Barbri MBE Questions -- Errors?

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
User avatar
Mroberts3
Posts: 300
Joined: Sat Oct 03, 2009 10:10 pm

Barbri MBE Questions -- Errors?

Postby Mroberts3 » Sat Jun 15, 2013 10:13 pm

Hi TLS,

I been pretty frustrated with the quality of Barbri's questions in the MPQ1 book (mostly from sets 5 and 6 -- and not just because they are hard). Below are some of the questions that I find problematic. These are just the ones I found after a brief search, but many have annoyed me from the start of the class.

I am curious if people agree with my assessment of the questions. Also, if people have others that they thought were not correctly phrased or had errors, please let me know. I am strongly considering writing an email to complain to Barbri given how much I paid for the class (so I want as many examples as possible and want to be correct if I do).

Torts, Set 5:

Question 6: This question seems to confuse negligence with intentional torts. There are no facts to suggest that the improper paint color was done intentionally (E.g. “the employee thought pink would be a better color”). The proper color could have simply been miscommunicated. The driver is likely to recover on a negligence theory because painting the wrong color is a breach of duty to take care of the customer’s car, and answer choice B is the only one that references negligence.

The definition of “intentional interference” as explained in the answer could be applied to any negligence claim that has affirmative action. It makes no sense to say that an actor intended the act if it was a mistake (e.g. a mechanic puts the wrong brakes on a car, a carpenter mistakenly uses the wrong kind of wood). These are examples of negligence, not an intentional act that diminishes the value of the car or the house).

Question 32: Technically honey bees are domesticated animals. However, Professor Schechter explicitly used bees as an example of the kinds of things Bar Examiners will not test on. He went so far as to make fun of a prior student who came up to him asking whether various animals are domesticated (e.g. elephants). The point was that the Bar won’t test your knowledge of what is or is not domesticated beyond dogs and cats = domesticated / lions and tigers = not domesticated.

Students were apoplectic the day after this set was assigned for homework. All one had to do was look at a classmate and say “Bees?” and they would double over in rage-laughter.


Criminal Law, Set 5:


Question 8: The answer to this question is too subjective because it simply tests a student’s knowledge on probable cause – which does not have a bright line rule. One cannot disregard the possibility that there is probable cause given the fact that a large quantity of drugs were found in a trunk under the bed the woman was sleeping on. Just because it is unlikely for her to be living at a fraternity house, it is not unreasonable to think she might be involved in the sale of those drugs (the case would be significantly different if the police only found a small amount of drugs likely to belong to the room’s owner).

Question 30: This question does not sufficiently present the “permanently deprive” element to be valid. It is debatable that using a baseball to play baseball necessarily subjects it to a “substantial” risk of damage or loss. On this theory, one could be convicted of larceny for stealing a car for a joyride under the argument that driving on the street subjects the car to a substantial risk of damage – thus meeting the “permanently deprive” element despite the actor’s subjective intention. The analogy here is an employee asking to borrow a company car to “go on a sales delivery” when really he intends to go to the beach. There is at least an equally strong argument that this constitutes embezzlement rather than larceny (or that no crime has been committed and that this really a tort case).

The only way to make this question valid is to significantly strengthen the risk of playing in that particular field – the dog chewing “several balls” is not even close to what is necessary (especially given that the ball is being used in the manner it was made for).

User avatar
zanda
Posts: 526
Joined: Fri Apr 24, 2009 9:36 am

Re: Barbri MBE Questions -- Errors?

Postby zanda » Sat Jun 15, 2013 10:48 pm

barbri is FULL of errors.

signed,
guy who passed the bar last summer with Barbri, but was frequently cranky about how some barbri materials gave rules directly contrary to other materials

User avatar
Mroberts3
Posts: 300
Joined: Sat Oct 03, 2009 10:10 pm

Re: Barbri MBE Questions -- Errors?

Postby Mroberts3 » Sat Jun 15, 2013 11:19 pm

Did you use any other questions for the MBE? If so, were they helpful? My general strategy is to crush the MBE so that I have a large cushion on the essays.


One to add to the pile:

PRE MBE Question 24:

The CMR says that a buyer down the chain of successive general warranty deeds can sue anyone up the chain. This fact pattern has a general warranty deed --> quitclaim deed ---> buyer. The answer says that the buyer can sue the conveyer of the general warranty deed. My understanding of the CMR is that the buyer is shit outta luck if he bought with a quitclaim deed.

truevines
Posts: 198
Joined: Fri Jun 20, 2008 6:16 pm

Re: Barbri MBE Questions -- Errors?

Postby truevines » Sun Jun 16, 2013 1:49 am

Mroberts3 wrote:Hi TLS,

Torts, Set 5:


Criminal Law, Set 5:



Don't waste your time on sets 5 and 6. Too tricky and unrealistic. Spend that time writing essays or working on mixed subjects.

hiima3L
Posts: 837
Joined: Sun Mar 25, 2012 10:26 pm

Re: Barbri MBE Questions -- Errors?

Postby hiima3L » Sun Jun 16, 2013 2:11 am

zanda wrote:barbri is FULL of errors.

signed,
guy who passed the bar last summer with Barbri, but was frequently cranky about how some barbri materials gave rules directly contrary to other materials


Co-signed.

I just stopped doing their MPQs. God I'm still pissed off about barbri.

fanlinxun
Posts: 103
Joined: Thu Feb 25, 2010 4:32 am

Re: Barbri MBE Questions -- Errors?

Postby fanlinxun » Sun Jun 16, 2013 10:40 am

Just got a 69% on the contracts set 5. If you try to find the right answer you will lose. Just eliminate all the wrong answers and whatever less, regardless of whether you have seen it before, is right. It is annoying to be asked questions about topics that the lecturer said would not be on the bar, but it really is good practice.

User avatar
bgdddymtty
Posts: 697
Joined: Thu Feb 11, 2010 12:59 pm

Re: Barbri MBE Questions -- Errors?

Postby bgdddymtty » Sun Jun 16, 2013 5:18 pm

While there have been a few of the MPQ questions that have made me say "whaaaaa?" I don't find any problem with any of these.

Torts 5-6: You've misunderstood the intent element. The explanation notes that trespass to chattels requires "intent to perform the act bringing about..." In this case, that means the intent to paint the car pink, not the intent to harm the plaintiff by so doing.

As for the whole misunderstanding on the color thing, it's not relevant (although it would be a defense if the plaintiff had miscommunicated his request), but the facts don't support that theory anyway. The plaintiff brought his customized yellow race car in to be repainted before the new season began. It seems obvious there that one would expect the new color to be the same as the old one absent explicit instructions to the contrary.

Torts 5-32: You have a point that maybe this is a closer case than we'll probably be asked, but the question was still pretty fair. It was a honey farm, and the bees were kept in hives.

Crim 5-8: There will be MBE questions on probable cause. Regardless of the fact that there aren't bright line rules, you need to be able to make judgment calls when the facts are well on one side of the blurry line. In this case, the cops had a warrant for a frat house. They executed a warrant while a party--a common frat house event--was going on, so there's no reason to suspect that those in the house as guests are necessarily there to buy drugs (unlike during, say, a raid at a garden variety crack house). Also, given that this was a fraternity house, it's obvious that the girl doesn't live there. Finally, the drugs were in a closed container under the bed, so there's no reason to suspect that the sleeping girl had any connection to them that would justify going beyond the scope of the warrant and searching her person.

Crim 5-30: You're missing a critical fact. This wasn't any old baseball; it was a baseball autographed by Babe Ruth. Its value was as sports memorabilia, not sporting equipment. A collectible's value is heavily dependent on its condition. Even if the ball hadn't gone over the fence, it was virtually guaranteed that by using the ball in the normal course of a baseball game, the defendant would have significantly diminished the economic value of--that is, damaged--the victim's property. Thus, the intent element is clearly met.

User avatar
Mroberts3
Posts: 300
Joined: Sat Oct 03, 2009 10:10 pm

Re: Barbri MBE Questions -- Errors?

Postby Mroberts3 » Sun Jun 16, 2013 8:50 pm

Those are all good points, but I think there are still problems with the questions.

Even if we grant that painting the car can be a trespass to chattels, it is also consistent with a negligence theory under these facts. If there was no negligence answer then the question might be fine. I think I do understand how intent works here -- its just that it can overlap with negligence (intending to do something that is negligent).

I think your argument on probable cause is a good one -- it's the way I was original leaning. However, I think there are arguments on the other side (the most obvious of which is that the drugs were in a large quantity and variety. This suggests a more elaborate sales system that could involve, among others, friends, girlfriends, etc). I also disagree with the party aspect -- that is exactly the kind of situation where college kids will sell drugs. Remember, probable cause is still a pretty low standard, definitely less than 50/50. The fact that there is *I think* reasonable disagreement and opposing answer choices that reflect that makes it a problematic multiple choice question.

I agree that the baseball will lose value, but doesn't this made it a tort case of conversion? Remember, the kid did not have the intent to permanently deprive at the time. Thus, the only way to get to larceny is a continuing trespass theory. This is exemplified by the question about a joyrider who later decided to push the car off a cliff. As a practical matter I just don't think playing baseball is enough to meet that element (lowered value seems to lean towards torts whereas destruction or loss leans towards criminal law.

Of my examples I a most open to being wrong about the last one if only because "no crime" wasn't an option.

User avatar
nevdash
Posts: 409
Joined: Sun Dec 07, 2008 5:01 pm

Re: Barbri MBE Questions -- Errors?

Postby nevdash » Sun Jun 16, 2013 9:04 pm

Just a general tip on probable cause questions: a lot of the questions where the correct answer is that there was/wasn't probable cause for a search take fact patterns almost directly from cases where SCOTUS has said that there was/wasn't probable cause. The frat house case is just an application of Ybarra, for example.

So I guess if you see a fact pattern on a practice question and you think "Huh, that sounds sort of like a Crim Pro case I remember, but not exactly," you should err on the side of answering in accordance with whatever the holding of the case was, even if you think there are relevant differences. Because probable cause is such a fluid concept, the only way that can write "correct" answers is by apply holdings of cases.

User avatar
bgdddymtty
Posts: 697
Joined: Thu Feb 11, 2010 12:59 pm

Re: Barbri MBE Questions -- Errors?

Postby bgdddymtty » Sun Jun 16, 2013 9:44 pm

Mroberts3 wrote:Those are all good points, but I think there are still problems with the questions.

Even if we grant that painting the car can be a trespass to chattels, it is also consistent with a negligence theory under these facts.
That's true, but it doesn't make the question flawed. Many actions could potentially give rise to multiple causes of action. The relevant question is, is more than one answer correct? In this case, only C is correct. Answer choice B says that the plaintiff cannot recover unless he can prove that the shop breached a duty. That's not true. While he could recover under the negligence theory, he could still recover under trespass to chattels even if he cannot show negligence.

However, I think there are arguments on the other side (the most obvious of which is that the drugs were in a large quantity and variety. This suggests a more elaborate sales system that could involve, among others, friends, girlfriends, etc). I also disagree with the party aspect -- that is exactly the kind of situation where college kids will sell drugs.
First, "could" has literally nothing to do with probable cause. Even if it did, it does not implicate this girl.

As for the idea that a drug-dealing student would sell drugs at a party, I agree, but you have the analysis backwards. It's not "is this the type of place where someone might sell drugs?" It's more like "is there any legitimate, non-criminal purpose for this person's presence here?" You're right that the standard for probable cause is less than a preponderance of the evidence, but it's a lot more than simply being somewhere that a warrant is served.

You may disagree, and you may think that your disagreement is reasonable, but I'm willing to bet that any probable cause question on the MBE is likely to look a lot like this one.

I agree that the baseball will lose value, but doesn't this made it a tort case of conversion?
Many things are both torts and crimes.

Remember, the kid did not have the intent to permanently deprive at the time. Thus, the only way to get to larceny is a continuing trespass theory.
Both the explanation for this question and, IIRC, the lecture outline note that intent to deal with the property in a way that involved a substantial risk of damage or loss satisfies the "intent to permanently deprive" element. The defendant was lying to the victim from the start. He never planned to just show the ball to some friends. It was always his intent to play a pickup game with it, an act which was virtually guaranteed to damage the victim's property. This is different from continuing trespass.

By the way, I don't mean to be talking down to you or anything like that. I did horribly on both of these sets.

User avatar
Mroberts3
Posts: 300
Joined: Sat Oct 03, 2009 10:10 pm

Re: Barbri MBE Questions -- Errors?

Postby Mroberts3 » Sun Jun 16, 2013 11:49 pm

nevdash wrote:Just a general tip on probable cause questions: a lot of the questions where the correct answer is that there was/wasn't probable cause for a search take fact patterns almost directly from cases where SCOTUS has said that there was/wasn't probable cause. The frat house case is just an application of Ybarra, for example.

So I guess if you see a fact pattern on a practice question and you think "Huh, that sounds sort of like a Crim Pro case I remember, but not exactly," you should err on the side of answering in accordance with whatever the holding of the case was, even if you think there are relevant differences. Because probable cause is such a fluid concept, the only way that can write "correct" answers is by apply holdings of cases.


Good point -- definitely heard something along the lines that they use prior cases. This didn't bring Ybarra to my mind at first but I see your point.

User avatar
Mroberts3
Posts: 300
Joined: Sat Oct 03, 2009 10:10 pm

Re: Barbri MBE Questions -- Errors?

Postby Mroberts3 » Sun Jun 16, 2013 11:54 pm

bgdddymtty wrote:By the way, I don't mean to be talking down to you or anything like that. I did horribly on both of these sets.


Actually I appreciate someone taking the time to engage my questions rather than think "yeah that guy is right/wrong" and move on without throwing their 2 cents in.

I've generally been doing pretty well on the MBEs, so maybe I am getting cocky/overconfident and fighting with the test when they throw the harder stuff at me. I think its also the tone of the explanations because sometimes they kind of just say "x=probable cause" without explaining how they got there. E.g. why not analogize to Ybarra as Nevdash did (unless they did and I am moron)?

User avatar
nevdash
Posts: 409
Joined: Sun Dec 07, 2008 5:01 pm

Re: Barbri MBE Questions -- Errors?

Postby nevdash » Mon Jun 17, 2013 11:34 am

Mroberts3 wrote:I've generally been doing pretty well on the MBEs, so maybe I am getting cocky/overconfident and fighting with the test when they throw the harder stuff at me.

I definitely think I do this, too. On the subjects where I got a 16-18/18 on the Set 1, I tended to do worse on the Set 5s and 6s than in subjects where I only got a 13-14 on the Set 1s. Staying humble is hard sometimes, especially when so many parts of BarBri are clearly idiotic. Like when you see a few answers that BarBri obviously did get wrong, it's difficult not to assume that every time you disagree with an answer, you're the one who's correct. But assuming that you're the one who's incorrect is probably the better approach.

This process sucks. :(

User avatar
bgdddymtty
Posts: 697
Joined: Thu Feb 11, 2010 12:59 pm

Re: Barbri MBE Questions -- Errors?

Postby bgdddymtty » Mon Jun 17, 2013 8:28 pm

My turn to complain: Con Law Set 5, Question 8 (#9664 if you're using StudySmart) is just plain wrong and in an especially egregious way given the quiz's intended audience. The explanation proceeds as if answer choices A and C both contain the word "only," which they don't. Without that word, neither is a good answer choice. The correct answer is D.

User avatar
bgdddymtty
Posts: 697
Joined: Thu Feb 11, 2010 12:59 pm

Re: Barbri MBE Questions -- Errors?

Postby bgdddymtty » Tue Jun 18, 2013 6:07 pm

How about this one: Evidence Set 2, Question 5 (#10210).

The explanation indicates that the doctor need not be qualified as an expert because "she is testifying about matters of which she has personal knowledge, and she is not giving opinion testimony." But the testimony that she is giving is that she has had other recent patients "who suffered from complications caused by blood clotting..." If that's not "testimony about a scientific, technical, or professional issue given by a person qualified to testify because of familiarity with the subject or special training in the field," I don't know what is.

User avatar
nevdash
Posts: 409
Joined: Sun Dec 07, 2008 5:01 pm

Re: Barbri MBE Questions -- Errors?

Postby nevdash » Tue Jun 18, 2013 6:40 pm

bgdddymtty wrote:How about this one: Evidence Set 2, Question 5 (#10210).

The explanation indicates that the doctor need not be qualified as an expert because "she is testifying about matters of which she has personal knowledge, and she is not giving opinion testimony." But the testimony that she is giving is that she has had other recent patients "who suffered from complications caused by blood clotting..." If that's not "testimony about a scientific, technical, or professional issue given by a person qualified to testify because of familiarity with the subject or special training in the field," I don't know what is.

I think you're reading too much into the "caused by." You could strike that part from the prompt and the testimony would still be the same. If the testimony is just offered to show a connection between the drug and blood clots, it doesn't matter that the clots cause complications; all that matters is that the clots occurred soon after taking the medication. A lay witness could testify to that. It just involves an observation that the patients took the medication, then the patients formed blood clots. You may need to be a doctor to recognize that a blood clot is a blood clot, but there's no relevant or controversial opinion involved on the doctor's testimony at all.

User avatar
bgdddymtty
Posts: 697
Joined: Thu Feb 11, 2010 12:59 pm

Re: Barbri MBE Questions -- Errors?

Postby bgdddymtty » Tue Jun 18, 2013 8:24 pm

nevdash wrote:I think you're reading too much into the "caused by." You could strike that part from the prompt and the testimony would still be the same. If the testimony is just offered to show a connection between the drug and blood clots, it doesn't matter that the clots cause complications; all that matters is that the clots occurred soon after taking the medication. A lay witness could testify to that. It just involves an observation that the patients took the medication, then the patients formed blood clots. You may need to be a doctor to recognize that a blood clot is a blood clot, but there's no relevant or controversial opinion involved on the doctor's testimony at all.
I disagree with you substantively, because I think there's a world of evidentiary difference between a bare correlation and a medically relevant one. That really doesn't matter, though. The question is not whether some other testimony that the witness could have given would have been admissible. What's relevant is whether the testimony the witness actually gave is admissible. The "caused by" language conveys a medical judgment, which is by definition an opinion not based merely on ordinary sensory perception. If not for the doctor's SKEET, he simply could not testify the things he testified. Furthermore, it would be nearly impossible to argue that a jury hearing this testimony from this source isn't likely to be heavily swayed by the witness's medical credentials.

User avatar
nevdash
Posts: 409
Joined: Sun Dec 07, 2008 5:01 pm

Re: Barbri MBE Questions -- Errors?

Postby nevdash » Tue Jun 18, 2013 8:58 pm

bgdddymtty wrote:
nevdash wrote:I think you're reading too much into the "caused by." You could strike that part from the prompt and the testimony would still be the same. If the testimony is just offered to show a connection between the drug and blood clots, it doesn't matter that the clots cause complications; all that matters is that the clots occurred soon after taking the medication. A lay witness could testify to that. It just involves an observation that the patients took the medication, then the patients formed blood clots. You may need to be a doctor to recognize that a blood clot is a blood clot, but there's no relevant or controversial opinion involved on the doctor's testimony at all.
I disagree with you substantively, because I think there's a world of evidentiary difference between a bare correlation and a medically relevant one. That really doesn't matter, though. The question is not whether some other testimony that the witness could have given would have been admissible. What's relevant is whether the testimony the witness actually gave is admissible. The "caused by" language conveys a medical judgment, which is by definition an opinion not based merely on ordinary sensory perception. If not for the doctor's SKEET, he simply could not testify the things he testified. Furthermore, it would be nearly impossible to argue that a jury hearing this testimony from this source isn't likely to be heavily swayed by the witness's medical credentials.

And the testimony that he actually gave, just like all testimony, is admissible or inadmissible depending on what it was offered to prove. The testimony that he gave can be offered to prove a link between the drug and blood clots without him being qualified as an expert because he's not testifying that, in his opinion, there's a causal link between the drug and blood clots. His testimony is merely him giving his observations, and lay witnesses can testify about their observations.

Again, don't read too much into the "caused by" portion. I agree, it has the ring of an opinion. But "I had some patients who had complications caused by blood clots after taking the drug" is, for the purposes of the doctor's testimony, the equivalent of him just saying "I had patients who formed blood clots after they took the drug." Mere observation.

User avatar
bgdddymtty
Posts: 697
Joined: Thu Feb 11, 2010 12:59 pm

Re: Barbri MBE Questions -- Errors?

Postby bgdddymtty » Tue Jun 18, 2013 9:41 pm

nevdash wrote:Again, don't read too much into the "caused by" portion. I agree, it has the ring of an opinion. But "I had some patients who had complications caused by blood clots after taking the drug" is, for the purposes of the doctor's testimony, the equivalent of him just saying "I had patients who formed blood clots after they took the drug." Mere observation.
That's not the only observation. In order to win, the plaintiff must prove not only that the drug caused her to have blood clots, but that those blood clots (or some other effect of the drug) caused her injury. The doctor is testifying to two things: 1)People got blood clots after taking this drug; and 2)Those clots caused them complications (which we may presume are similar to the ones suffered by the plaintiff).

Even if the former were the only observation the doctor was making, it's still one that cannot be made by a lay person. Lay witnesses are specifically prohibited from giving opinion testimony that is "based on scientific, technical, or other specialized knowledge." Would a person without any specialized knowledge be able to observe that another person has blood clots? Of course not. They're internal, and any outward symptoms are not obvious to a person who has not been taught how to spot them.

To put it more succinctly, the witness is testifying to a medical diagnosis. Joe Schmoe doesn't get to do that.

User avatar
nevdash
Posts: 409
Joined: Sun Dec 07, 2008 5:01 pm

Re: Barbri MBE Questions -- Errors?

Postby nevdash » Wed Jun 19, 2013 12:22 am

bgdddymtty wrote:That's not the only observation. In order to win, the plaintiff must prove not only that the drug caused her to have blood clots, but that those blood clots (or some other effect of the drug) caused her injury. The doctor is testifying to two things: 1)People got blood clots after taking this drug; and 2)Those clots caused them complications (which we may presume are similar to the ones suffered by the plaintiff).


But the question states that the defendant "denies liability, claiming that there is nothing in the medication that could cause a blood clot." They're telling you that the doctor's testimony is being offered only to show a causal link. His testimony could show that causal link directly with him saying "in my opinion, this drug causes blood clots," or circumstantially by him saying "I observed that after taking the drug, four of my patients developed blood clots." If he did offer the former, then he would have to be certified as an expert even if he based his opinion on firsthand knowledge (the observations of what happened to his patients). But if he doesn't offer the opinion and merely offers his observations, he's not doing anything a lay witness can't do.

bgdddymtty wrote:Even if the former were the only observation the doctor was making, it's still one that cannot be made by a lay person. Lay witnesses are specifically prohibited from giving opinion testimony that is "based on scientific, technical, or other specialized knowledge." Would a person without any specialized knowledge be able to observe that another person has blood clots? Of course not. They're internal, and any outward symptoms are not obvious to a person who has not been taught how to spot them.

To put it more succinctly, the witness is testifying to a medical diagnosis. Joe Schmoe doesn't get to do that.


But he's not giving an opinion at all. A personal observation can require specialized knowledge in order to know what you're observing, and the plaintiff would have to lay foundation as to how the doctor knew that his patients formed blood clots. But it's not something that the doctor has to speculate about. He's not saying "in my opinion, to a reasonable degree of medical certainty, my patients had blood clots, but I could be wrong." Given that he knew how to spot a blood clot, he actually witnessed, first-hand, the blood clots. He's not reconstructing what he thinks probably happened based on his knowledge + stuff he gathered after the fact. He's testifying to what he observed about his patients at that time.

User avatar
bgdddymtty
Posts: 697
Joined: Thu Feb 11, 2010 12:59 pm

Re: Barbri MBE Questions -- Errors?

Postby bgdddymtty » Wed Jun 19, 2013 2:37 am

OK. I've come around on the issue of the existence of the clots themselves. You're right that he could actually see those if he knew how and where to look. As soon as he said "caused by," though, that's opinion. The issue on opinion testimony isn't how important the opinion is, but whether it is the type of opinion one could reasonably trust from a lay person. Whether or not a given medical condition caused another medical condition is specifically that type of opinion which must necessarily be informed by specialized knowledge. I know that you think I shouldn't read too much into that, but the whole purpose of witness qualification is to keep the jury from reading too much into things they shouldn't.

Besides, the point of the questions is to test candidates' knowledge of the rules. Even assuming the question-writers agree 100% with your take on the matter (I honestly think they were just careless with their words), to offer a question where the answer boils down to "well, yes, that is technically what the rules say, but this is where they get to fudge it a little" is absurd, and not the sort of thing I imagine they'd let slip through on the actual MBE.

User avatar
nevdash
Posts: 409
Joined: Sun Dec 07, 2008 5:01 pm

Re: Barbri MBE Questions -- Errors?

Postby nevdash » Wed Jun 19, 2013 11:24 am

You're right, it was definitely poorly-worded. There is a real lesson the question is trying to teach you, though: that witnesses who may look like experts may not need to be certified as experts if they're just testifying about their own observations. Even if the question (like a lot of other BarBri materials :P) wasn't thought out, that should be the takeaway come exam day when you come across a more thoughtful version of that question.

User avatar
bgdddymtty
Posts: 697
Joined: Thu Feb 11, 2010 12:59 pm

Re: Barbri MBE Questions -- Errors?

Postby bgdddymtty » Wed Jun 19, 2013 12:29 pm

nevdash wrote:You're right, it was definitely poorly-worded. There is a real lesson the question is trying to teach you, though: that witnesses who may look like experts may not need to be certified as experts if they're just testifying about their own observations. Even if the question (like a lot of other BarBri materials :P) wasn't thought out, that should be the takeaway come exam day when you come across a more thoughtful version of that question.
+1, and thanks for going through it with me.

User avatar
bgdddymtty
Posts: 697
Joined: Thu Feb 11, 2010 12:59 pm

Re: Barbri MBE Questions -- Errors?

Postby bgdddymtty » Thu Jun 20, 2013 6:00 pm

Con Law PRE, Question 14: Answer choice A says that the law is constitutional, and then gives an explanation why this is the case. Answer choice B states that the statute is constitutional "unless it conflicts with federal civil rights legislation." While the clause in A indicating why the statute is likely constitutional is true, it is nevertheless true that in the unlikely event that this law conflicted with some provision in federal civil rights law, the law would be struck down as unconstitutional under the Supremacy Clause. B is therefore the correct answer.

The most frustrating part about this is the fact that the explanation explicitly acknowledges the above, but somehow uses it to come to the conclusion that A is right. From the explanation of A: "The state can punish through its criminal law whatever behavior it wishes, provided the statute does not violate the Constitution or federal law." It then reasons that B is incorrect because "the fact that the statute does not conflict with civil rights legislation does not automatically make the statute constitutional." This is true but irrelevant. A correct answer need not contain all possible reasoning or elaboration on the subject. On the other hand, the omission of a critical limitation or caveat is fatal, particularly when the call of the question is in definite language ("The statute is") and another answer choice specifically calls out the omission.

User avatar
5ky
Posts: 6360
Joined: Mon Oct 05, 2009 4:10 pm

Re: Barbri MBE Questions -- Errors?

Postby 5ky » Thu Jun 20, 2013 6:16 pm

I don't have it in front of me, but I vaguely remember the question. I don't have an issue accepting Barbri on those types of questions, because if you're looking for the "best" answer, the answer saying "The statute is constitutional because of XYZ" is always going to be a better answer than "The statute is constitutional unless it is unconstitutional." The latter is obviously a correct statement, but it's not really applicable to the facts of the question.

If you start playing that game, then it wouldn't even be true. What I mean is if you start looking for possible conflicts not in the facts of the question, you couldn't really say it would necessarily be constitutional unless it violated federal civil rights law. Once you open the door to saying unnamed federal laws might present a problem, then simply ruling out one of these (civil rights) doesn't automatically make it constitutional; there are still innumerable possible reasons why it could be unconstitutional. That's how I think of it, anyway.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: Yahoo [Bot] and 3 guests