27 February 2008

Predictions final for day 3

Predictions are kinda silly now, but here goes:

Civ pro – most likely, right?
res judicata or CE (had these last time, but they're popular),
CA dictions - yeah.

Corps - officer's powers, 10b5/16b
Cross over possibilities with agency/partnership

Community property – it's due right? with Wills?

Trusts - Breach, types, termination

One more MBE subject (maybe 2 with a cross over - then again, think July 2007):

Evidence – CA distinctions are up

Ks – meh, they already tested property, but could come, pretty popular (with remedies?)

Con Law – meh, lots of speech in the recent past, how about equal protection/due process or religion or commerce clause?


Anonymous said...

Actually, the essays will be:

Corps w/ PR cros

Anonymous said...

It was a Corps / Business Assoc / PR question, right? I definitely saw some partnership issues.

Anonymous said...

Those dirty motherfuckers! Its just wrong to go 2 MBEs, 4 CAs. Should be 3-3, or even 4 MBEs, 2 CAs. Unreal.

So Wills/Trusts crossover, Community Property, Corporations/Partnership/Agency/Contracts/Professional Responsibility crossover.

Nice. Not!

Anonymous said...

so... can California attach quasi-marital property held in a putative spouse's name in a foreign jurisdiction? Bastards. There was way to much in that CP question, and I spent way too much time on it.

5:17: that was my take. de facto/de jure arguments or in the alternative (and more compellingly) general partnership before May 1; de jure corporation thereafter.

Ran out of time on the Wills/Trusts cross-over.

Crushed the PT-B. I thought it was very-straightforward. Just long.

Holden said...

"can California attach quasi-marital property held in a putative spouse's name in a foreign jurisdiction?"
Yeah, if it's not real prop. Not that knowing that mattered because I forgot to even call it "quasi-marital prop" and kept says QCP. Oops.

I can't imagine that the whole question was really about the putative spouse BS, maybe a chunk, but they don't grade for remembering one definition where the application would be straightforward and not require "analysis" skills - the points for that question were in the other parts of it (I hope).

"Corporations/Partnership/Agency/Contracts/Professional Responsibility crossover"
I'm still not sure which if these it was - I'm hoping that Ks was the least important part, not much to talk about there from the facts it seemed (no formation, defenses, performance issues - just depended on whether Lawco was a corp/partnership or not I guess).

PT-B was certainly better than PT-A.

Did anyone talk about Time, place, manner? It was in one of the cases (Elkin?) but didn't really seem to apply, right? I sure didn't talk about it.

Michelle T. said...


I didn't speak about Contracts at all. I thought it was all about 1) pre-incorporation contract, probably liable under corporation by estoppel and 2) the post-incorporation contracts were simply about actual or apparent authority and distinguishing between authority of secretary and president?

I had one line about TPM--that he had gone up the chain, as had the person in the case--Harlan, I believe, but in any event the case about the activist professor.

Anonymous said...

I'm the one who mentioned Ks on Question #6. To clarify, I didn't mean that there were real K issues to analyze, but the law was periphally there. For instance, the flip side of de facto corporate status is that the counterparty (ComputerWares or whatever) detrimentally relied on Lawco's apparent corporate status, or the apparent authority of the principals who entered into the contract, who were equitably estopped from arguing it was uneforceable. But that was the fullest extent, no real analysis.

That said, I missed just about every issue on that essay. I looked at agency maybe 1 time during studying, so I didn't remember anything. Oh well, hopefully I did well enough on the other portions to offset it.

Also want to mention this about the CP question - there was no explicit indication that State X was a non-community property state. QCP only applies if the property was obtained during marriage outside CA in a non-CP state. If State X was a cp state (like nevada or whatever), then there wouldn't be a QCP issue even in CA.

Anonymous said...

CP essay: anyone make anything about the oral agreement to only use W's money for emergencies? I used it as an alternative argument saying that W had to reimburse H for the medical bills since her accident was an emergency. That whole Marvin analysis about people living together can order their lives via contract. I said the contract survived SF since there was performance and reliance, etc.

Agree that essay 6 was mainly Corp/Agency. As to the PR portion, was there a CAL distinction that we should have pointed out? I couldn't think of one and said that ABA and CAL were the same for all ethical issues in that case.

Abe said...

PR distinction may have been re: reporting a crime (not to No Lead) but to the police re: the misdo "Driving lead past a res" whatever. Maybe something about reporting up before reporting out?

Anonymous said...

Abe: I meant the second call on essay 6. The No Lead thing was on essay 2. There were several distinctions for the withdrawal issue on that essay. Unfortunately, I could only remember one of them well enough to talk about it.

Anonymous said...

@ Abe - you're talking about essay #2 (the full PR), but I think the poster was asking about the PR question that was part of the corporations essay (#6).

I agree, couldn't think of an ABA/CA distinction. Just wrote that it was a violation of duty to avoid unauthorized practice of law and violation of rule against fee-splitting with non-lawyer for joint enterprise involving provision of legal services. That second party (fee-splitting) may be a CA-only thing.

@ CP "emergencies" agreement:

I had the same conclusion. Normally SP funds used to pay community expenses are considered a gift, however that presumption will be overcome if the parties agreed otherwise. They had agreed that all family emergencies would be paid out of the CP held in Wendy's account. That overcomes the presumption that Harvey meant his SP as a gift to the community, and therefore he is entitled to reimbursement upon permanent separation.

I don't see where that agreement falls under the statute of frauds. Wasn't in consideration of marriage, had nothing to do with timing of performance and definitely nothing with the other LEGS circumstances.

Anonymous said...

Anonymous @12:31

If one only writes about corporation de jure vs. other corp (estoppel), and not about actual v. apparent authority, isn't the answer identical and very short (the corp was incorpated so it can be bound) for the two post-incorporation contracts ? It's only because I thought the answers would be identical that I had a lightbulb go off about distinguishing them on agency concepts.

Well, now that I am thinking about it, the answer is still the same (apparent authority existed) UNLESS you say that there was express authority in the case of a president and not necessarily in the case of a secretary.....

Anonymous said...


I dunno about the rest of your question, but fwiw I literally answered like this:




Anonymous said...


Ouch. Sorry.

Anonymous said...

Re Corps Essay:

I completely missed any and all agency issues, and argued either

1. de facto (or estoppel), formation of LawCo, thus LawCo's bound on all 3 contracts; or in the alternative:

2. general partnership principles binding A & B (individually) in addition to binding the partnership, itself (though not as a "corporation") on the first contract, and then once a de jure corporation had been formed once the articles were filed properly, LawCo as a "corporation" bound on the contracts.

Though the agency principles never even occurred to me, I'm thinking, now that they're probably incidental. For agency law to be relevant in the formation of a contract, you need an agent-principal relationship. If A & B are the agents of the principal LawCo, wouldn't the principal need some independent reason to be treated as a principal, that is, to be in existence in the first place? If so, that would seem to come back full-circle to a possible de-facto/de-jure analysis.

And if de facto, for example, then A & B as officers could bind the de facto corporation. I did mention that A & B as officers were agents of the corporation, but didn't think to get into any authorization, though it would seem to be implied in this case by inherent authority (or custom authority) by virtue of A & B's positions as officers, here.

Anonymous said...

re Time, Place, Manner in PT-B

I did mention this, as the Supreme Court seemed moved by the fact that Harlan, in the second case, had pursued INTERNAL channels, first. The Court viewed that approvingly, but noted that there are times in which going through external channels would be entirely appropriate.

Snyder first pursued internal channels as well, using his report and faculty forums and such. He did this from 2004 until 2007, for three years. Only 7 weeks before the Regent's meeting did he finally go "outside" internal channels by writing his letter to the newspaper.

So I noted that like Harlan, Snyder did the right thing by pursuing internal channels according to appropriate protocol. And only later pursued external channels because of the public interest issues years later on the verge of the Regent's meeting, so the public could get involved in the debate

Anonymous said...

as to the CP question:

I pointed out, too, that there was no explicit mention as to whether state X was a common property state, or not. But never the less although other common property states would treat and recognize common property as common property, I think it is still defined as quasi-CP, generally (though quasi marital property on the facts of this case).

QCP is property acquired outside of california that would have been CP if acquired in california. so even if the outside of california property is CP in that other state, I think it is still called QCP in california, since it was acquired elsewhere. The ramifications are more important upon death of a party, since another CP state would treat real property titled in a single spouse's name as CP, rather than as QCP, and thus there would be an actual interest in the non-acquiring spouse's name, as opposed to a mere expectancy that could be extinguished on death. So I don't think the distinction is super-important, at least point-wise, on this question.

Anonymous said...

I completely failed to appreciate H&W's agreement to use W's funds for emergencies. that's entirely relevant under a marvin analysis, which would be based under contract. Damn. Damn! Missed it entirely.

That said, I think a fiduciary analysis is compelling as an alternative explanation, as the putative spouses would owe each other fiduciary duties as H & W, to take care of each other in the event of medical emergencies. I think that analysis is stronger than the notion of a gift.

A good rebuttal to that, of course, is the marvin-contract analysis and H & W's agreement to use W's money for emergencies. Which I missed :(

Michelle T. said...

I wouldn't worry. I don't think Marvin is applicable at all. My understanding is Marvin only relates to "cohabitants," and not legitimately married people or putative spouses... ?