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OHIO ESSAY WRITING WORKSHOP

LAUREN LINK, ACADEMIC DIRECTOR

CHAPTER 1: OVERVIEW OF LECTURE AND OHIO ESSAY EXAM

A. What will be covered?

1. Chapter 1: Review of the Ohio essay portion of the exam and the importance of

demonstrating your reasoning

2. Chapter 2: IRAC more in-depth along with short examples

3. Chapter 3: Working through an Intentional Torts essay question

4. Chapter 4: Working through a Personal Property essay question

5. Chapter 5: Working through a Criminal Procedure essay question

6. Chapter 6: Final thoughts and bonus material in handout

B. Review Of Ohio Written Portion

1. The written portion takes place on Day 1 and Day 3 of the exam

Day 1: 2 MPTs in the _____________; 6 Ohio essays in the ____________.

(Day 2: MBE)

Day 3: 6 more essays in the morning.

2. Time and space

You will have _____ minutes per essay and will receive _____ essays per hour. You can

answer them in any order, but you need to manage your time very carefully. At the end of

30 minutes, move on to the next question.

If you are typing, you will have ________ characters, and if you are handwriting, you will

have the _________ and __________ of one sheet of paper.

3. Twelve essay questions from eleven subject areas:

Business Associations (Agency, Partnerships, and Corporations)

Civil Procedure

2 | © 2017 Themis Bar Review, LLC | Ohio Essay Writing Workshop

Commercial Transactions (Commercial Paper and Secured Transactions)

Constitutional Law

Contracts

Criminal Law and Criminal Procedure

Evidence

Legal Ethics

Property (Real and Personal)

Torts

Wills

We will come back to these in Chapter 6.

4. Scoring

You can receive up to _____ points on each essay.

A score of 7 is not necessarily a “perfect” answer. But, it does represent an answer that is

responsive to the question asked and demonstrates an understanding of what legal issues

the fact pattern implicates and how the relevant legal principles apply to the facts.

An answer earning a 1 is essentially non-responsive because it misidentifies the key issues,

does not provide a proper analysis of the facts, misstates the black letter law, or does not

answer the question posed by the bar examiner.

Aim for ______ or higher. Keep in mind that your score will depend to a degree on how

your answers compare to other test-takers’ answers. So, if you come across an incredibly

difficult question, don’t panic!

C. What are the Bar Examiners looking for?

1. Basically, there are ________ things the bar examiners want from you:

o Spot/recognize the _______

o Provide the relevant ____________

o Apply/____________

o Reach a ______________

The mnemonic is ____________.


2. Reasoning

We are going to use IRAC as a tool to show our reasoning, which at the end of the day is key

to passing the bar exam. You reason every day in your head, and you’ve done so since

childhood. It’s no different on the bar exam – you simply have to show your reasoning.

a) Common student question: “If I arrived at the correct conclusion, isn’t it obvious that I

applied the correct rule of law and analyzed properly?” No! Not on the essay portion!

b) Common student problem: Students don’t write out the reasoning portion of their

answers because they have reasoned in their heads, and then they simply write out the

conclusion. These students are applying the rules of law to the fact patterns, but they are

not demonstrating on paper the reasoning behind their answers, and they will not get full

credit – even if the conclusions are correct.

c) Math class illustration: Wasn’t it obvious that you calculated correctly if you came to the

right answer? Answers in math are very specific, so yes! But, your teachers still wanted to

see your work so they could award points even if the final answer wasn’t correct. It’s the

same thing on the essay portion of the bar exam. Don’t you want to show your reasoning so

that in case you come to the wrong conclusion, the grader can see your work and award you

some points? Of course!!!

d) Overarching reason you have to sit for the bar exam: To demonstrate that you are

competent to represent clients. Part of how you represent clients is to help your clients

understand their own cases. How would you explain their cases to them without spelling

out the reasoning portion behind the cases?

Example: Let’s imagine you were just sworn in to practice law in the great state of

Ohio. The very next day, you hang a sign up that says attorney at law, and two

minutes later, in walks Mr. Wonderful. He is very angry and explains to you that last

night he invited Mark Cuban over for dinner, and Mark showed up without a bottle

of wine or anything for the host. An argument ensued about manners, and Mark

said, “This is ridiculous!” and leaves. Mr. Wonderful is so angry and now wants to

sue Mark for trespass to land.

What would you say to Mr. Wonderful?

o Sorry Mr. Wonderful, you have no case, but thanks for coming, and if I ever

come to your house for dinner, I’ll be sure to bring a bottle of wine.

-OR-


o Well, Mr. Wonderful, let me explain what the law is. To make a case for

trespass to land, we would need to prove the following elements – that Mark

intentionally caused a physical invasion of your land. So, let’s look at the facts in

your case and see how the law applies to those facts. It’s clear that Mark

intended to come onto your property because he was coming for dinner. The

problem, however, is that a trespasser is one who enters or remains upon

another person’s land without consent or privilege to do so. You admittedly

said that you invited Mark over and that he left when you guys started arguing.

Therefore, you really don’t have a case for trespass to land. Do you see how

you explained the law, analyzed the facts in his case, and then gave him your

opinion on the outcome?

What if Mr. Wonderful wants to sue for Intentional Infliction of Emotional Distress?

Elements: intent, extreme and outrageous conduct, causation, and damages (i.e.,

extreme emotional distress)

3. Bottom line:

o You can’t just tell your client that he or she has no case and to have a good day,

and on the flip side, you can’t tell a client that he or she has a very strong case

and will likely win. You would explain the law to the client and then you would

take the facts in his or her case and show how the law applies to those facts in

order to show why the case is strong, weak, or in the middle. The client can

then weigh his or her options.

o You can study all you want and know the black letter law like the back of your

hand, but unless you can demonstrate to the bar examiners that you can reason

through a client’s problem and convey that to him or her, you will not pass the

bar exam.

4. Silly way to help you remember to always use IRAC/CRAC when answering essay question:

Question posed to contestant Caitlin Upton, Miss South Carolina, at the 2007 Miss Teen USA

pageant: “Recent polls have shown a fifth of Americans can't locate the U.S. on a world

map. Why do you think this is?"

Upton’s response: “I personally believe that U.S. Americans are unable to do so because, uh,

some, people out there in our nation don't have maps and, uh, I believe that our education

like such as in South Africa and, uh, the Iraq, everywhere like such as, and, I believe that they

should, our education over here in the U.S. should help the U.S., uh, or, uh, should help South

Africa and should help the Iraq and the Asian countries, so we will be able to build up our

future. For our children.”

Bottom line: If you are stumbling over your words and grasping at straws to try to write

logically, take a breath and think of “The Iraq” if that helps you remember to follow IRAC ;)

https://en.wikipedia.org/wiki/South_Africa

https://en.wikipedia.org/wiki/Asia


CHAPTER 2: THE IRAC WRITING FORMAT

A. Components

1. I: ____________________________ While it is not essential that you have an issue

statement because it will be obvious that you spotted the issue if you open with a

conclusion, it helps you do the following:

o Stay on track

o Eliminate or knock out elements of a rule and focus on the element that

is at issue

2. R: ___________________________ State the relevant rule of law.

o Many times you will need to define or explain one or more of the

______________ because they are not self-explanatory.

3. A: ________________________ Plug your facts into the rule statement.

o Show how the law and the facts lead to your conclusion. Explain how

you reach a particular inference or conclusion from the facts. Don’t

jump straight from the rule to the conclusion.

o Avoid the common pitfall of merely repeating the facts in your analysis.

Show the significance of each fact.

o Your analysis will usually be many sentences long.

4. C: _______________________

B. Transition and Trigger Words

So, we know the steps we need to take – but how do we connect each step so that our answer

flows nicely? We are going to use ________________ words. Using transition words helps

signal to the _________________ what you plan to do next, and it helps you stay on track within

the IRAC framework. So not only are these special words signposts to the grader, but they are

________________ words for you to move to the next step.

Starting out – 1st Sentence:

o If it’s a simple question, and you know the answer, feel free to state it here. For an

issue statement, you can simply write, “At issue is whether …”


Transition to Rule:

o “_______________, a theft ___________ when …”

o You can also just use the word you are defining.

For example, you can say, “A battery is …,”

“A contract is formed when … .”

o “The ___________ for battery is … .” “

o “In order to establish a battery, the following elements must be met: …”

Transition to Application or Analysis:

o In this case, …

o _____________, …

Transition to Conclusion:

o Therefore, …

o Since …

o Thus, …

o In conclusion, …

o Consequently, …

o As a result, …

Additional transition words:

o “Generally” lets the grader know there is a general rule and an exception will follow

shortly

o “____________________” and “On the other hand” indicate a counterargument is

coming (often followed by a second rule)

C. Practice Makes Perfect!

Example 1: Farmer owns and lives on a small farm in Eastern Ohio. Recently, Driller, a company

specializing in deep injection shale mining, acquired ownership of and the mineral rights to the property

adjacent to Farmer’s property. Farmer became aware of Driller’s plans and was worried about possible

negative impacts to his property. The following events have occurred:

Driller sent an employee to survey its new property to prepare for the installation of a well. Mistaking

Farmer’s long driveway for an access road, Driller’s employee drove up the driveway to Farmer’s house.

Seeing Driller’s truck in his driveway, Farmer came out of the house and yelled at the employee to get

off his property. Driller’s employee immediately turned the truck around and left Farmer’s property.

Under what tort theory can Farmer sue Driller and what is the likely outcome?


Identify the issue: If it’s a simple issue, you can just give the conclusion and use CRAC instead of IRAC.

Farmer can sue Driller for trespass to land.

Rule:

Trespass to land ____________ when a defendant intentionally acts to cause a physical invasion of

another person’s land. The defendant need only have the intent to enter the land, not the intent to

cause a wrongful trespass.

Analysis:

____________, Driller’s employee intentionally drove up the driveway on Farmer’s land. While the

employee realized his mistake when Farmer yelled at him, employee’s mistake does not negate the fact

that he physically invaded Farmer’s property.

Conclusion:

_______________, Farmer will prevail.

Example 2: IRARAC

Last month, Birdie was strolling along a country lane with her expensive, high-powered binoculars,

looking for birds. As she rounded a corner, she came upon Larry and Darrell, the young sons of a nearby

farmer.

“Hey, those are nice glasses,” Larry said as he approached Birdie.

“Get away from me,” Birdie replied, giving Larry a firm shove backward to emphasize her point.

Larry stepped toward Birdie again and said, “All I want is those glasses,” at which point Birdie pulled a

pistol from her bag and pointed it at Larry’s head.

“I could kill you,” Birdie said. Larry began to duck. Birdie elevated the gun slightly and fired above Larry’s

head, intending to scare him. Larry, terrified, passed out and fell, striking his head on the road and

causing serious injuries. His brother Darrell collapsed on the ground and became helplessly hysterical,

thinking his brother had been killed.

Under what tort theory could Darrell sue Birdie, and will Darrell prevail on the merits?


I: Darrell has a potential intentional infliction of emotional distress claim against Birdie. (A simple

answer to the question posed shows you spotted the issue, so CRAC was used.)

R: Intentional infliction of emotional distress __________ when one intentionally acts with extreme and

outrageous conduct and causes damages (i.e., severe emotional distress).

A: In this case, Darrell was a bystander in that the conduct was not directed toward him.

R:_____________, a bystander may recover if he is present when the injury occurs and is a close relative

of the injured person, and the defendant knows both of these facts.

A: In this case, Darrell was present, but it is questionable whether Birdie knew that Darrell and Larry

were related. It is also questionable whether Darrell actually suffered severe emotional distress. While

Darell became hysterical and collapsed on the ground, the facts do not indicate any stress thereafter.

C:_____________, Darrell’s potential claim of intentional infliction of emotional distress is weak, and he

will not prevail.

Example 3: The bullet fired by Birdie, meanwhile, passed through some undergrowth and struck Hiker in

the arm. Birdie was not aware of Hiker’s presence. Under what tort theory can Hiker sue Birdie, and will

Hiker prevail?

I: The _____________ is whether Hiker has a valid battery claim against Birdie if there was lack of intent

to contact Hiker.

R: A battery ____________ when one person intentionally causes a harmful or offensive contact with

another person.

A: __________, Birdie did cause harmful contact with Hiker, but Birdie did not intend to harm Hiker, as

she didn’t even know Hiker was present.

R: ______________, under the doctrine of transferred intent, when a person intends one tort (or an

intended recipient), but that action results in another tort (or towards an unintended recipient), that

person is liable for the resulting tort.

A: ___________, the intended recipient of the assault (Larry) transfers to Hiker, and the intended tort

(assault) transfers to battery.

C: _____________, Hiker will likely prevail on his battery claim against Birdie.

STOP HERE IF YOU WANT TO STUDY THE SUBJECT MATTER PRIOR TO WATCHING THE NEXT FEW CHAPTERS. THE ESSAY SUBJECTS ARE LISTED BELOW SO THAT YOU CAN SKIP TO THE APPROPRIATE CHAPTERS AFTER STUDYING THE CORRESPONDING TOPICS.

CHAPTER 3: INTENTIONAL TORTS

CHAPTER 4: PERSONAL PROPERTY

CHAPTER 5: CRIMINAL PROCEDURE


CHAPTER 3: READING FACT PATTERNS, ORGANIZING THOUGHTS AND WRITING ANSWERS

A. How to organize your answer: Should you outline your whole answer on scrap paper? It’s not necessary. Use the question calls as your organizational guide. (Examples to follow.)

B. Reading the fact pattern

1. Read the call of the question first. This helps identify the subject matter and tells you what

you should be looking for in the fact pattern.

2. Second read through: Confirm the subject matter being tested, identify the parties and

identify the issues. Focus on the details and start highlighting or underlining facts to draw

your framework.

C. Practice Question 1 – Intentional Torts

Start with the call of the question 1st:

1. What potential civil actions does Kanye have against Taylor and against Hospital, what

defenses might Taylor and Hospital reasonably assert, and what is the likely outcome of

each claim? Discuss fully.

2. What potential civil action does Taylor have against Kanye, what defense might Kanye

reasonably assert, and what is the likely outcome of Taylor’s claim? Discuss fully.

DO NOT DISCUSS ANY CLAIMS BASED ON NEGLIGENCE.

Full Fact Pattern/Question:

Kanye West had a very unlucky week. On Monday, he participated in a friendly snowball fight

with Taylor Swift. Kanye received a nasty cut over his eye when Taylor hit him with a “Taylor

Special,” a tightly packed snowball in which Taylor had concealed a small rock. Kanye did not

see Taylor’s snowball coming before it hit him. Battery; no

assault

On Tuesday, Kanye went to Hospital to have his eye examined. Mistaking him for a dangerous

patient missing from Hospital’s psychiatric unit, Hospital’s staff forcibly strapped Kanye to a

bed. Two hours later, they realized their mistake and set him free. Battery & False

Imp.


On Wednesday, Kanye encountered Taylor again. Taylor was just a few feet away and had

another snowball in her hand. She cocked her arm as if to throw the snowball and shouted,

“Here comes another Taylor Special.” Kanye pivoted to avoid being hit, slipped on some ice,

and twisted his ankle. Taylor did not throw the snowball. Assault; Battery

(TI)

On Thursday, Kanye returned to Hospital to have his painful ankle examined. At his request

Physician employed by Hospital gave Kanye an injection of medication to relieve the pain.

Physician failed to mention that the medication is known to cause a significant increase in pain

in one out of every 10,000 people who take it. Kanye’s pain increased dramatically, and he had

to spend an extra day (Friday) in Hospital to get his pain under control. Battery; but

consent??

On Saturday, Kanye again encountered Taylor. Holding her arm behind her back, Taylor

approached Kanye and said she had a “special delivery” for him. As Taylor began to bring her

arm forward, Kanye reacted by punching Taylor, breaking her nose and causing her to drop the

get-well card and gift she had been about to hand him. Battery; self-

defense?

1. What potential civil actions does Kanye have against Taylor and against Hospital, what defenses

might Taylor and Hospital reasonably assert, and what is the likely outcome of each claim?

Discuss fully.

2. What potential civil action does Taylor have against Kanye, what defense might Kanye reasonably

assert, and what is the likely outcome of Taylor’s claim? Discuss fully.

DO NOT DISCUSS ANY CLAIMS BASED ON NEGLIGENCE.

Using your scrap paper and mark up your question sheet. Note the parties alongside each paragraph:

Monday’s paragraph is KvT

Tuesday’s paragraph is KvH

Wednesday’s paragraph is KvT

Thursday’s paragraph is KvH

Saturday’s paragraph is TvK


SAMPLE SCRAP PAPER – HANDWRITTEN VERSION:

TYPED VERSION:

(1) K v T: Monday battery w/ rock/snowball contact above eye Defense – consent but exceeded; K wins Wedn Assault when “another special” + arm cocked Battery using transferred intent Defense – none available; K wins both K v. H: Tuesday Battery when forcibly strapped to bed FI when confined to bed thinking dangerous patient Defense – none available; K wins both Thursday Battery when injected with pain med that increased pain Defense – Consent but not based on full disclosure; K wins (2) T v. K: Saturday Battery when K punched T in the nose

Defense – self D – amount of force reasonably necessary; K wins


ANSWER: Use headings and follow order of question calls

1) Kanye v. Taylor:

Monday: (I or C) Kanye has a potential battery claim against Taylor. (R) Battery is a harmful or offensive

contact to plaintiff’s person, plus intent and causation. (A) ___________, the battery occurred when

Taylor concealed a rock in a snowball and threw it at Kanye striking him above his eye. Taylor clearly

______________ this contact, as she called her snowball a “Taylor Special,” the contact was

____________, and it was the ___________ of the cut above Kanye’s eye. Taylor will claim that Kanye

consented to the snowball fight. (R) When one expressly or impliedly consents to defendant’s conduct,

defendant is not liable. (A) While in this case, Kanye consented to a snowball fight with Taylor, Taylor

exceeded the consent given, as Kanye did not consent to throwing snowballs with stones imbedded

inside of them. (C) ______________, Kanye will prevail.

*Wednesday: (C) Kanye has potential assault and battery claims against Taylor. (R) Assault is the

intentional creation of a reasonable apprehension of immediate harmful or offensive contact to

plaintiff’s person, plus causation. (A) ____________, Taylor _____________ an assault when she cocked

her arm as if to throw a snowball and shouted that another “Taylor Special” was coming. It was

________________ for Kanye to be in apprehension of immediate harmful or offensive contact based

on Monday’s incident coupled with the fact that Taylor’s arm was cocked with a snowball in her hand.

(C) No reasonable defense exists here, and Kanye will prevail.

(A) The battery (see 1st paragraph for rule) occurred when in an effort to avoid being hit, Kanye pivoted

and slipped on ice and twisted his ankle. (R) Under the doctrine of transferred intent, the intent

element can be transferred from one intended tort to a different, resulting tort. (A) ____________, the

intent to commit the assault transfers to the battery, and Taylor will be liable for the harmful contact

that Kanye had with the ice. No reasonable defense exists, and Kanye will prevail.

Kanye v. Hospital:

Tuesday: (C) Kanye has potential battery and false imprisonment claims against Hospital. (See 1st

paragraph for battery rule.) (A/C) The harmful or offensive contact occurred when Hospital staff forcibly

strapped Lucky to the bed. (R) False Imprisonment is an act which confines or restrains the plaintiff to a

bounded area, plus intent and causation. (A) Here, because Hospital thought Kanye was dangerous, the

staff intended to and did in fact strap Kanye to a bed leaving him with no reasonable means of escape

until they set him free two hours later. Hospital does not have a viable defense for either tort.

(C)_______________, Kanye will prevail on both claims.

**Thursday: (C) Kanye has a potential battery claim against Hospital. (A) The battery occurred when

Physician intentionally injected Kanye with pain medication, which in fact dramatically increased his

pain. Hospital will argue that Kanye consented to the injection of pain medication. ______________,

this defense will fail since his consent was not based on full disclosure. Physician should have informed


Kanye that the medication is known to cause a significant increase in pain in one out of every 10,000

people who take it. (C) ___________, Kanye will prevail.

2) Taylor v. Kanye:

Saturday: (C) Taylor has a potential battery claim against Kanye (battery rule above). (A) The battery

occurred when Kanye intentionally punched Taylor in the nose, which is a harmful contact.

_____________, Kanye will argue that he acted in self-defense. (R) When defending oneself, a person

may use an amount of force reasonably necessary to defend against an offensive contact or bodily harm

that he reasonably believes is about to be intentionally inflicted upon him. (A) ____________, Kanye

reasonably believed that Taylor was going to hit him again with a “Taylor Special” since she approached

him with a “special delivery,” and Kanye saw Taylor’s arm coming forward. The punch that Kanye used

to defend himself was a reasonable amount of force to prevent the harm. (C)________________, Kanye

will prevail with this defense.

POOR STUDENT SAMPLE ANSWERS:

* For some reason, students seem to struggle with Kanye v. Taylor on Wednesday. Here are two

examples of common mistakes students make with this part (grading shown in bold/underline/italics):

1) Poor flow and adding in outside case law and facts: Taylor battered and assaulted Kanye on

Wednesday when Kanye fell. Battery prima facie case above. Assult is intentionally placing another in

imminent apprehension of harmful or offensive contact. (Apprehension need not constitute fear – only

awareness). Here, Taylor shouted here comes another “Taylor special.” wWords alone are not enough

to constitute assault, but Taylor also intentionally cocked her arm back created a reasonable

apprehension in Kanye of being hit by another snowball. Taylor assaulted Kanye and it is no defense to

say no battery was intended to follow and no reasonable defense exists here. Taylor also arguably

Battered Kanye. Under the doctrine of transferred intent an assault the leads to a harmful or offensive

contact (even when unintentional) constitutes a battery – the intent is transferred (better said – under

the doctrine of transferred intent, the intent from one tort can transfer to an unintended, resulting

tort). Here, Taylor had assaulted Kanye and the probable and natural consequence was for Kanye to try

to avoid the contact he apprehended. The probable and natural consequence of contact comes from

Garret v Dailey where a child pulled a chair from behind someone intending to sit (Do not discuss where

the rules came from – it doesn’t matter at all, and you are wasting time and space. Stick to the facts

in this case only and the relevant black letter law.). Similarly here, the probable and natural

consequence is avoiding the contact. Taylor will argue that ducking is the probable and natural

consequence not falling, as kanye did. This is a close call but given that Taylor acted intentionally,

wantonly she is probably on the hook. She must also take Kanye as she finds him. If Kanye is unable to

avoid contact without falling that is Taylor’s bad luck (similar to eggshell skull). This analysis is way too

long. There are too many issues in this essay to spend all of this time and space on this particular one.

Be concise and move on. The battery occurred when in an effort to avoid being hit, Kanye pivoted and

slipped on ice and twisted his ankle. Using transferred intent, the intent to commit the assault


transfers to the battery, and Taylor will be liable for a battery here, as well. No reasonable defense

exists.

2) Example of over analysis (student defending the assault by arguing lack of establishment of prima

facie case (after she already established the prima facie case for assault)): Taylor could argue that she

did not complete the motion of her arm, and therefore her throwing the snowball was not enough of an

overt act to cause Kanye apprehension. Since mere words are not enough, Taylor could say that since

she did not end up throwing the snowball, it did not rise to the level of an overt act required to satisfy

assault. Taylor will probably be successful in this defense, since Kanye would not be able to prove all

elements of assault. All that matters is that he intended to create a reasonable apprehension of

immediate or harmful contact, plus causation. You gave a rule and analyzed the assault beautifully,

so don’t now use as Taylor’s defense that all of the elements weren’t satisfied. They were all satisfied

as you already proved in your initial analysis.

**Here is an example of what not to do! A student wrote this after his answer to Kanye v. Hospital and

time was running out. Be sure to simply address the questions asked and don’t go off on tangents: “I

would have added that Hospital can defend by claiming that Physician is an independent contractor as

many doctors are but I did not have enough time or space. I would have had to talk about non-

delegable duties etc. … I could write a law review article on this.”


CHAPTER 4: REVIEWING A MULTI-QUESTION ESSAY (PERSONAL PROPERTY)

For questions with 5-7 question calls, you can write your notes directly on the question sheet next to or under each question call. When you write your answer, simply follow the exact order of the questions and your notes. The sample on the next page shows rules jotted down below each question call. You can jot down an analysis under each rule statement, but with time pressure, you may simply want to analyze as you write. Just be sure to stay within each question call! Don’t wander to the next analysis simply because you know what is to come in the fact pattern!

Grandpa Jay Pritchett was a generous man during his life. He made distributions of his property as follows:

1) Grandpa Pritchett, while stating he wanted to give his trunk full of valuable war mementos to his grandson, Luke Dunphy, had the trunk delivered to a company that was capable of storing the mementos in a manner that would preserve them, with the instructions that the mementos were deliverable to either Luke or himself (Grandpa);

2) Grandpa Pritchett, while stating he desired to give his wife, Gloria, his mother’s jewelry, gave Gloria the key to the jewelry box contained in his house but kept the box and the jewels;

3) Grandpa Pritchett, while stating that he desired to give $10,000 to his son-in-law, Phil Dunphy, delivered the cash to Lawyer’s office and informed Phil that the cash was there for him to claim. For years Phil never went to claim it because of an argument he had with Grandpa Pritchett, even though Phil knew the money was there;

4) Grandpa Pritchett, in contemplation of taking a physically rigorous trip around the world, gave to his daughter, Claire, her mother’s rings in case he did not survive the trip. While on the trip he fell off a precipice in the Rocky Mountains and died shortly thereafter;

5) Grandpa Pritchett, after having fallen off the cliff, was first reached by Guide and, fearing that the end was near, Grandpa Pritchett gave his watch and the executed deed to his home to Guide on the condition that Guide should have them if Grandpa Pritchett dies;

6) Grandpa Pritchett’s son, Mitchell, showed up after receiving word that Grandpa Pritchett was on his deathbed. Grandpa Pritchett repudiated his gifts to Guide and ordered Guide to surrender both the watch and the deed to Mitchell on the condition that Mitchell should have them in the event Grandpa Pritchett expires from his injuries.

Mitchell has hired an attorney who has demanded the return of all of the above property to Grandpa Pritchett’s estate. Please analyze each transaction above and determine who is entitled to the property.


SECOND READ THROUGH WITH UNDERLINING AND NOTETAKING:

Grandpa Jay Pritchett was a generous man during his life. He made distributions of his property as follows:

1) Grandpa Pritchett, while stating he wanted to give his trunk full of valuable war mementos to his grandson, Luke Dunphy, had the trunk delivered to a company that was capable of storing the mementos in a manner that would preserve them, with the instructions that the mementos were deliverable to either Luke or himself (Grandpa);

R: Intervivos gift: donative intent, delivery, acceptance.

Gift through an agent of the donee – effective when delivered to

that agent. Gift through donor’s agent – must deliver unless

agreement to hold for donee

2) Grandpa Pritchett, while stating he desired to give his wife, Gloria, his mother’s jewelry, gave Gloria the key to the jewelry box contained in his house but kept the box and the jewels;

R: Intervivos gift: donative intent, delivery (constructive

here), acceptance

3) Grandpa Pritchett, while stating that he desired to give $10,000 to his son-in-law, Phil Dunphy, delivered the cash to Lawyer’s office and informed Phil that the cash was there for him to claim. For years Phil never went to claim it because of an argument he had with Grandpa Pritchett, even though Phil knew the money was there;

R: Intervivos – Delivery: When donor’s agent used, gift is

effective when delivered to donee, unless agent agreed to hold

for donee – as is case here despite their argument.

4) Grandpa Pritchett, in contemplation of taking a physically rigorous trip around the world, gave to his daughter, Claire, her mother’s rings in case he did not survive the trip. While on the trip he fell off a precipice in the Rocky Mountains and died shortly thereafter;

R: Gift causa mortis = intervivos elements + made in

contemplation of death. Discuss intervivos too b/c no imminent

death

5) Grandpa Pritchett, after having fallen off the cliff, was first reached by Guide and, fearing that the end was near, Grandpa Pritchett gave his watch and the executed deed to his home to Guide on the condition that Guide should have them if Grandpa Pritchett dies;

R: Gift causa mortis – feared imminent death so yes to watch but

deed is real property not personal property

6) Grandpa Pritchett’s son, Mitchell, showed up after receiving word that Grandpa Pritchett was on his deathbed. Grandpa Pritchett repudiated his gifts to Guide and ordered Guide to surrender both the watch and the deed to Mitchell on the condition that Mitchell should have them in the event Grandpa Pritchett expires from his injuries.

A gift causa mortis is revocable – watch to Mitchell.

Mitchell has hired an attorney who has demanded the return of all of the above property to Grandpa Pritchett’s estate. Please analyze each transaction above and determine who is entitled to the property.


ANSWER: Simple formatting/organization here – number your answers according the question calls: (1) (I) The issue is whether there was a valid gift inter vivos. (R) In order to have a valid gift inter vivos, there must be: (i) donative intent; (ii) valid delivery; and (iii) valid acceptance. (A) __________, Grandpa Pritchett __________ to pass title of the mementos, as he had mental capacity, and he stated that he wanted to give the mementos to Luke, and he immediately parted with them. The acceptance requirement was also fulfilled, as acceptance is presumed when a gift is beneficial to a donee. Delivery, _______________, was lacking. (R) When a gift is made through an agent of the donee, it is effective when delivered to that agent. When a gift is made through a donor’s agent, it is effective when the agent actually delivers it to the donee, unless the agent has agreed to hold the property for the donee. (A) __________, the company storing the mementos was Grandpa Pritchett’s agent and while it agreed to hold them for Luke, it also agreed that the mementos could be deliverable to Grandpa Pritchett. (C) _______________, Luke is not entitled to the war mementos, and they will go to Grandpa’s estate. (2) (I) The issue is whether Gloria will get the jewels since Grandpa gave her just the key to the jewelry box. (R) See rule in part 1 for a valid gift inter vivos. (A) __________, donative intent is clear from the fact that Uncle stated he wanted to give Gloria the jewels when he handed her the key. He had the intent to pass title, even though actual possession of the jewels would take place later. Delivery can be actual or constructive, and here it was constructive, as Grandpa handed Gloria the key that would open the jewelry box. Gloria accepted the key when she took it from Grandpa. (C) _____________, Gloria will keep the jewels. (3) (I) The issue is whether Phil can still claim the $10,000. (R) See rule in part 1 for a valid gift inter vivos. (A) ____________, Grandpa had donative intent, as he had mental capacity when he stated he wanted Phil to have the $10,000, and he had intent to pass title since he delivered the money to his lawyer to hold for Phil. Delivery is effective even though Grandpa delivered it to his agent. (R) When a donor’s agent is used, the gift is effective when delivered to the donee, unless the agent has agreed to hold the property for the donee. (A) This is the case here, as Lawyer took the money to hold until Phil came to claim it. Though Phil hasn’t yet claimed it because of an argument with Grandpa, Phil never affirmatively refused it. (C) ______________, Phil can still claim the money, and he is entitled to the $10,000. (4) (C) Claire will not be able to keep her mother’s rings. (I) At ____________ is whether this transfer was an effective intervivos gift or gift causa mortis. (R) A valid gift causa mortis has all of the requirements of a valid gift inter vivos, plus the gift must have been made in contemplation of imminent death. The donor must have been realistically confronted with imminent death, rather than a mere abstract fear of death. (A) ____________, Grandpa was not realistically confronted with imminent death at the time he gave the rings to Claire. Claire may argue that this gift was then a valid gift inter vivos. However, Grandpa’s intent to permanently pass title seems to have been lacking since he gave the rings to daughter “in case he did not survive the trip.” There was no intent to make an immediate gift, but a transfer if he died on the trip. (C) __________________ , Claire cannot keep the rings. (5) (C) Guide can keep the watch, but not the home. (R) See rule in part 4 for a valid gift causa mortis. (A) _____________, Grandpa Pritchett was realistically confronted with imminent death since he had just fallen from a precipice in the Rocky Mountains. Guide can keep the watch since there was also intent, delivery and acceptance of the watch. However, an issue arises with the deed. (R) A gift causa mortis only applies to personal property, not real property. (A+C) Thus, Grandpa’s attempted transfer of the deed via a gift causa mortis fails, and the deed will go to his estate.


(6) (I) At _________ is whether Grandpa can repudiate the gifts to Guide and re-gift them to Mitchell. (R) A gift causa mortis is a revocable transaction. (A) ___________, title had passed to Guide, but Grandpa rightfully repudiated the gifts and gifted them to Mitchell. The gift of the watch to Mitchell was a valid gift causa mortis because the facts state that Grandpa was on his deathbed, so he made the gift in contemplation of imminent death. Additionally, there was intent, delivery, and acceptance as evidenced by the fact that he ordered Guide to give the items to Mitchell. (C) _____________, Mitchell can have the watch. Again, gifts causa mortis apply only to personal property, not real property. Therefore, Mitchell will not get the home, and the deed will go to the estate.


CHAPTER 5: THE BLOB! (CRIMINAL PROCEDURE)

Don’t panic when you see a fact pattern without clearly numbered question calls. Start at the bottom

looking for a question call. Start with the last sentence, and if you need to, back up even further.

How should the court rule on each of the motions? Discuss fully.

So, we know there are motions. That may be how we’ll organize our answer. Let’s see what the

sentence above the question call is:

In its opposition to the motions, the State admits that the search of the vehicle was without a warrant

and without Joe's consent, but maintains that the search was justified.

No warrant + search = criminal procedure! Let’s read the rest of the question and start issue spotting so

we can start making headings and organizing.

QUESTION: An anonymous phone call tip informed the police that "Quaalude" Joe ("Joe") had made a

big buy of drugs to sell to students at a high school. From earlier arrests and convictions, the police knew

that Joe was a drug dealer and that he dealt drugs to juveniles.

The anonymous caller informed the police that, within the hour, Joe would be driving his red

BMW convertible down Main Street toward the high school and that Betty, the blonde female passenger

in the car with him, is his assistant in the drug trade.

Before acting on the tip, the police confirmed that a red BMW convertible was registered to Joe.

They also confirmed by surveillance that a red BMW convertible driven by Joe, with a blonde female

passenger, had entered Main Street and was heading in the direction of the high school. Joe was driving

carefully and not in violation of any traffic laws. However, believing that time was of the essence, the

police did not attempt to obtain a search warrant. (probable cause, exigent

circumstances)

Two blocks from the high school, the police stopped Joe's car and asked Joe and Betty to exit the

car. Over Joe's objection, the police conducted a search of Joe and the car. They found nothing on Joe's

person. They did, however, find and seize a .38 caliber revolver from the glove compartment and well

over 100 Quaaludes contained in separate plastic baggies from the trunk.

After the search of the vehicle, Joe was arrested and charged with the crimes of aggravated

trafficking in drugs and carrying a concealed weapon. Betty was not searched or immediately arrested,

but she was later charged with the crime of aggravated trafficking in drugs.

Joe's lawyer has filed a motion to suppress the evidence of the guns and drugs found in his

vehicle. Betty's lawyer has also filed a motion to suppress the evidence of the drugs, asserting that she

knew nothing about the Quaaludes concealed in the trunk of Joe's car. Both motions are based on

alleged violations of the Fourth Amendment to the United States Constitution by the police.

In its opposition to the motions, the State admits that the search of the vehicle was without a warrant

and without Joe's consent, but maintains that the search was justified.

How should the court rule on each of the motions? Discuss fully.


Notes on scrap paper or bottom of question:

2 Motions to suppress:

(1) Joe’s Motion

Issue – was search and seizure valid under 4th amendment since no

warrant

Exceptions to warrant requirement:

Search incid to lawful arr ✖; automobile ✔; stop/frisk ✔; exigent ✔;

plain view ✖; consent ✖

Automobile – need probable cause

Stop/frisk – the stop needs reasonable suspicion of crim activity;

frisk needs reasonable belief armed and dangerous

Exigent – evidence will disappear or public in danger

(2) Betty’s Motion

Standing – reasonable expectation of privacy

ANSWER: Organize by each defendant’s motion and use headings.

Joe’s Motion to Suppress

The motion to suppress should be denied. The issue here is whether the police conducted a valid

warrantless search and seizure under the Fourth Amendment. As a general rule, evidentiary searches

and seizures must be reasonable to be valid under the Fourth Amendment. To be reasonable, a search

warrant is required, unless the search falls under one of six exceptions to the warrant requirement.

Here, three of the six exceptions to the warrant requirement apply.

Automobile Exception: Under the automobile exception, if the police have probable cause to believe

that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the entire

vehicle (including the trunk) and any container that might reasonably contain the item for which they

had probable cause to search. Here, the police had probable cause to believe that Joe’s car contained

drugs based on the anonymous tip (informers’ tips are fine even if anonymous), Joe’s prior arrests and

convictions, the confirmation that the red BMW belonged to Joe, and the confirmation of the tip by

surveillance that a red BMW convertible driven by Joe with a blonde female passenger was driving in the

direction of the high school. Since this was adequate probable cause for the police to stop and search

Joe’s entire vehicle, the seizure of the revolver and drugs is admissible, and the motion to suppress

should be denied.

Stop and Frisk: Under the stop and frisk exception, a police officer may stop a person without probable

cause for arrest if the officer has an articulable and reasonable suspicion of criminal activity. If the

officer also reasonably believes that the person may be armed and presently dangerous, the officer may


conduct a protective frisk. This includes the passenger compartment and glove box of the automobile of

a detained occupant. Here, the police had at least a reasonable suspicion that Joe was involved in

criminal drug activity based on the information provided by the informer and the corroboration of such

information. Therefore, they validly stopped Joe’s vehicle. Since drug dealers usually carry weapons, the

officers also had a reasonable suspicion that Joe was armed and dangerous. Thus, their “frisk” of the

passenger compartment was also valid. Once the police found the gun in the glove box, probable cause

existed to then search the entire vehicle including the trunk under the automobile exception.

Accordingly, the motion to suppress the gun and drugs should be denied.

Exigent Circumstances: Under the exigent circumstances exception, police may search and seize

evidence without a warrant that is likely to disappear before a warrant can be obtained or people are in

imminent danger. The evidence here was likely to disappear because Joe was on his way to sell the

drugs to school kids, and children are in imminent danger if they take drugs. Thus, the search and

seizure was reasonable, and the motion to suppress should be denied.

Betty’s Motion to Suppress

The motion to suppress should be denied. The issue here is whether Betty, as a passenger in Joe’s car,

has the standing necessary to challenge the introduction of the drugs into evidence. To have a Fourth

Amendment right, a person must have their own reasonable expectation of privacy with respect to the

place searched or item seized. To determine whether a person has a legitimate expectation of privacy,

an analysis under the totality of the circumstances doctrine must be conducted. In this case, Betty had

no expectation of privacy in either the place searched or the item seized. She was not the owner of the

vehicle nor was she in possession of the vehicle at the time it was searched. In fact, Betty was merely a

passenger in Joe’s vehicle. Moreover, at no time during the encounter was Betty searched by the police,

and although Betty was ordered to exit the vehicle, the police may do so for safety reasons. Accordingly,

Betty has no standing to challenge the introduction of evidence under the Fourth Amendment and the

motion to suppress should be denied.


CHAPTER 6: FINAL THOUGHTS AND BONUS MATERIAL

A. What will be the double tested subject???

Here are our 11 subject areas and in bold are the subjects that have been double tested:

Business Associations (Agency, Partnerships, and Corporations) Corporations has been tested twice

as often as Agency, and Agency has been tested twice as often as Partnerships! So Partnerships is

not tested very often. If this is the double tested area, you’re most likely to see it as Corporations

and Agency.

Civil Procedure

Commercial Transactions (Commercial Paper & Secured Transactions) Secured Transactions seems

to be more preferred, but both have been tested in the same exam plenty of times – so you need to

know both.

Constitutional Law

Contracts

Criminal Law and Criminal Procedure – Both are rarely tested in one exam (although in Feb 2016

there was one of each), but Crim Pro itself has been double tested a number of times

Evidence

Legal Ethics

Property (Real and Personal) Real and Personal were tested once together in the last decade, and

Personal Property is tested roughly once a decade (2/12)

Torts

Wills

So, what can you take away from this? Not a whole lot, other than you probably won’t see Wills,

Legal Ethics, or Personal Property as the double tested subject!

B. Bonus Material – Overviews of Secured Transactions, Commercial Paper, and Constitutional Law

C. Managing the Material

We give you a long outline for each subject, a final review outline of each subject, plus a lecture

and lecture handout for each subject.

For most subjects, skim through the long outline (slowing down if you are confused), watch the

lecture and take notes with the accompanying handout, and then create your own 10-15 page

outline (or use the final review outlines and write in notes, mnemonics, etc. where you need to

supplement).

When you are 1-2 weeks away from the exam, take your outlines and break them down into

blueprint or skeleton outlines.


SAMPLE OF BLUEPRINT OUTLINE:

Contracts

I. Formation

A. Mutual Assent: Offer, Acceptance, Consideration (& Lack of

Consideration)

B. Void Contracts; Voidable Contracts; Unenforceable

Contracts

C. Defenses to Formation (8: M,M,M,Nd,F,Ui,D,Lc)

D. Defenses to Enforcement (3: I, U, Pp)

E. Quasi-contracts

F. Warranties

II. Discharge (IFRRD)

III. 3rd Party Beneficiaries (intended, incidental, impairment/extinguishment of rights,

enforcement by promise)

IV. Assignment/Delegation

V. Statute of Frauds (5: M,S,R,1yr,$500)

VI. Parol Evidence

VII. Conditions and Performance (Express, Implied, Burden of Proof, Satisfaction,

Performance issues)

VIII. Breach of Contract: Anticipatory Rep (3); Remedies (7); Restitution; Specific

Performance; Declaratory Judgment; Remedies under UCC (6)

D. Game Day

- You will receive a notice with what items are permitted inside the testing facility and which

items are not permitted.

- Final thought: The _______________________

Don’t take anything into the __________________ that you are not supposed to take in – notes,

pens, etc.

Don’t talk in the _______________________.

Draw an X through your scrap paper

Contact Info:

Lauren Link

[email protected]

(330) 329-9106

mailto:[email protected]


BONUS MATERIAL

1. OVERVIEW OF COMMERCIAL PAPER – ARTICLE 3 (NEGOTIABLE INSTRUMENTS)

This is a brief overview of Commercial Paper. It is intended to help you maintain sight of the big picture

so that you don’t get lost in the details. Continue coming back to this big picture if you are getting lost

in the details of Article 3. It is easy to lose sight of the forest when there are so many trees! But,

Commercial Paper is a fairly methodical subject, so once you get the hang of it, you’ll be just fine!

What sets Article 3 in motion?

There are certain times that cash should not be used, such as for transactions involving large amounts of

money. However, a simple promise to pay isn’t sufficient. Negotiable instruments are used as cash

substitutes and provide safe transfers of money. Article 3 provides a uniform set of rules for these cash

substitutes. For the most part, there are two kinds of negotiable instruments (or commercial paper) – a

note and a draft. A note has two parties – the maker and the payee, and it is a simple written and

signed promise to pay. A draft involves three parties – the drawer (similar to the maker of a note), the

drawee (party who pays the money), and the payee or bearer (person receiving the money). A check is

a draft, so think of the drawer as the person who writes the check, the drawee as the bank, and the

payee as the person who receives the money.

There are certain things that must happen in order for a negotiable instrument to be a safe cash

substitute. If these things don’t happen, the negotiable instrument will not be considered enforceable.

The instrument must be in a special form (negotiable).

The instrument must be transferred in a certain way (negotiation must take place).

The person who ends up holding the instrument must have taken it for value, in good faith, and without notice of claims on the instrument or defenses to the instrument (person attains holder in due course status - HDC). Keep in mind that the holder of the instrument should be able to see what he has just by reading the instrument, so Article 3 limits conditions placed on a negotiable instrument.

Okay, so let’s break this down a bit more:

1: NEGOTIABILITY OF THE PAPER:

The instrument must be written and signed and is an unconditional promise or order to pay a fixed

amount of money (not interest) to order or bearer, payable on demand or at a definite time and

without stating any additional undertakings or instructions. [Note that “order” is the person named on

the instrument (or states the specific person’s order) and “bearer” is the person possessing the

instrument. Think of a check made out to yourself as an example of order and a check made out to cash

as an example of bearer.]


FREQUENTLY TESTED NEGOIABILITY ISSUES: Under negotiability, the most heavily tested issues are:

order vs. bearer paper; requirements of negotiability; signature requirements; liability of authorized

agent.

2. NEGOTIATION: The ability to transfer drafts and notes from person to person (and beyond the

persons who were parties to the original transaction) is an important economic activity. This process of

transferring a negotiable instrument is the negotiation. So, think of the negotiation as a transfer that

involves certain steps and results in the recipient becoming the holder of the instrument. Essay

questions involving negotiation issues usually have multiple holders along the way, and you’ll need to

determine those holders’ rights and duties. In order to gain rights, a valid negotiation needs to take

place, and the rules vary depending on the type of instrument:

For order paper, the negotiation takes place by transferring possession, plus the identified

person indorses the instrument.

For bearer paper, the negotiation takes place by transferring possession.

FREQUENTLY TESTED NEGOTIATION ISSUES: If you see a negotiation issue, it will most likely revolve

around indorsements. The payee’s indorsement must be authorized and valid. Be sure to review

forgery, fraudulently obtained indorsements, multiple payees, the location of the indorsement,

transferring without indorsement, etc. These are all issues that you might see if the essay question

points out a problem in the negotiation. Note that if you see one of these issues, such as a forged

indorsement, that does not necessarily mean there was a problem with the negotiation. It could be part

of another overarching issue (such as liability of parties on an instrument). If the negotiation seems fine,

then don’t look for problems. Also, look for the bar examiners telling you in the facts that the

negotiation properly occurred, and then you know this is a non-issue.

HOLDER IN DUE COURSE: This is the most heavily tested area of Commercial Paper! In order to receive

full protection under Article 3, a transferee must become a holder in due course (HDC). An HDC is

subject only to real defenses. Once you’ve determined that the instrument was negotiable and

negotiated, you need to go through these steps to determine if the holder of the instrument has

attained HDC status:

To be a holder, the person possessing the instrument has to be the person to whom it is payable

(payable to him specifically or payable to bearer).

To take the instrument in due course, the holder takes:

For value;

In good faith; and

Without notice

(Review the outline for a more in-depth discussion of each of these requirements.)


DEFENSES AND CLAIMS ON NEGOTIABLE INSTRUMENTS:

Typically, the obligated party or maker will pay the holder, and everything turns out fine. However, on

the bar exam, something will occur and the obligated party will not want to pay the holder and will claim

that he has a defense to payment. In this case, you need to determine if the holder is an HDC or just a

holder. If the holder is an HDC, the obligated party is limited to only real defenses to payment. If the

holder has not attained HDC status, the obligated party has many more defenses including any defenses

used in ordinary contracts law.

Real defenses can be asserted against both non HDCs and HDCs:

Infancy

Incapacity

Duress

Illegality

Fraud in the factum

Discharge in Insolvency Proceedings

Alteration and Forgery

Statute of Limitations

Accommodation Party

Personal defenses can be asserted against only non-HDCs:

Issuance

Any Contract Defenses

Claims in Recoupment

Defenses and Claims in Recoupment of Other Persons

Claims to the Instrument

FREQUENTLY TESTED HOLDER IN DUE COURSE ISSUES AND ACCOMPANYING DEFENSE ISSUES: As

stated earlier, holder in due course is a hotly tested topic. Watch for forgery issues (forgery effective

against the forger – not the person whose name was forged) and study forgery defenses (fictitious

payee rule and forgery by an entrusted employee – review IV. A. 1-4). Also review “notice” and keep in

mind that selling an instrument at a reasonable discount does not equal notice. Be sure you know the

elements of the HDC rule and personal defenses that can be asserted against non-HDCs.

3. NATURE AND LIABILITY OF PARTIES ON INSTRUMENTS:

In normal day-to-day life, negotiable instrument transfers of money are simple. On the bar exam, there

may be a number of parties liable to pay for the mere reason that their names appear on the

instrument. Keep in mind that no one will be liable unless his/her signature appears on the instrument

(or the signature of an agent). Also, liability to pay depends on the capacity in which a person signs.

Parties who might be liable:

The maker of a note or issuer of cashier’s check

Drawer

Drawee


Acceptor

Indorser

Parties signing jointly

FREQUENTLY TESTED LIABILITY ISSUES: Review indorser liability, accommodation party liability,

guarantor liability. Also, under bank/drawee liability, review finality of payment and a bank’s refusal to

cash a check.

ELECTRONIC FUNDS TRANSFER (UCC 4A): Article 4A is testable on the bar exam. A number of students

have asked where to find these materials. They are located at the end of the Commercial Paper outline.

Article 4A applies predominantly to businesses and financial institutions transferring large amounts of

money electronically, and it does not apply to consumer funds transfers.

2. OVERVIEW OF SECURED TRANSACTIONS – ARTICLE 9

This is brief overview of most of Secured Transactions. Just like Commercial Paper, it is easy to lose sight

of the big picture because there are many details. Keep coming back to this big picture because this

subject is really quite methodical. (While it’s methodical, you may not need to analyze each aspect – for

example, the bar examiners may tell you that a security interest attached. Therefore, you wouldn’t

need to go through the steps for attachment.)

What is a secured transaction?

A secured transaction is a credit or loan transaction in which a debtor gives a lender a security interest in

debtor’s property. In case of default, the lender can take possession of the property and use that

property to recover the value of the credit or loan (i.e., lender can sell the property, etc.). Think of the

security interest as a lien on the debtor’s property.

Here’s a simple example:

Buyer buys something from Seller, but instead of paying for it right then and there, Buyer promises

Seller he’ll pay for it in the future (maybe installment payments). Seller, however, cannot just rely on

Buyer’s promise to pay. Seller wants to ensure that he will actually be paid, so he takes a security

interest in something of Buyer’s (so that in the event Buyer defaults, Seller has rights in whatever that

item is – usually something of equal value). However, certain steps need to be taken for this security

interest to “attach” to the item – otherwise, the security interest is not effective, and Seller would wind

up with nothing if Buyer defaults on his payments.

So, let’s think of this simple example and start using some correct terminology:

You have a buyer and seller whose relationship becomes debtor/creditor since the buyer is now

indebted to the seller. Debtor promises to pay Creditor for the item he is buying and guarantees by

saying, “Look, if I don’t pay you for this thing, you can take this item worth $xx.” That item which

buyer/debtor is offering is called the collateral. Creditor has to make sure that he can rightfully take


that collateral if Debtor doesn’t pay. To actually have a security interest in the collateral certain steps

need to take place for the security interest to “attach” to the collateral.

Before we get into attachment, let’s review what you need to think about so far because sometimes the

bar examiners test on range or scope of Article 9. Early in your thought process, think about the

following:

1. Identify your parties – Who is the debtor? Who is the creditor? (Once attachment takes place,

creditor will be renamed secured party.) [This is a very simple way to think of the parties so you can

grasp the concept – review the outline because there can also be a 3rd party – an obligor – but usually,

the obligor is the debtor.]

2. What is the collateral? Know the classifications of tangible goods – consumer goods, farm goods,

inventory, and equipment. Understand intangible collateral, as well.

3. Is this an eligible transaction under Article 9? A lease, consignment or agricultural lien may fall under

the scope of Article 9.

FREQUENTLY TESTED ISSUES ON THE RANGE OF ARTICLE 9:

This is not a heavily tested area, but if you do see a question here, it may be on a lease vs. a security

interest, consignments, or timber and crops.

ATTACHMENT: Once you know the parties, the collateral, and you have determined that scope is not an

issue, look to see if the security interest attached to the collateral. Attachment is what gives the

secured party rights against the debtor. Three conditions must coexist for attachment:

(1) Value must be given by the secured party (2) Debtor has rights in the collateral (3) The parties agree to create a security interest and the debtor authenticates the agreement or

the secured party has possession of or control over the collateral

FREQUENTLY TESTED ATTACHMENT ISSUES: If you see an attachment issue in a question, it will most

likely be part of a perfection and priorities question. Sometimes they have tested directly on

attachment requirements, but that doesn’t happen too often.

PERFECTION:

Let’s say a number of parties claim to have security interests in the same collateral – secured parties

need to protect their security interest against other third parties, and they do this by “perfecting” their

interest. So, to gain rights over other parties who may also have a security interest in that same

collateral, the creditor has to take additional steps to perfect the security interest. Perfection can

happen after attachment or at the same time (but not before). Ways or methods to perfect: Filing,

possession, control, automatic, temporary.

FREQUENTLY TESTED PERFECTION ISSUES: Like attachment, testing on perfection issues alone doesn’t

happen very often. Usually attachment, perfection, and priority issues are together in one essay.

However, be sure you know the differences between the various collateral types: consumer goods,

inventory, and equipment. Each has different perfecting rules, and it’s important that you can

distinguish between these types of collateral. (This is different than ways or methods to perfect.)


PRIORITY:

What if more than one party perfected their security interest? Rules of priority determine whose rights

are superior (ex. perfected secured party v. perfected secured party = 1st to file or perfect). Keep in

mind PMSIs are superior – they have priority over other security interests in the same goods as long as

certain requirements are met.

FREQUENTLY TESTED PRIORITY ISSUES: Priority issues are the most heavily tested area of Secured

Transactions. Breaking it down further, PMSIs win the prize! Know the differences between PMSIs in

consumer goods, equipment, and inventory. Following that review proceeds, which is also tested

frequently.

DEFAULT:

What happens to collateral after default? A secured party may choose to repossess the collateral, sell it,

lease it, license or otherwise dispose of all or any of it.

FREQUENTLY TESTED DEFAULT ISSUES: Review self-help and repossession rules; the standard for

commercially reasonable (sale); price; notice.

Okay – so this is the overall picture or “forest” – so to speak for most of Article 9. Keep this framework

in mind as you study and digest the “trees” – and there are a lot of trees in this forest! (Remember, this

is just the big picture – keep in mind other kinds of issues that can be asked – such as repossession, etc.)

I. Initial thoughts: Who are your parties? What are the different items of collateral? Which parties are making claims on which pieces of property? (Keep it straight because there may be various parties and a number of different kinds of property at issue.)

II. Did the security interest attach to the collateral to give the creditor/secured party rights against the debtor?

III. Did the secured party perfect his/her interest to protect against other 3rd parties? IV. Which perfected secured party has priority?


3. OVERVIEW OF CONSTITUTIONAL LAW

You can break Con Law into 3 main segments:

1) Federal Government Powers 2) The Federal System 3) Individual Rights

4) (There’s a 4th but not often tested: State Regulation or Taxation of Commerce)

Let’s look at each one –

I. Powers of the Federal Government:

A. The Judicial Power

The Judicial Power and Article III (interpretation of constitution, laws, and disputes between states)

Federal Courts – Article III – subject matter and party jurisdiction and case or controversy (whether justiciable depends on if there is a case or controversy)

Supreme Court jurisdiction

Limitation on exercise of federal jurisdiction – Issues in this area of Con Law: ripeness; mootness; standing; adequate and independent state grounds; political questions; 11th amendment limits. Of these, the first three are tested more than the other issues.

B. Legislative Power Here are some main powers enumerated in the constitution and implied powers:

Necessary and Proper “power” – All of congress’ express powers are supplemented by

the necessary and proper clause (all means convenient and useful)

Taxing Power – Congress may tax and spend for general welfare – can use power to

regulate and prohibit behavior as long as capable of raising some revenue

Spending Power – can “bribe” states

Commerce Power (Congress has exclusive power to regulate all foreign and interstate

commerce) – This is the chief source of power for congress!!! – can regulate local and

intrastate commerce because cumulative effects doctrine. In this area of con law, the

commerce clause and dormant commerce clause are the most tested issues. (The

dormant commerce clause limits a state’s power to regulate interstate commerce. Keep

in mind that unless it is acting as a participant in the market, a state cannot favor in-

state interests over those of other states.) The commerce clause gives the federal gov

power to regulate channels of interstate commerce, regulate instrumentalities, and

regulate activities themselves if they have a substantial economic effect on interstate

commerce. If there is federal law regulating non-economic activity within a state

(intrastate), then the commerce clause cannot be the basis for that law.


War and Related Power

Property Power – eminent domain (watch for this b/c you may think it’s a property

question, but it may be Con Law)

C. Executive Power Domestic powers, power over external affairs, executive privilege and immunity,

impeachment

II. The Federal System

A. Relationship of National Government to the States B. Privileges and Immunities Clause of Article IV C. State Regulation of Interstate Commerce D. State Taxation of Interstate Commerce (form of state regulation – to be valid:

nondiscriminatory, actual presence and not unreasonably burdensome and must be proportionate)

III. Individual Rights

A. There are Constitutional restrictions on the government’s power over individuals through the following:

1. Bill of Rights – the first 10 Amendments limit federal power. (However, most Bill of Rights protections also apply against state and local governments through the Due Process Clause of the 14th Amendment – so if you see a local or state government action – you may need to think 14th Amendment.)

2. 13th Amendment – prohibits slavery and under this amendment’s Enabling Clause, Congress can prohibit racial discrimination by anyone (not just government).

3. 14th Amendment – cannot deprive life, liberty, or property without due process and equal protection

4. 15th Amendment – prevents federal and state gov from denying right to vote based on race or color

(The 14th and 15th Amendments do not prohibit private conduct – so if you see

private individual or business think 13th Amendment or Commerce Clause.)

B. State Action Required – Constitutional rights are protections only against the government. So, on the exam if you see a constitutional rights question, the first step is to find state action. It will either be obvious or they will test on private conduct as state action (public figure or significant state involvement with private conduct – joint venture, approval, encouragement, state leases property to someone who discriminates, etc.). The bar examiners do test on this issue, so be sure to review it!

C. Retroactive Legislation 1. Contract Clause


2. Ex Post Facto Laws 3. Bills of Attainder 4. Due Process Considerations (even if doesn’t violate those first 3, still must pass

muster under Due Process)

D. Procedural Due Process 1. Basic Principle – Fair process required before taking life liberty or property – only

intentional, not negligent deprivation violates procedural due process. 2. Ask first if Life, Liberty, or Property is being taken? 3. If so, what type of process is required? (Balance importance of interest to person

vs. value of property, safeguards, gov interest) 4. Procedural due process rights are subject to waiver if voluntary and made knowingly

E. The Takings Clause (Taking vs. Regulation)

1. Review takings! The bar examiners have tested on this issue, and you need to understand the sub-issues. This type of question can also look like a Real Property question, and that’s okay. Don’t get tripped up – just remember that the 5th amendment prohibits the government from taking private property for public use without just compensation. (So the Takings Clause is a check on the government’s eminent domain power. The Fourteenth Amendment Due Process Clause makes the Takings Clause applicable to the states.)

Public use: The Supreme Court has defined “public use” rather broadly – the taking need merely be “rationally related to a conceivable public purpose.”

Generally, a gov regulation that adversely affects a person’s property interest is not a taking, but it can rise to a taking. Consider 3 factors: economic impact, extent of interference, character of regulation. If there is an emergency or a nuisance, chances are that it won’t be considered a taking. Zoning restrictions that deny all economic value is a taking, but a mere decrease in economic value may not be considered a taking.

Just compensation = the fair market value of the property at the time of the taking (measurement is loss to owner not benefit to government).

F. Substantive Due Process vs. Equal Protection 1. Substantive Due Proess – if the law limits the liberty of ALL people

Constitutional Source: 5th Amendement for fed gov; 14th Amendment for state gov

2. Equal Protection – if the law treats and individual or a class of individuals different from others

To determine a law as a discrimination based on race, alienage, gender, or illegitimacy, the law must be intentional and purposeful discrimination on its face, in application, and motivating factor. It is not enough to show that a law which is neutrally written and applied has a disproportionate impact

Race/Ethnic Discrimination – use Strict Scrutiny 3. What standard of review will the court apply in order to analyze?

Strict Scrutiny (maximum)


Intermediate Scrutiny

Rational Basis (minimum)

G. Fundamental Rights – if these are denied to all, then it’s a substantive due process problem; if denied to an individual/class of individuals, then it’s an equal protection problem. If you are dealing with a fundamental right, do not use rational basis. Use strict scrutiny or a heightened scrutiny 1. Right to Privacy (marriage/divorce; contraception; abortion; family relationships;

right to refuse medical treatment) 2. Right to Vote 3. Right to Travel 4. Welfare, education, and right to inherit property are NOT fundamental rights

H. First Amendment Freedoms – heavily tested!!! Study the 1st Amendment a lot!!!!! 1. Freedom of Speech and Assembly

Vagueness – A statute is unconstitutional if you cannot know what behavior is prohibited.

Overbreadth – A statute is overbroad and unconstitutional if it prohibits substantially more expression than necessary

Prior restraints – greatly disfavored and gov has heavy burden to show prior restraint is necessary to prevent direct, immediate and irreparable harm.

2. Content Control vs. Time, Place, and Manner Restrictions

Content control: Generally, gov cannot control content of speech unless the regulation is necessary to achieve a compelling gov interest and is narrowly tailored to meet that (strict scrutiny). However, the gov may restrict speech on the basis of content if it falls within one of the following categories: obscenity, subversive speech (overthrow gov) or incitement to violence, fighting words, defamation, and commercial speech.

Time Place Manner – this is very heavily tested!!! The government’s ability to regulate the time, place and manner of speech varies depending on the forum in which the speech takes place. Requirements for validity in a public forum:

- regulation is content neutral

- regulation is narrowly tailored

- regulation serves a significant governmental interest AND

- there are ample alternative opportunities for speech to take place

While those requirements are needed for a public forum regulation to be

upheld, always start with the location (forum) of the restriction. Aside from

public forums, there are limited public forums and non-public forums. (The

more limited the public forum, the greater the latitude the government will

have to restrict speech.) Think of a traditional public forum as a place that

has been historically reserved for communication of ideas and


dissemination of information such as public parks, sidewalks, and streets.

(Restrictions here must pass the above test above.)

- Think of a limited public forum as a place open to First Amendment

activities at certain times when the public is allowed to use its facilities –

such as courthouses, schools/universities, state fairs.

- Non-public forums include publicly held property which is devoted almost

exclusively to things other than individual expression – such as

governmental offices, prisons, military bases, airports, telephone lines to

private homes, internal mail systems in public schools. (Note that a

sidewalk adjacent to a private residence is public, but a sidewalk on postal

service property is non-public. Also, keep in mind that the internet is more

public than telephone lines to private homes.) Since the government has

greater latitude to restrict speech in nonpublic forums, nonpublic forum

speech can be regulated by laws reasonably related to a legitimate

governmental purpose and must be viewpoint neutral. (Note that some

public property is not considered a forum and not subject to forum analysis

– such as public television broadcasters – but they fall under regulation of

the media. Also, governmental regulation of free speech on a person’s

private property is rarely upheld especially if it is content-based.)

I. Freedom of Association and Belief – Infringements can be justified by a compelling state interest (unrelated to suppressing ideas and least restrictive means)

J. Freedom of Religion 1. Free Exercise Clause:

- gov cannot interfere with religious beliefs - gov can regulate conduct (state laws intentionally targeting religious conduct subject to strict scrutiny; neutral laws of general applicability impacting religious conduct are subject to rational basis)

2. Establishment Clause – This is the stronger clause of the two. When a gov program shows preference to one religion over another (or religion over non-religion) then strict scrutiny applies. However, not every gov action impacting religion is unconstitutional. Us the Lemon test to see if a gov program violates the Establishment Clause. The Supreme Court has held that a government program will be upheld if it:

- has a secular purpose;

- has a primary effect that neither advances nor inhibits religion; and

- does not result in excessive gov entanglement with religion.

- Note that the Lemon test has been modified or set aside in recent Supreme Court cases.

Documents

OHIO ESSAY WRITING WORKSHOP - Amazon S3s3.amazonaws.com/mythm-vids-prod/OH.Link.EssayWkshp.pdfChapter 4: Working through a Personal Property essay question 5. ... you explained the