?

Answer 13

(FAM)

Discriminatory intent. This can be shown 3 ways:

• discriminatory on face
• discriminatory as applied
• discriminatory motive.

Question 14

Elements of Battery

Answer 14

(1) Harmful or offensive contact (can be direct (punch) or indirect (gunshot))
(2) To plaintiff’s person (or something they are touching or holding)
(3) Intent
(4) Causation

Question 15

What are the duties imposed on a trustee, and to whom are they owed?

Answer 15

In revocable trust, trustee owes the duties to the settlor

In irrevocable trust, trustee owes the duties to the beneficiaries

(LARPS – live action role plays)

• Duty of Loyalty – no dealing with trust without court approval
• Duty to Administer Trust
• Duty to Report – annual accounting and responding to requests
• Duty to Preserve and Make Trust Property Productive – prudent investments
• Duty to Separate and Earmark Property – no commingling

Question 16

Limits on in Personam Jurisdiction

Answer 16

(1) Statutory. D must be:

• (a) present in state / domiciled in state / consent OR
• (b) fall under long arm statute (statutes will cover e.g. torts committed in state, contracts in state)

(2) Constitutional – Sufficient minimum contacts so that exercise of in personam jurisdiction is fair

• (a) Minimum Contacts – purposefully availed + D knew or should have anticipated being called into court
• (b) Relatedness of claim + contacts
• (c) Fairness
• (also due process requirement of notice)

Question 17

When looking at burden/benefit against subsequent owners, what are the 5 factors? Which are relevant for (a) equitable servitude burden, (b) real covenant burden, (c) equitable servitude benefit, (d) real covenant benefit?

Answer 17

(INT, Hiya Vikes!)

• (1) intent from original owners that agreement run with land (usually yes)
• (2) notice for current owner (constructive=restriction in deed, inquiry=reasonable person, actual)
• (3) touch and concern the land (agreement almost always does)
• (4) Horizontal privity (original owners had to have special relationship
• (5) Vertical privity (original owner and subsequent owner had same property interest (e.g. fee simple and fee simple)

(For Equitable Servitude/Real Covenant Burden/Benefit - put in alphabetical order. All need 1+3. Additional needs below:)

• ES Benefit - none (1+3)
• ES Burden - 2 (1+2+3)
• RC Benefit - 5 (1+3+5)
• RC Burden - all (1+2+3+4+5)

Question 18

Premises Liability (someone is injured on land) – Standard of care for owners/occupiers of land

Answer 18

4 Separate Standards of Care depending on the entrant

Unknown trespasser – no duty at all (you don’t know that they’re there)

Known/anticipated trespassers – Duty to protect from (1) known, (2) manmade (3)death(4)traps.

Licensees (permission but not for commerce) – duty to protect from (1) known (4 traps)

Invitee (permission and for economic benefit to owner) – duty to protect from (~1) reasonably knowable (4) traps

Question 19

Products Liability Elements

Answer 19

(1) A defect

• Manufacturing
• Design (+ feasible alternative)
• Information

(2) Existence of the defect when product left D’s control

Question 20

What is Statute of Frauds and to what contracts does it apply?

Answer 20

(MY LEGS)

Certain agreements must be evidenced by a writing signed by the party that is being sued. (writing doesn’t have to be much, just essential terms)

• Marriage
• Year (more than one)
• Land
• Executor of a will
• Goods of $500 or more
• Surety contracts (guaranteeing a loan)

Question 21

Two broad points to include in almost any family law answer

Answer 21

(1) Courts have a lot of discretion (can take into account a bunch of different factors – all pretty much intuitive – when deciding things like property division on divorce, spousal support, child support, custody)
(2) Best interest of child

Question 22

Exceptions to warrant requirement (D is trying to have evidence excluded)

Answer 22

(CHEF, PASS!)

• Consent given with apparent authority
• Hot pursuit
• Emergency aid / public health/safety
• Fleeting evidence (although warrant needed for BAC)
• Plain view of officer when they are somewhere they have a right to be
• Automobile exception – if police have probable cause to believe they will find contraband or evidence of crime, they can search entire car for that contraband or evidence
• Search incident to lawful arrest (arrestee’s wingspan. Passenger compartment of car if either arrestee is unsecured and may still gain access to vehicle OR police reasonably believe evidence of the arresting offense may be found
• Stop and Frisk – cop can seize contraband based on plain feel

Question 23

Landlord/Tenant – what are the 4 types of tenancies? Brief description of each

Answer 23

Tenancy for years – definite end date (doesn’t have to be years)

Periodic tenancy – continues for successive periods until terminated with proper notice (generally one period in advance)

Tenancy at will – terminable at any time with reasonable notice by either party (created by express agreement, courts will default to periodic tenancy)

Tenancy at sufferance – tenant holds over or wrongfully remains

Question 24

When does 5^th Amendment provision against self-incrimination / Miranda warnings apply?

Answer 24

(1) perp is in custody (reasonable person would not feel free to leave)
(2) perp knows person questioning him is a cop
(3) there was an interrogation (words or conduct by the police that they should know is likely to elicit an incriminating response)

Question 25

Two Duty Questions to ask for every negligence question

Answer 25

(1) Was the plaintiff foreseeable?
(2) If so, what is the applicable standard of care?

Question 26

1st Amendment approach to a law limiting the content of speech

Answer 26

Generally, strict scrutiny

Less protected speech = commercial speech

Unprotected speech = defamation, fighting words, obscenity

Question 27

Threshold Issues for Evidentiary Seizure – can D have evidence excluded?

Answer 27

(WWRE – What Weed, Rob Exclaimed!)

• (1) Who seized the evidence (must be government if D wants to exclude)
• (2) Warrant? (issued with probable cause by neutral magistrate. Or the cop was acting in good faith on an invalid warrant)
• (3) Right of privacy for D (i.e. was it D’s home or where he was overnight guest). If not, can’t exclude.
• (4) If no warrant, does an exception to warrant requirement apply?

Question 28

1st Amendment approach to law limiting the manner of speech. List all possible forums + the 2 different tests.

Answer 28

4 different forums:

• Public forum = streets, sidewalks, etc.
• Designated public forum = nonpublic forum opened to speech at a designated time
• Nonpublic forum = public schools, military bases, government offices
• Limited public forum = nonpublic forum opened to speech on a limited range of topics

For regulation limiting the manner of speech at a public forum of designated public forum. Regulation is valid if:

• (1) content neutral
• (2) narrowly tailored to serve an important government interest (sort of intermediate scrutiny plus)
• (3) alternative channels of communication are left open

For regulation limiting the manner of speech at a nonpublic forum or l_imited public forum_. Regulation is valid if:

• (1) viewpoint neutral
• (2) reasonably related to legitimate gov. interest (rational basis test!)

Question 29

What are the 3 broad categories of Article 9 collateral?

Answer 29

Tangible Collateral or Goods

Intangible or semi-intangible collateral

Proceeds

Question 30

3 Things all Intentional Torts Require

Answer 30

(1) Act by defendant (volitional movement)
(2) Intent (specific; general=knew with substantial certainty)
(3) Causation (usually obvious for intentional torts)

Question 31

Strict Scrutiny Review – what is the test? What categories apply for Substantive Due Process?

Answer 31

Test: Gov. must show discriminationnecessary for compelling interest

Substantive Due Process categories(“fundamental rights”):

• Privacy (CAMPERS)
  
  • Contraception
  • Abortion (no undue burden pre-viability)
  • Marriage
  • Procreation
  • Education (private)
  • Relations (family)
  • Sexual Contact (consenting adults, non-commercial)
• Right to Travel
• Right to Vote

Question 32

What are the 3 scenarios in which an agent’s acts will bind the principal?

Answer 32

(1) Actual Authority – agent reasonably believes that he possesses authority to act. Can be express (i.e. in the agency agreement) or implied (custom, prior acquiescence, incidental to express authority, etc.). Be on the lookout for actual authority terminating – after specified time, death of principal, etc.
(2) Apparent Authority – 3^rd party reasonably believes that agent has authority to act on behalf of principal.
(3) Ratification – agency relationship is created by ratification when an “agent” purports to act on behalf of a “principal” without any authority at all, but the “principal” subsequently validates the act and becomes bound.

Question 33

Three levels of scrutiny for substantive due process / equal protection questions. What are the tests (including who has burden)?

Answer 33

(NC. SRI. RRL. Not Chill. Santa’s Reindeer Imbibed. Rudoph, Red Light!)

Strict Scrutiny - Government must show that law is necessary to achieve a compelling government purpose

Intermediate Scrutiny - Government must show that law is substantially related to an important government purpose

Rational Basis - Challenger must show that law is not rationally related to legitimate government interest.