BarBri Thread: People taking Barbri for July 2013 exam

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kaiser
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby kaiser » Sat Jul 27, 2013 7:14 pm

rnf1292 wrote:Can an oral restrictive covenant on land ever be enforceable? i.e. you sell someone a piece of land on the condition that they only use it for residential purposes but this is not stated anywhere in the deed?


Not sure if it would be enforceable, but I know it wouldn't bind successors.

blong4133
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby blong4133 » Sat Jul 27, 2013 7:15 pm

Stupid question - Civ Pro

First response to complaint must include any 12(b) defense that is waivable, otherwise you can't bring it up later.

If your first response to the complaint is a 12(b) motion, you don't have to assert affirmative defenses to avoid waiving them, right? Affirmative defenses must be alleged in the answer since that's a pleading, not necessarily the first response (i.e. 12(b) motion).

Is that right?

BCLS
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby BCLS » Sat Jul 27, 2013 7:19 pm

blong4133 wrote:Stupid question - Civ Pro

First response to complaint must include any 12(b) defense that is waivable, otherwise you can't bring it up later.

If your first response to the complaint is a 12(b) motion, you don't have to assert affirmative defenses to avoid waiving them, right? Affirmative defenses must be alleged in the answer since that's a pleading, not necessarily the first response (i.e. 12(b) motion).

Is that right?

this is my understanding

phonepro
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby phonepro » Sat Jul 27, 2013 7:22 pm

The battery on my mac "replace now." looks like ill be taking a trip to the apple store b4 the bar.

The battery condition tells you whether your battery is functioning normally and approximately how much charge it can hold.

Here are the possible conditions:

Normal: The battery is functioning normally.
Replace Soon: The battery is functioning normally but holds less charge than it did when it was new.
Replace Now: The battery is functioning normally but holds significantly less charge than it did when it was new. You can continue to use the battery until you replace it without harming your computer.
Service Battery: The battery isn’t functioning normally, and you may or may not notice a change in its behavior or the amount of charge it holds. Have your computer checked by an Apple Authorized Service Provider (AASP). You can continue to use your battery before it’s checked without harming your computer.

clashjones87
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby clashjones87 » Sat Jul 27, 2013 7:23 pm

JollyGreenGiant wrote:For those of you who can see "median" graded essays -- can you confirm that those essays are dogshit? I feel like a friggin' idiot trying to do these essays and looking at the analysis.


also interested in this. I understand that BarBri provides a "grading sheet" for the essays in the back of the MEE book, but as with all things Barbri, I simply don't trust it.

hds2388
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby hds2388 » Sat Jul 27, 2013 7:30 pm

So, silly question for NYBE people because it was on the bar last year, but the sample answers butchered the analysis, so I wanted to seek out the answer for my own edification.

If you shoot someone, they go into a coma, you are convicted of attempted murder, and they subsequently die (from the gunshot), obviously you can be tried for and convicted of murder (right?).

My question is, under the NY rule for DJ, is this justified by the substantially different elements prong? Attempted murder and murder don't seem to have substantially different elements t me. Can someone explain?

hds2388
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby hds2388 » Sat Jul 27, 2013 7:32 pm

hds2388 wrote:So, silly question for NYBE people because it was on the bar last year, but the sample answers butchered the analysis, so I wanted to seek out the answer for my own edification.

If you shoot someone, they go into a coma, you are convicted of attempted murder, and they subsequently die (from the gunshot), obviously you can be tried for and convicted of murder (right?).

My question is, under the NY rule for DJ, is this justified by the substantially different elements prong? Attempted murder and murder don't seem to have substantially different elements t me. Can someone explain?


Or is it because the death occurring so much later, takes it out of the same transaction?

kaiser
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby kaiser » Sat Jul 27, 2013 7:35 pm

hds2388 wrote:
hds2388 wrote:So, silly question for NYBE people because it was on the bar last year, but the sample answers butchered the analysis, so I wanted to seek out the answer for my own edification.

If you shoot someone, they go into a coma, you are convicted of attempted murder, and they subsequently die (from the gunshot), obviously you can be tried for and convicted of murder (right?).

My question is, under the NY rule for DJ, is this justified by the substantially different elements prong? Attempted murder and murder don't seem to have substantially different elements t me. Can someone explain?


Or is it because the death occurring so much later, takes it out of the same transaction?


NY doesn't have that "one year + a day rule". You are liable for the homicide no matter how much longer the death occurs. Just because it occurs later doesn't take it out of the transaction. I have no clue how it works if the victim dies after D has already been convicted for attempted murder. My guess is that they are sufficiently different in their elements.

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Joe Quincy
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby Joe Quincy » Sat Jul 27, 2013 7:37 pm

phonepro wrote:The battery on my mac "replace now." looks like ill be taking a trip to the apple store b4 the bar.

The battery condition tells you whether your battery is functioning normally and approximately how much charge it can hold.

Here are the possible conditions:

Normal: The battery is functioning normally.
Replace Soon: The battery is functioning normally but holds less charge than it did when it was new.
Replace Now: The battery is functioning normally but holds significantly less charge than it did when it was new. You can continue to use the battery until you replace it without harming your computer.
Service Battery: The battery isn’t functioning normally, and you may or may not notice a change in its behavior or the amount of charge it holds. Have your computer checked by an Apple Authorized Service Provider (AASP). You can continue to use your battery before it’s checked without harming your computer.


Try discharging your battery completely until shut off...leave unplugged, wait 3 hours, remove (if removable), press and hold power button for 30 seconds, then re-plug and charge to 100% without disconnecting. About 25% of the time it'll fix the max charge that is throwing that message.

There is no danger in using it like that and it'll always work when plugged in so don't stress it too much. The battery is just too far out of the design capacity now.

You can download cocconutBattery for free to see what it is reading. My Air, after 349 loadcycles, is still reading 89% of design...which is actually pretty good.

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Matteliszt
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby Matteliszt » Sat Jul 27, 2013 7:41 pm

hds2388 wrote:So, silly question for NYBE people because it was on the bar last year, but the sample answers butchered the analysis, so I wanted to seek out the answer for my own edification.

If you shoot someone, they go into a coma, you are convicted of attempted murder, and they subsequently die (from the gunshot), obviously you can be tried for and convicted of murder (right?).

My question is, under the NY rule for DJ, is this justified by the substantially different elements prong? Attempted murder and murder don't seem to have substantially different elements t me. Can someone explain?




Pursuant to the Blockburger test, you cannot be tried for a crime subsequently to the first trial that shares all the elements with the previous charge. Thus if the first charge was A B C and the subsequent one was B C, you cannot be tried for it. Because attempted murder doesn't require proof that the victim died, or that the defendant's conduct caused the death, the motion to dismiss should be denied.


Further, New York does not have the "year and a day" rule, therefore anytime the death occurs a defendant can be criminally liable for murder.

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Joe Quincy
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby Joe Quincy » Sat Jul 27, 2013 7:43 pm

kaiser wrote:
hds2388 wrote:
hds2388 wrote:So, silly question for NYBE people because it was on the bar last year, but the sample answers butchered the analysis, so I wanted to seek out the answer for my own edification.

If you shoot someone, they go into a coma, you are convicted of attempted murder, and they subsequently die (from the gunshot), obviously you can be tried for and convicted of murder (right?).

My question is, under the NY rule for DJ, is this justified by the substantially different elements prong? Attempted murder and murder don't seem to have substantially different elements t me. Can someone explain?


Or is it because the death occurring so much later, takes it out of the same transaction?


NY doesn't have that "one year + a day rule". You are liable for the homicide no matter how much longer the death occurs. Just because it occurs later doesn't take it out of the transaction. I have no clue how it works if the victim dies after D has already been convicted for attempted murder. My guess is that they are sufficiently different in their elements.


Double Jeopardy only applies if all of the facts needed to charge both existed at the time, even if they don't meet the Blockburger test. So, you'd be convicted of both but your punishment would be adjusted to the higher.

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Joe Quincy
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby Joe Quincy » Sat Jul 27, 2013 7:43 pm

Matteliszt wrote:
hds2388 wrote:So, silly question for NYBE people because it was on the bar last year, but the sample answers butchered the analysis, so I wanted to seek out the answer for my own edification.

If you shoot someone, they go into a coma, you are convicted of attempted murder, and they subsequently die (from the gunshot), obviously you can be tried for and convicted of murder (right?).

My question is, under the NY rule for DJ, is this justified by the substantially different elements prong? Attempted murder and murder don't seem to have substantially different elements t me. Can someone explain?




Pursuant to the Blockburger test, you cannot be tried for a crime subsequently to the first trial that shares all the elements with the previous charge. Thus if the first charge was A B C and the subsequent one was B C, you cannot be tried for it. Because attempted murder doesn't require proof that the victim died, or that the defendant's conduct caused the death, the motion to dismiss should be denied.


Further, New York does not have the "year and a day" rule, therefore anytime the death occurs a defendant can be criminally liable for murder.


Wrong. All of the facts don't yet exist for the second charge so the exception to Blockburger applies. Not to mention, attempted murder IS a lesser included of murder. Generally all attempts are considered lesser includeds...that's why they merge.

Straight from my Crim Pro class notes:

Exceptions
• Doesn’t apply if all the facts the prosecutor needed to bring the claims together had not yet developed...so, foster first prosecuted for attempted murder, then wife dies, and prosecuted for murder...normally the lesser included offense would merge, but here it wouldn’t merge...she hadn’t died...
Last edited by Joe Quincy on Sat Jul 27, 2013 7:47 pm, edited 2 times in total.

phonepro
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby phonepro » Sat Jul 27, 2013 7:45 pm

tfer2222 wrote:
phonepro wrote:
Matteliszt wrote:
tfer2222 wrote:the feb 2013 essays seem so easy, for the most part. why did they get all the easy issues. the RAP question was a joke.



Dude look at July 2012, it's pretty much the same thing if not easier. There are a few NY distinctions that are pretty critical but the essays are straightforward. I hope ours are as straightforward.


Where can if I find these?

=[


http://www.nybarexam.org/ExamQuestions/ ... stions.htm



Thanks - haven't looked at them yet but are the answers average or the best answers?

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tfer2222
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby tfer2222 » Sat Jul 27, 2013 7:46 pm

Joe Quincy wrote:
Double Jeopardy only applies if all of the facts needed to charge both existed at the time, even if they don't meet the Blockburger test. So, you'd be convicted of both but your punishment would be adjusted to the higher.



This is what i thought when i was outlining that essay.

Although New York applies the "transactional" test to DJ and i didn't really know exactly how to incorporate that Blockburger exception into the NY analysis.

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tfer2222
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby tfer2222 » Sat Jul 27, 2013 7:47 pm

phonepro wrote:

Thanks - haven't looked at them yet but are the answers average or the best answers?


they are "above average" answers, so I'm guessing they're like 6's. not necessarily the "best" but comfortably passing.

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Matteliszt
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby Matteliszt » Sat Jul 27, 2013 7:49 pm

I did the same thing Tfer2222 did when I did this essay for the reason JQ cited, and I also was under the impression attempted murder is a lesser included of murder. The answers from NYBOLE both use the analysis I used above. I suppose it's possible they're both wrong since they're student answers?

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Joe Quincy
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby Joe Quincy » Sat Jul 27, 2013 7:52 pm

Matteliszt wrote:I did the same thing Tfer2222 did when I did this essay for the reason JQ cited, and I also was under the impression attempted murder is a lesser included of murder. The answers from NYBOLE both use the analysis I used above. I suppose it's possible they're both wrong since they're student answers?


Its possible. Or NY has some silly rule. E.g. VA only allows conspiracy to be brought along with the completed crime if tried in the same trial. Otherwise they consider it barred.

hds2388
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby hds2388 » Sat Jul 27, 2013 7:57 pm

tfer2222 wrote:
phonepro wrote:

Thanks - haven't looked at them yet but are the answers average or the best answers?


they are "above average" answers, so I'm guessing they're like 6's. not necessarily the "best" but comfortably passing.


Yeah, I'd say 6s. They get most of the law, with good structure and clear rule statements. That said, they still sometimes miss a whole issue's rule, but otherwise have a good analysis.

hds2388
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby hds2388 » Sat Jul 27, 2013 7:58 pm

Joe Quincy wrote:
Matteliszt wrote:I did the same thing Tfer2222 did when I did this essay for the reason JQ cited, and I also was under the impression attempted murder is a lesser included of murder. The answers from NYBOLE both use the analysis I used above. I suppose it's possible they're both wrong since they're student answers?


Its possible. Or NY has some silly rule. E.g. VA only allows conspiracy to be brought along with the completed crime if tried in the same trial. Otherwise they consider it barred.


The model answers def use the wrong rule.

BenJ
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby BenJ » Sat Jul 27, 2013 8:32 pm

For question R-38 from the New York released questions, Barbri's model answer does not mention fractures as a potential "serious injury" that would allow the injured party to sue a driver under NY's no-fault insurance scheme. The injury in the question is really minor (a fractured finger), but I have in my notes with a bunch of stars next to it that fractures are statutorily defined as serious injuries that allow a victim to sue a driver (or owner), and that the bar likes to test that. Which is it?

aimeel
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby aimeel » Sat Jul 27, 2013 8:50 pm

NY people- On the MBE, do we apply the 'substantial step/strongly corroborative' (MPC/Majority approach) or 'dangerously close'(NY/Common Law) approach for act that is required for Attempt? I assumed that the CL would apply on the MBE but a question in Crim MPQ1 Set 5 applies the substantial step analysis.

kaiser
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby kaiser » Sat Jul 27, 2013 8:58 pm

aimeel wrote:NY people- On the MBE, do we apply the 'substantial step/strongly corroborative' (MPC/Majority approach) or 'dangerously close'(NY/Common Law) approach for act that is required for Attempt? I assumed that the CL would apply on the MBE but a question in Crim MPQ1 Set 5 applies the substantial step analysis.


MBE is the substantial step, NY is proximity/dangerously close test

aimeel
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby aimeel » Sat Jul 27, 2013 9:08 pm

kaiser wrote:
aimeel wrote:NY people- On the MBE, do we apply the 'substantial step/strongly corroborative' (MPC/Majority approach) or 'dangerously close'(NY/Common Law) approach for act that is required for Attempt? I assumed that the CL would apply on the MBE but a question in Crim MPQ1 Set 5 applies the substantial step analysis.


MBE is the substantial step, NY is proximity/dangerously close test


Thanks!

legalnoeagle
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby legalnoeagle » Sat Jul 27, 2013 10:44 pm

People who have taken the NCBE tests:

What is the scaled score for 65 raw on Sets 1 and 2?
I have the questions, but got hard copies from a friend, so I don't have access to any data.

conwaystern
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Re: BarBri Thread: People taking Barbri for July 2013 exam

Postby conwaystern » Sat Jul 27, 2013 10:51 pm

rnf1292 wrote:Can an oral restrictive covenant on land ever be enforceable? i.e. you sell someone a piece of land on the condition that they only use it for residential purposes but this is not stated anywhere in the deed?


Off the top of my head, no. A restrictive covenant must be conveyed with title (writing).

On top of that, if the grantee attempts to alienate subject to the grantor's restrictive covenant, that title is inherently not marketable since no reasonable third party would purchase the parcel with such a covenant.




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