NY Bar flashcards

33 cards. Read the term and the definition here. The deck at the top of this page is optional.

State action requirement

The Fourteenth Amendment and the Bill of Rights applied through it reach only conduct that can be fairly attributed to the government, not private conduct, unless a public function or entanglement exists.

UCC 2-207 acceptance

A definite and seasonable expression of acceptance operates as an acceptance even though it states additional or different terms, unless it is expressly made conditional on assent to those terms.

Strict products liability elements

The plaintiff must prove the product was defective when it left the defendant's control, the defect made it unreasonably dangerous, and the defect caused the injury; privity is generally not required for personal injury.

Hearsay definition

An out-of-court statement offered to prove the truth of the matter asserted; it is inadmissible unless an exclusion or exception applies.

Felony murder merger

The underlying felony merges with the homicide and cannot itself serve as the predicate for felony murder; the felony must be independent and inherently dangerous.

Covenant running with land

A covenant runs with the land if it touches and concerns the land, the original parties intended it to run, there is vertical privity of estate, and the successor has notice.

Erie doctrine

A federal court exercising diversity jurisdiction applies state substantive law and federal procedural law, so that the outcome is substantially the same as in state court.

MBE scoring structure

The MBE has 175 scored questions and 25 unscored pretest items; each of the seven MBE subjects contributes 25 scored questions. It is weighted 50% of the UBE in most adopting jurisdictions.

MEE format

The MEE is a six-question, three-hour essay examination; each question is worth equal weight, and the subjects tested are drawn from the MBE subjects plus business associations, family law, trusts and estates, and conflicts of law.

Apparent authority

Apparent authority arises when the principal's manifestations lead a third party to reasonably believe the agent is authorized, even if the agent lacks actual authority.

Partnership liability

Under the Revised Uniform Partnership Act, all partners are jointly and severally liable for partnership obligations, but a limited partner in an LP is liable only up to the capital contribution.

Business judgment rule

Directors owe duties of care and loyalty; the business judgment rule presumes informed decisions made in good faith with no conflict of interest. Entire fairness review applies to self-dealing transactions.

Prenuptial agreement enforceability

A prenuptial agreement is enforceable if it is in writing, voluntarily executed, and not unconscionable; under the UPAA, it may waive spousal support and property rights.

Trust elements

A trust requires a settlor with capacity and intent, trust property, a definite beneficiary, a trustee, and a valid trust purpose. A charitable trust must have indefinite beneficiaries.

Will formalities

A will requires testamentary intent, capacity, and statutory formalities (signature by the testator and attestation by two witnesses). A holographic will requires material provisions in the testator's handwriting.

Vested-rights conflicts approach

Under the vested-rights approach, the law of the place of the wrong governs torts. Under interest analysis, the forum applies the law of the state with the greatest interest in the issue.

MEE subjects list

The MEE subjects are the MBE subjects plus business associations, family law, trusts and estates, and conflicts of law. The MEE is a six-question, three-hour essay examination.

MPT format

The MPT consists of two 90-minute tasks; each task supplies a file (facts) and a library (authorities), and the instructions specify the document to produce.

MPT grading criteria

The MPT is graded on factual analysis, legal analysis, and communication; a strong answer applies the supplied authorities to the supplied facts rather than reciting outside law.

File and library

The file contains the operative facts; the library contains statutes, cases, and rules. Candidates should read the instructions first, then the library, then the file.

MPT scoring weight

Each MPT task is scored on a 6-point scale by two graders; the two MPT tasks together are weighted 20% of the total UBE score in most adopting jurisdictions.

Memorandum format

A memorandum should use a structured format: a question presented, a short answer, a statement of facts, an analysis, and a conclusion. The analysis should apply the rule to the facts.

Persuasive brief format

A persuasive brief should include a caption, a statement of the case, a statement of facts, an argument with headings, and a conclusion; the argument should address adverse authority.

MPT time allocation

Allocate about 15-20 minutes to read the instructions, library, and file; about 60 minutes to draft; and about 10-15 minutes to review and polish the document.

MPT closed universe

The MPT tests practical skills, not substantive law recall; the answer must use only the authorities provided in the library, even if the candidate knows contrary outside law.

Diversity jurisdiction amount

A federal court has diversity jurisdiction when the amount in controversy exceeds $75,000 and the parties are completely diverse; the amount is determined from the complaint.

Personal jurisdiction test

Personal jurisdiction requires minimum contacts with the forum, relatedness of the claim to those contacts, and fair play and substantial justice.

Statute of frauds writing

A writing satisfies the statute of frauds if it is signed by the party to be charged and states the essential terms, including the parties, subject matter, and price.

Duty to retreat

A person may use deadly force in self-defense if he reasonably believes it is necessary to prevent imminent death or serious bodily harm; there is no duty to retreat in most jurisdictions.

Executor duties

An executor must inventory the estate, pay valid debts and taxes, and distribute the residue to beneficiaries; the executor owes fiduciary duties of loyalty and care.

Conflict of laws marriage

A marriage valid where celebrated is generally valid elsewhere, unless it violates a strong public policy of the forum, such as polygamy or incest.

MPT objective memo tone

An objective memorandum predicts how a court would rule and should present both favorable and unfavorable facts and authorities in a neutral, analytical tone.

MPT client letter

A client letter should explain the legal issue in plain language, state the conclusion, describe the available options, and recommend a course of action.