Three Branches of Government + One More

As I’m sure you learned in your high school civics course, the United States Government is traditionally thought of as including three branches.  As you may also know, there is an additional aspect of the U.S. Government that is often called the “fourth branch” of government.  The first three branches stem from the Constitution of the United States directly while the fourth branch receives its powers majorly from either statutes or the constitution.

These branches are: (1) legislative; (2) executive; (3) judicial; (4) administrative.

Legislative Branch

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.  U.S. Const., Art. I, sec. 1.

These powers vested in Congress include:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

U.S. Const., Art. I, sec. 8.

Executive Branch

The executive power shall be vested in a President of the United States of America.  U.S. Const., Art. II, sec. 1.

As the executive, the President has the following powers and responsibilities:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.  U.S. Const., Art. II, sec. 2.

The President and the Executive Branch interact with the Legislative Branch thus:

He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.  U.S. Const., Art. II, sec. 3.

Judicial Branch

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.  U.S. Const., Art. III, sec. 1.

The powers vested in the Judicial Branch include:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.  U.S. Const., Art. III, sec. 2.

The Judicial Branch interprets and applies the statutes promulgated by the Legislative Branch.

Administrative Branch

The Administrative Branch receives its power from the Legislature and the Constitution.  Article I, sec. 8 of the United States Constitution states, in part, that Congress has the power

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

This section gives Congress the authority to vest or delegate determining authority in/to administrative agencies.  There are dozens of different agencies, and the binding aspect of their authority varies based on the type of regulation and whether they’ve been delegated that authority by Congress.  (Stay tuned for a post focusing entirely on the Chevron deference process.)

And just how do these branches interact?  The American system employs a series of checks and balances amongst the different branches.  These serve to limit the reach of each branch’s power.

Essentially, the U.S. Government works together through different aspects of the legal system to create a government system that incorporates the different branches and their powers, as vested by the Constitution, into a system where, ideally, each branch works smoothly with the other branches.

The three main branches of government are the Legislative, Executive, and Judicial.  The Administrative branch came about when Congress created agencies and delegated some rulemaking authority to them.  Together, these four branches make up the United States Government.

 

 

Just What Does The Bar Exam Entail?

 

The BAR EXAM.

That test to top all tests waiting at the end of every law student’s career.  The entrance exam to the realm of practicing attorneys.  This exam is so important to the legal field that it even has its own Comprehensive Guide to Bar Admission Requirements, which “provides annually updated information on bar admission requirements in all U.S. jurisdictions, including a directory of state bar admission agencies. It is published in collaboration with the American Bar Association.”  NCBE – Bar Admission Guide.

But just what does the Bar Exam entail?  As with all other aspects of the law, some of it varies based on your jurisdiction.  Here are the main components your bar exam may include:

Jurisdictional Bar Exam

The majority of jurisdictions currently administer their own customized bar examination, typically consisting of a state-specific portion as well as one or more aspects of the multistate exam.  You can check your individual jurisdictional requirements here on the NCBE website or on your jurisdiction’s bar exam website.

Uniform Bar Exam (UBE)

Adopted in 20 states to date (with many more potentially joining in the near future), the UBE consists of the MEE, two MPT tasks, and the MBE.  The resulting score is portable, which means it can be used to apply for admission in other UBE jurisdictions.

Please note that “[w]hile the UBE is uniformly administered, graded, and scored by user jurisdictions, the user jurisdictions continue to independently

• decide who may sit for the bar exam and who will be admitted to practice;
• determine underlying educational requirements;
• make all character and fitness decisions;
• set their own policies regarding the number of times applicants may retake the bar examination;
• make ADA decisions;
• grade the MEE and MPT;
• set their own pre-release regrading policies;
• assess candidate knowledge of jurisdiction-specific content through a separate test, course, or some combination of the two if the jurisdiction chooses;
• accept MBE scores earned in a previous examination or concurrently in another jurisdiction for purposes of making local admission decisions if they wish. Note: candidates must sit for all portions of the UBE in the same UBE jurisdiction and in the same administration in order to earn a portable UBE score;
• set their own passing scores; and
• determine how long incoming UBE scores will be accepted.”  NCBE – UBE.

 

Multistate Bar Exam (MBE)

This six-hour exam consists of 200 multiple choice questions covering 7 different subject matters: (1) contracts; (2) federal civil procedure; (3) federal constitutional law; (4) federal criminal law & procedure; (5) federal evidence; (6) real property; (7) torts.

The relative weight of the MBE score is determined by each jurisdiction independently.

Multistate Essay Exam (MEE)

This exam consists of six, 30-minute essay questions.  “Areas of law that may be covered on the MEE include the following: Business Associations (Agency and Partnership; Corporations and Limited Liability Companies), Civil Procedure, Conflict of Laws, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Family Law, Real Property, Torts, Trusts and Estates (Decedents’ Estates; Trusts and Future Interests), and Uniform Commercial Code (Secured Transactions).” NCBE – Preparing for the MEE.

Multistate Performance Test (MPT)

This aspect of the exam consists of two, 90-minute items.  Jurisdictions may use one or both MPT items in their bar examinations.  All UBE states use both MPT items.

“The materials for each MPT include a File and a Library. The File consists of source documents containing all the facts of the case. The specific assignment the examinee is to complete is described in a memorandum from a supervising attorney. The File might also include transcripts of interviews, depositions, hearings or trials, pleadings, correspondence, client documents, contracts, newspaper articles, medical records, police reports, or lawyer’s notes. Relevant as well as irrelevant facts are included. Facts are sometimes ambiguous, incomplete, or even conflicting. As in practice, a client’s or a supervising attorney’s version of events may be incomplete or unreliable. Examinees are expected to recognize when facts are inconsistent or missing and are expected to identify sources of additional facts.

The Library may contain cases, statutes, regulations, or rules, some of which may not be relevant to the assigned lawyering task. The examinee is expected to extract from the Library the legal principles necessary to analyze the problem and perform the task. The MPT is not a test of substantive law; the Library materials provide sufficient substantive information to complete the task.” NCBE – Preparing for the MPT.

Multistate Professional Responsibility Exam (MPRE)

The MPRE consists of 60 multiple-choice questions on professional responsibility.  Each jurisdiction administers the same test; however, the passing score varies from jurisdiction to jurisdiction.

In Conclusion

Does all of that seem a little overwhelming?  Are you asking how anyone could possibly complete all of those questions and essays in just two or three days?  Hard work is definitely at the top of the list.  Practice, practice, and more practice.  Good preparation throughout law school (not just in the 8 weeks before the actual bar exam).  Patience and endurance.

The bar exam is like a marathon for your legal mind — it will stretch your mental capacity to the max.  But don’t let that stop you from trying.  The bar exam may be intimidating, but it is conquerable.  Start prepping now, no matter what stage of law school you’re presently at.  Pay attention to your bar topic courses.  Do timed practice questions and essays.  And above all else, keep reminding yourself of WHY you want to practice law.  Keeping the end goal in sight makes wading through all of the studying, prepping, and examinations well worth the struggle.

Navigating Due Process

No person shall . . . be deprived of life, liberty, or property, without due process of law.  U.S. Const. Art. V (limits only the federal government)

No State shall . . . deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.  U.S. Const. Art. XIV sec. 1 (limits the states)

This simple phrase has sparked thousands of debates and hundreds of thousands of documents discussing what “due process” actually means.  Does it simply apply to the procedural aspects of the law?  Does it have a secondary meaning?  What did the writers of the 14th Amendment really mean?

The due process clause “incorporates not only the procedural guarantees of the Bill of Rights but the substantive limitations of the Bill of Rights as well.”  Constitutional Law in a Nutshell, pg. 216.  I’m certain you all recall the Lochner debates and discussions from your constitutional law courses, which covered all aspects of exactly what the government can and cannot do.  That debate encompasses the content of substantive due process, which is “a doctrine holding that the 5th and 14th Amendments require all governmental intrusions into fundamental rights and liberties be fair and reasonable and in furtherance of a legitimate governmental interest.”  Substantive due process, Cornell Legal Information Institute.  Essentially, at the substantive level, the due process clause acts “as the basis for the right of privacy.”  Acing Constitutional Law, pg. 155.  “This right has several dimensions to it, including a woman’s liberty to elect an abortion, the right to marry, the right of a family to live together, the right to refuse medical treatment necessary to sustain life, and aspects of reproductive autonomy.”  Id.

Seminal cases dealing with substantive due process include Roe v. Wade, 410 U.S. 113 (abortion); Meyer v. Nebraska, 262 U.S. 390 (language instruction in schools); Skinner v. Oklahoma, 316 U.S. 535 (reproductive rights and sterilization); Griswold v. Connecticut, 381 U.S. 479 (contraceptives and right to privacy); Village of Belle Terre v. Boraas, 416 U.S. 1 (family living together); Loving v. Virginia, 388 U.S. 1 (right to marriage); Troxel v. Granville, 530 U.S. 57 (parental rights); Bowers v. Hardwick, 478 U.S. 186 (sexual orientation); Lawrence v. Texas, 539 U.S. 558 (privacy in the home); Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (right to refuse medical treatment).

“Procedural due process inquires into the way government acts and the enforcement mechanisms it uses.  When government deprives a person of an already acquired life, liberty or property interest, the Due Process Clauses of the Fifth and Fourteenth Amendments require procedural fairness.”  Constitutional Law in a Nutshell, pg. 274.  Essentially, the government must use a procedural framework that “promotes fairness and transparency.”  Acing Constitutional Law, pg. 125.  Rather than using a narrow definition of these terms, the Supreme Court has interpreted “life, liberty, or property” quite broadly.

When addressing a procedural due process issue, the Supreme Court of the United States created a two-step analysis:

1. Did the Government deprive a person of a life, liberty, or property interest?
2. What process is due?

As regards the first step, life is easily definable.  Liberty interests are “not only . . . a deprivation of freedom, but encompass[] some government action that has created a stigma to a person’s reputation, plus an additional harm, like an inability to obtain gainful employment.”  Acing Constitutional Law, pg. 127.  Property interests are “defined by state law and include[] not only traditional notions of personal property, but also legitimate expectations of entitlement, such as continued government employment and receipt of government benefits.”  Acing Constitutional Law, pp. 127-28.

Regarding the second step, the court adopted the Mathews v. Eldridge, 424 U.S. 319 test of three factors:

1. the private interest that will be affected by the official action;
2. the risk of erroneous deprivation of such interest through the procedure used, and the probable value, if any, of additional . . . safeguards;
3. the Government’s interest, including . . . fiscal and administrative burdens

In addressing a procedural due process issue, therefore, the court balances the different factors to come to their final conclusion.

In summation, substantive due process deals more with the types of liberty involved while procedural due process addresses how those liberties are affected by the government decision.

Parol Evidence Explained

The legal world is chock-full of terms and legalese that require an educated understanding in order to properly utilize them.  In the realm of Contract Law, these terms can be especially important to your client’s case.  One such term is the parol evidence rule.  I’m sure you all remember learning this in law school at one point, but do you remember what it means?

Black’s Law Dictionary defines it thus:

parol-evidence rule.  The common-law principle that a writing intended by the parties to be a final embodiment of their agreement cannot be modified by evidence of earlier or contemporaneous agreements that might add to, vary, or contradict the writing.  This rule usually operates to prevent a party from introducing extrinsic evidence of negotiations that occurred before or while the agreement was being reduced to its final written form.

Essentially, the parol evidence rule binds parties to their final written agreement, regardless of oral or written evidence to the contrary.  This rule works, however, ONLY when it can be shown that the parties intended the written agreement at issue to be their “FULL and FINAL expression of their bargain.”

This does not mean, however, that you cannot advocate on  your client’s behalf to introduce parol evidence to the court.  You can, and should do so if applicable, so long as you can argue that the parties did NOT intend the contract at issue to be the final written agreement.  Of course, you may be able to pursue alternative means of retribution for your client if the court rules that the contract is, in fact, intended to be the final written agreement between the parties.

Be careful with your parol evidence usage, and always remember to advocate in your client’s best interests.

 

The Art of Contracts

We all remember the basic elements of a contract: offer, acceptance, consideration.  Those three little words were drilled into our brains all throughout 1L Contracts.  But do you remember what those three little words mean?  The Restatement of the Law, 2d, Contracts has the following to say about contracts:

§1.  Contract Defined

A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.

The requirements for formation of a contract include:

§9.  Parties Required

There must be at least two parties to a contract, a promisor and a promisee, but there may be a greater number.

§17.  Requirement of a Bargain

(1) Except as stated in Subsection (2), the formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.
(2) Whether or not there is a bargain a contract may be formed under special rules applicable to formal contracts or under the rules stated in §§82-94.

§24.  Offer Defined

An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.

§50.  Acceptance of Offer Defined; Acceptance by Performance; Acceptance by Promise

(1) Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.
(2) Acceptance by performance requires that at least part of what the offer requests be performed or tendered and includes acceptance by a performance which operates as a return promise.
(3) Acceptance by a promise requires that the offeree complete every act essential to the making of the promise.

§71.  Requirement of Exchange; Types of Exchange

(1) To constitute consideration, a performance or a return promise must be bargained for.
(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.
(3) The performance may consist of
(a) an act other than a promise, or
(b) a forbearance, or
(c) the creation, modification, or destruction of a legal relation.
(4) The performance or return promise may be given to the promisor or to some other person.  It may be given by the promisee or by some other person.

Still the same basic principles — offer; acceptance; consideration — but there is a bit more finesse and specification with what those words actually mean in relation to a contract.

A mere peppercorn is enough.

As with any area of law, understanding the terminology is vital to ensuring you assist your clients legally.  Did the “offer” actually invite acceptance?  Was the “acceptance” made in the “manner invited or required by the offer”?  Was the “consideration” bargained for?  Was it sufficient?

Make sure that you ask yourself these questions and many more as you analyze a contract situation.  If you do, you’ll go into the situation better informed and more prepared to advocate for your client in their best interests.

Recording Your Records

Priority matters in property because it can determine who has a superior interest to a particular property.  State recording systems typically decide priorities via their particular statutory recording system.

“The system creates incentives for transferees to record the document by which they acquired an interest in land.  The system also generally protects a subsequent transferee against prior unrecorded transfers.”  Real Property in a Nutshell, pg. 349.

Each state has enacted one of three different types of recording acts:

1. Notice Acts:  These “provide that an unrecorded instrument is invalid against a subsequent purchaser without notice of it.  These acts protect a purchaser who acquires property or an interest in it, such as an easement or mortgage, without notice of prior unrecorded instruments affecting it.  In this way, they protect a subsequent purchaser who is ‘pure of heart.’”  Real Property in a Nutshell, pp. 350-51.
2. Race Acts:  Priority is based on the order in which documents were recorded.  “The subsequent grantee can prevail even if she knew about the prior conveyance.  The sole question is which instrument was recorded first.  These statutes protect subsequent grantees that are ‘fleet of foot.’”  Real Property in a Nutshell, pg. 352.
3. Race-Notice Acts:  These statutes “provide that an unrecorded conveyance is invalid against a subsequent purchaser who buys without notice of it and records before the prior conveyance is recorded.  This type of act protects purchasers who buy without notice of an unrecorded claim, but only if they enhance the reliability of the recording system by recording their conveyance.  These statutes protect subsequent purchasers only if they are both ‘pure of heart’ and ‘fleet of foot.’”  Real Property in a Nutshell, pg. 354.

As you can see, it may be vital to know which recording statute your state follows.  Do you know which one your state follows?  Florida is a “notice” state per F.S. §695.01, which states in pertinent part: “No conveyance, transfer, or mortgage of real property, or of any interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law; nor shall any such instrument made or executed by virtue of any power of attorney be good or effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration and without notice unless the power of attorney be recorded before the accruing of the right of such creditor or subsequent purchaser.”

Check out your state’s recording requirements and make sure that you (and your clients) are aware of the proper procedures so that your real property stays in your hands.

Do You Know Your Type?

Yesterday, we took a brief look at learning styles and MBTI personalities.  At the workshop, students encountered the three major learning styles and were introduced to the 16 different MBTI personality types.

First, students watched a video on thinking fast and thinking slow, which delved into the concepts of the conscious vs. the subconscious mind.  You can watch it here: Brain Tricks – This Is How Your Brain Works.

Students then learned about the three major learning styles: auditory; visual; kinesthetic.  The presentation discussed the differences between them, including a video demonstrating such differences.  We discussed how the learning styles differ when applied to the study of law.  Visual learners learn best when information is presented in a written language or via pictures or diagrams.  Auditory learners learn best when information is presented in a spoken language format.  Kinesthetic learners learn best when they can use their sense of touch and move about.

In practical application, these learning styles are not set in stone.  While people tend to have a preference for one style over another, they can develop all of the learning styles.  This makes studying etc. much more effective.

You can find out your learning style by taking any one of these tests:

• Education Planner
• Edutopia
• What Is My Learning Style

Seguing from learning styles to personality types, Dr. Brosseit spoke on “Using Psychological Type Theory to Optimize Performance in the Study and Practice of Law.”  He began with a few important points:

1. Understanding psychological type makes students aware of their natural ways of thinking so they can better understand their behaviors and select the approaches most likely to optimize performance in any given situation.
2. The instrument/indicator does not dictate your psychological type; it is merely a tool to help you determine your type for yourself.
3. No single psychological type is inherently better suited for the study and practice of law.
4. While psychological type often indicates the approaches that are most likely to be effective for particular personality types, students with the same psychological type are not all identical in their learning behaviors.

Dr. Brosseit went on to discuss the differences between the four dichotomies that make up the MBTI: Direction of Energy (E vs. I); Perception (S vs. N); Judgment (T vs. F); and Lifestyle Orientation (J vs. P).

• Direction of Energy: how one communicates and applies information
  • Extraversion (E)
    • Focus on the world outside of themselves
    • Talk things through with others as a means of gaining deeper understanding of information
  • Introversion (I)
    • Prefer to operate in their inner world to ponder ideas and understand information
    • Share ideas to check the accuracy of their understanding only after they have fully thought through and understood the information
• Perception: how one gathers and processes information
  • Sensing (S)
    • Focus on concrete information, specific scenarios, and practical application of legal rules and standards
    • Like to read cases and see detailed examples before constructing an overview or employing inductive reasoning to form broad generalizations
  • Intuition (N)
    • Naturally see connections, patterns, and broader principles among cases, context, rules, and principles
    • Prefer to see a general overview to have a roadmap or framework for understanding before reading specific cases or employing deductive reasoning to analyze specific fact patterns
• Judgment: how one evaluates situations and makes decisions
  • Thinking (T)
    • Naturally focus on objective, logical application of law to facts
    • May tend to value justice over mercy
  • Feeling (F)
    • Evaluate cases by engaging in factual scenarios and identifying one or the other of the parties to assess the impact of judicial reasoning on the people involved
    • May tend to value mercy over justice
• Lifestyle Orientation: how one conducts day-to-day life
  • Judgement (J)
    • Apply evaluative processes to organizing personal and professional life
    • Prefer to follow set schedules, keep materials and notes organized, and complete assignments before deadlines
  • Perceiving (P)
    • Value flexibility to adjust to new information or changes in the environment
    • Prefer to work in spurts when inspired or pushed by deadlines

Dr. Brosseit mentioned an intriguing chart that displayed the different MBTI types and what their primary vs. secondary etc. functions were.  Of note, extroverts extravert their primary function while introverts extravert their secondary function.  This means that extroverts continually show their best function to the world while introverts show their second best.  Knowing this, an introvert can work at overcoming this tendency.

Dr. Brosseit also looked into how the MBTI types are distributed amongst lawyers.  Of note, the top six types found in lawyers are:

1. ISTJ (17.8%)
2. ESTJ (10.3%)
3. INTJ (13.1%)
4. ENTP (9.7%)
5. INTP (9.4%)
6. ENTJ (9.0%)

You may notice that the top six types are all of the (T) variety.  This does NOT mean that Feelers cannot be successful lawyers.  It simply means that the (T) type is more prominent in the legal community.

If you don’t know your MBTI type, check out this free unofficial MBTI indicator.  We recommend that you take it a few times or take a few different indicators in order to best know your MBTI type.

If you’re interested in how your psychological type can help you as a law student and future attorney (or as an attorney already), check out this book: Juris Types: Learning Law through Self-Understanding by Martha M. Peters & Don Peters.  This book looks into things such as study approaches, organization methods, exam preparation strategies, exam taking techniques, strategies for legal practice, and much more!

We hope you found this information as fascinating and useful as we did!  Knowing your learning style and, more importantly, your MBTI type can help you learn and study more efficiently and effectively; however, this knowledge goes beyond law school.  Learning about who you are and how you think and act and why as well as why other people around you act the way they do can mean the difference between happiness and misery in your life.

vLex Global – International Law at Your Fingertips

Access to the law is vital to the practice of law.  Within the United States of America, we have numerous expansive databases with the law, some free and some with a cost.  But how do we access international law?  The thought of subscribing to dozens of individual country sites can be overwhelming.  That’s where vLex Global comes in.  The Ave Law Library is pleased to announce that this invaluable tool is available to our entire school community.  You can access the site here, and as long as you’re on campus, you should be IP authenticated.

What is vLex Global?  In brief, it is “global information from more than 130 countries in a single subscription.”  This phenomenal tool, updated daily and available on all platforms and devices, provides access to international legal content.  Their collection, growing daily, includes case law, forms, books, news, and much more.

We hope that our school patrons will take advantage of this amazing resource!

Who Has Privity?

The legal world abounds with rules and concepts that differ only slightly from one another, but that difference can make or break your legal case.  One such instance is the difference between assigning and subletting a lease in real property.  Essentially, both assigning and subleasing property result in the same end, i.e. someone new taking over the lease.  The legal rights and responsibilities of the new lessee, however, differ greatly dependent upon assignment vs. sublet.

What is the legal definition?

assignment.  The transfer of rights or property.  Black’s Law Dictionary (2014)

sublease. A lease by a lessee to a third party, transferring the right to possession to some or all of the leased property for a term shorter than that of the lessee, who retains a right of reversion.  Black’s Law Dictionary (2014)

When can a lessee transfer their rights in a lease?  The Restatement of the Law 2d, Property states:

§15.1 Freedom of Transfer

The interests of the landlord and of the tenant in the leased property are freely transferable, unless:

(1) a tenancy at will is involved;
(2) the lease requires significant personal services from either party and a transfer of the party’s interest would substantially impair the other party’s chances of obtaining those services; or
(3) the parties to the lease validly agree otherwise.

What happens when those rights are transferred?  The Restatement of the Law 2d, Property continues:

§16.1 Obligation Created by an Express Promise–Burden of Performance After Transfer

(1) A transferor of an interest in leased property, who immediately before the transfer is obligated to perform an express promise contained in the lease that touches and concerns the transferred interest, continues to be obligated after the transfer if:

(a) the obligation rests on privity of contract, and he is not relieved of the obligation by the person entitled to enforce it; or
(b) the obligation rests solely on privity of estate and the transfer does not terminate his privity of estate with the person entitled to enforce the obligation, and that person does not relieve him of the obligation.

(2) A transferee of an interest in leased property is obligated to perform an express promise contained in the lease if:

(a) the promise creates a burden that touches and concerns the transferred interest;
(b) the promisor and promisee intend that the burden is to run with the transferred interest;
(c) the transferee is not relieved of the obligation by the person entitled to enforce it; and
(d) the transfer brings the transferee into privity of estate with the person entitled to enforce the promise.

(3) The transferee will not be liable for any breach of the promise which occurred before the transfer to him.

(4) If the transferee promises to perform an express promise contained in the lease, the transferee’s liability rests on privity of contract and his liability after a subsequent transfer is governed by subsection (1)(a).

 

Crystal clear, correct?  Essentially, a lessee may transfer their rights in a lease as long as it does not violate §15.1.  This transfer may invest certain obligations in the transferee dependent upon what is transferred.  If the original lessee transfers their rights via assignment, they are essentially transferring all of their rights for the remainder of the lease, thereby establishing privity of estate between the transferee and the original lessor.  If the original lessee transfers their rights only partially, i.e. by subletting a portion of their lease (either rooms or a length of time), but retaining a portion of the lease for themselves, the transferee is NOT in privity of estate with the original lessor.

What does all this mean?  An assignee is treated as the original tenant under the contract between the lessor and the original lessee.  A sublessee is not; rather, a sublessee is essentially the tenant of the original lessee.  If the original lessee fails to make rent payments to the lessor, the lessor cannot sue the sublessee for those payments.

The difference comes about based on whether privity of estate exists.

privity of estate. A mutual or successive relationship to the same right in property, as between grantor and grantee or landlord and tenant.

In an assignment scenario, the assignee is in privity of estate with the original landlord, thereby making the assignee responsible for certain obligations that fall within that privity.  Contrarily, the sublessee does NOT have privity of estate with the original landlord.  In a sublease scenario, the original landlord’s only recourse for violations of privity of estate are against the original lessee.

The landlord (original lessor) may still sue the original lessee, regardless of assignment or sublease, if any terms of the contract are violated because the landlord and the original lessee remain in privity of contract UNLESS the landlord releases the original lessee from such obligations.

privity of contract. The relationship between the parties to a contract, allowing them to sue each other but preventing a third party from doing so.

With privity of contract, both parties are obligated and both may sue each other if they fail to complete the terms of the contract.  In a subletting scenario, the sublessee cannot sue the original lessor, nor can the original lessor sue the sublessee.  Contrast this with the assignment scenario where, if the landlord agrees, essentially a new contract is created between the original lessor and the assignee, thereby creating privity of contract.

And for those visual learners out there, here’s a simple chart to help you remember who has privity with whom and when.

 

Getting Excited About Hearsay?

We all know how important individual words within a rule or statute can be when applied to a particular fact pattern.  This is especially true when the rule is short, so you know that each and every word within it was chosen with care.  An example is the FRE Rule 803(2) hearsay exception about excited utterances.  The rules states:

Excited Utterance.  A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

This is only slightly different from the previous rule on present sense impressions which states:

Present Sense Impression.  A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

What’s the difference?  First, an excited utterance relates to a “startling” event or condition rather than simply an event or condition.  Just what constitutes a “startling” event?  Second, the timing of an excited utterance is a bit more mysterious than a present sense impression.  Just what does “under the stress of excitement” mean?  Can it be something the declarant said minutes afterward?  Hours?  Days?  Years?

The standard for excited utterances is subjective rather than objective, meaning that it is particular to the specific declarant.  The declarant must find the event or condition startling rather than it being an objectively startling event or condition.  This means, however, that the circumstances creating a startling event or condition vary widely.  However, typically, the “excitement must be great enough that the particular declarant would have had difficulty formulating a lie while speaking.” See Learning Evidence: From the Federal Rules to the Courthouse, pg. 505.

Similarly, “under the stress of excitement” varies in definition based “on the characteristics of the declarant, as well as of the startling event.”  See id. at 511.  According to most courts, the stress of excitement extends as far as necessary so long as it is clear that the declarant is still under such stress – it could be a few minutes or several hours dependent upon the facts of the specific situation.

In the end, there is quite a difference between “excited utterance” and “present sense impression,” and the excited utterance exception to hearsay allows for an attorney to make persuasive arguments based on the facts of the situation in order to bring in a particular statement.