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Charles Barkley
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Re: THEMIS BAR REVIEW Hangout.

Postby Charles Barkley » Sat Jul 27, 2013 8:48 pm

Agoraphobia wrote:
Bikeflip wrote:Quick question: You can be charged with both a greater and lesser included offense (say robbery and larceny), but you cannot be convicted of both (if you're convicted of robbery, larceny merges into it), right?


Larceny merges into robbery but not burglary. The elements of larceny are contained in robbery. So think of this way, it's impossible to commit a robbery without committing a larceny. But, you can commit a burglary without committing a larcency, because the felony you meant to commit inside the dwelling could be something else than larceny.

Thanks for the clarification. I was speaking very generally when I answered the question. My mistake.

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Carlos Danger
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Re: THEMIS BAR REVIEW Hangout.

Postby Carlos Danger » Sat Jul 27, 2013 8:51 pm

Charles Barkley wrote:Noob commercial paper question here.

If A makes a note saying "A promises to give B $10,000." B then gives the note to C (assume C is a HDC) - does the fact that there was no consideration for the note matter?

Or does it only matter if C was not a HDC, because lack of consideration would be a personal defense?

Halp


You can only be an HDC if you give value?

locusdelicti
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Re: THEMIS BAR REVIEW Hangout.

Postby locusdelicti » Sat Jul 27, 2013 8:51 pm

TheBeard wrote:
locusdelicti wrote:Keeping Fed Civ Pro, PA Civ Pro and NJ Civ Pro rules straight is really fucking with me.


Same. I've stopped studying NJ Civ Pro for now. I've reviewed the outline 2-3 times, and I don't plan on picking it back up 'til the night before the NJ bar. I know it's not the recommended approach, but I'll chance it.


That was kind of my plan. I'm trying to remember the response deadlines for all three, but I'm just going to go over NJ the night before, because why not.

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Charles Barkley
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Re: THEMIS BAR REVIEW Hangout.

Postby Charles Barkley » Sat Jul 27, 2013 8:52 pm

Carlos Danger wrote:
Charles Barkley wrote:Noob commercial paper question here.

If A makes a note saying "A promises to give B $10,000." B then gives the note to C (assume C is a HDC) - does the fact that there was no consideration for the note matter?

Or does it only matter if C was not a HDC, because lack of consideration would be a personal defense?

Halp


You can only be an HDC if you give value?

Well what if B never gave value to A and C wants A to pay?

(Hopefully that makes sense)

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Carlos Danger
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Re: THEMIS BAR REVIEW Hangout.

Postby Carlos Danger » Sat Jul 27, 2013 8:55 pm

Charles Barkley wrote:
Carlos Danger wrote:
Charles Barkley wrote:Noob commercial paper question here.

If A makes a note saying "A promises to give B $10,000." B then gives the note to C (assume C is a HDC) - does the fact that there was no consideration for the note matter?

Or does it only matter if C was not a HDC, because lack of consideration would be a personal defense?

Halp


You can only be an HDC if you give value?

Well what if B never gave value to A and C wants A to pay?

(Hopefully that makes sense)


Transferee only obtains rights of transferor. So if B didn't give value he isn't HDC, C can't be an HDC either?

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Charles Barkley
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Re: THEMIS BAR REVIEW Hangout.

Postby Charles Barkley » Sat Jul 27, 2013 8:56 pm

But couldn't C give value for the note to B, and become a HDC that way?

Am I missing something?

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Bikeflip
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Re: THEMIS BAR REVIEW Hangout.

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

Charles Barkley wrote:
Carlos Danger wrote:
Charles Barkley wrote:Noob commercial paper question here.

If A makes a note saying "A promises to give B $10,000." B then gives the note to C (assume C is a HDC) - does the fact that there was no consideration for the note matter?

Or does it only matter if C was not a HDC, because lack of consideration would be a personal defense?

Halp


You can only be an HDC if you give value?

Well what if B never gave value to A and C wants A to pay?

(Hopefully that makes sense)


Value's not the same as consideration. Value is consideration, but consideration is not value. That said, just giving a NI to another is not giving value. So you can't become a HDC. If the bar tests on this nuance, I'm walking out & drowning a puppy.

I don't think the instrument would even be negotiated if B never gave value to A.

Also, under your original example, B saying to C, "Here, take this $10,000 note for no good reason" is not giving value to the note. C's not a HDC if that statement's uttered.
Last edited by Bikeflip on Sat Jul 27, 2013 9:01 pm, edited 1 time in total.

Citizen Genet
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Re: THEMIS BAR REVIEW Hangout.

Postby Citizen Genet » Sat Jul 27, 2013 8:59 pm

Charles Barkley wrote:But couldn't C give value for the note to B, and become a HDC that way?

Am I missing something?


Yes. If A gave it to B for no value, then B is not a HDC.

If B then gave it to C for no value, C is not a HDC.

If instead B gave it to C for value, C is now a HDC regardless of whether B gave A consideration.

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Bikeflip
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Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sat Jul 27, 2013 9:00 pm

Citizen Genet wrote:
Charles Barkley wrote:But couldn't C give value for the note to B, and become a HDC that way?

Am I missing something?


Yes. If A gave it to B for no value, then B is not a HDC.

If B then gave it to C for no value, C is not a HDC.

If instead B gave it to C for value, C is now a HDC regardless of whether B gave A consideration.


Yes. Some prior holder not giving value doesn't affect a future holder's ability to become an HDC.

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Charles Barkley
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Re: THEMIS BAR REVIEW Hangout.

Postby Charles Barkley » Sat Jul 27, 2013 9:01 pm

Citizen Genet wrote:
Charles Barkley wrote:But couldn't C give value for the note to B, and become a HDC that way?

Am I missing something?


If instead B gave it to C for value, C is now a HDC regardless of whether B gave A consideration.


Got it. And could C only enforce the note against B? Or A as well?

That should be my final question on the issue. Thanks for the help.

Citizen Genet
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Re: THEMIS BAR REVIEW Hangout.

Postby Citizen Genet » Sat Jul 27, 2013 9:04 pm

Charles Barkley wrote:
Citizen Genet wrote:
Charles Barkley wrote:But couldn't C give value for the note to B, and become a HDC that way?

Am I missing something?


If instead B gave it to C for value, C is now a HDC regardless of whether B gave A consideration.


Got it. And could C only enforce the note against B? Or A as well?

That should be my final question on the issue. Thanks for the help.


C should be trying to enforce the note against A. As a HDC, he could enforce it against A subject only to real defenses.

B can't enforce the note against A because B doesn't have rights tot he note.

A wouldn't want to enforce the note because A made the note.

Now, if A doesn't pay up, then C could go to B and try to make B liable for the amount as an indorser (called indorser's liability). In which case B would be held liable.

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Charles Barkley
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Re: THEMIS BAR REVIEW Hangout.

Postby Charles Barkley » Sat Jul 27, 2013 9:05 pm

Perfect. You cleared it all up. Thanks a bunch.

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Bikeflip
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Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sat Jul 27, 2013 9:10 pm

Citizen Genet wrote:
Charles Barkley wrote:
Citizen Genet wrote:
Charles Barkley wrote:But couldn't C give value for the note to B, and become a HDC that way?

Am I missing something?


If instead B gave it to C for value, C is now a HDC regardless of whether B gave A consideration.


Got it. And could C only enforce the note against B? Or A as well?

That should be my final question on the issue. Thanks for the help.


C should be trying to enforce the note against A. As a HDC, he could enforce it against A subject only to real defenses.

B can't enforce the note against A because B doesn't have rights tot he note.

A wouldn't want to enforce the note because A made the note.

Now, if A doesn't pay up, then C could go to B and try to make B liable for the amount as an indorser (called indorser's liability). In which case B would be held liable.



Imma change the facts a bit, as I was thinking about this and got confused.

Let's say B stole the check from A. B transferred to C (and C was a valid HDC). C deposited the check at his bank, a different bank from A. C bank sent the check to A bank. A bank cleared the check, and C bank credited C's account. After this, A finds out that his check was stolen, and A is pissed. A can sue A bank, as A bank violated presentment warranties, and A bank can do the same to C bank. But can either A or A Bank sue C under present or transfer warranties? Can A sue C bank under either warranty?

Ignore the whether the elements surrounding presentment or transfer warranties. I'm wondering who can sue whom. The handout makes it seem like if you sue, upstream, you can only sue the person immediately upstream. Also, can you even sue C under these facts?
Last edited by Bikeflip on Sat Jul 27, 2013 9:16 pm, edited 1 time in total.

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denimchickn
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Re: THEMIS BAR REVIEW Hangout.

Postby denimchickn » Sat Jul 27, 2013 9:11 pm

In re: the "how many hours did you study" conversation:

I'd say I put in anywhere from nothing (one and often two days a week, especially early on) to 12 hours (which was far, far more rare). Probably an average of 5 or 6 hours if I'm being honest. Had I put in much more than that (at the exclusion of hanging out with friends and going out and having a good time when I could), I would've gotten horribly depressed by the beginning of July and it would have done far more harm than good for me.

That said, I think one thing that everyone needs to keep in mind is the fact that TLS almost certainly has a serious selection bias towards high-achievers. I mean after all, we are people who choose to post in an online forum that's essentially about how to succeed in law school. There are far, far more people who will be taking the bar who don't fall into that category. Not a knock on those people in the least, but that's just the reality of it. Of course I'm not saying that the converse of this is true, but chances are very good that anyone who cares enough about studying for the bar to turn to TLS for tips and support will do just fine.

Another point that I think is worth mentioning is that people all have very different study habits that work for them. Some people tend to be memorizers and will only feel comfortable if they remember how many factors/elements/etc comprise an issue, so they put in 10-12 hours a day drilling stuff into their heads. The vast majority of those people will do great.

Other people are more big picture people who are comfortable getting the gist of a subject, seeing how the pieces of an area of law work together, practicing a bit, and then moving on. The vast majority of those people will also do great.

I guess my point is that only you know what works for you, especially after 20+ years of schooling, and chances are pretty good that barring some serious outside distraction, everyone in here spent the summer following the plan that they needed to follow to succeed. We should probably all try not to worry too much about how other people prepared.

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Agoraphobia
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Re: THEMIS BAR REVIEW Hangout.

Postby Agoraphobia » Sat Jul 27, 2013 9:17 pm

When can you, and can't you, search the TRUNK of the car? tia

ETA- What is the effect of the death of a party on an OPTION contract?
Last edited by Agoraphobia on Sat Jul 27, 2013 9:19 pm, edited 1 time in total.

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Reinhardt
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Re: THEMIS BAR REVIEW Hangout.

Postby Reinhardt » Sat Jul 27, 2013 9:18 pm

What is this BS:

A local telephone company negligently allowed one of its telephone poles, located between a street and a sidewalk, to become termite-ridden. A driver, who was intoxicated and driving at an excessive rate of speed, lost control of her car and hit the weakened telephone pole. One week later, the pole fell and struck a pedestrian who was walking on the sidewalk. The pole fell because of the combination of the force of the impact and the pole's termite-ridden condition.
If the pedestrian asserts a claim against the telephone company and the driver, will the pedestrian prevail?
A. Yes, against the telephone company but not the driver.
B. Yes, against the driver but not the telephone company.
C. Yes, against the telephone company and the driver, each for one-half of his damages.
D. Yes, against both the telephone company and the driver for the full amount of his damages.

Answer choice D is correct. Under the doctrine of joint and several liability, each of two or more defendants who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. It is irrelevant whether each tortfeasor acted independently and without knowledge of the other's actions. As the telephone company and the driver were both responsible for the harm that occurred to the pedestrian, they will be jointly and severally liable to him, and each will be responsible for the entire amount of damages. Answer choice A is incorrect. The question makes it clear that the acts of both the telephone company and the driver combined caused the pole to fall on the pedestrian. Accordingly, both the telephone company and the driver would be joint tortfeasors and would be equally liable to the pedestrian. Even if each defendant's acts alone would not have caused the injury, their acts were still negligent and contributed to the harm. Answer choice B is incorrect for the same reason as answer choice A. Answer choice C is incorrect. As the telephone company and the driver were both negligent, the pedestrian can recover the entire amount of damages from either defendant. After an apportionment of liability, which is not discussed in the question, the telephone company and the driver could seek contribution from one another for the portion of damages each pays that are attributable to the other. Even though both were negligent, the damages would not automatically be divided in half.

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Bikeflip
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Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sat Jul 27, 2013 9:25 pm

Reinhardt wrote:What is this BS:

A local telephone company negligently allowed one of its telephone poles, located between a street and a sidewalk, to become termite-ridden. A driver, who was intoxicated and driving at an excessive rate of speed, lost control of her car and hit the weakened telephone pole. One week later, the pole fell and struck a pedestrian who was walking on the sidewalk. The pole fell because of the combination of the force of the impact and the pole's termite-ridden condition.
If the pedestrian asserts a claim against the telephone company and the driver, will the pedestrian prevail?
A. Yes, against the telephone company but not the driver.
B. Yes, against the driver but not the telephone company.
C. Yes, against the telephone company and the driver, each for one-half of his damages.
D. Yes, against both the telephone company and the driver for the full amount of his damages.

Answer choice D is correct. Under the doctrine of joint and several liability, each of two or more defendants who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. It is irrelevant whether each tortfeasor acted independently and without knowledge of the other's actions. As the telephone company and the driver were both responsible for the harm that occurred to the pedestrian, they will be jointly and severally liable to him, and each will be responsible for the entire amount of damages. Answer choice A is incorrect. The question makes it clear that the acts of both the telephone company and the driver combined caused the pole to fall on the pedestrian. Accordingly, both the telephone company and the driver would be joint tortfeasors and would be equally liable to the pedestrian. Even if each defendant's acts alone would not have caused the injury, their acts were still negligent and contributed to the harm. Answer choice B is incorrect for the same reason as answer choice A. Answer choice C is incorrect. As the telephone company and the driver were both negligent, the pedestrian can recover the entire amount of damages from either defendant. After an apportionment of liability, which is not discussed in the question, the telephone company and the driver could seek contribution from one another for the portion of damages each pays that are attributable to the other. Even though both were negligent, the damages would not automatically be divided in half.


The question's having you examine intervening factors. An intervening cause is an event that occurs after a tortfeasor's initial act of negligence and causes injury/harm to a victim. An intervening cause will generally absolve the tortfeasor of liability for the victim's injury only if the event is deemed a superseding cause. A superseding cause is an unforeseeable intervening cause. By contrast, a foreseeable intervening cause typically does not break the chain of causality, meaning that the tortfeasor is still responsible for the victim's injury -- unless the event leads to an unforeseeable result.

The phone company had a duty to maintain their phone poles because its foreseeable that various types of decay could make the pole fall down, especially if someone hit the pole. As such, I don't think the driver is an intervening factor. The driver had a duty not to drive off the road and hit something because its foreseeable that hitting something could cause whatever you hit to injure someone else. There's no indication as to whether the driver or the phone company was more at fault. Now, what I'm curious about was how the non-delegable doctrine applies here, if it does apply.

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Re: THEMIS BAR REVIEW Hangout.

Postby Citizen Genet » Sat Jul 27, 2013 9:29 pm

Bikeflip wrote:Imma change the facts a bit, as I was thinking about this and got confused.

Let's say B stole the check from A. B transferred to C (and C was a valid HDC). C deposited the check at his bank, a different bank from A. C bank sent the check to A bank. A bank cleared the check, and C bank credited C's account. After this, A finds out that his check was stolen, and A is pissed. A can sue A bank, as A bank violated presentment warranties, and A bank can do the same to C bank. But can either A or A Bank sue C under present or transfer warranties? Can A sue C bank under either warranty?



Alright, we're getting to the edge of where I feel comfortable, but this is what I see.

Preface: we have changed from a note to a draft because we're dealing with checks now. I will assume that B forged a signature on the check (either the drawers or the payee's.)

I don't know what legal mechanism - if any - A can use against A's Bank to demand a credit to his account. For purposes of this part, I'll just assume they will credit his account to keep up good relations. BUT if someone knows how A could force A's Bank to credit his account the amount missing, I'd love to know what it is.

A's Bank can sue C's Bank for violation of the presentment warranties, one of which says that the drawer has authorized the issuance.

C's Bank can sue C for violation of the transfer warranties which has the same warranty from above and the additional one that all signatures (including indorser's) are authentic.

C can sue B for violation of the transfer warranties.

B should go to jail (whether for larceny, larceny by trick or false pretense, WTF knows.)

EDIT: Just saw your edit. I'm not really sure about suing someone who you didn't transact with (privity, I guess). For sure, what you'll want to do on the bar is show off that you know everyone who can sue someone else.
Last edited by Citizen Genet on Sat Jul 27, 2013 9:35 pm, edited 1 time in total.

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Bikeflip
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Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sat Jul 27, 2013 9:32 pm

Agoraphobia wrote:When can you, and can't you, search the TRUNK of the car? tia

ETA- What is the effect of the death of a party on an OPTION contract?



Which party? If the person offering the contract dies, the option remains open (unless, I think, it was a contract to perform a unique personal service like having a famous artist paint you a painting). If the person accepting dies, "the caterpillar is smooshed" (unless multiple people could accept. Then only the dead person's estate can't accept, unless they could [then there yet another person who could accept])

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Charles Barkley
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Re: THEMIS BAR REVIEW Hangout.

Postby Charles Barkley » Sat Jul 27, 2013 9:34 pm

Agoraphobia wrote:When can you, and can't you, search the TRUNK of the car? tia

ETA- What is the effect of the death of a party on an OPTION contract?

Pretty sure you need probable cause that evidence of a crime is in the trunk to search the trunk of the car. I don't think reasonable suspicion would cut it, because a Terry frisk would only allow you to search the passenger compartment + occupants of the vehicle (for weapons, etc.) in order to protect officer safety.

A weapon (potentially) being in the trunk, while the driver is seated in the front seat, is a stretch to be a risk to the officer warranting a terry frisk/search of the trunk.

Someone else correct me if I'm wrong.

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Reinhardt
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Re: THEMIS BAR REVIEW Hangout.

Postby Reinhardt » Sat Jul 27, 2013 9:49 pm

If you or a police dog smell weed in the trunk you can search it. Or if you hear someone banging from inside. Or if the driver consents. And If you can see into the trunk and see a dead body or whatever. Any other exception?

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Bikeflip
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Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sat Jul 27, 2013 9:51 pm

Citizen Genet wrote:
I don't know what legal mechanism - if any - A can use against A's Bank to demand a credit to his account. For purposes of this part, I'll just assume they will credit his account to keep up good relations. BUT if someone knows how A could force A's Bank to credit his account the amount missing, I'd love to know what it is.


EDIT: Just saw your edit. I'm not really sure about suing someone who you didn't transact with (privity, I guess). For sure, what you'll want to do on the bar is show off that you know everyone who can sue someone else.



You're right about A & A Bank. A cannot sue A Bank under the warranties, but A may have a claim under wrongful payment.

As about whether or not A Bank could sue C, I think if you sue under a warranty theory, you can only sue the institution immediately before you. So A Bank must sue C Bank, and A Bank cannot sue C. It makes sense if you think about it. Let's say A Bank sues C. C Bank's still screwed.
Last edited by Bikeflip on Sat Jul 27, 2013 9:52 pm, edited 1 time in total.

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Bikeflip
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Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sat Jul 27, 2013 9:51 pm

Reinhardt wrote:If you or a police dog smell weed in the trunk you can search it. Or if you hear someone banging from inside. Or if the driver consents. And If you can see into the trunk and see a dead body or whatever. Any other exception?



Inventory search?

maximator
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Re: THEMIS BAR REVIEW Hangout.

Postby maximator » Sat Jul 27, 2013 9:56 pm

Has anyone made it to mixed set 16? I think questions that I got wrong on previous sets are starting to get worked in. Has anyone else noticed this?

Talar
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Re: THEMIS BAR REVIEW Hangout.

Postby Talar » Sat Jul 27, 2013 9:57 pm

maximator wrote:Has anyone made it to mixed set 16? I think questions that I got wrong on previous sets are starting to get worked in. Has anyone else noticed this?


Yup. 80% of my questions were ones I had gotten wrong in the past. It's actually good they do this. I wanted to revisit those questions.




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