MBE Intimidation?

Trying to get a jumpstart on your bar preparation?  Just curious about what all is entailed in the Multistate Bar Exam (MBE)?  Here’s a glimpse into one of the seven topics covered on the MBE.  Keep in mind that each topic receives equal treatment – only 25 questions per topic.

Constitutional Law

NOTE: The terms “Constitution,” “constitutional,” and “unconstitutional” refer to the federal Constitution unless indicated otherwise.

Approximately half of the Constitutional Law questions on the MBE will be based on category IV (12-13), and approximately half will be based on the remaining categories—I, II, and III (12-13).

1. I.  The nature of judicial review
   1. A.  Organization and relationship of state and federal courts in a federal system
   2. B.  Jurisdiction
      1. Congressional power to define and limit
      2. The Eleventh Amendment and state sovereign immunity
   3. C.  Judicial review in operation
      1. The “case or controversy” requirement, including the prohibition on advisory opinions, standing, ripeness, and mootness
      2. The “adequate and independent state ground”
      3. Political questions and justiciability
2. II.  The separation of powers
   1. A.  The powers of Congress
      1. Commerce, taxing, and spending powers
      2. War, defense, and foreign affairs powers
      3. Power to enforce the 13th, 14th, and 15th Amendments
      4. Other powers
   2. B.  The powers of the president
      1. As chief executive, including the “take care” clause
      2. As commander in chief
      3. Treaty and foreign affairs powers
      4. Appointment and removal of officials
   3. C.  Federal interbranch relationships
      1. Congressional limits on the executive
      2. The presentment requirement and the president’s power to veto or to withhold action
      3. Nondelegation doctrine
      4. Executive, legislative, and judicial immunities
3. III.  The relation of nation and states in a federal system
   1. A.  Intergovernmental immunities
      1. Federal immunity from state law
      2. State immunity from federal law, including the 10th Amendment
   2. B.  Federalism-based limits on state authority
      1. Negative implications of the commerce clause
      2. Supremacy clause and preemption
      3. Authorization of otherwise invalid state action
4. IV.  Individual rights
   1. A.  State action
   2. B.  Due process
      1. Substantive due process
         1. a. Fundamental rights
         2. b. Other rights and interests
      2. Procedural due process
   3. C.  Equal protection
      1. Fundamental rights
      2. Classifications subject to heightened scrutiny
      3. Rational basis review
   4. D.  Takings
   5. E.  Other protections, including the privileges and immunities clauses, the contracts clause, unconstitutional conditions, bills of attainder, and ex post facto laws
   6. F.  First Amendment freedoms
      1. Freedom of religion and separation of church and state
         1. a. Free exercise
         2. b. Establishment
      2. Freedom of expression
         1. a. Content-based regulation of protected expression
         2. b. Content-neutral regulation of protected expression
         3. c. Regulation of unprotected expression
         4. d. Regulation of commercial speech
         5. e. Regulation of, or impositions upon, public school students, public employment, licenses, or benefits based upon exercise of expressive or associational rights
         6. f. Regulation of expressive conduct
         7. g. Prior restraint, vagueness, and overbreadth
      3. Freedom of the press
      4. Freedom of association

As you can see, there’s quite a bit covered . . . and this is just Constitutional Law.  After you spend a few seconds freaking out about the amount of material, take a deep breath.  Remind yourself that you can do this.  And take note that THIS is why everyone advises you to start studying as EARLY as possible.  Not too early . . . you don’t want to forget anything.  But early enough that you’re not cramming everything into those last 8 weeks before the bar exam.  8 weeks is a short time to cover 7 MBE topics plus however many state-specific topics you have as well.

You can do this!

Eminent Domain Explained

nor shall private property be taken for public use, without just compensation.  5th Amendment, U.S. Constitution

12 little words.  That’s the foundation for the doctrine of eminent domain.  Essentially, it is “the power of the government to take private property and convert it into public use.”  On its face, it seems like a somewhat benign if inconvenient at times law.  After all, one would expect the government’s conversion of property to public use would benefit everyone, including the people who used to own the property.

In one of the most debated cases, the Supreme Court of the United States ruled in a 5-4 decision against the private property owners and in favor of a town’s development corporation.  Kelo v. City of New London is the seminal case in eminent domain issues.  The City of New London passed their power of eminent domain to the development corporation in order to “revitalize the area around the new [Pfizer] facility.”  The Connecticut Supreme Court “found that any private benefit from the economic development was “secondary to the public benefit that results from significant economic growth and revitalized financial stability in a community.” See id. at 532.  The prevailing definition of “public use” has become “public purpose or benefit,” which gives the state “nearly limitless power to take private property for uses that are arguably both private and public.”

The United States Supreme Court took the case to decide the limits of eminent domain, and they found in favor of the City of New London.  “The Midkiff and Berman decisions . . . clearly establish that (1) state legislatures should be granted a high degree of deference in making decisions of what constitutes public use, and (2) there is nothing unconstitutional about using eminent domain to transfer property to another private property holder.”  Essentially, SCOTUS gave the state legislatures practically unlimited power in exercising eminent domain.

What do you think?  Should the exercise of eminent domain be this broad?  Or should the Kelo decision be rethought?

Breaking Down Chevron

Administrative Power

Non-Delegation Doctrine:  Congress being invested with all legislative powers by Article I cannot delegate that power to anyone else.

Intelligible Principle:  So long as Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.

Administrative law and Chevron deference seem easy enough, right?  For those of you who were confused in law school (like me), here’s a chart I created that sets out the step-by-step approach to applying the Chevron deference test.

I hope this helps!

The Constitution In Brief

What Does It Mean?

Have you ever read the text of a statute or Act and gone HUH??????  Most statutes (at least in my experience) tend to be somewhat vague and unclear, to say the least.  You can get a better understanding of them by dissecting and reading them very carefully.  But even then you may be confused.  So where do you turn?  The legislative history!

But what is legislative history?

legislative history.  the background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates.  Black’s Law Dictionary.

Clear as crystal, right?  Don’t worry.  By the end of this post, you’ll have a basic understanding of just what constitutes legislative history AND where you can find it.

Legislative history includes:

• Hearings: Hearings provide useful background information, but they are not generally considered persuasive sources of legislative history on the meaning of an enacted bill.  Their importance as evidence of legislative intent is limited because they focus more on the views of interested parties rather than those of the lawmakers themselves.
• Debates: Not as influential as committee reports, floor statements are often political hyperbole and may represent the views of the proposed legislation’s opponents.
• Bills: Variations among the bills and amendments can aid in determining the intended meaning of an act, as each deletion or addition made during the legislative process implies a deliberate choice of language by the legislators.
• Committee Reports: Reports are issued by House and Senate committees on bills they approve and send to the floor for consideration, and by conference committees of representatives and senators who reconcile differences between bills passed by the two chambers. . . . Reports usually include the text of the bill, describe its contents and purposes, and give reasons for the committee’s recommendations, sometimes with minority views.

As you can imagine, these materials may be extremely useful in understanding the intent behind the phrasing or compilation of various statutes.  This understanding can help the courts better interpret the statute and apply it to various cases.  But where do you find these materials?  Depending on the particular statute/act you’re researching, it may be easier or more difficult to find them; however, here are a few sites you can check out.

• Congress.gov.  This website gives you the text of bills as well as a summary of their current status, their timeline, their content, sponsors, and some supporting documentation.  You can search by Public Law number, Congressional session, keyword, and much more.
• Proquest Congressional.  This website indexes congressional publications, which include the House of Representatives and Senate reports, committee reports, hearings, etc.  Again, you can search by specific act or congress, or you can run keyword searches.
• GovTrack.us.  “We publish the status of federal legislation and information about your representative and senators in Congress. Use GovTrack to track bills for updates or get alerts.  We also go beyond the official record with statistical analyses, bill summaries, and other tools to put information in context.”
• USCCAN (via Westlaw).  The United States Code Congressional & Administrative News publishes the text of acts as well as some of the committee reports and more for important laws.

You can also access state legislative history although the availability and ease of access may vary from state to state.  In Florida, for example, you can access much of the legislative history materials available on the House of Representatives or Senate websites as well as Online Sunshine.

Check out the materials available in your state!  Investigate the debates and reports behind a particular act of interest to you.  And don’t forget to check the Popular Name Table for the more specific citation information.  Remember, an Act’s actual title is typically much longer and more detailed than the name by which everyone knows it.  (Patriot Act = Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001; Affordable Care Act = Patient Protection and Affordable Care Act; Mann Act = White-slave Traffic Act).

Know of another site we should include?  Let us know in the comments!

A Few Key Phrases

As you may know, there are two main branches of law – civil and criminal.  All areas of practice fall within one or the other (and sometimes both).  But just what is “criminal law”?  Quite simply, it “is a system of laws concerned with punishment of individuals who commit crimes.”  In a criminal case, the people as a whole decide what conduct to punish and what punishment is appropriate.  Conduct punishable under criminal law is . . . you guessed it . . . criminal behavior, i.e. “any act or omission in violation of a law prohibiting it, or omitted in violation of a law ordering it.”

In analyzing whether an individual committed a crime, one must determine whether they acted “in a way that fulfills every element of an offense.”  Typically, a crime involves three elements: (1) actus reus; (2) mens rea; (3) the causal link between the actus reus and the offense.  But what do those mean?

actus reus.  The act or omissions that comprise the physical elements of a crime as required by statute. See, e.g. Schad v. Arizona, 501 U.S. 624 (1991). The actus reus includes only the willed bodily movements (i.e. voluntary acts). Thus, if a defendant acted on reflex, then the defendant’s conduct does not satisfy the actus reus requirement.

The actus reus requirement can also be satisfied by an “omission”; if an individual had a duty to act, and failed to discharge that duty, the individual could be held criminally liable for the result.

Essentially, the actus reus speaks to the conduct/omission of conduct of the individual(s) involved in the offense.  It is the “voluntary act that either is in itself wrongful or leads to a wrongful result.”

mens rea.  This is the criminal intent. Moreover, it is the state of mind indicating culpability which is required by statute as an element of a crime. See, e.g. Staples v. United States, 511 US 600 (1994). Establishing the mens rea of an offender is usually necessary to prove guilt in criminal trial. In doing so, the prosecution must prove beyond reasonable doubt that the defendant committed the offense with a culpable state of mind. Justice Holmes famously illustrated the concept of intent when he said “even a dog knows the difference between being stumbled over and being kicked.”

The mens rea requirement is premised upon the idea that one must possess a guilty state of mind and be aware of his or her misconduct; however, a defendant need not know that their conduct is illegal to be guilty of a crime. Rather, the defendant must be conscious of the “facts that make his conduct fit the definition of the offense.”

Essentially, the mens rea refers to the individual’s mental state at the time of the actus reus.  This means that even if an individual satisfies the actus reus element of a particular crime, if they did not also possess the applicable mens rea, they have not committed that particular crime.

Finally, even if the actus reus AND the mens rea are present, the individual cannot be convicted if he caused no crime, i.e. unless the act itself is criminal, there must be proof that their conduct “was the actual cause and the legal cause of the unlawful result.”

Another term differentiation you will run across in the criminal law practice is the difference between malum in se and malum prohibitum.  The first is an “innately immoral act, regardless of whether it is forbidden by law.”  Examples include adultery, theft, and murder.  The second is rather “an act which is immoral because it is illegal; not necessarily illegal because it is immoral,” i.e. an act prohibited by law though not necessarily evil in itself.

Armed with these basic definitions, you can delve deeper into any aspects of criminal law with a better understanding of what it involves and what you should be seeking in your research.

Newsletter – Fall 2016

Sphere of Influence

We often spend minutes or hours of our days bemoaning various aspects . . . the lights kept turning red . . . the waitress got our order wrong . . . your coworkers keep getting on your nerves . . . the list goes on and on.  Focusing on all the negativity surrounding us tends to debilitate or zap our energy.  And it’s hard not to . . . especially if we have a hard time finding positive things in our lives or if we feel the need to control everything.  If only we had the power, then nothing negative would happen.  But we don’t.  And we have to accept that fact.

Bummed out?  Have no fear.  Your life doesn’t have to be all negative all the time.  No, you cannot control the outside forces that affect your day.  You do control yourself.  Your reactions.  Your day-to-day life.  That is where you can control the outcome.  So the waitress got your order wrong?  Don’t let it ruin your day.  Patiently and calmly bring it to her attention.  Or just let it go and move on.  (Unless, of course, you have an allergy or medical reason.  Then definitely bring it up.)

Your sphere of influence goes hand in hand with your attitude towards negativity in your life.  “Increasing your sphere of influence will boost the number of people who hear your message.”  This article discusses your personal sphere of influence in relation to business.  But the concept extends beyond that.  Your attitude and perspective on life can influence those around you.  This goes both ways – if you’re negative or if you’re positive.  Blogs and journals have a plethora of methods for you to stop or combat negative thinking.  Ultimately, a positive attitude comes down to your choices.  The more you choose to be positive, the more it will come across in your attitude.  And the people within your sphere of influence will notice.  That waitress who messed up your meal?  Rather than begrudgingly apologizing, maybe she’ll be genuinely sorry for the mistake if you treat her with respect and a positive attitude.  Those coworkers who keep getting on your nerves or filling your life with negative energy?  If you remain positive in your interactions with them, chances are that they’ll notice and maybe even start to look for the positive themselves.

Remember that you can only control yourself – not others.  You can influence those around you by how you control your actions.

Torts – Intentional

Black’s Law Dictionary defines a tort as:

A civil wrong, other than breach of contract, for which a remedy may be obtained, usu. in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another.  Tortious conduct is typically one of four types: (1) a culpable or intentional act resulting in harm; (2) an act involving culpable and unlawful conduct causing unintentional harm; (3) a culpable act of inadvertence involving an unreasonable risk of harm; and (4) a nonculpable act resulting in accidental harm for which, because of the hazards involved, the law imposes strict or absolute liability despite the absence of fault.

But what differentiates one tort from another?  Many things, but one of the most important goes to the culpability of the actor.  This is where intentional torts differ from negligence.

The Restatement 2d of Torts defines “intent” as a term denoting “that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to result from it.”  Black’s Law Dictionary defines “intentional torts” as “[a] tort committed by someone acting with general or specific intent.”

When studying for the MBE, there are quite a few topics and areas of law you need to cover.  Intentional torts cover one facet of the MBE.  Potential intentional torts for the MBE include:

A.  Harms to the person, such as assault, battery, false imprisonment, and infliction of mental distress; and harms to

property interests, such as trespass to land and chattels, and conversion

B.  Defenses to claims for physical harms

     1.  Consent

     2.  Privileges and immunities: protection of self and others; protection of property interests; parental discipline; protection of public interests; necessity; incomplete privilege.

You can see the current list of all MBE topics here: 2016 MBE Subject Matter Outline.

Negligence Broken Down

Negligence.  That tort of all torts you studied in law school.  So many types and so many applications.  For the nitty-gritty, you should bunker down with your course notes, a good supplement, and the Restatement of Torts.  But if you want a refresher on the general definition, you’re in the right place.

The Restatement of Torts, 2d, defines the elements of a cause of action for negligence thus:

281.  Statement of the Elements of a Cause of Action for Negligence

The actor is liable for an invasion of an interest of another, if:

1. the interest invaded is protected against unintentional invasion, and
2. the conduct of the actor is negligent with respect to the other, or a class of persons within which he is included, and
3. the actor’s conduct is a legal cause of the invasion, and
4. the other has not so conducted himself as to disable himself from bringing an action for such invasion.

Probably not the elements you remember from Torts class, but that’s because we’ve broken those elements down into easy, manageable portions: duty; breach; causation; damages.

The Restatement of Torts, 2d, defines negligence in detail:

282. Negligence Defined.

In the Restatement of this Subject, negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.  It does not include conduct recklessly disregardful of an interest of others.

The Restatement of Torts, 2d, also provides the burden of proof for a negligence claim:

328 A. Burden of Proof.

In an action for negligence, the plaintiff has the burden of proving

1. facts which give rise to a legal duty on the part of the defendant to conform to the standard of conduct established by law for the protection of the plaintiff,
2. failure of the defendant to conform to the standard of conduct,
3. that such failure is a legal cause of the harm suffered by the plaintiff, and
4. that the plaintiff has in fact suffered harm of a kind legally compensable by damages.

Those elements probably sound more familiar.  Duty; breach; causation; damages.  If you can remember those elements, along with their specifics that you learn in class or in your studies, you’ll be able to handle any negligence claim that knocks on your door.