Title: CANONIC ANKI / BarNex · Jurisdictional Splits
Tags: SILVER jurisdictional_splits

Q: Pleading Standard: Notice vs. Twombly/Iqbal Plausibility
A: Diane Kohler, Esq.
MAJORITY/UBE (federal) standard under FRCP 8(a)(2) as construed by Twombly and Iqbal: a complaint must state a claim that is PLAUSIBLE on its face — courts disregard conclusory allegations, then ask whether the well-pleaded facts make the claim more than merely conceivable. This displaced the old Conley 'no set of facts' notice-pleading test. A minority of states retain liberal notice pleading or, like California, use code/fact pleading — they have NOT adopted Twombly/Iqbal. The MBE/UBE tests the federal plausibility standard. Authority: FRCP 8(a)(2).
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Q: Secured transactions: Article 9 fixture-filing PMSI priority vs first-to-record real-estate rule
A: Diane Kohler, Esq.
UNIFORM RULE (UCC Article 9, adopted in all states): a perfected security interest in FIXTURES generally yields to a conflicting real-estate interest UNLESS the secured party makes a FIXTURE FILING in the real-estate records; a PURCHASE-MONEY security interest in fixtures takes PRIORITY over an earlier-recorded real-estate encumbrance if perfected by fixture filing within 20 DAYS after the goods become fixtures (the PMSI fixture super-priority). The 'first-to-record/first-in-time' real-property baseline otherwise controls non-PMSI fixture conflicts. Authority: UCC § 9-334(d), (e) (Uniform Commercial Code Article 9).
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Q: Personal Jurisdiction: Transient (Tag) Jurisdiction
A: Diane Kohler, Esq.
MAJORITY/UBE rule: physical presence plus personal service in the forum (transient or 'tag' jurisdiction) is a constitutionally sufficient, independent basis for general personal jurisdiction over an individual — minimum-contacts analysis is not required. The Justices split on the rationale (Scalia's plurality vs. Brennan's concurrence, which would still apply an Int'l Shoe fairness check), but all agreed the result is valid. Service procedure itself runs through FRCP 4. Tag jurisdiction does NOT reach corporations or service procured by fraud/force. Authority: FRCP 4.
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Q: Expert Testimony: Daubert vs. Frye
A: Diane Kohler, Esq.
MAJORITY/UBE (federal) Daubert standard: the trial judge is a gatekeeper assessing whether the expert's methodology is reliable and relevant — factors include testability, peer review, error rate, and general acceptance. Daubert was embodied in FRE 702 (amended 2000 and 2023 to clarify the proponent's preponderance burden). A minority of states (e.g., Pennsylvania, and historically California pre-Sargon) still apply the older Frye 'general acceptance in the relevant scientific community' test. The UBE/MBE tests the FRE/Daubert approach. Authority: FRE 702.
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Q: Confrontation & Hearsay: Testimonial Statements Split Trap
A: Diane Kohler, Esq.
MAJORITY/UBE (federal) two-step rule: a statement may fit a hearsay exception (e.g., excited utterance under FRE 803(2)) YET still be barred in a criminal case if it is TESTIMONIAL and the declarant is unavailable without prior cross-examination. The primary-purpose test distinguishes statements made to address an ongoing emergency (nontestimonial, admissible) from those made to establish past events for prosecution (testimonial, barred). States cannot dilute this federal constitutional floor, and the pre-Crawford reliability-based Roberts approach was abrogated. Authority: FRE 803(2).
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Q: Property: Marital Property Distribution
A: Diane Kohler, Esq.
MAJORITY: equitable-distribution states divide marital property acquired during the marriage 'equitably' (fairly, not necessarily 50/50), considering factors like contribution and need; title in one spouse's name is not controlling. MINORITY: nine community-property states (e.g., CA, TX, AZ, WA, LA) treat property acquired during marriage from earnings as community property owned equally, generally split 50/50, while separate property (pre-marital, gift, inheritance) stays separate. Title alone does not defeat the community/marital characterization. Authority: NCBE MBE/MEE Family Law Subject Matter Outline (marital property distribution).
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Q: Corporations: MBCA conflicting-interest safe harbor vs older 'intrinsic fairness' void rule
A: Diane Kohler, Esq.
MAJORITY/MODERN (MBCA): a director's conflicting-interest transaction is NOT voidable solely due to the conflict if (1) approved by a majority of qualified/disinterested directors after material disclosure, OR (2) approved by disinterested shareholders after disclosure, OR (3) the transaction was FAIR to the corporation — any one safe harbor suffices. MINORITY/OLDER common law: such self-dealing transactions were voidable unless the interested director affirmatively proved intrinsic/entire fairness regardless of disinterested approval. Authority: MBCA §§ 8.60–8.62 (Model Business Corporation Act, Subchapter F).
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Q: Wills: UPC harmless-error/holographic recognition vs strict-compliance attestation
A: Diane Kohler, Esq.
MAJORITY/UNIFORM (UPC): a will needs signature + 2 witnesses (or notarization under the 2008 amendment); under the HARMLESS-ERROR/dispensing-power doctrine a non-conforming document is still valid if proponent shows by clear and convincing evidence the decedent intended it as a will, and HOLOGRAPHIC (handwritten, unwitnessed) wills are valid if material portions and signature are in the testator's hand. MINORITY/OLDER (strict-compliance states, e.g., many traditional common-law jurisdictions): exact statutory formalities are mandatory and holographic wills are NOT recognized; any defect voids the will. Authority: UPC §§ 2-502, 2-503 (Uniform Probate Code).
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Q: Dying Declaration: Scope of the Exception
A: Diane Kohler, Esq.
MAJORITY/UBE (federal) FRE 804(b)(2): admissible only in a HOMICIDE prosecution OR ANY CIVIL case; the declarant must be unavailable (need not actually die) and must speak under a sense of impending death about its cause or circumstances. The common-law minority approach (still followed in some states) is NARROWER — limited to homicide prosecutions only and frequently requiring the declarant to have actually died. The FRE thus expanded the exception to all civil cases. Authority: FRE 804(b)(2).
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Q: Contract Formation: Mirror-Image vs. UCC 2-207
A: Diane Kohler, Esq.
COMMON LAW (non-goods) follows the mirror-image rule: a reply that varies the offer is a counteroffer and no contract forms (last-shot doctrine governs). For GOODS, UCC 2-207 displaces the mirror-image rule: a definite acceptance forms a contract even with additional/different terms. Between merchants, additional terms become part of the contract unless they materially alter it, the offer limits acceptance to its terms, or the offeror objects; different terms commonly drop out under the 'knockout rule' (the majority view) and gap-fillers supply the term. Authority: UCC § 2-207 (additional terms in acceptance or confirmation).
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Q: MPT Skill: Structuring the Persuasive Brief
A: Diane Kohler, Esq.
MPT TECHNIQUE (not doctrine): a persuasive brief uses ARGUMENTATIVE point headings (a full sentence stating your conclusion, e.g., 'The court should grant summary judgment because...'), then CRAC/IRAC under each — lead with your conclusion, cite ONLY the Library authorities provided, and weave specific File facts into the rule application. Follow the task memo's format instructions exactly, address counterarguments, and do not import outside law; points come from using the closet of given materials, not from outside knowledge. Authority: NCBE MPT instructions & skills tested (legal analysis, fact-marshaling, drafting); see NCBE MPT outline.
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Q: UCC Damages: Lost-Volume Seller
A: Diane Kohler, Esq.
MAJORITY/UBE rule: a lost-volume seller (one with effectively unlimited supply) recovers its lost PROFIT plus incidental damages under UCC 2-708(2), not the contract-resale differential under 2-708(1), because the resale would have happened anyway — so the seller actually lost one sale's worth of profit. Contrast a one-of-a-kind seller, who is made whole by the contract-price-minus-resale-price measure of 2-706/2-708(1). The doctrine recognizes that mitigation by resale does not offset volume loss. Authority: UCC § 2-708(2) (seller's damages for non-acceptance; lost profit).
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Q: Theft Offenses: Common-Law Larceny vs. MPC Consolidated Theft
A: Diane Kohler, Esq.
MAJORITY/UBE (MBE-tested) common-law approach keeps SEPARATE offenses — larceny, larceny by trick, false pretenses, embezzlement, robbery — distinguished by how title/possession passed and whether the taking was trespassory; charging the wrong one can be fatal. The MPC/modern approach (adopted by many states) CONSOLIDATES these into a single 'theft' offense, eliminating the old pleading traps and letting conviction stand regardless of which sub-theory the facts prove. The MBE tests the common-law distinctions unless a consolidated statute is given. Authority: NCBE MBE Criminal Law & Procedure outline (theft offenses).
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Q: NIED: Bystander Recovery Tests
A: Diane Kohler, Esq.
Under the MAJORITY/zone-of-danger rule (the Restatement default), a bystander recovers for NIED only if she was within the zone of physical danger and feared for her own safety — so the across-the-street mother loses. The MINORITY Dillon/Thing foreseeability approach (CA and a growing number of states) permits recovery where plaintiff was near the scene, had a contemporaneous sensory observation, and was closely related to the victim — so she wins. The oldest minority 'impact rule' (e.g., historically FL) requires some physical impact. Authority: RESTATEMENT (THIRD) OF TORTS: Liability for Physical & Emotional Harm § 48 (2012); Dillon v. Legg (1968).
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Q: Partner liability: RUPA exhaustion rule vs UPA joint/joint-and-several split
A: Diane Kohler, Esq.
MAJORITY/UNIFORM (RUPA): partners are JOINTLY AND SEVERALLY liable for ALL partnership obligations (both tort and contract), BUT a creditor generally must first exhaust partnership assets (obtain and have returned unsatisfied a judgment against the partnership) before reaching a partner's personal assets — the exhaustion rule. MINORITY/OLDER (original UPA): partners were JOINT AND SEVERAL for torts but only JOINTLY liable for contracts, and the exhaustion requirement did not exist. Authority: RUPA § 306(a) & § 307(d) (Revised Uniform Partnership Act 1997).
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Q: Divorce grounds: UMDA pure no-fault (irretrievable breakdown) vs traditional fault grounds
A: Diane Kohler, Esq.
MAJORITY/UNIFORM (UMDA & all 50 states now offer some no-fault): a divorce may be granted on the sole ground of IRRETRIEVABLE BREAKDOWN of the marriage; under the pure UMDA model fault is irrelevant to the decree and generally to property/support. MINORITY/OLDER and many current states: retain TRADITIONAL FAULT grounds (adultery, cruelty, desertion) as ALTERNATIVE bases, and many otherwise-no-fault states still allow fault to affect alimony or property distribution; a handful condition no-fault on a separation period or mutual consent. Authority: UMDA §§ 302, 305 (Uniform Marriage and Divorce Act).
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Q: Landlord-Tenant: Implied Warranty of Habitability
A: Diane Kohler, Esq.
MAJORITY/UBE rule: residential leases carry a non-waivable implied warranty of habitability; on material breach the tenant may withhold/abate rent, repair-and-deduct, or terminate, and a lease clause purporting to waive it is void as against public policy. MINORITY (older/common-law) approach treats lease covenants as independent under caveat lessee, so the tenant must pay rent regardless of disrepair and sue separately — surviving mainly for commercial leases. The warranty applies to residential, not (in most states) commercial, tenancies. Authority: Javins v. First Nat'l Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970); NCBE MBE Real Property Subject Matter Outline (implied warranty of habitability).
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Q: Acceptance: Mailbox Rule & Its Limits
A: Diane Kohler, Esq.
MAJORITY/UBE mailbox rule: acceptance is effective on DISPATCH, so a contract forms the moment the acceptance is mailed even though the rejection arrives first — the later rejection is a breach attempt, not a revocation. KEY LIMITS the candidate must spot: the rule does not apply to option contracts (acceptance effective on RECEIPT), and where the offeree sends a rejection FIRST then an acceptance, whichever the offeror receives first controls (and detrimental reliance estops). The mailbox rule never applies to revocations, which are effective only on receipt. Authority: RESTATEMENT (SECOND) OF CONTRACTS §§ 63, 40 (1981).
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Q: Representation: per-capita-at-each-generation (UPC) vs strict per stirpes vs per-capita-with-representation
A: Diane Kohler, Esq.
MODERN/UNIFORM (UPC 1990): PER CAPITA AT EACH GENERATION — divide at the first generation with a living taker, then pool the dropping shares and divide equally so equally-related takers receive equal shares. MAJORITY/INTERMEDIATE: per-capita-WITH-representation — make the initial division at the first generation with a survivor, deceased members' shares pass by representation down their line. MINORITY/OLDER (strict/classic PER STIRPES, e.g., FL, GA, NC, NJ, VA): always divide at the children's level even if all children predeceased, so grandchildren in a larger line each take less. Authority: UPC § 2-106 (Uniform Probate Code).
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Q: Conflict of laws: First Restatement vested-rights (lex loci) vs Second Restatement most-significant-relationship
A: Diane Kohler, Esq.
MAJORITY/MODERN (Restatement (Second), followed by a majority of states): apply the MOST SIGNIFICANT RELATIONSHIP test — weigh § 6 policy factors and issue-specific contacts (for torts: place of injury, conduct, parties' domicile, center of relationship). MINORITY/OLDER (First Restatement / VESTED-RIGHTS, still followed in ~10 states e.g., AL, GA, KS, MD, NC, VA): mechanical territorial rules — torts governed by LEX LOCI DELICTI (place of the wrong/injury) and contracts by lex loci contractus or place of performance. Authority: RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 6, 145, 188 (1971).
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Q: Intestacy: UPC graduated spousal share vs older fixed fractional share
A: Diane Kohler, Esq.
MAJORITY/UNIFORM (UPC): the surviving spouse's share is GRADUATED by family configuration — the spouse takes the ENTIRE estate if all of the decedent's surviving descendants are also descendants of that spouse (and the spouse has no other descendants), but a base amount plus a fraction (e.g., first $225,000 + 1/2) when stepchildren exist. MINORITY/OLDER common law: the spouse takes a FIXED fraction (commonly 1/3 or 1/2) regardless of whether children are shared or from a prior relationship. Authority: UPC § 2-102 (Uniform Probate Code).
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Q: Mortgages: Lien vs. Title Theory
A: Diane Kohler, Esq.
MAJORITY/UBE LIEN theory: the mortgagee holds only a security interest (lien); the mortgagor retains legal title and the right to possession until a completed foreclosure, so the lender cannot take possession or rents on mere default. MINORITY TITLE theory (and the intermediate theory): the mortgagee holds legal title and may take possession upon default before foreclosure. This split governs whether a co-tenant's mortgage severs a joint tenancy — severance under title theory, no severance under the majority lien theory. Authority: RESTATEMENT (THIRD) OF PROPERTY: Mortgages § 4.1 (1997).
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Q: Felony Murder: Agency vs. Proximate-Cause Theory
A: Diane Kohler, Esq.
MAJORITY/UBE agency theory: a felon is liable only for killings committed BY a felon or an agent of the felony — deaths caused by a resisting victim or police are NOT felony murder. The minority proximate-cause theory holds the felon liable for any death proximately caused by the felony, including a bystander shot by police. Most jurisdictions follow agency; a minority follow proximate cause. Authority: NCBE MBE Criminal Law & Procedure subject outline (felony murder).
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Q: Property: Recording Act Types
A: Diane Kohler, Esq.
Under a NOTICE statute, a subsequent BFP who takes without notice of the prior unrecorded interest prevails even if she never records — so B wins. Under a RACE-NOTICE statute (a slight majority of states), the subsequent BFP must take without notice AND record first — B still wins here because she recorded before A. Under a pure RACE statute (the minority, e.g., NC, LA), notice is irrelevant and whoever records first wins. On the MBE, identify the statute type from trigger language ('in good faith' = notice; 'first recorded' added = race-notice). Authority: NCBE MBE Real Property Subject Matter Outline (recording acts).
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Q: Negligence: Contributory vs. Comparative Fault
A: Diane Kohler, Esq.
MAJORITY/UBE rule: modified comparative negligence — plaintiff recovers reduced damages but is barred if her fault exceeds the threshold (49% in 'not as great as,' 50% in 'not greater than' states); a large minority (e.g., CA, NY, FL, WA) uses PURE comparative, allowing recovery even at 99% fault reduced proportionally. The minority traditional rule of contributory negligence (total bar) survives in only a handful of jurisdictions (e.g., AL, MD, NC, VA, and D.C.). On the MBE, assume pure comparative unless the question signals otherwise. Authority: RESTATEMENT (THIRD) OF TORTS: Apportionment of Liability §§ 7, 8 (2000).
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Q: Insanity Defense: M'Naghten vs. MPC/Other Tests
A: Diane Kohler, Esq.
MAJORITY/UBE: most states and the federal system use the M'Naghten test — the defendant, due to mental disease, did not know the nature/quality of the act OR did not know it was wrong (a purely cognitive test). The federal Insanity Defense Reform Act of 1984 adopted essentially M'Naghten and shifted the burden to the defense by clear and convincing evidence. A minority of states use the MPC/ALI test (lacked substantial capacity to appreciate criminality OR to conform conduct — adding a volitional prong); a few add the irresistible-impulse supplement, and New Hampshire alone uses the Durham product test. Authority: NCBE MBE Criminal Law & Procedure outline (insanity).
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Q: Marital property: community-property regime vs common-law title + equitable distribution
A: Diane Kohler, Esq.
MAJORITY (common-law/title states, ~41 states): during marriage each spouse owns what they earn or title, but at divorce the UMDA equitable-distribution approach divides MARITAL property fairly (not necessarily equally) considering statutory factors; at death the survivor takes an ELECTIVE SHARE. MINORITY (9 COMMUNITY-PROPERTY states — AZ, CA, ID, LA, NV, NM, TX, WA, WI): each spouse owns an undivided ONE-HALF of all community property (earnings and acquisitions during marriage) from acquisition; separate property is that owned before marriage or received by gift/inheritance. Authority: UMDA § 307 (Uniform Marriage and Divorce Act) (equitable distribution).
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Q: Voluntary Intoxication as a Defense
A: Diane Kohler, Esq.
MAJORITY/UBE rule: voluntary intoxication may negate the mens rea of a SPECIFIC-intent crime (e.g., it can reduce first-degree premeditated murder) but is NO defense to general-intent or malice crimes or to recklessness. A minority of states (e.g., Montana, upheld in Montana v. Egelhoff (1996)) bar the jury from considering voluntary intoxication for ANY purpose; the Supreme Court held this does not violate due process. Involuntary intoxication, by contrast, is treated like insanity in all jurisdictions. Authority: NCBE MBE Criminal Law & Procedure outline (intoxication); Montana v. Egelhoff (1996).
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Q: Partnership: RUPA entity theory & dissociation vs UPA aggregate theory & dissolution
A: Diane Kohler, Esq.
MAJORITY/UNIFORM (RUPA, adopted in ~37+ states incl. CA, TX, FL): a partnership is an ENTITY distinct from its partners; a partner's withdrawal is a 'dissociation' that does NOT necessarily dissolve the firm — the partnership continues and buys out the dissociated partner's interest unless a dissolution-triggering event occurs. MINORITY/OLDER (original UPA, still followed in a few states): aggregate theory — any partner's withdrawal causes DISSOLUTION, requiring winding up unless the remaining partners agree to continue. Authority: RUPA §§ 201, 601, 701, 801 (Revised Uniform Partnership Act 1997).
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Q: Mens Rea: Common Law vs. Model Penal Code
A: Diane Kohler, Esq.
MAJORITY/UBE (MBE-tested) common-law approach uses general vs. specific intent (plus malice and strict liability); 'intent' covers both purpose and knowledge that a result is substantially certain. The MPC reform approach (adopted in whole or part by a majority of states) replaces these with four culpability levels — purposely, knowingly, recklessly, negligently — and, absent a stated mens rea, defaults to recklessness. Know both because the MBE tests common-law definitions unless the fact pattern flags the MPC. Authority: NCBE MBE Criminal Law & Procedure subject outline (mens rea / culpability).
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