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kaiser wrote:

hds2388 wrote:

Mroberts3 wrote:

hds2388 wrote:Wanted to gripe about/hear other takes on a problem. MPQ2, Mixed Set 7, Question 25. I know these queries are sometimes boring, and I apologize to all for having to even read this far because I am being petty over 1 missed MBE question.

The gist of the question is, given a US congressional regulation requiring specifications for containers that nonprescription drugs had to be in for marketing those products, is congress's power to pass this legislation derived from the Necessary and Proper Clause or the Commerce Clause. Barbri says the answer is commerce clause.

My initial answer (in my head) was both; obviously I needed to choose one or the other. The grant of power over interstate congress certainly puts the subject of this legislation in the realm of commerce clause, but the very power to adopt the legislation (and the stem of the question is: "Congress's power to pass this legislation is derived from:"), in my mind, comes from N+P. So I focused on the "power to pass" language. To bolster my case, I cite to http://en.wikipedia.org/wiki/Necessary_ ... per_Clause, in the Later Applications section.

Can someone explain to me why this is wrong? In general, I'm bad at con law, so I will happily defer to everyone else's choice wisdom.

Again, sorry for being petty.

Because necessary and proper clause can't ever stand alone. It must be linked with another enumerated power. I don't know the question first hand, but if the answer choice only says N+P it will always be wrong. Plus, congress doesn't need it to pass the drug packaging law because that is entirely within the commerce power anyway...no need to rely on necessary and proper clause.

Fair enough. Better explanation than barbri's.

Right, the N & P clause is never a standalone source of power. You would never say that "X action is justified by the N & P clause". You would instead say that X action is justified by Congress's enumerated power to do so and so (ex. regulate commerce). The N & P clause merely gives them the flexibility to carry out action pursuant to enumerated powers.

Another very common "power" that isn't a power is the general welfare clause. I keep seeing that one, and its never right. Congress can tax and spend for the general welfare, but they can't just do anything, and say it is in the general welfare.

kaiser wrote:Honestly, I'm not sure its necessary. Though the confidence boost was certainly worth something to me (but, of course, it depends on how much you value that at this stage). I can't imagine someone being totally comfortable with BarBri Q's, and then being that thrown by these real ones.

PitchO20 wrote:Still haven't looked at sec trans / comm. paper. I know I'm going to have to drag myself to memorize some rules at one point, but damn.

kaiser wrote:

PitchO20 wrote:Still haven't looked at sec trans / comm. paper. I know I'm going to have to drag myself to memorize some rules at one point, but damn.

Same. At a certain point, you need to prioritize. Look at the frequency. The majority of comm paper & sec. trans. issues that have come up are just one-off things that aren't repeated. Only like 1 or 2 concepts that have been on multiple tests. I'd at least know the few important things. I haven't watched the video on it, but will likely just review an outline for an hour or 2.

stratocophic wrote:

kaiser wrote:

PitchO20 wrote:Still haven't looked at sec trans / comm. paper. I know I'm going to have to drag myself to memorize some rules at one point, but damn.

Same. At a certain point, you need to prioritize. Look at the frequency. The majority of comm paper & sec. trans. issues that have come up are just one-off things that aren't repeated. Only like 1 or 2 concepts that have been on multiple tests. I'd at least know the few important things. I haven't watched the video on it, but will likely just review an outline for an hour or 2.

Does Barbri give us breakdowns for the frequency that subjects are tested? If they do, where would it be? I don't know this because I... I am not a model student.

kaiser wrote:

PitchO20 wrote:Still haven't looked at sec trans / comm. paper. I know I'm going to have to drag myself to memorize some rules at one point, but damn.

Same. At a certain point, you need to prioritize. Look at the frequency. The majority of comm paper & sec. trans. issues that have come up are just one-off things that aren't repeated. Only like 1 or 2 concepts that have been on multiple tests. I'd at least know the few important things. I haven't watched the video on it, but will likely just review an outline for an hour or 2.

tfer2222 wrote:for NY-ers who don't want to mess with the minor subjects that much, this frequency chart lists the actual issues within each subject that are most heavily tested. Pretty useful if you want to just memorize a couple of the rules that are actually tested out of secured/commercial/fedjur/PR/conflict, etc.

http://www.smartbarprep.com/SmartBarPre ... alysis.pdf

just scroll down to page 8 or so.

wildhaggis wrote:How nitpicky do the actual essays get?

I feel like some of the BarBri essays for the non-MBE subjects hit some pretty specific issues that they haven't necessarily prepared us for.

RodneyBoonfield wrote:Can someone help me out with this question: 157 on MPQ2 Full day- Basically it says that D who borrowed his friend's car is not guilty of larceny after borrowing it (without the intent to steal) but then deciding after taking it to the grocery store that he was not going to return it, but after that still, he decided to return it. The answer explains that D did not have the requisite intent to commit larceny. I am 99.9% positive that we've had questions just like this that specifically say that the intent for larceny can be formed later on, and that the crime is complete once the mens rea and act add up (here taking the car and deciding not to return, even though he later decided to return it).

Is the distinction in the above question that the taking was not trespassory because D borrowed the car with permission, where as in the other cases that I alluded to, the original taking was NOT with permission, hence trespassory?

RodneyBoonfield wrote:Can someone help me out with this question: 157 on MPQ2 Full day- Basically it says that D who borrowed his friend's car is not guilty of larceny after borrowing it (without the intent to steal) but then deciding after taking it to the grocery store that he was not going to return it, but after that still, he decided to return it. The answer explains that D did not have the requisite intent to commit larceny. I am 99.9% positive that we've had questions just like this that specifically say that the intent for larceny can be formed later on, and that the crime is complete once the mens rea and act add up (here taking the car and deciding not to return, even though he later decided to return it).

Is the distinction in the above question that the taking was not trespassory because D borrowed the car with permission, where as in the other cases that I alluded to, the original taking was NOT with permission, hence trespassory?

ace_of_spades wrote:

RodneyBoonfield wrote:Can someone help me out with this question: 157 on MPQ2 Full day- Basically it says that D who borrowed his friend's car is not guilty of larceny after borrowing it (without the intent to steal) but then deciding after taking it to the grocery store that he was not going to return it, but after that still, he decided to return it. The answer explains that D did not have the requisite intent to commit larceny. I am 99.9% positive that we've had questions just like this that specifically say that the intent for larceny can be formed later on, and that the crime is complete once the mens rea and act add up (here taking the car and deciding not to return, even though he later decided to return it).

Is the distinction in the above question that the taking was not trespassory because D borrowed the car with permission, where as in the other cases that I alluded to, the original taking was NOT with permission, hence trespassory?

Yeah I'm pretty sure you have to take the item wrongfully in order for continuing trespass to come into play.

Munson wrote:Can someone explain the answer to Question 34 on the "Full Day" exam?

In the prompt, an officer observes the defendant jaywalking. The officer decides to make an arrest and begins to place the defendant in handcuffs. The defendant, a black belt, gets out of the hold. The officer strikes at the defendant with a club, and the defendant knocks the club out of the officer's hand.

Will the defendant prevail in a suit against the officer for battery?

(B) No, because the officer witnessed the offense
(D) Yes, because the officer was not privileged to arrest him

Barbri claims the answer is (D) because the officer could not arrest for a misdemeanor that is not a breach of the peace.

How is this analysis consistent with the Supreme Court's opinion in Atwater v. Lago Vista, which holds that an officer may make a lawful arrest for a misdemeanor punishable only by a fine (in that case, not wearing a seatbelt).

usuaggie wrote:

RodneyBoonfield wrote:Can someone help me out with this question: 157 on MPQ2 Full day- Basically it says that D who borrowed his friend's car is not guilty of larceny after borrowing it (without the intent to steal) but then deciding after taking it to the grocery store that he was not going to return it, but after that still, he decided to return it. The answer explains that D did not have the requisite intent to commit larceny. I am 99.9% positive that we've had questions just like this that specifically say that the intent for larceny can be formed later on, and that the crime is complete once the mens rea and act add up (here taking the car and deciding not to return, even though he later decided to return it).

Is the distinction in the above question that the taking was not trespassory because D borrowed the car with permission, where as in the other cases that I alluded to, the original taking was NOT with permission, hence trespassory?

Really glad you asked Because I've been confused too. Here is the answer.

Larceny requires intent to permanently deprive at the time of the taking, generally. However, the intent can develop at a later time under the theory of continuing trespass. For the theory of continuing trespass to apply, the defendant must have WRONGFULLY taken the property without the intent to deprive and then later decides to keep it.

In the question you asked, he gains control of the property rightfully, so continuing trespass doesn't apply.

BeenDidThat wrote:

usuaggie wrote:

RodneyBoonfield wrote:Can someone help me out with this question: 157 on MPQ2 Full day- Basically it says that D who borrowed his friend's car is not guilty of larceny after borrowing it (without the intent to steal) but then deciding after taking it to the grocery store that he was not going to return it, but after that still, he decided to return it. The answer explains that D did not have the requisite intent to commit larceny. I am 99.9% positive that we've had questions just like this that specifically say that the intent for larceny can be formed later on, and that the crime is complete once the mens rea and act add up (here taking the car and deciding not to return, even though he later decided to return it).

Is the distinction in the above question that the taking was not trespassory because D borrowed the car with permission, where as in the other cases that I alluded to, the original taking was NOT with permission, hence trespassory?

Really glad you asked Because I've been confused too. Here is the answer.

Larceny requires intent to permanently deprive at the time of the taking, generally. However, the intent can develop at a later time under the theory of continuing trespass. For the theory of continuing trespass to apply, the defendant must have WRONGFULLY taken the property without the intent to deprive and then later decides to keep it.

In the question you asked, he gains control of the property rightfully, so continuing trespass doesn't apply.

^^^ What he said

It's easy for me to remember as: the continuing trespass rule is simply an equitable relaxation of the traditional requirement that the person intend to permanently deprive true owner. Kind of have to have it so D (who is only witness to his mental state) can't make trouble for the State by saying I was just taking it for a month.

RodneyBoonfield wrote:

BeenDidThat wrote:

usuaggie wrote:

RodneyBoonfield wrote:Can someone help me out with this question: 157 on MPQ2 Full day- Basically it says that D who borrowed his friend's car is not guilty of larceny after borrowing it (without the intent to steal) but then deciding after taking it to the grocery store that he was not going to return it, but after that still, he decided to return it. The answer explains that D did not have the requisite intent to commit larceny. I am 99.9% positive that we've had questions just like this that specifically say that the intent for larceny can be formed later on, and that the crime is complete once the mens rea and act add up (here taking the car and deciding not to return, even though he later decided to return it).

Is the distinction in the above question that the taking was not trespassory because D borrowed the car with permission, where as in the other cases that I alluded to, the original taking was NOT with permission, hence trespassory?

Really glad you asked Because I've been confused too. Here is the answer.

Larceny requires intent to permanently deprive at the time of the taking, generally. However, the intent can develop at a later time under the theory of continuing trespass. For the theory of continuing trespass to apply, the defendant must have WRONGFULLY taken the property without the intent to deprive and then later decides to keep it.

In the question you asked, he gains control of the property rightfully, so continuing trespass doesn't apply.

^^^ What he said

It's easy for me to remember as: the continuing trespass rule is simply an equitable relaxation of the traditional requirement that the person intend to permanently deprive true owner. Kind of have to have it so D (who is only witness to his mental state) can't make trouble for the State by saying I was just taking it for a month.

So take for example question 178. I was assuming that someone like the girl in the question here WOULD be guilty or larceny. Now I realize how confused I am.

kaiser wrote:

tfer2222 wrote:for NY-ers who don't want to mess with the minor subjects that much, this frequency chart lists the actual issues within each subject that are most heavily tested. Pretty useful if you want to just memorize a couple of the rules that are actually tested out of secured/commercial/fedjur/PR/conflict, etc.

http://www.smartbarprep.com/SmartBarPre ... alysis.pdf

just scroll down to page 8 or so.

The only main sidenote that Barbri added to info like this is that PR is more commonly tested in recent years as a sub-issue within larger essays. But again, its almost always in certain main categories, like conflict of interests, or the rules on contingency fees. The same can be said for almost all the minor subjects, where 1 or 2 sub-issues are almost always the ones tested. You can't center your prep around the one-off issues, when you can spend your time more effectively drilling the major things that you are almost certain to see.

c3pO4 wrote:

RodneyBoonfield wrote:How did people do on the mpq2 full day?

shat the bed. it's all just super hard questions. similar to the simulated final exam int he end, or the half-day right before it, or like sets 5/6 in mpq1. its also harder than sets 8/9, which are themselves much harder than sets 1-7. if you can get 50% on test day on questions of that difficulty (probably want 60% on sets 8/9), you are on track. barbri claims 60% is the goal for the mpq2 full day but I call bullshit. the mpq2 insert says their "goals" on that page are based on averages in PACE but since MPQ2 full day is not assigned in pace they have no way to know. i think anything above 45-50% is not great but probably fine, 50-55% is ok/good, 55-65% is great , above 65%... fuck you stop studying. i did find reviewing the answers helpful though because drilling the exceptions to the exceptions makes sure you understand the fundamentals well.