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kalvano
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Re: THEMIS BAR REVIEW Hangout.

Postby kalvano » Thu Jul 18, 2013 11:02 pm

Another one, dammit.


10. (Question ID#410)
A police detective saw a notorious convicted felon who had been released from prison at a local mall. The detective contacted the local police department office to see if there were any outstanding arrest warrants for the felon. A clerk in the office correctly stated that the police database revealed an outstanding arrest warrant for the felon. Unbeknownst to either the detective or the clerk, another police officer had intentionally altered the expiration date of the arrest warrant in the police database, extending the date in order to lay the groundwork for a future arrest of the felon. Acting on the clerk's statement, the detective arrested the felon. A search of the felon uncovered a gun. The felon was charged with possession of a weapon by a felon. The felon's attorney sought to dismiss the charge against his client, contending that the seizure of the gun was unconstitutional and therefore had to be excluded as evidence.

Should the court exclude the gun as evidence and dismiss the charges?
A. No, because the gun was seized during a search incident to an arrest.
B. No, because the detective acted in good faith reliance on the clerk's information that a valid arrest warrant existed.
C. Yes, because a violation of the Fourth Amendment prohibition against unreasonable searches and seizures requires the suppression of the seized evidence.
D. Yes, because the arrest warrant had expired.
Incorrect: Answer choice D is correct. The gun was seized during an illegal arrest since the warrant for the felon's arrest had expired. As a consequence, exclusion of the gun from the felon's trial for the gun possession charge was mandated. Answer choice A is incorrect because, although the gun was seized incident to the felon's arrest, the arrest was illegal because the arrest warrant had expired. Answer choice B is incorrect because, although the good faith reliance exception to the exclusion of evidence seized pursuant to a defective warrant can apply even where that reliance is caused by isolated police negligence, it does not apply to deliberate police misconduct. Here, although neither the officer who effected the arrest nor the clerk who informed the officer about the warrant was aware of the misconduct, the deliberate misconduct is attributable to a police officer. Answer choice C is incorrect because an unconstitutional search or seizure does not require a court to apply the exclusionary rule. Instead the rule is applied where it serves to deter future constitutional violations.



That is 100% incorrect. There is a case directly on point that directly contradicts Themis's answer that was in the Criminal Procedure outline. What the fuck.


Edit - copy and paste from Themis's outline:

Defendant Don goes to the police station to pick up an impounded vehicle. Policeman Paul believes that there might be a warrant out from another county for Don’s arrest and calls the other county’s sheriff to check. The sheriff tells Paul that there is a warrant out for Don’s arrest. Paul immediately arrests Don and in a search incident to the arrest finds illegal drugs and an illegal weapon on Don. Minutes later, the sheriff calls back to say that the warrant had actually been recalled and she had made a mistake. The exclusionary rule will not apply to the drugs and the weapon because Paul was relying in good faith on the erroneous information from the sheriff in conducting the arrest. The exclusionary rule should be applied only if there is substantial additional deterrence of police misconduct to be gained. Herring v. United States, 555 U.S. 135 (2009).

yeff
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Re: THEMIS BAR REVIEW Hangout.

Postby yeff » Thu Jul 18, 2013 11:14 pm

kalvano wrote:Another one, dammit.


10. (Question ID#410)
A police detective saw a notorious convicted felon who had been released from prison at a local mall. The detective contacted the local police department office to see if there were any outstanding arrest warrants for the felon. A clerk in the office correctly stated that the police database revealed an outstanding arrest warrant for the felon. Unbeknownst to either the detective or the clerk, another police officer had intentionally altered the expiration date of the arrest warrant in the police database, extending the date in order to lay the groundwork for a future arrest of the felon. Acting on the clerk's statement, the detective arrested the felon. A search of the felon uncovered a gun. The felon was charged with possession of a weapon by a felon. The felon's attorney sought to dismiss the charge against his client, contending that the seizure of the gun was unconstitutional and therefore had to be excluded as evidence.

Should the court exclude the gun as evidence and dismiss the charges?
A. No, because the gun was seized during a search incident to an arrest.
B. No, because the detective acted in good faith reliance on the clerk's information that a valid arrest warrant existed.
C. Yes, because a violation of the Fourth Amendment prohibition against unreasonable searches and seizures requires the suppression of the seized evidence.
D. Yes, because the arrest warrant had expired.
Incorrect: Answer choice D is correct. The gun was seized during an illegal arrest since the warrant for the felon's arrest had expired. As a consequence, exclusion of the gun from the felon's trial for the gun possession charge was mandated. Answer choice A is incorrect because, although the gun was seized incident to the felon's arrest, the arrest was illegal because the arrest warrant had expired. Answer choice B is incorrect because, although the good faith reliance exception to the exclusion of evidence seized pursuant to a defective warrant can apply even where that reliance is caused by isolated police negligence, it does not apply to deliberate police misconduct. Here, although neither the officer who effected the arrest nor the clerk who informed the officer about the warrant was aware of the misconduct, the deliberate misconduct is attributable to a police officer. Answer choice C is incorrect because an unconstitutional search or seizure does not require a court to apply the exclusionary rule. Instead the rule is applied where it serves to deter future constitutional violations.



That is 100% incorrect. There is a case directly on point that directly contradicts Themis's answer that was in the Criminal Procedure outline. What the fuck.


Edit - copy and paste from Themis's outline:

Defendant Don goes to the police station to pick up an impounded vehicle. Policeman Paul believes that there might be a warrant out from another county for Don’s arrest and calls the other county’s sheriff to check. The sheriff tells Paul that there is a warrant out for Don’s arrest. Paul immediately arrests Don and in a search incident to the arrest finds illegal drugs and an illegal weapon on Don. Minutes later, the sheriff calls back to say that the warrant had actually been recalled and she had made a mistake. The exclusionary rule will not apply to the drugs and the weapon because Paul was relying in good faith on the erroneous information from the sheriff in conducting the arrest. The exclusionary rule should be applied only if there is substantial additional deterrence of police misconduct to be gained. Herring v. United States, 555 U.S. 135 (2009).


Herring is distinguishable. Herring's erroneous warrant info was due to clerical error. This felon's erroneous warrant info was due to intentional police misconduct.

4A exclusionary rule is in place to deter police misconduct. Court said even a police clerical error should not lead to exclusion because using the ER in that circumstance wouldn't deter enough additional police misconduct (arguable, but that's neither here nor there for the bar). Exclusion makes sense here, 'cause there's deliberate police misconduct.

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kalvano
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Re: THEMIS BAR REVIEW Hangout.

Postby kalvano » Thu Jul 18, 2013 11:17 pm

yeff wrote:
kalvano wrote:Another one, dammit.


10. (Question ID#410)
A police detective saw a notorious convicted felon who had been released from prison at a local mall. The detective contacted the local police department office to see if there were any outstanding arrest warrants for the felon. A clerk in the office correctly stated that the police database revealed an outstanding arrest warrant for the felon. Unbeknownst to either the detective or the clerk, another police officer had intentionally altered the expiration date of the arrest warrant in the police database, extending the date in order to lay the groundwork for a future arrest of the felon. Acting on the clerk's statement, the detective arrested the felon. A search of the felon uncovered a gun. The felon was charged with possession of a weapon by a felon. The felon's attorney sought to dismiss the charge against his client, contending that the seizure of the gun was unconstitutional and therefore had to be excluded as evidence.

Should the court exclude the gun as evidence and dismiss the charges?
A. No, because the gun was seized during a search incident to an arrest.
B. No, because the detective acted in good faith reliance on the clerk's information that a valid arrest warrant existed.
C. Yes, because a violation of the Fourth Amendment prohibition against unreasonable searches and seizures requires the suppression of the seized evidence.
D. Yes, because the arrest warrant had expired.
Incorrect: Answer choice D is correct. The gun was seized during an illegal arrest since the warrant for the felon's arrest had expired. As a consequence, exclusion of the gun from the felon's trial for the gun possession charge was mandated. Answer choice A is incorrect because, although the gun was seized incident to the felon's arrest, the arrest was illegal because the arrest warrant had expired. Answer choice B is incorrect because, although the good faith reliance exception to the exclusion of evidence seized pursuant to a defective warrant can apply even where that reliance is caused by isolated police negligence, it does not apply to deliberate police misconduct. Here, although neither the officer who effected the arrest nor the clerk who informed the officer about the warrant was aware of the misconduct, the deliberate misconduct is attributable to a police officer. Answer choice C is incorrect because an unconstitutional search or seizure does not require a court to apply the exclusionary rule. Instead the rule is applied where it serves to deter future constitutional violations.



That is 100% incorrect. There is a case directly on point that directly contradicts Themis's answer that was in the Criminal Procedure outline. What the fuck.


Edit - copy and paste from Themis's outline:

Defendant Don goes to the police station to pick up an impounded vehicle. Policeman Paul believes that there might be a warrant out from another county for Don’s arrest and calls the other county’s sheriff to check. The sheriff tells Paul that there is a warrant out for Don’s arrest. Paul immediately arrests Don and in a search incident to the arrest finds illegal drugs and an illegal weapon on Don. Minutes later, the sheriff calls back to say that the warrant had actually been recalled and she had made a mistake. The exclusionary rule will not apply to the drugs and the weapon because Paul was relying in good faith on the erroneous information from the sheriff in conducting the arrest. The exclusionary rule should be applied only if there is substantial additional deterrence of police misconduct to be gained. Herring v. United States, 555 U.S. 135 (2009).


Herring is distinguishable. Herring's erroneous warrant info was due to clerical error. This felon's erroneous warrant info was due to intentional police misconduct.

4A exclusionary rule is in place to deter police misconduct. Court said even a police clerical error should lead to exclusion because it wouldn't deter police misconduct (arguable, but that's neither here nor there for the bar). Exclusion makes sense here, 'cause there's deliberate police misconduct.



Disagree when the detective relied in good faith on the information and he didn't commit any misconduct. But that's probably the explanation Themis will give.

balzie94
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Re: THEMIS BAR REVIEW Hangout.

Postby balzie94 » Thu Jul 18, 2013 11:19 pm

yeff wrote:That is 100% incorrect. There is a case directly on point that directly contradicts Themis's answer that was in the Criminal Procedure outline.


I feel you, but Themis is technically right here. The outline example which you cite does not contain an instance of a law enforcement officer acting in bad faith in order to secure the warrant. The key question is whether law enforcement would have an incentive to be negligent or reckless in saying there was a warrant out for the guy's arrest. If it was an honest mistake, then I don't think the exclusionary rule applies. If, however, it's an instance of police dickery, then it will apply because the courts can effectively deter that type of behavior.

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kalvano
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Re: THEMIS BAR REVIEW Hangout.

Postby kalvano » Thu Jul 18, 2013 11:22 pm

balzie94 wrote:
yeff wrote:That is 100% incorrect. There is a case directly on point that directly contradicts Themis's answer that was in the Criminal Procedure outline.


I feel you, but Themis is technically right here. The outline example which you cite does not contain an instance of a law enforcement officer acting in bad faith in order to secure the warrant. The key question is whether law enforcement would have an incentive to be negligent or reckless in saying there was a warrant out for the guy's arrest. If it was an honest mistake, then I don't think the exclusionary rule applies. If, however, it's an instance of police dickery, then it will apply because the courts can effectively deter that type of behavior.



I get that point, and I am sure it's what Themis will say, but it's wrong. And this is exactly the kind of nitpicky shit that isn't helpful to bar prep.

balzie94
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Re: THEMIS BAR REVIEW Hangout.

Postby balzie94 » Thu Jul 18, 2013 11:24 pm

To be honest, I am finding the Themis MBE questions to be rather unhelpful at this point. I scored a 70 and 76 on the Milestone, but have been recently hovering around 65 in the MBE 50- and 100-packs. I feel like Themis' focus on our "weaknesses" is almost unhelpful insofar as they seem to be asking only the most difficult questions which does not reflect what we will be up against July 31.

releasethehounds
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Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Thu Jul 18, 2013 11:26 pm

kalvano wrote:
balzie94 wrote:
yeff wrote:That is 100% incorrect. There is a case directly on point that directly contradicts Themis's answer that was in the Criminal Procedure outline.


I feel you, but Themis is technically right here. The outline example which you cite does not contain an instance of a law enforcement officer acting in bad faith in order to secure the warrant. The key question is whether law enforcement would have an incentive to be negligent or reckless in saying there was a warrant out for the guy's arrest. If it was an honest mistake, then I don't think the exclusionary rule applies. If, however, it's an instance of police dickery, then it will apply because the courts can effectively deter that type of behavior.



I get that point, and I am sure it's what Themis will say, but it's wrong. And this is exactly the kind of nitpicky shit that isn't helpful to bar prep.


Probably reading too much into it, but doesn't the good faith exception only apply if the warrant isn't invalid on it's face? The warrant itself expired it's just the database that has the date extended. Ergo warrant no longer valid on its face.

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kalvano
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Re: THEMIS BAR REVIEW Hangout.

Postby kalvano » Thu Jul 18, 2013 11:30 pm

releasethehounds wrote:Probably reading too much into it, but doesn't the good faith exception only apply if the warrant isn't invalid on it's face? The warrant itself expired it's just the database that has the date extended. Ergo warrant no longer valid on its face.


A warrant issued by a "neutral and detached magistrate" for search purposes. But a warrant like this would be computerized, and presumed to be properly in the system, so the detective is relying in good faith on the dispatcher, who is also relying in good faith on the warrant in the system.

It's not 1742, police don't carry around Ye Olde Wanted Posters for everyone accused of violating the King's peace to check and see if it is facially valid.

releasethehounds
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Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Thu Jul 18, 2013 11:33 pm

kalvano wrote:
releasethehounds wrote:Probably reading too much into it, but doesn't the good faith exception only apply if the warrant isn't invalid on it's face? The warrant itself expired it's just the database that has the date extended. Ergo warrant no longer valid on its face.


A warrant issued by a "neutral and detached magistrate" for search purposes. But a warrant like this would be computerized, and presumed to be properly in the system, so the detective is relying in good faith on the dispatcher, who is also relying in good faith on the warrant in the system.

It's not 1742, police don't carry around Ye Olde Wanted Posters for everyone accused of violating the King's peace to check and see if it is facially valid.


Alrighty.

calibred
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Re: THEMIS BAR REVIEW Hangout.

Postby calibred » Thu Jul 18, 2013 11:35 pm

Edit: Probably another way-too-nitpicky issue, so feel free to scroll past.

(Question ID#673)

City police officers shot and killed a robber as he attempted to escape arrest for an armed robbery he had committed. The robber's friend brought suit in federal district court against the city's police department and the city police officers involved, seeking only a judgment declaring unconstitutional the state statute under which the police acted. That newly enacted statute authorized police to use deadly force when necessary to apprehend a person who has committed a felony. In his suit, the friend alleged that the police would not have killed the robber if the use of deadly force had not been authorized by the statute.

The federal district court should
A. Decide the case on its merits, because it raises a substantial federal question.
B. Dismiss the action, because it involves a nonjusticiable political question.
C. Dismiss the action, because it does not present a case or controversy.
D. Dismiss the action, because the Eleventh Amendment prohibits federal courts from deciding cases of this type.

Answer choice C is correct. Whether a case may be heard by a federal court turns on the issues of standing, timing (mootness or ripeness), and other issues of justiciability. To establish standing, a plaintiff must show concrete and particularized injury-in-fact; the threat must be actual and imminent; it must be fairly traceable to the defendant’s conduct; and the relief requested must prevent or redress the injury. Here, the friend was not injured, and there are no facts to suggest he has the statutory authority to sue on behalf of his friend. Even assuming the plaintiff had standing, if a live controversy does not exist at each stage of review (not merely when the complaint is filed) the case is moot. Here again, there is no live controversy sought for review because the incident has already occurred.


This one seems wrong to me. Doesn't a person have third-party standing for a class of people that otherwise wouldn't be able to assert the defense on their own (i.e. anyone who would be affected by this statute, because they'd be dead)? Also, isn't this textbook capable of repetition, yet evading review?

I know a situation exactly like this will never come up on the bar, but questions that are so up for debate really bug me.

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kalvano
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Re: THEMIS BAR REVIEW Hangout.

Postby kalvano » Thu Jul 18, 2013 11:37 pm

calibred wrote:Doesn't a person have third-party standing for a class of people that otherwise wouldn't be able to assert the defense on their own


Only for First Amendment violations such as overbreadth and vagueness, I believe.

09042014
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Re: THEMIS BAR REVIEW Hangout.

Postby 09042014 » Thu Jul 18, 2013 11:38 pm

I think the key distinction is good faith negligence vs. bad faith intentional conduct.

But yea, a super nitpicky and extremely red herring question.

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Re: THEMIS BAR REVIEW Hangout.

Postby GertrudePerkins » Thu Jul 18, 2013 11:42 pm

kalvano wrote:
yeff wrote:
kalvano wrote:Another one, dammit.


10. (Question ID#410)
A police detective saw a notorious convicted felon who had been released from prison at a local mall. The detective contacted the local police department office to see if there were any outstanding arrest warrants for the felon. A clerk in the office correctly stated that the police database revealed an outstanding arrest warrant for the felon. Unbeknownst to either the detective or the clerk, another police officer had intentionally altered the expiration date of the arrest warrant in the police database, extending the date in order to lay the groundwork for a future arrest of the felon. Acting on the clerk's statement, the detective arrested the felon. A search of the felon uncovered a gun. The felon was charged with possession of a weapon by a felon. The felon's attorney sought to dismiss the charge against his client, contending that the seizure of the gun was unconstitutional and therefore had to be excluded as evidence.

Should the court exclude the gun as evidence and dismiss the charges?
A. No, because the gun was seized during a search incident to an arrest.
B. No, because the detective acted in good faith reliance on the clerk's information that a valid arrest warrant existed.
C. Yes, because a violation of the Fourth Amendment prohibition against unreasonable searches and seizures requires the suppression of the seized evidence.
D. Yes, because the arrest warrant had expired.
Incorrect: Answer choice D is correct. The gun was seized during an illegal arrest since the warrant for the felon's arrest had expired. As a consequence, exclusion of the gun from the felon's trial for the gun possession charge was mandated. Answer choice A is incorrect because, although the gun was seized incident to the felon's arrest, the arrest was illegal because the arrest warrant had expired. Answer choice B is incorrect because, although the good faith reliance exception to the exclusion of evidence seized pursuant to a defective warrant can apply even where that reliance is caused by isolated police negligence, it does not apply to deliberate police misconduct. Here, although neither the officer who effected the arrest nor the clerk who informed the officer about the warrant was aware of the misconduct, the deliberate misconduct is attributable to a police officer. Answer choice C is incorrect because an unconstitutional search or seizure does not require a court to apply the exclusionary rule. Instead the rule is applied where it serves to deter future constitutional violations.



That is 100% incorrect. There is a case directly on point that directly contradicts Themis's answer that was in the Criminal Procedure outline. What the fuck.


Edit - copy and paste from Themis's outline:

Defendant Don goes to the police station to pick up an impounded vehicle. Policeman Paul believes that there might be a warrant out from another county for Don’s arrest and calls the other county’s sheriff to check. The sheriff tells Paul that there is a warrant out for Don’s arrest. Paul immediately arrests Don and in a search incident to the arrest finds illegal drugs and an illegal weapon on Don. Minutes later, the sheriff calls back to say that the warrant had actually been recalled and she had made a mistake. The exclusionary rule will not apply to the drugs and the weapon because Paul was relying in good faith on the erroneous information from the sheriff in conducting the arrest. The exclusionary rule should be applied only if there is substantial additional deterrence of police misconduct to be gained. Herring v. United States, 555 U.S. 135 (2009).


Herring is distinguishable. Herring's erroneous warrant info was due to clerical error. This felon's erroneous warrant info was due to intentional police misconduct.

4A exclusionary rule is in place to deter police misconduct. Court said even a police clerical error should lead to exclusion because it wouldn't deter police misconduct (arguable, but that's neither here nor there for the bar). Exclusion makes sense here, 'cause there's deliberate police misconduct.



Disagree when the detective relied in good faith on the information and he didn't commit any misconduct. But that's probably the explanation Themis will give.
This question irritated me as well because I didn't think the right answer gave the relevant "because." The relevant "because" is not simply that the warrant expired, it's that the error was the product of intentional police misconduct. The intent of the question-writer was pretty clearly to take the facts of Herring but then make the one crucial factual change -- from law enforcement negligence to law enforcement intentional misconduct -- and if you read the Herring majority, it pretty clearly indicates that that's a critical distinction. But it's hard to see that the right answer is the right answer since it makes no reference to the issue that's driving the question.

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kalvano
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Re: THEMIS BAR REVIEW Hangout.

Postby kalvano » Thu Jul 18, 2013 11:42 pm

Desert Fox wrote:I think the key distinction is good faith negligence vs. bad faith intentional conduct.

But yea, a super nitpicky and extremely red herring question.



That did not go unappreciated.

GertrudePerkins
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Re: THEMIS BAR REVIEW Hangout.

Postby GertrudePerkins » Thu Jul 18, 2013 11:43 pm

Desert Fox wrote:But yea, a super nitpicky and extremely red herring question.
Well played, sir, well played.

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Re: THEMIS BAR REVIEW Hangout.

Postby TheBeard » Thu Jul 18, 2013 11:44 pm

locusdelicti wrote:
TheBeard wrote:I'm not sure if this is a total brain fart on my part, but aren't the issue of one's grandparents one's aunts and uncles? So here's the deal, according to Themis' outline for PA Wills, the intestacy distributes as follows when decedent leaves no surviving issue or spouse: decedent's parents --> if none, her parent's issue (presumably her siblings) --> if none, surviving grandparent(s) --> if none, to their issue (aunts and uncles??) --> if none, then to her surviving aunts and uncles --> if none, their issue --> if none, escheats to Commonwealth. Now, if I'm following this correctly, the issue of one's grandparents are one's aunts and uncles (i.e. your parents' brothers and sisters), so why are there two layers of aunts and uncles under the above order? I know some people call their parents' first cousins aunts and uncles, could that be the group that follows the grandparents' issue? Real fucking confusing.


Uh...

This is my favorite:

Under Pennsylvania’s anti-lapse statute, if the gift was made to the issue of the testator, or to a brother, sister, or issue of a brother or sister of the testator, and that relative predeceased the testator but left issue, then the issue succeeds to the gift. Pennsylvania, however, also has an exception to its anti-lapse statute. If the original beneficiary was the testator’s brother, sister, or issue of a brother or sister and the lapsed bequest would go to the testator’s surviving spouse or issue, the anti-lapse statute does not apply.

So, regular anti-lapse... but PA exception is if ORIGINAL beneficiary was testator's sibling, niece, nephew, etc, and the lapsed bequest would go to testator's surviving spouse or issue under the anti-lapse statute, then anti-lapse doesn't apply. That would be like if T makes a gift in the will to his brother, but his brother dies first with issue, and that issue.... happens to be T's wife....?????

The hell? I asked Themis about this and they never answered. I feel like this would only apply in cases of incest. What am I missing?


Here's the way I understood it: T leaves property to Brother (B) under his will. In the same will, T leaves the residuary of his property to his own wife/issue. B then predeceases T. B is survived by his issue, C. Traditionally, anti-lapse would save T's bequest to B, but the anti-lapse exception would prevent this because, had anti-lapse not applied, T's lapsed bequest would have gone to his own wife/issue as the residuary (lapsed gifts usually go to the residuary). If you think about it, this makes sense: had T known his brother would predecease him and his gift could either go to his wife/issue or B's issue, he would've preferred that it go to his wife/issue as the taker of his residuary.

I can think of another scenario where this exception would apply, but let me know if this makes sense first.

releasethehounds
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Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Thu Jul 18, 2013 11:47 pm

Oh Themis. You tell me you're asking a Contracts essay question. And then you proceed to ask me a Corporations essay question. Slight mindfuck. Though not as big a mindfuck as when you tell me you're about to ask me an essay question and proceed to actually direct me to an outline task.

edit: No. This is even more mindfuckery because half the question is corporations/agency and the other half professional responsibility ....which my state doesn't test on. And it's called a contracts question?
Last edited by releasethehounds on Fri Jul 19, 2013 12:03 am, edited 2 times in total.

locusdelicti
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Re: THEMIS BAR REVIEW Hangout.

Postby locusdelicti » Thu Jul 18, 2013 11:54 pm

TheBeard wrote:
locusdelicti wrote:
TheBeard wrote:I'm not sure if this is a total brain fart on my part, but aren't the issue of one's grandparents one's aunts and uncles? So here's the deal, according to Themis' outline for PA Wills, the intestacy distributes as follows when decedent leaves no surviving issue or spouse: decedent's parents --> if none, her parent's issue (presumably her siblings) --> if none, surviving grandparent(s) --> if none, to their issue (aunts and uncles??) --> if none, then to her surviving aunts and uncles --> if none, their issue --> if none, escheats to Commonwealth. Now, if I'm following this correctly, the issue of one's grandparents are one's aunts and uncles (i.e. your parents' brothers and sisters), so why are there two layers of aunts and uncles under the above order? I know some people call their parents' first cousins aunts and uncles, could that be the group that follows the grandparents' issue? Real fucking confusing.


Uh...

This is my favorite:

Under Pennsylvania’s anti-lapse statute, if the gift was made to the issue of the testator, or to a brother, sister, or issue of a brother or sister of the testator, and that relative predeceased the testator but left issue, then the issue succeeds to the gift. Pennsylvania, however, also has an exception to its anti-lapse statute. If the original beneficiary was the testator’s brother, sister, or issue of a brother or sister and the lapsed bequest would go to the testator’s surviving spouse or issue, the anti-lapse statute does not apply.

So, regular anti-lapse... but PA exception is if ORIGINAL beneficiary was testator's sibling, niece, nephew, etc, and the lapsed bequest would go to testator's surviving spouse or issue under the anti-lapse statute, then anti-lapse doesn't apply. That would be like if T makes a gift in the will to his brother, but his brother dies first with issue, and that issue.... happens to be T's wife....?????

The hell? I asked Themis about this and they never answered. I feel like this would only apply in cases of incest. What am I missing?


Here's the way I understood it: T leaves property to Brother (B) under his will. In the same will, T leaves the residuary of his property to his own wife/issue. B then predeceases T. B is survived by his issue, C. Traditionally, anti-lapse would save T's bequest to B, but the anti-lapse exception would prevent this because, had anti-lapse not applied, T's lapsed bequest would have gone to his own wife/issue as the residuary (lapsed gifts usually go to the residuary). If you think about it, this makes sense: had T known his brother would predecease him and his gift could either go to his wife/issue or B's issue, he would've preferred that it go to his wife/issue as the taker of his residuary.

I can think of another scenario where this exception would apply, but let me know if this makes sense first.


I saw that in the example they gave after that rule, and I puzzled it out... but although it's in that example, they don't really spell that out in the outline part, so when I asked Themis about it, I mentioned that example and asked if that's what it meant.

I went back and forth, looking at the example and looking back at the outline and thinking, the outline doesn't mention the residuary. Edited to add: I mean, it doesn't mention it in the part where it's talking about the anti-lapse exception. /edit I guess they assumed we would just come to that conclusion on our own. Little did they know who they were dealing with! ME! I'm a lawyer. I don't have to think.

TheBeard
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Re: THEMIS BAR REVIEW Hangout.

Postby TheBeard » Fri Jul 19, 2013 12:07 am

locusdelicti wrote:
TheBeard wrote:
locusdelicti wrote:
TheBeard wrote:I'm not sure if this is a total brain fart on my part, but aren't the issue of one's grandparents one's aunts and uncles? So here's the deal, according to Themis' outline for PA Wills, the intestacy distributes as follows when decedent leaves no surviving issue or spouse: decedent's parents --> if none, her parent's issue (presumably her siblings) --> if none, surviving grandparent(s) --> if none, to their issue (aunts and uncles??) --> if none, then to her surviving aunts and uncles --> if none, their issue --> if none, escheats to Commonwealth. Now, if I'm following this correctly, the issue of one's grandparents are one's aunts and uncles (i.e. your parents' brothers and sisters), so why are there two layers of aunts and uncles under the above order? I know some people call their parents' first cousins aunts and uncles, could that be the group that follows the grandparents' issue? Real fucking confusing.


Uh...

This is my favorite:

Under Pennsylvania’s anti-lapse statute, if the gift was made to the issue of the testator, or to a brother, sister, or issue of a brother or sister of the testator, and that relative predeceased the testator but left issue, then the issue succeeds to the gift. Pennsylvania, however, also has an exception to its anti-lapse statute. If the original beneficiary was the testator’s brother, sister, or issue of a brother or sister and the lapsed bequest would go to the testator’s surviving spouse or issue, the anti-lapse statute does not apply.

So, regular anti-lapse... but PA exception is if ORIGINAL beneficiary was testator's sibling, niece, nephew, etc, and the lapsed bequest would go to testator's surviving spouse or issue under the anti-lapse statute, then anti-lapse doesn't apply. That would be like if T makes a gift in the will to his brother, but his brother dies first with issue, and that issue.... happens to be T's wife....?????

The hell? I asked Themis about this and they never answered. I feel like this would only apply in cases of incest. What am I missing?


Here's the way I understood it: T leaves property to Brother (B) under his will. In the same will, T leaves the residuary of his property to his own wife/issue. B then predeceases T. B is survived by his issue, C. Traditionally, anti-lapse would save T's bequest to B, but the anti-lapse exception would prevent this because, had anti-lapse not applied, T's lapsed bequest would have gone to his own wife/issue as the residuary (lapsed gifts usually go to the residuary). If you think about it, this makes sense: had T known his brother would predecease him and his gift could either go to his wife/issue or B's issue, he would've preferred that it go to his wife/issue as the taker of his residuary.

I can think of another scenario where this exception would apply, but let me know if this makes sense first.


I saw that in the example they gave after that rule, and I puzzled it out... but although it's in that example, they don't really spell that out in the outline part, so when I asked Themis about it, I mentioned that example and asked if that's what it meant.

I went back and forth, looking at the example and looking back at the outline and thinking, the outline doesn't mention the residuary. Edited to add: I mean, it doesn't mention it in the part where it's talking about the anti-lapse exception. /edit I guess they assumed we would just come to that conclusion on our own. Little did they know who they were dealing with! ME! I'm a lawyer. I don't have to think.


Also remember that when a will does not make a full distribution, the property not covered by the will (essentially the residuary) passes through intestacy. If the wife/issue would take under intestacy, and that property that anti-lapse saved would have passed through intestacy to the wife or issue, you have the same problem as above.

locusdelicti
Posts: 225
Joined: Tue May 28, 2013 2:25 pm

Re: THEMIS BAR REVIEW Hangout.

Postby locusdelicti » Fri Jul 19, 2013 12:12 am

TheBeard wrote:
locusdelicti wrote:
TheBeard wrote:
locusdelicti wrote:
Uh...

This is my favorite:

Under Pennsylvania’s anti-lapse statute, if the gift was made to the issue of the testator, or to a brother, sister, or issue of a brother or sister of the testator, and that relative predeceased the testator but left issue, then the issue succeeds to the gift. Pennsylvania, however, also has an exception to its anti-lapse statute. If the original beneficiary was the testator’s brother, sister, or issue of a brother or sister and the lapsed bequest would go to the testator’s surviving spouse or issue, the anti-lapse statute does not apply.

So, regular anti-lapse... but PA exception is if ORIGINAL beneficiary was testator's sibling, niece, nephew, etc, and the lapsed bequest would go to testator's surviving spouse or issue under the anti-lapse statute, then anti-lapse doesn't apply. That would be like if T makes a gift in the will to his brother, but his brother dies first with issue, and that issue.... happens to be T's wife....?????

The hell? I asked Themis about this and they never answered. I feel like this would only apply in cases of incest. What am I missing?


Here's the way I understood it: T leaves property to Brother (B) under his will. In the same will, T leaves the residuary of his property to his own wife/issue. B then predeceases T. B is survived by his issue, C. Traditionally, anti-lapse would save T's bequest to B, but the anti-lapse exception would prevent this because, had anti-lapse not applied, T's lapsed bequest would have gone to his own wife/issue as the residuary (lapsed gifts usually go to the residuary). If you think about it, this makes sense: had T known his brother would predecease him and his gift could either go to his wife/issue or B's issue, he would've preferred that it go to his wife/issue as the taker of his residuary.

I can think of another scenario where this exception would apply, but let me know if this makes sense first.


I saw that in the example they gave after that rule, and I puzzled it out... but although it's in that example, they don't really spell that out in the outline part, so when I asked Themis about it, I mentioned that example and asked if that's what it meant.

I went back and forth, looking at the example and looking back at the outline and thinking, the outline doesn't mention the residuary. Edited to add: I mean, it doesn't mention it in the part where it's talking about the anti-lapse exception. /edit I guess they assumed we would just come to that conclusion on our own. Little did they know who they were dealing with! ME! I'm a lawyer. I don't have to think.


Also remember that when a will does not make a full distribution, the property not covered by the will (essentially the residuary) passes through intestacy. If the wife/issue would take under intestacy, and that property that anti-lapse saved would have passed through intestacy to the wife or issue, you have the same problem as above.


True! Excellent point. Smart guy.

releasethehounds
Posts: 163
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Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Fri Jul 19, 2013 12:15 am

Okay, before I flip my shit... can someone confirm that the MEE does not test on professional responsibility? I know some individual states do, but states giving the UBE (MBE, MEE, MPT only, no state specific essays) do not test PR right?

In reading the answer to that "contracts" essay that I just tried to take, 80% of it is professional responsibility. Before I flip out that I haven't had a lecture/outline/anything on the topic, I wanted to make sure it was more likely just a labeling error. I already checked the NCBE site an it isn't included in their list of outlines...but. You know. Paranoia and all.

09042014
Posts: 18282
Joined: Wed Oct 14, 2009 10:47 pm

Re: THEMIS BAR REVIEW Hangout.

Postby 09042014 » Fri Jul 19, 2013 12:16 am

releasethehounds wrote:Okay, before I flip my shit... can someone confirm that the MEE does not test on professional responsibility? I know some individual states do, but states giving the UBE (MBE, MEE, MPT only, no state specific essays) do not test PR right?

In reading the answer to that "contracts" essay that I just tried to take, 80% of it is professional responsibility. Before I flip out that I haven't had a lecture/outline/anything on the topic, I wanted to make sure it was more likely just a labeling error. I already checked the NCBE site an it isn't included in their list of outlines...but. You know. Paranoia and all.


Yea, no PR on the MEE.

releasethehounds
Posts: 163
Joined: Thu Jul 11, 2013 5:11 pm

Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Fri Jul 19, 2013 12:22 am

Desert Fox wrote:
releasethehounds wrote:Okay, before I flip my shit... can someone confirm that the MEE does not test on professional responsibility? I know some individual states do, but states giving the UBE (MBE, MEE, MPT only, no state specific essays) do not test PR right?

In reading the answer to that "contracts" essay that I just tried to take, 80% of it is professional responsibility. Before I flip out that I haven't had a lecture/outline/anything on the topic, I wanted to make sure it was more likely just a labeling error. I already checked the NCBE site an it isn't included in their list of outlines...but. You know. Paranoia and all.


Yea, no PR on the MEE.


THANK YOU!

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Bikeflip
Posts: 1833
Joined: Fri Jul 11, 2008 3:01 pm

Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Fri Jul 19, 2013 12:27 am

releasethehounds wrote:Okay, before I flip my shit... can someone confirm that the MEE does not test on professional responsibility? I know some individual states do, but states giving the UBE (MBE, MEE, MPT only, no state specific essays) do not test PR right?

In reading the answer to that "contracts" essay that I just tried to take, 80% of it is professional responsibility. Before I flip out that I haven't had a lecture/outline/anything on the topic, I wanted to make sure it was more likely just a labeling error. I already checked the NCBE site an it isn't included in their list of outlines...but. You know. Paranoia and all.


The only time PR would come up in a UBE state is for a sentence or 2 for the MPT, if that. Even then, the prompt will directly state shit about PR. Anything more than that, and you're probably focusing way too much on it.

antonious13
Posts: 77
Joined: Sun Jun 02, 2013 12:51 am

Re: THEMIS BAR REVIEW Hangout.

Postby antonious13 » Fri Jul 19, 2013 12:30 am

Desert Fox wrote:
releasethehounds wrote:Okay, before I flip my shit... can someone confirm that the MEE does not test on professional responsibility? I know some individual states do, but states giving the UBE (MBE, MEE, MPT only, no state specific essays) do not test PR right?

In reading the answer to that "contracts" essay that I just tried to take, 80% of it is professional responsibility. Before I flip out that I haven't had a lecture/outline/anything on the topic, I wanted to make sure it was more likely just a labeling error. I already checked the NCBE site an it isn't included in their list of outlines...but. You know. Paranoia and all.


Yea, no PR on the MEE.


Lucky fucks.




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