Uniform Bar Examination
Complete Study Guide

Federal Question Jurisdiction — 28 U.S.C. § 1331

Federal courts have jurisdiction when the claim arises under federal law, the Constitution, or treaties. Apply the "well-pleaded complaint" rule: federal question must appear in plaintiff's complaint, not as a defense.

Diversity Jurisdiction — 28 U.S.C. § 1332

Supplemental Jurisdiction — 28 U.S.C. § 1367

Court may exercise jurisdiction over state claims that share a "common nucleus of operative fact" with the federal claim. Discretionary; court may decline if state claim is novel or predominates.

Removal — 28 U.S.C. § 1441

• Defendant may remove a state court case if federal court would have had original jurisdiction
• Must remove within 30 days of receipt of pleading establishing removability
• All defendants must consent (unanimity rule)
• Forum defendant rule: No removal based on diversity if any defendant is a citizen of the forum state
• Remand motion must be filed within 30 days (except for lack of SMJ — no time limit)

Constitutional Standard — Minimum Contacts (Int'l Shoe)

Due process requires defendant to have minimum contacts with the forum state such that the exercise of jurisdiction does not offend "traditional notions of fair play and substantial justice."

Specific Jurisdiction

Claim must arise out of or relate to defendant's contacts with the forum. Apply the purposeful availment test: defendant must have purposefully directed activities toward the forum state.

General Jurisdiction

Court may exercise jurisdiction over any claim against defendant regardless of where it arose. Available where defendant is "essentially at home."

• Individuals: Domicile
• Corporations: State of incorporation OR principal place of business (Daimler AG v. Bauman, 2014 — narrowed significantly)

Consent & Waiver

Defendant waives personal jurisdiction objection by failing to raise it in a pre-answer motion or the first responsive pleading (FRCP 12(h)).

Notice Pleading Standard (FRCP 8(a))

Complaint must contain: (1) short and plain statement of SMJ grounds; (2) short and plain statement of claim showing entitlement to relief; (3) demand for relief.

FRCP 12(b) Defenses (Pre-Answer)

FRCP 9(b) — Heightened Pleading

Fraud and mistake must be pled with particularity: the who, what, when, where, and how of the alleged fraud.

Amended Pleadings (FRCP 15)

• Party may amend once as a matter of right within 21 days of serving, or 21 days after service of 12(b) motion
• Thereafter, amendment requires consent or leave of court (freely given when justice requires)
• Relation back: Amendment relates back to original filing date if it arises out of same conduct, transaction, or occurrence

Initial Disclosures (FRCP 26(a)(1))

Without waiting for a discovery request, parties must disclose: (1) witnesses likely to have discoverable information; (2) documents supporting their claims/defenses; (3) computation of damages; (4) insurance agreements.

Scope of Discovery (FRCP 26(b)(1))

Nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case (considering importance, amount in controversy, parties' resources, and access to information).

Work Product Protection (FRCP 26(b)(3))

Documents/tangible things prepared in anticipation of litigation or trial by a party or its representative. Opponent can overcome by showing substantial need and inability to obtain substantial equivalent without undue hardship.

Key Discovery Tools

In diversity cases, federal courts apply federal procedural law but state substantive law. Erie Railroad v. Tompkins (1938) — there is no federal general common law.

Outcome-Determinative Test

A rule is substantive (apply state law) if it will significantly affect the outcome of litigation. Expanded by Guaranty Trust v. York (1945).

Balancing Test (Byrd v. Blue Ridge)

Weigh the federal interest in the rule against the state interest; federal interest can sometimes override even outcome-determinative state rules.

Hanna v. Plumer Framework

• If a valid Federal Rule of Civil Procedure directly collides with state law → apply the FRCP (Supremacy Clause)
• If no direct collision → apply outcome-determinative test with twin aims: discourage forum shopping + avoid inequitable administration of laws

Prerequisites (Rule 23(a)) — All Four Must Be Met

Types (Rule 23(b))

• 23(b)(1): Separate actions would create incompatible standards or impair others' interests
• 23(b)(2): Defendant acted on grounds applicable to class; injunctive or declaratory relief sought
• 23(b)(3) — Damages Class: Common questions predominate + class action is superior method; class members receive notice and can opt out

Elements of a Valid Contract

UCC § 2-207 — Battle of the Forms

A definite expression of acceptance or written confirmation operates as acceptance even if it states additional or different terms, UNLESS acceptance is expressly conditioned on assent to the additional terms.

Firm Offers (UCC § 2-205)

Merchant's signed written offer to buy/sell goods is irrevocable (without consideration) for the time stated, or if no time, a reasonable time not to exceed 3 months.

Option Contracts (Common Law)

Offeree pays consideration to keep offer open; offeror cannot revoke during option period. Also irrevocable if: (1) part performance of unilateral contract; (2) detrimental reliance on offer (promissory estoppel).

UCC Exceptions to Statute of Frauds (§ 2-201)

• Between merchants: confirmatory memo sent within reasonable time; recipient fails to object within 10 days
• Specially manufactured goods not suitable for others; seller has begun performance
• Goods received and accepted, or paid for and accepted
• Admission in pleadings or court that contract was made

Mutual Mistake

Both parties mistaken about a basic assumption; mistake has material effect on the agreed exchange; party seeking avoidance does not bear the risk of mistake. Contract is voidable.

Unilateral Mistake

Generally not a defense unless: (1) non-mistaken party knew or should have known of the mistake; (2) enforcement would be unconscionable.

Impracticability (Common Law) / Impossibility

Party's duty is discharged when performance becomes impracticable due to an event whose non-occurrence was a basic assumption of the contract, and the party did not assume the risk.

Frustration of Purpose

Principal purpose is substantially frustrated by an event whose non-occurrence was a basic assumption; neither party at fault; purpose known to both parties at formation.

Promissory Estoppel

Expectation Damages (Benefit of Bargain)

Put plaintiff in position they would have been in had contract been performed. = Loss in value + Incidental damages + Consequential damages – Costs saved – Losses avoided.

Reliance Damages

Reimburse plaintiff for out-of-pocket costs incurred in reliance on the contract. Used when expectation damages are too speculative.

Restitution

Prevents unjust enrichment; restore value of benefit conferred on defendant. Available even without an enforceable contract.

Specific Performance

Equitable remedy; available when legal remedy (money damages) is inadequate. Always available for unique goods or real property. NOT available for personal services contracts (13th Amendment concerns).

UCC Cover (§ 2-712)

Buyer may purchase substitute goods and recover the difference between cover price and contract price, plus incidentals and consequentials, minus savings.

Also: Damages — plaintiff must prove actual damages (personal injury torts).

Special Duty Rules

Res Ipsa Loquitur

Allows inference of breach when: (1) injury is kind that ordinarily doesn't occur without negligence; (2) defendant had exclusive control of the instrumentality; (3) plaintiff did not contribute.

Comparative Fault

• Pure comparative fault: Plaintiff recovers percentage even if 99% at fault (CA, NY)
• Modified (50% rule): Plaintiff barred if 50% or more at fault (majority of states)
• Modified (51% rule): Plaintiff barred if more than 50% at fault

Assumption of Risk

Plaintiff (1) knew of the risk; (2) voluntarily encountered it. Express assumption: written waiver. Implied primary: risk inherent in activity (no duty). Secondary: plaintiff's unreasonable choice to proceed despite known risk (now part of comparative fault in most states).

Last Clear Chance

Under contributory negligence states, plaintiff can still recover if defendant had the last clear chance to avoid the harm. Largely subsumed by comparative fault.

Abnormally Dangerous Activities

Strict liability if activity (1) creates foreseeable significant risk of physical harm; (2) risk cannot be eliminated with reasonable care; (3) not common usage in community. Examples: blasting, storing flammable liquids in bulk, toxic chemical disposal.

Animals

• Wild animals: Always strict liability for natural dangerous propensity
• Domestic animals: Strict liability if owner knew or should have known of vicious propensity ("one bite rule" in some states)

Three Theories

Strict Liability (§ 402A / Restatement Third)

Seller who sells a product in a defective condition unreasonably dangerous to user is liable regardless of fault. Applies to commercial sellers in chain of distribution. Not applicable to casual sellers.

Negligence Theory

Must prove actual negligence in design, manufacture, or warning. Subject to comparative fault defenses.

Warranty Theory

• Express warranty: affirmations of fact/promise that become basis of bargain
• Implied warranty of merchantability: goods fit for ordinary purpose
• Implied warranty of fitness for particular purpose

Elements

Fault Standard

Libel vs. Slander

• Libel: Written/recorded; general damages presumed (no proof of harm needed)
• Slander: Oral; must prove special damages UNLESS slander per se: crime of moral turpitude, loathsome disease, business misconduct, sexual immorality

Justiciability Doctrines

Commerce Clause Powers (Congress)

• Regulate the channels of interstate commerce
• Regulate the instrumentalities of interstate commerce
• Regulate activities that substantially affect interstate commerce (Lopez test)

Spending Power

Congress may place conditions on federal funds if: (1) general welfare; (2) unambiguous condition; (3) related to federal interest in program; (4) not unconstitutionally coercive (NFIB v. Sebelius — Medicaid expansion was coercive).

Levels of Scrutiny

Fundamental Rights (Strict Scrutiny Under Due Process)

• Voting, interstate travel, privacy (marriage, contraception, child-rearing)
• Note: Abortion no longer fundamental right federally after Dobbs v. Jackson (2022)
• First Amendment rights
• Access to courts for fundamental rights

Procedural Due Process

When government deprives person of life, liberty, or property, what process is due? Apply Mathews v. Eldridge balancing test:

• Private interest affected
• Risk of erroneous deprivation and value of additional safeguards
• Government's interest (including fiscal/administrative burden)

Substantive Due Process

• Fundamental right: Strict scrutiny
• Non-fundamental: Rational basis

Takings Clause

• Physical taking: Government physically occupies property → always a taking; just compensation required
• Regulatory taking: Penn Central balancing test (economic impact + investment expectations + character of gov't action)
• Per se regulatory taking: Regulation denies all economically beneficial use (Lucas v. SC Coastal Council)

Content-Based vs. Content-Neutral Regulations

• Content-based: Target specific message/viewpoint → Strict scrutiny
• Content-neutral (time, place, manner): Intermediate scrutiny → must be narrowly tailored to serve significant interest + leave open ample alternative channels

Unprotected/Less Protected Speech

Establishment & Free Exercise Clauses

• Establishment: Lemon test (secular purpose + neither advances nor inhibits religion + no excessive entanglement) — OR — coercion test or endorsement test
• Free Exercise: Neutral, generally applicable laws are valid; targeted religious burdens get strict scrutiny (Lukumi)

Felony Murder Rule

Any killing occurring during the commission of an inherently dangerous felony is murder. Transferred to all co-felons.

Merger Doctrine

Attempt merges into the completed crime. Solicitation merges into conspiracy and the completed crime. Conspiracy does NOT merge — can be convicted of both conspiracy and the substantive offense.

Self-Defense

• Reasonable belief of imminent unlawful force threatening death or serious bodily harm
• Response must be proportional (cannot use deadly force to repel non-deadly attack)
• Initial aggressor generally cannot claim self-defense (unless withdraws)
• Stand Your Ground: No duty to retreat in public (majority/MPC minority)
• Castle Doctrine: No duty to retreat in own home

Insanity

Voluntary Intoxication

Defense to specific intent crimes (negates required mens rea). NOT a defense to general intent or strict liability crimes.

Entrapment (Subjective Test)

Government induced the defendant to commit a crime defendant was not predisposed to commit. Predisposition is the key issue — once shown, entrapment defense fails.

Reasonable Expectation of Privacy (Katz)

Fourth Amendment protects people, not places. Test: (1) subjective expectation of privacy; (2) society recognizes it as reasonable.

Warrant Requirement

Searches require warrants based on probable cause, supported by oath, describing place to be searched and items to be seized (particularity).

Warrant Exceptions

Exclusionary Rule & Exceptions

• Fruit of the Poisonous Tree: Derivative evidence also excluded
• Good Faith: Evidence admissible if officer reasonably relied on warrant later found invalid
• Independent Source: Evidence obtained through independent lawful means admissible
• Inevitable Discovery: Would have been discovered through lawful means anyway
• Attenuation: Connection between illegality and evidence has become so attenuated

Miranda Requirements (5th + 6th)

Required before custodial interrogation. Custody = not free to leave (objective standard). Interrogation = express questioning + actions likely to elicit incriminating response.

• Right to remain silent
• Anything said can be used against you
• Right to an attorney
• If cannot afford, one will be appointed

Double Jeopardy

• Attaches when jury sworn in (jury trial) or first witness sworn (bench trial)
• Exceptions: mistrial for manifest necessity, hung jury, successful appeal by defendant
• Dual sovereignty doctrine: separate offenses by different sovereigns (state + federal)
• Blockburger test: two offenses are the same if each doesn't require proof of fact other doesn't

Sixth Amendment Right to Counsel

• Attaches at critical stages after formal charges (indictment, arraignment, preliminary hearing)
• Offense-specific — only applies to charged offense
• Massiah: government cannot deliberately elicit statements after attachment without counsel present

FRE 401: Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than without the evidence.

FRE 403: Relevant evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needless presentation of cumulative evidence.

Hearsay: An out-of-court statement offered for the truth of the matter asserted. Presumptively inadmissible.

Non-Hearsay Uses (Admissible)

• Verbal acts (legally operative words)
• Effect on listener (not for truth, but to show listener's state of mind)
• Impeachment (not for truth, but to show inconsistency)
• Circumstantial evidence of declarant's state of mind

Admissions by Party-Opponent (FRE 801(d)(2)) — NOT Hearsay

• Individual admission: party's own out-of-court statement
• Adoptive admission: party expressly or implicitly adopted another's statement
• Authorized admission: statement by agent authorized to speak
• Agent/employee admission: within scope of employment; made during employment
• Co-conspirator statement: during course and in furtherance of conspiracy

Major Hearsay Exceptions (Declarant Unavailable — FRE 804)

Major Exceptions (Availability Immaterial — FRE 803)

General Rule (FRE 404(a))

Character evidence not admissible to prove action in conformity with character (propensity). However, character can be proven when: (1) character is a direct issue in the case; (2) criminal defendant offers evidence of own good character; (3) sex offense victim's sexual history (RAPE SHIELD exceptions).

FRE 404(b) — Prior Bad Acts (MIMIC)

Methods of Proving Character (FRE 405)

• Reputation or opinion: Always allowed when character evidence is admissible
• Specific instances: Only when character is an essential element of a claim or defense (e.g., negligent entrustment, defamation)

Attorney-Client Privilege

• Confidential communication between attorney and client
• Made in professional legal capacity for purpose of legal advice
• Belongs to client (client may waive)
• Exceptions: crime-fraud exception, client puts communication at issue, joint client dispute

Confrontation Clause (6th Amendment)

Crawford v. Washington (2004): Testimonial hearsay statements of unavailable witnesses are inadmissible unless defendant had prior opportunity to cross-examine.

Testimonial: Statements to law enforcement for purposes of prosecution (formal accusatory). Business records, excited utterances (usually) are non-testimonial.

Vested vs. Contingent Remainders

• Vested Remainder: Created in an ascertained person; not subject to condition precedent (other than natural termination of prior estate)
• Contingent Remainder: Created in an unascertained person OR subject to condition precedent

Classic RAP: No interest is good unless it must vest, if at all, within a life in being at the creation of the interest plus 21 years.

Interests Subject to RAP

• Contingent remainders
• Vested remainders subject to open (class gifts)
• Executory interests
• Options and rights of first refusal

Interests NOT Subject to RAP

• Present possessory estates
• Vested remainders (not subject to open)
• Reversions, possibilities of reverter, rights of entry
• Charitable-to-charitable transfers

RAP Reform

• Wait and See (Restatement 2d): Wait to see if interest vests within perpetuities period before invalidating
• Uniform Statutory RAP (USRAP): 90-year wait-and-see period
• Many states abolished RAP for trusts

Class Gift Rule

All or nothing rule: if one member of the class might take outside the perpetuities period, the entire class gift fails.

Three Types

Types of Notice

• Actual notice: Buyer actually knows of prior interest
• Record notice: Properly recorded document in chain of title
• Inquiry notice: Circumstances that would prompt reasonable buyer to investigate (e.g., possession by someone other than seller)

Tacking: Adverse possessor may add time of predecessor's adverse possession if there is privity between them (voluntary transfer). Owner's disability at time of entry tolls the statute of limitations.

Theories of Mortgage

• Lien theory (majority): Mortgagor retains title and possession; mortgagee holds only a lien
• Title theory (minority): Mortgagee holds title until mortgage paid

Transfer of Mortgaged Property

• Taking subject to: Grantee not personally liable on mortgage; if default, property foreclosed but grantee suffers no deficiency
• Assuming the mortgage: Grantee personally liable; mortgagor becomes surety (still liable but can seek indemnification)

Foreclosure

• Judicial foreclosure: most common; court supervises sale
• Power of sale foreclosure: allowed in states permitting it; no court supervision
• Equity of redemption: owner's right to redeem before foreclosure sale
• Statutory right of redemption: post-sale right to redeem in some states

Types of Authority

Respondeat Superior

Employer liable for employee's torts committed within scope of employment. Factors: was act the kind employee hired to do? Did it occur within authorized time/space? Was it motivated, at least in part, by serving employer?

Piercing the Corporate Veil

Shareholders normally not personally liable. Courts pierce when: (1) alter ego theory — no meaningful separation between corporation and shareholders; (2) fraud or injustice; (3) undercapitalization.

Fiduciary Duties of Directors

• Duty of Care: Act in good faith with the care of an ordinarily prudent person. Protected by Business Judgment Rule if: informed decision, good faith, rational belief it serves the corporation.
• Duty of Loyalty: No self-dealing without disclosure and approval; no corporate opportunity usurpation without offering it to the corporation first.

General Partnership

• Each partner has equal management rights (unless agreement provides otherwise)
• Each partner is jointly and severally liable for all partnership obligations
• Each partner has actual authority to bind the partnership in ordinary course of business

Limited Partnership

• At least one general partner (unlimited liability) + limited partners (liability limited to contribution)
• Limited partner loses protection if participates in management (control rule)

Valid Will Requirements

• Testamentary capacity: 18+ years; knows nature of act, extent of property, natural objects of bounty, and nature of the document
• Attested will: signed by testator + signed by 2 witnesses who saw testator sign
• Holographic will (allowed in many states): entirely in testator's handwriting; signed

Will Defenses

• Undue influence: Testator's free will overcome by another; susceptibility + opportunity + disposition to influence + unnatural result
• Fraud: In execution (tricked about nature of document) or in inducement (misrepresentation of facts)
• Insane Delusion: False belief arising spontaneously in testator's mind not based on evidence; devised in accordance with delusion

Trust Formation

• Intent to create a trust
• Designated beneficiary (ascertainable)
• Res (trust property)
• Active duties for trustee
• Valid purpose (not illegal, contrary to public policy, or involving fraud)

Attachment — Security Interest Enforceable Against Debtor

Perfection — Security Interest Effective Against Third Parties

• Filing financing statement: Most common; file in appropriate Secretary of State office
• Possession: Pledge; works for most tangible collateral
• Control: Accounts, deposit accounts, investment property
• Automatic perfection (PMSI in consumer goods): No filing needed; perfected upon attachment

Priority Rules

• First to file or perfect wins between competing security interests
• PMSI in non-inventory collateral: superprior if perfected within 20 days of debtor receiving collateral
• PMSI in inventory: superprior if perfected before delivery + prior secured party given notice
• Buyers in ordinary course of business take free of security interests (created by seller)

Cases

• Note the court hierarchy — follow binding precedent from same or higher court in the MPT's fictional jurisdiction
• Extract holdings and rules; note distinguishing facts
• Look for trends across cases — examiners reward analysis of how rules have evolved
• Flag policy arguments made in cases

Statutes

• Parse each element carefully
• Look for definitions section
• Note exceptions and safe harbors
• Apply plain language; resist importing common law rules unless statute directs

Standard MPT Memo Format