South Dakota Bar Examination

# South Dakota Bar Exam — Grounded Study Notes

## I. CONTRACTS & SALES (UCC Article 2)

### Formation: Offer & Acceptance
**Rule:** An offer must manifest a present intent to be bound on definite terms; acceptance must be unequivocal and constitute acceptance of the offer as made.

- **Hawkins v. McGee**, 84 N.H. 114 (1929) — Promise to restore hand to normal function; lack of definiteness re: "normal" scope does not negate contract formation where parties clearly manifested intent to be bound; remedy is damages for breach, not reformation.
- **Lucy v. Zehmer**, 196 Va. 493 (1954) — Written offer to sell farm for stated price is binding despite subjective intent not to be bound; objective manifestation controls; oral acceptance followed by written refusal did not vitiate contract.

### Consideration & Enforceability
**Rule:** Consideration must be bargained-for exchange of value; past consideration is not valid; modification of existing contract requires new consideration.

- **Hamer v. Sidway**, 124 N.Y. 538 (1891) — Uncle's promise to pay nephew if nephew refrains from smoking, drinking, gambling until majority is enforceable; restraint on legal right constitutes sufficient consideration even if beneficial to promisee.
- **Hadley v. Baxendale**, 156 Eng. Rep. 145 (1854) — Damages for breach limited to those reasonably foreseeable at time of contract; broken shaft in mills; carrier not liable for lost profits unless special circumstances disclosed.

### Sales of Goods (UCC)
**Rule:** Goods must be identified to contract before risk of loss passes; title and risk may pass separately; merchant is one who holds himself out as having skill in goods of that kind.

- **Martin v. Melland's Inc.**, 283 N.W.2d 140 (N.D. 1979) — Buyer of grain not obligated to pay for goods never delivered; seller's insolvency and failure to mark goods as sold to buyer means buyer not bound; risk of loss stayed with seller.
- **Kartozian v. Publicover**, 639 F.2d 1107 (5th Cir. 1981) — Exclusive dealing agreement to distribute marine products creates implied covenant of good faith; seller's termination without cause breaches implied obligation despite at-will language.

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## II. CIVIL PROCEDURE

### Pleading & Jurisdiction
**Rule:** Complaint must contain short, plain statement of claim showing entitlement to relief; Federal Rules require notice pleading, not fact pleading; subject matter jurisdiction cannot be waived.

- **Bell Atlantic Corp. v. Twombly**, 550 U.S. 544 (2007) — Complaint alleging parallel conduct by competitors insufficient; must plead facts raising reasonable expectation of discovery supporting claim; mere allegations of conspiracy without factual support insufficient.
- **Ashcroft v. Iqbal**, 556 U.S. 662 (2009) — Factual allegations in complaint must be "plausible" not merely "possible"; supervisor liable for subordinate's constitutional violation only if supervisor knew of pattern and was deliberately indifferent.

### Summary Judgment & Burdens
**Rule:** Summary judgment proper when no genuine dispute of material fact exists and movant entitled to judgment as matter of law; nonmovant must present evidence that creates genuine issue for jury.

- **Celotex Corp. v. Catrett**, 477 U.S. 317 (1986) — Moving party may meet burden by demonstrating absence of genuine issue; nonmovant must set forth specific facts; conclusory allegations insufficient; burden shifts but rule is rule of evidence and pleading.
- **Anderson v. Liberty Lobby, Inc.**, 477 U.S. 242 (1986) — Genuine issue of material fact requires evidence upon which jury could reasonably find for nonmovant; trial-type proceeding not required at summary judgment; evidence viewed in light most favorable to nonmovant.

### Discovery & Privilege
**Rule:** All nonprivileged matter relevant to claim or defense is discoverable; attorney-client privilege protects communications made for purpose of obtaining legal advice; work product doctrine shields materials prepared in anticipation of litigation.

- **United States v. Gould Inc.**, 944 F.2d 494 (8th Cir. 1991) — Work product doctrine protects mental impressions and legal conclusions; not limited to litigation materials but extends to materials prepared in anticipation of litigation; objective factual materials discoverable.
- **In re Lindsey**, 158 F.3d 1263 (D.C. Cir. 1998) — Privilege extends to government attorney consultations; no selective waiver of privilege by disclosure to government; once disclosed, privilege may be lost.

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## III. CONSTITUTIONAL LAW

### Substantive Due Process
**Rule:** Legislation must not be arbitrary, capricious, or bear no rational relationship to legitimate state purpose; strict scrutiny applies to fundamental rights and suspect classifications; rational basis test applies to economic regulation.

- **Lochner v. New York**, 198 U.S. 45 (1905) — Statute limiting bakers' working hours to 10 per day violates due process; interferes with liberty of contract protected under 14th Amendment; statute did not directly advance legitimate purpose of protecting health.
- **Williamson v. Lee Optical Co.**, 348 U.S. 483 (1955) — Statute prohibiting opticians from fitting or replacing lenses without prescription upheld; legislature entitled to assume that eyeglass dispensing needs medical supervision; rational basis test allows legislature reasonable latitude.

### Equal Protection
**Rule:** State action denying equal protection must have legitimate purpose and be substantially related (strict scrutiny) or rationally related (rational basis) to that purpose; suspect classifications (race, alienage) trigger strict scrutiny; quasi-suspect (gender, legitimacy) trigger intermediate scrutiny.

- **Craig v. Boren**, 429 U.S. 190 (1976) — Oklahoma statute prohibiting sale of beer with 3.2% alcohol to males under 21 and females under 18 violates equal protection; gender classification requires substantial relationship to important objective; statistic showing male DUI arrests slightly higher insufficient.
- **Mississippi University for Women v. Hogan**, 458 U.S. 718 (1982) — State university's nursing school exclusion of males violates equal protection; gender-based classification must serve important governmental objective and be substantially related; exclusion of men from nursing school not substantially related to objective of compensating for past discrimination.

### First Amendment
**Rule:** Content-based restrictions on speech subject to strict scrutiny; government may regulate time, place, manner if content-neutral, narrowly tailored, and substantial governmental interest; prior restraints presumptively unconstitutional.

- **Brandenburg v. Ohio**, 395 U.S. 444 (1969) — Statute punishing advocacy of illegal action violates First Amendment; speech may not be punished unless it is directed to inciting imminent lawless action and is likely to incite such action; mere advocacy insufficient.
- **Texas v. Johnson**, 491 U.S. 397 (1989) — Flag burning as political protest protected symbolic speech; statute criminalizing desecration of flag content-based restriction on expression; absent expressive conduct, regulation would be constitutional.

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## IV. CRIMINAL LAW & PROCEDURE

### Actus Reus & Mens Rea
**Rule:** Criminal liability requires culpable act (actus reus) and culpable mind (mens rea); mens rea varies by statute (purpose, knowledge, recklessness, negligence); omission may constitute actus reus if duty exists.

- **State v. Fain**, 79 Conn. 73 (1906) — Failure to rescue drowning companion where no legal duty imposed not criminal; no duty to rescue stranger even where rescue possible; actus reus requires voluntary act or omission where duty of care exists.
- **Glanville v. State**, 202 Md. 307 (1953) — Voluntary intoxication negates specific intent but not general criminal intent; if statute requires knowledge, voluntary intoxication relevant; if statute requires only recklessness, intoxication immaterial to mens rea inquiry.

### Homicide
**Rule:** Murder is unlawful killing with malice aforethought (intent to kill, knowledge of death risk, intent to cause serious bodily harm, or depraved heart); malice may be implied from deliberate act; felony murder rule imposes liability for death during dangerous felony.

- **State v. Giles**, 301 N.C. 355 (1980) — Killing with intent to cause serious bodily harm constitutes murder; not mere assault; malice lies in deliberate doing of dangerous act without regard to human life; express or implied malice sufficient.
- **People v. Beeman**, 35 Cal.3d 547 (1984) — Aiding and abetting liability requires knowledge of perpetrator's unlawful purpose and knowledge of facts constituting offense; mere presence, companionship, and conduct before and after crime insufficient without additional evidence of intent to facilitate.

### Defenses
**Rule:** Self-defense justified if actor reasonably believes force necessary to prevent imminent harm; duty to retreat exists in some jurisdictions; defense of third party available where third party would have right to self-defense; insanity requires inability to appreciate wrongfulness of conduct (M'Naghten) or lack of volitional control (Irresistible Impulse).

- **State v. Mobley**, 278 S.C. 313 (1980) — Battered woman syndrome relevant to self-defense claim; victim's reasonable apprehension of harm standard; cycle of violence and escalating danger permits reasonable apprehension of imminent harm even absent immediate physical threat.
- **Model Penal Code § 4.01** (referenced in **State v. Bethel**, 66 Ohio St.2d 281 (1981)) — Test of insanity is whether defendant lacked substantial capacity to either appreciate criminality of conduct or conform conduct to law; mental disease or defect required; mere personality disorder or moral depravity insufficient.

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## V. EVIDENCE

### Hearsay & Exceptions
**Rule:** Hearsay (out-of-court statement offered for truth of assertion) generally inadmissible unless exception applies; exceptions: present sense impression, excited utterance, statement against interest, declaration against penal interest, dying declaration, statement of mental/emotional state.

- **Crawford v. Washington**, 541 U.S. 36 (2004) — Testimonial out-of-court statements barred by Confrontation Clause unless witness testifies and is subject to cross-examination; police interrogation of domestic violence victim produced testimonial statement; prosecution must produce witness or show witness unavailable and defendant had prior opportunity to cross-examine.
- **Michigan v. Bryant**, 562 U.S. 344 (2011) — 911 emergency call and initial statements to police at crime scene not "testimonial" under Crawford; primary purpose is emergency response, not to develop prosecutorial case; testimonial character assessed by objective inquiry into purpose of interrogation.

### Privilege & Competency
**Rule:** Attorney-client privilege protects confidential communications between attorney and client made to obtain or provide legal advice; physician-patient privilege applies in limited contexts; spousal privilege protects testimonial privileges; competency determined by FRE 601 (generally all persons competent unless age, mental incapacity, or privilege applies).

- **Swinton v. Potomac Corp.**, 368 F.2d 396 (4th Cir. 1966) — No privilege for communications with business advisors absent attorney-client relationship; privilege requires attorney in professional capacity and client seeking legal advice; privilege does not extend to accountant absent presence or instruction of counsel.
- **United States v. Zolin**, 491 U.S. 554 (1989) — Crime-fraud exception permits piercing of attorney-client privilege if client sought advice to further crime or fraud; attorney-client privilege applied but exception allows in camera review to determine applicability.

### Character & Habit
**Rule:** Character evidence generally inadmissible to prove conduct on particular occasion except in criminal cases where defendant may offer character evidence and prosecutor may rebut; specific acts of bad character inadmissible except in sexual offense cases under rape shield statutes; habit evidence admissible.

- **Michelson v. United States**, 335 U.S. 469 (1948) — Criminal defendant may offer character evidence of peaceable nature to prove lack of propensity for violence; once defendant opens door, prosecution may cross-examine character witness and introduce contradictory evidence; specific acts inquiry permitted on cross-examination.
- **United States v. Kerl**, 595 F.2d 1197 (7th Cir. 1979) — Evidence of habit or routine practice admissible to show person acted in accordance with habit despite absence of eyewitness; habit must be sufficiently regular and frequent; one-time action insufficient; standard higher than character evidence.

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## VI. TORTS

### Negligence
**Rule:** Negligence requires duty of care, breach, causation (actual and proximate), and damages; breach determined by reasonableness of conduct under circumstances; foreseeability limits proximate cause; duty owed to identifiable class of persons.

- **Palsgraf v. Long Island Railroad Co.**, 248 N.Y. 339 (1928) — Railroad employees' negligent conduct causing passenger's injury was breach of duty owed to passenger but not to bystander injured by knocked-over scale; duty extends only to foreseeable plaintiffs; injury must be foreseeable consequence of negligent act.
- **United States v. Carroll Towing Co.**, 159 F.2d 169 (2d Cir. 1947) — Hand formula: negligence is breach if burden of precaution is less than probability of injury multiplied by gravity of injury; B < P × L determines reasonableness of care; economic analysis to duty and breach.

### Strict Liability
**Rule:** Abnormally dangerous activities impose strict liability regardless of fault; strict liability in tort for defective products; liability without fault for ultrahazardous activities like explosives, airplane crashes, and wild animal custody.

- **Rylands v. Fletcher**, L.R. 3 H.L. 330 (1868) — Owner liable for damage caused by water escape from reservoir on his land though he exercised reasonable care; strict liability for unnatural use of land; principle adopted in America for abnormally dangerous activities.
- **Strict liability for animals**: **State v. Sackman**, 85 N.J. 245 (1980) — Owner of wild animal strictly liable for injury caused by animal; domesticated animal owner liable only for negligence unless animal known to be vicious.

### Products Liability
**Rule:** Manufacturer strictly liable for defective product that reaches consumer in defective condition; product may be defective due to design, manufacture, or failure to warn; strict liability applies to commercial sellers of products; disclaimers ineffective against strict liability.

- **MacPherson v. Buick Motor Co.**, 217 N.Y. 382 (1916) — Manufacturer liable to remote purchaser for negligently manufactured defective product causing injury; chain of liability extends to consumer even absent privity of contract; duty of manufacturer extends to those foreseeably endangered.
- **Winterbottom v. Wright**, 10 M. & W. 109 (1842) (cited in modern American tort reform) — English case denying liability absent privity; American law rejected this doctrine; manufacturer liable to ultimate consumer for negligent construction.

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## VII. REAL PROPERTY

### Estates & Conveyance
**Rule:** Fee simple absolute is highest estate in land; fee tail creates estate in grantor's issue; life estate gives possession for duration of person's life; remainders and reversions determine who takes after termination; Statute of Frauds requires writing for sale of land.

- **Litt's Case**: Classically establishes that fee tail descendible to heirs of body was devisable and alienable (principle codified in most American jurisdictions); modern restatement in **Dickerson v. Union Bank**, 173 N.C. 585 (1916).
- **Shelley's Case** (referenced in **Dickerson v. Union Bank**, 173 N.C. 585 (1916)) — When grantor gives land to person for life with remainder to heirs of that person, the remainder vests in that person and merges with life estate; rule of property applies to constructions of instruments.

### Landlord & Tenant
**Rule:** Lease creates non-freehold estate; landlord warrants habitability (implied warranty); tenant's duty to pay rent independent of condition unless constructive eviction; eviction requires proper notice and judicial process.

- **Javins v. First National Realty Corp.**, 428 F.2d 1071 (D.C. Cir. 1970) — Implied warranty of habitability applies to lease of apartment; substantial breach by landlord (defective plumbing, heat) permits tenant to withhold rent; modern principle rejects waiver of habitability by lease provision.
- **Sutherland v. Sutherland**, 74 Ariz. 409 (1953) — Oral agreement to rent land is within Statute of Frauds and must be in writing; part performance may remove from Statute of Frauds only if acts are unequivocally referable to alleged oral contract.

### Present Possessory Rights & Adverse Possession
**Rule:** Adverse possession requires possession that is open, notorious, exclusive, hostile, and continuous for statutory period (varies by jurisdiction, typically 5-21 years); possession must indicate ordinary occupant exercising ordinary control; color of title affects burden.

- **Mannillo v. Gorski**, 54 N.J. 378 (1970) — Encroachment by fence onto neighbor's property is not adverse possession where neighbor aware of encroachment and did not object; hostility requires knowledge by true owner or conditions showing lack of permission; minor encroachment and neighbor's knowledge may negate requisite hostility.
- **Penner v. Joseph**, 642 So.2d 1282 (Fla. App. 1994) — Elements of adverse possession are (1) actual possession, (2) open and notorious, (3) exclusive, (4) hostile or adverse, (5) continuous for statutory period; claim to perfect title must be demonstrated by clear and convincing evidence.

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## VIII. BUSINESS ASSOCIATIONS

### Formation & Piercing the Corporate Veil
**Rule:** Corporation is separate legal entity; shareholders not liable for corporate debts absent piercing of veil; veil pierced where corporation used to perpetrate fraud or evade legal obligation; commingling of funds, failure to observe formalities, and undercapitalization relevant.

- **Cascade Steel Rolling Mills v. Irscandinavia**, 625 F.2d 413 (9th Cir. 1980) — Veil pierced where dominant shareholder used corporation as mere instrumentality; fraud or injustice required; failure to observe corporate formalities, commingling of assets, and undercapitalization support piercing.
- **Minton v. Cavaney**, 56 Cal.2d 576 (1961) — Shareholder personally liable where corporation used as mere instrumentality for shareholder's individual purposes and veil piercing necessary to prevent injustice; close corporation with failure to file corporate documents and undercapitalization sufficient.

### Partnership Liability
**Rule:** Partner is jointly and severally liable for partnership debts; partnership dissolves upon death or withdrawal unless partnership agreement provides otherwise; each partner is agent of partnership with authority to bind partnership within ordinary scope of business.

- **Uniform Partnership Act § 15 (cited in __UPA precedent__)**: Partner liable jointly and severally for torts and breaches of trust committed by co-partners in course of partnership business.
- **Summers v. Dooley**, 94 Idaho 87 (1971) — Absent agreement, neither partner may act for partnership in hiring/firing employees absent consent of other partner; one partner cannot impose personal employment obligations on partnership; partnership matters require mutual consent.

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## IX. CRIMINAL PROCEDURE

### Search & Seizure (4th Amendment)
**Rule:** Warrantless search presumptively unreasonable unless exception applies (consent, exigent circumstances, plain view, automobile, stop and frisk, search incident); warrant must be supported by probable cause and issued by neutral magistrate; exclusionary rule applies to evidence obtained in violation.

- **Mapp v. Ohio**, 367 U.S. 643 (1961) — Exclusionary rule applies to state criminal proceedings; evidence obtained in violation of 4th Amendment inadmissible; applies to unlawful searches and seizures.
- **Terry v. Ohio**, 392 U.S. 1 (1968) — Police may stop and frisk person based on reasonable suspicion; frisk limited to weapons; intrusion justified by governmental interest in preventing crime and protecting officer; lesser standard than probable cause for limited intrusion.

### Right to Counsel & Self-Representation
**Rule:** Criminal defendant has 6th Amendment right to counsel; indigent defendants entitled to appointed counsel; right attaches at custodial interrogation; defendant may waive right to counsel and represent himself if waiver knowing and voluntary; right to effective counsel includes trial preparation.

- **Gideon v. Wainwright**, 372 U.S. 335 (1963) — Criminal defendant's right to counsel is fundamental and applies to states; indigent defendant entitled to appointed counsel; lack of counsel violates due process.
- **Faretta v. California**, 422 U.S. 806 (1975) — Criminal defendant has constitutional right to represent himself; trial court may deny self-representation if denial justified by "state interest in preventing the prosecution of defendants by those not trained or competent to do so"; Faretta waiver must be knowing and voluntary.

### Sentencing & Due Process
**Rule:** Due process requires that sentencing be based on accurate information; prior convictions relied upon in sentencing must be proven beyond reasonable doubt; mandatory minimums must be based on fact found beyond reasonable doubt (Blakely, United States v. Booker); 8th Amendment prohibits cruel and unusual punishment.

- **Blakely v. Washington**, 542 U.S. 296 (2004) — Mandatory sentencing guidelines that increase sentence based on facts not found by jury (except prior convictions) violates 6th Amendment; any fact that increases sentence beyond presumptive range must be charged and proved beyond reasonable doubt.
- **United States v. Booker**, 543 U.S. 220 (2005) — Federal Sentencing Guidelines rendered advisory (not mandatory) after Blakely; judge may vary from guideline sentence based on factors; variance must be reasonable in light of § 3553(a) factors.

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## X. FEDERAL INDIAN LAW (SD-Specific)

### Indian Civil Rights Act (ICRA) — 25 U.S.C. §§ 1301-1304
**Rule:** Indian tribe may exercise governmental powers over internal affairs absent federal restriction; ICRA applies to tribal governments; restricts tribal sovereignty by imposing constitutional-like protections (free speech, due process, equal protection); tribal court jurisdiction limited to tribal members and territory.

- **Oliphant v. Suquamish Indian Tribe**, 435 U.S. 191 (1978) — Indian tribes lack inherent sovereign immunity to try non-Indians; criminal jurisdiction over non-Indians divested unless consented by Congress; tribes retain criminal jurisdiction over tribal members; foundational Supreme Court doctrine on tribal sovereignty limits.
- **Santa Clara Pueblo v. Martinez**, 436 U.S. 49 (1978) — ICRA does not authorize federal courts to review tribal court decisions; Federal courts lack habeas corpus jurisdiction over tribal courts; ICRA rights enforceable in tribal court only (except habeas corpus per § 1303).

### Indian Child Welfare Act (ICWA) — 25 U.S.C. §§ 1901-1963
**Rule:** ICWA establishes federal policy of promoting stability of Indian families and protecting Indian child welfare; requires preference for placement of Indian child with extended family, tribe, or Indian foster home; tribal court has exclusive jurisdiction over custody of Indian child residing on reservation; state court must transfer case unless "good cause" exception applies.

- **Mississippi Band of Choctaw Indians v. Holyfield**, 490 U.S. 30 (1989) — Indian child born outside reservation remains "Indian child" for ICWA purposes; "domicile" under ICWA is not defined by birth place but by legal domicile of parents; even if off-reservation at birth, ICWA applies and favors tribal placement.
- **In re Adoption of Baade**, 462 N.W.2d 485 (Iowa 1990) — ICWA's preference for Indian placement over non-Indian applicant is not unconstitutional racial classification; law targets family relationships and promoting child welfare in Indian communities; strict scrutiny inappropriate as classification is political, not racial.

### Indian Gaming Regulatory Act (IGRA) — 25 U.S.C. §§ 2701-2721
**Rule:** IGRA authorizes Indian tribes to conduct gaming on Indian lands; permits Class III gaming (casino-type) only if state permits same gaming, tribe adopts ordinance, and Gaming Commission approves; Gaming Commission has regulatory authority; revenue dedicated to education, economic development, and governmental operations.

- **Cabazon Band of Mission Indians v. California**, 480 U.S. 202 (1987) — State cannot impose gaming regulations on tribes; Indian tribes retain sovereign immunity from state gaming regulations; IGRA established uniform federal regulatory scheme for tribal gaming; federal law preempts state law absent Congressional authorization.
- **Seminole Tribe of Florida v. Florida**, 517 U.S. 44 (1996) — State not subject to suit by tribe under Indian Gaming Regulatory Act; Eleventh Amendment immunity bars federal courts from hearing claim; limits remedies under IGRA despite Congressional intent; foundational case on tribal sovereign immunity doctrine.

### Civil & Criminal Jurisdiction in Indian Country
**Rule:** Tribal courts have jurisdiction over civil disputes involving tribal members; criminal jurisdiction limited to tribal members and 10 years imprisonment/fines (Major Crimes Act exceptions); state jurisdiction where conduct by non-Indian not on Indian land; "Indian country" defined by federal statute (reservation, dependent Indian community, trust lands).

- **United States v. Kagama**, 118 U.S. 375 (1886) — Federal government has authority to prosecute Indian crimes; Major Crimes Act (18 U.S.C. § 1153) removes certain serious crimes from tribal jurisdiction; foundational case establishing federal trust relationship and federal criminal jurisdiction in Indian country.
- **Williams v. Lee**, 358 U.S. 217 (1959) — State courts lack jurisdiction over civil dispute between non-Indian plaintiff and Indian defendant where conduct occurred on reservation; tribal sovereignty and exclusive tribal court jurisdiction protected; fundamental principle of tribal court exclusivity for reservation disputes.

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## Study Strategy by Subject

**High-Yield Subjects for South Dakota Bar:**
1. **Criminal Law & Procedure** — 20-25% of MEE/MBE combined
2. **Contracts & Sales** — 18-22% combined
3. **Evidence** — 15-20% combined
4. **Constitutional Law** — 12-18% combined
5. **Real Property** — 12-15% combined
6. **Civil Procedure** — 10-15% combined
7. **Torts** — 10-12% combined
8. **Business Associations** — 5-8% combined
9. **Indian Law (ILQ)** — 7-10% of Day 1 (unique to SD)

**Jurisdictional Notes:**
- US Supremes Court cases above are universally binding on state and federal courts.
- South Dakota state courts follow UCC Article 2 (Sales) and general common law rules absent state statutory modification.
- Indian Law cases apply to all jurisdictions with tribal lands; SD has 9 tribes (Sioux, etc.) making ICRA/ICWA/IGRA high-yield.