Last-minute bar "hard topics" help, all exams

YibanRen
Posts: 90
Joined: Sun Feb 15, 2015 12:25 am

Last-minute bar "hard topics" help, all exams

Postby YibanRen » Sat Feb 21, 2015 7:12 pm

Hey all:

I'm sure that most have at least one area of a particular topic (or maybe even an entire essay topic) that they've pretty much written off. It might be helpful for everyone to pool wisdom with simplistic/minimalist explanations of hard topics where they feel comfortable. Also, feel free to bring up hard topics to address.

Some examples that I've seen people list:

Real Property: Mortgages, Land Sale Ks, Equitable Servitudes/Covenants;
Evidence: Impeachment Methods/Character Evidence;
Contracts: Article 2 Remedies (Risk of Loss/Shipment rules);
Torts: Negligence: Duty to visitors of land;
Crim Pro: Automobile-related rules
Civ Pro: Complex Multiparty Litigation (Joinder, Interpleader, Impleader, Intervention);
Con Law: Negative Commerce Clause/Privileges and Immunities of Article IV, Privileges and Immunities of the 14th Amendment, State Taxation of Commerce

aretoodeetoo
Posts: 73
Joined: Fri Jan 09, 2015 6:05 am

Re: Last-minute bar "hard topics" help, all exams

Postby aretoodeetoo » Sat Feb 21, 2015 7:32 pm

Quick dumb question: if under UCC, a merchant gives another merchant an firm offer for let's say 5 months w/o additional consideration. When do the three months start running? Is it when the offer is initially made or when it is accepted? Sorta losing my mind here. What are the significances if any in the firm offer if offeror is a merchant and the other is not a merchant

ilovetypos
Posts: 81
Joined: Sun Feb 08, 2015 3:05 pm

Re: Last-minute bar "hard topics" help, all exams

Postby ilovetypos » Sat Feb 21, 2015 7:34 pm

aretoodeetoo wrote:Quick dumb question: if under UCC, a merchant gives another merchant an firm offer for let's say 5 months w/o additional consideration. When do the three months start running? Is it when the offer is initially made or when it is accepted? Sorta losing my mind here. What are the significances if any in the firm offer if offeror is a merchant and the other is not a merchant


It starts when it's made (because if it's accepted, it's no longer an offer--it's an actual contract). No consequences from an offeree not being a merchant--but for the offer to be a firm offer under the UCC, it has to be made by a merchant in writing and signed. Also remember that the firm offer can't last beyond three months.

ilovetypos
Posts: 81
Joined: Sun Feb 08, 2015 3:05 pm

Re: Last-minute bar "hard topics" help, all exams

Postby ilovetypos » Sat Feb 21, 2015 7:38 pm

I have serious problems wrapping my head around many things, but in particular:

- Con law: All the various First Amendment freedom of speech tests
- Crim law: Accomplice liability
- Torts: Defamation
- Contracts: Remedies; mistakes; misrepresentation
- Civ pro: Subject matter jurisdiction when it comes to joinder and third-party claims
- Family law: It's so squishy

I'm sure I'm forgetting a lot...

aretoodeetoo
Posts: 73
Joined: Fri Jan 09, 2015 6:05 am

Re: Last-minute bar "hard topics" help, all exams

Postby aretoodeetoo » Sat Feb 21, 2015 8:06 pm

ilovetypos wrote:
aretoodeetoo wrote:Quick dumb question: if under UCC, a merchant gives another merchant an firm offer for let's say 5 months w/o additional consideration. When do the three months start running? Is it when the offer is initially made or when it is accepted? Sorta losing my mind here. What are the significances if any in the firm offer if offeror is a merchant and the other is not a merchant


It starts when it's made (because if it's accepted, it's no longer an offer--it's an actual contract). No consequences from an offeree not being a merchant--but for the offer to be a firm offer under the UCC, it has to be made by a merchant in writing and signed. Also remember that the firm offer can't last beyond three months.


So is a merchant's confirmatory memo an offer? I guess I am confused by this BarBri essay I did with two merchants having this 6 month firm offer. I assumed it started August 1st, but the answer went into some depth of how a November 2 acceptance through mailbox rule was valid because it happened a day before the other party tried to revoke. I went on to say that without additional consideration, the three months ends on Nov 1 anyway but the answer key said because of the mailbox rule timing, the Nov 2 acceptance made a valid contract...

This is the one with computers for like $1000 a piece and then it became $1200 a piece and there was some question about cover.

fslexcduck
Posts: 87
Joined: Fri Feb 13, 2015 7:42 am

Re: Last-minute bar "hard topics" help, all exams

Postby fslexcduck » Sat Feb 21, 2015 8:15 pm

A firm offer being over doesn't mean the offer is automatically revoked. It just means it's revocable. So without knowing the question, my guess is that the firmness of the offer probably expired November 1, but since the merchant hadn't yet revoked it (even though he now could), the acceptance was still valid on November 2.

YibanRen
Posts: 90
Joined: Sun Feb 15, 2015 12:25 am

Re: Last-minute bar "hard topics" help, all exams

Postby YibanRen » Sat Feb 21, 2015 8:18 pm

ilovetypos wrote:I have serious problems wrapping my head around many things, but in particular:

- Con law: All the various First Amendment freedom of speech tests
- Crim law: Accomplice liability
- Torts: Defamation
- Contracts: Remedies; mistakes; misrepresentation
- Civ pro: Subject matter jurisdiction when it comes to joinder and third-party claims
- Family law: It's so squishy

I'm sure I'm forgetting a lot...


I'll try with first amendment speech: First, I like to think "not allowed" versus "allowed" (even though in reality they all may be allowed, you jsut have to apply a different level of scrutiny. Not allowed means "strict scrutiny," "allowed" means a lower level of scrutiny (sometimes rational basis, sometimes intermediate/an intermediate derivative, sometimes a made up new standard). These are complicated, and there is a 99% chance that it will be a not allowed versus allowed question.

1. Not allowed stuff: Content-based (subject matter/viewpoint) restrictions, prior restraints, licenses (unless no discretion given to approving authority, clear criteria given, procedural safe guards), vagueness (reasonable person wouldn't know meaning, overbreadth (substantially more speech than is necessary), symbolic speech (important interest unrelated to suppression of the message impact no greater than necessary to achieve govs interest).

2. Allowed sometimes stuff: Incitement (imminent and likely), Commercial (Illegal/deceptive otherwise Intermediate), Defamation (see torts for special first amendment rules), Obscenity (appeal to prurient interest(local), patently offensive, no scientific/artistic/literary/political value (national); if violated gov can seize company assets, zoning allowed if not fully eliminate adult businesses, no child porn, broadcast>cable/internet in restrictions), Privacy (media can't publish nonlawfully obtained info where you helped obtain, gov can reg. to protect privacy), Government Employees (on job in performance of duties), Campaigns (direct contributions to candidates);

3. Locations for Speech: Public Forums (constitutionally required to open for speech)/Designated Public Forums (gov opens to speech): If Subject matter/viewpoint neutral, and if related to important gov purpose and leaves open alternative places for speech. Limited Public Forums (places open to some topics: government-owned billboards), or Non-public forums (places open to no topics: army base or sidewalk outside court): Reasonable and Viewpoint neutral.

aretoodeetoo
Posts: 73
Joined: Fri Jan 09, 2015 6:05 am

Re: Last-minute bar "hard topics" help, all exams

Postby aretoodeetoo » Sat Feb 21, 2015 8:21 pm

fslexcduck wrote:A firm offer being over doesn't mean the offer is automatically revoked. It just means it's revocable. So without knowing the question, my guess is that the firmness of the offer probably expired November 1, but since the merchant hadn't yet revoked it (even though he now could), the acceptance was still valid on November 2.


Damn, got it now. Thanks, that was bugging the hell out of me. So basically it just isn't an irrevocable offer past 3 months - but still an offer that can be accepted until it is actually revoked. Got it.

ilovetypos
Posts: 81
Joined: Sun Feb 08, 2015 3:05 pm

Re: Last-minute bar "hard topics" help, all exams

Postby ilovetypos » Sat Feb 21, 2015 8:24 pm

YibanRen wrote:
ilovetypos wrote:I have serious problems wrapping my head around many things, but in particular:

- Con law: All the various First Amendment freedom of speech tests
- Crim law: Accomplice liability
- Torts: Defamation
- Contracts: Remedies; mistakes; misrepresentation
- Civ pro: Subject matter jurisdiction when it comes to joinder and third-party claims
- Family law: It's so squishy

I'm sure I'm forgetting a lot...


I'll try with first amendment speech: First, I like to think "not allowed" versus "allowed" (even though in reality they all may be allowed, you jsut have to apply a different level of scrutiny. Not allowed means "strict scrutiny," "allowed" means a lower level of scrutiny (sometimes rational basis, sometimes intermediate/an intermediate derivative, sometimes a made up new standard). These are complicated, and there is a 99% chance that it will be a not allowed versus allowed question.

1. Not allowed stuff: Content-based (subject matter/viewpoint) restrictions, prior restraints, licenses (unless no discretion given to approving authority, clear criteria given, procedural safe guards), vagueness (reasonable person wouldn't know meaning, overbreadth (substantially more speech than is necessary), symbolic speech (important interest unrelated to suppression of the message impact no greater than necessary to achieve govs interest).

2. Allowed sometimes stuff: Incitement (imminent and likely), Commercial (Illegal/deceptive otherwise Intermediate), Defamation (see torts for special first amendment rules), Obscenity (appeal to prurient interest(local), patently offensive, no scientific/artistic/literary/political value (national); if violated gov can seize company assets, zoning allowed if not fully eliminate adult businesses, no child porn, broadcast>cable/internet in restrictions), Privacy (media can't publish nonlawfully obtained info where you helped obtain, gov can reg. to protect privacy), Government Employees (on job in performance of duties), Campaigns (direct contributions to candidates);

3. Locations for Speech: Public Forums (constitutionally required to open for speech)/Designated Public Forums (gov opens to speech): If Subject matter/viewpoint neutral, and if related to important gov purpose and leaves open alternative places for speech. Limited Public Forums (places open to some topics: government-owned billboards), or Non-public forums (places open to no topics: army base or sidewalk outside court): Reasonable and Viewpoint neutral.


Thanks! Where I get all confused is when, for example, how BarBri describes something is analyzed under a strict scrutiny standard, but it not only has the necessary/compelling interest standard, but has some other item tacked on, such as "no less restrictive means." I wrote down all the tests to try to remember which ones have the extra item tacked on, but some of the materials seem contradictory.

Cole45
Posts: 5
Joined: Fri Feb 20, 2015 7:13 am

Re: Last-minute bar "hard topics" help, all exams

Postby Cole45 » Sat Feb 21, 2015 8:27 pm

aretoodeetoo wrote:
ilovetypos wrote:
aretoodeetoo wrote:Quick dumb question: if under UCC, a merchant gives another merchant an firm offer for let's say 5 months w/o additional consideration. When do the three months start running? Is it when the offer is initially made or when it is accepted? Sorta losing my mind here. What are the significances if any in the firm offer if offeror is a merchant and the other is not a merchant


It starts when it's made (because if it's accepted, it's no longer an offer--it's an actual contract). No consequences from an offeree not being a merchant--but for the offer to be a firm offer under the UCC, it has to be made by a merchant in writing and signed. Also remember that the firm offer can't last beyond three months.


So is a merchant's confirmatory memo an offer? I guess I am confused by this BarBri essay I did with two merchants having this 6 month firm offer. I assumed it started August 1st, but the answer went into some depth of how a November 2 acceptance through mailbox rule was valid because it happened a day before the other party tried to revoke. I went on to say that without additional consideration, the three months ends on Nov 1 anyway but the answer key said because of the mailbox rule timing, the Nov 2 acceptance made a valid contract...

This is the one with computers for like $1000 a piece and then it became $1200 a piece and there was some question about cover.



A confirmatory memo, as I understand it, is just a defense to SOF where there's no contract signed by the party to be charged, but one party memorialized an oral conversation between the two and sent the memo thereafter. If the receiving party does not object to the memo within 10 days, it presumes that the parties came to an agreement on the terms therein.

Regarding the Merchant's firm offer rule, it binds the seller/merchant to an irrevocable open offer to sell whatever for the period of time stated but in no case, more than 3months. The other party does not have to be a merchant and no consideration is required. Note that even though the offer is revocable after 3months, it is not immediately terminated. Thus, the buyer/other party can accept after 4 months if the merchant has not revoked.

If between two merchants and no time is specified but there's a signed writing, there will be an implied firm offer (even though the offer lacks the time frame) because there's a presumption that merchants possess more sophisticated understanding of sales/contracts.

aretoodeetoo
Posts: 73
Joined: Fri Jan 09, 2015 6:05 am

Re: Last-minute bar "hard topics" help, all exams

Postby aretoodeetoo » Sat Feb 21, 2015 8:30 pm

Crim Pro Automobile Rules: are we talking about exceptions to a warrantless search/seizure like Terry Stops, Checkpoints, Inventory, etc.? Or are we talking about who has standing. I think if they all get seized in the car then they all have standing. I know there is something where a passenger doesn't have standing because he isn't the owner/driver of the car or something.

User avatar
encore1101
Posts: 642
Joined: Tue Oct 22, 2013 10:13 am

Re: Last-minute bar "hard topics" help, all exams

Postby encore1101 » Sat Feb 21, 2015 8:35 pm

YibanRen wrote:Hey all:

I'm sure that most have at least one area of a particular topic (or maybe even an entire essay topic) that they've pretty much written off. It might be helpful for everyone to pool wisdom with simplistic/minimalist explanations of hard topics where they feel comfortable. Also, feel free to bring up hard topics to address.

Some examples that I've seen people list:

Crim Pro: Automobile-related rules


Remember the acronym: ESCAPIST

For automobile searches, they can fall under three of those warrant exceptions: Search Incident to Lawful Arrest, Automobiles, and/or Inventory Search. The confusing part is that a lot of situations can overlap, but there are some situations that won't. Mostly search incident to arrest and automobile exception.

Which exception to the warrant requirement depends on what the crime the suspect has committed. Remember the policy reasoning behind each exception to remember how far the police can go:

    Search Incident to Arrest -- Police protection and prevent destruction of evidence. Generally, limited to within the armspan of the defendant. Once the defendant is secured, you're probably not going to be able to invoke this exception, as the policy reasonings behind it no longer apply. If defendant has been arrested and secured, police officer can only search the vehicle if he has reason to believe evidence of the crime for which he was arrested can be found in the car.

  • Example 1: defendant is pulled over because his car matches the car that was just used in an armed robbery one mile away. defendant admits to having committed the robbery, but does not have the weapon on his person so he is arrested. police can search the vehicle, because they have reason to believe either the weapon or the proceeds from the robbery will be in the car.
  • Example 2: defendant is pulled over for speeding. during a routine warrant check, police discover defendant has an open warrant for a domestic abuse incident from 4 weeks ago. police don't have reason to believe evidence of that crime can be found in the car, so they cannot search.

    Automobile Search -- allowed because of the lessened expectation of privacy in an automobile, and the mobile nature of automobiles. Police officers need "probable cause" to believe that evidence or contraband can be found in the car. Can open any luggage, baggage, or container that may reasonably contain the items for which there was probable cause to search.

  • Example 1: defendant is pulled over because a named individual called 911 on his cell phone, reporting that the defendant was waving a gun at him while driving. Police can search the glove compartment, the center console, trunk might depend on what kind of car defendant is driving.
  • Example 2: defendant is pulled over because a named individual reported him as weaving through traffic and driving like he was drunk. When police pull him over, they don't notice any of the telltale signs of intoxication or drug use. As far as they can tell, he's just driving carelessly. They can't search his car because they have no probable cause to believe evidence of any crime he has committed is in the car.

    Inventory Search -- protect an arrestee's property, protect police from claims that they destroyed or stole an arrestee's property, and protect police from anything dangerous. must be regulated, search must follow those regulations, and search must be in good faith.

  • Example 1: defendant is arrested and his car is impounded. pursuant to police protocol, they conduct a search of his vehicle and find drugs in the center console. will probably be okay.
    Example 2: defendant is arrested and his car is impounded. police suspect he's a big drug dealer but can't find any evidence. they use a knife to rip open the upholstery in his backseat and find a cache of drugs. will not pass constitutional muster.

Remember-- the tricky part is that automobiles may fall under either the Search Incident to Arrest AND/OR the automobile exception.
Last edited by encore1101 on Sat Feb 21, 2015 8:40 pm, edited 1 time in total.

YibanRen
Posts: 90
Joined: Sun Feb 15, 2015 12:25 am

Re: Last-minute bar "hard topics" help, all exams

Postby YibanRen » Sat Feb 21, 2015 8:40 pm

ilovetypos wrote:
YibanRen wrote:
ilovetypos wrote:I have serious problems wrapping my head around many things, but in particular:

- Con law: All the various First Amendment freedom of speech tests
- Crim law: Accomplice liability
- Torts: Defamation
- Contracts: Remedies; mistakes; misrepresentation
- Civ pro: Subject matter jurisdiction when it comes to joinder and third-party claims
- Family law: It's so squishy

I'm sure I'm forgetting a lot...


I'll try with first amendment speech: First, I like to think "not allowed" versus "allowed" (even though in reality they all may be allowed, you jsut have to apply a different level of scrutiny. Not allowed means "strict scrutiny," "allowed" means a lower level of scrutiny (sometimes rational basis, sometimes intermediate/an intermediate derivative, sometimes a made up new standard). These are complicated, and there is a 99% chance that it will be a not allowed versus allowed question.

1. Not allowed stuff: Content-based (subject matter/viewpoint) restrictions, prior restraints, licenses (unless no discretion given to approving authority, clear criteria given, procedural safe guards), vagueness (reasonable person wouldn't know meaning, overbreadth (substantially more speech than is necessary), symbolic speech (important interest unrelated to suppression of the message impact no greater than necessary to achieve govs interest).

2. Allowed sometimes stuff: Incitement (imminent and likely), Commercial (Illegal/deceptive otherwise Intermediate), Defamation (see torts for special first amendment rules), Obscenity (appeal to prurient interest(local), patently offensive, no scientific/artistic/literary/political value (national); if violated gov can seize company assets, zoning allowed if not fully eliminate adult businesses, no child porn, broadcast>cable/internet in restrictions), Privacy (media can't publish nonlawfully obtained info where you helped obtain, gov can reg. to protect privacy), Government Employees (on job in performance of duties), Campaigns (direct contributions to candidates);

3. Locations for Speech: Public Forums (constitutionally required to open for speech)/Designated Public Forums (gov opens to speech): If Subject matter/viewpoint neutral, and if related to important gov purpose and leaves open alternative places for speech. Limited Public Forums (places open to some topics: government-owned billboards), or Non-public forums (places open to no topics: army base or sidewalk outside court): Reasonable and Viewpoint neutral.


Thanks! Where I get all confused is when, for example, how BarBri describes something is analyzed under a strict scrutiny standard, but it not only has the necessary/compelling interest standard, but has some other item tacked on, such as "no less restrictive means." I wrote down all the tests to try to remember which ones have the extra item tacked on, but some of the materials seem contradictory.


I know what you mean. Strict Scrutiny always has the "no less restrictive means" as part of the test. It isn't always stated this way, but it is so. I think because it comes up more in speech tests they highlight it here.

The intermediate scrutiny test uses like three different terms to mean the same thing "substantially more than necessary," "narrowly tailored," "substantially related." These mean that the means they use to accomplish the purpose are not the least restrictive, but are pretty restrictive. I don't think there is more than one intermediate scrutiny test applied. It is just stated in different ways. Guys?

aretoodeetoo
Posts: 73
Joined: Fri Jan 09, 2015 6:05 am

Re: Last-minute bar "hard topics" help, all exams

Postby aretoodeetoo » Sat Feb 21, 2015 8:45 pm

encore1101 wrote:
YibanRen wrote:Hey all:

I'm sure that most have at least one area of a particular topic (or maybe even an entire essay topic) that they've pretty much written off. It might be helpful for everyone to pool wisdom with simplistic/minimalist explanations of hard topics where they feel comfortable. Also, feel free to bring up hard topics to address.

Some examples that I've seen people list:

Crim Pro: Automobile-related rules


Remember the acronym: ESCAPIST

For automobile searches, they can fall under three of those warrant exceptions: Search Incident to Lawful Arrest, Automobiles, and/or Inventory Search. The confusing part is that a lot of situations can overlap, but there are some situations that won't. Mostly search incident to arrest and automobile exception.

Which exception to the warrant requirement depends on what the crime the suspect has committed. Remember the policy reasoning behind each exception to remember how far the police can go:

    Search Incident to Arrest -- Police protection and prevent destruction of evidence. Generally, limited to within the armspan of the defendant. Once the defendant is secured, you're probably not going to be able to invoke this exception, as the policy reasonings behind it no longer apply. If defendant has been arrested and secured, police officer can only search the vehicle if he has reason to believe evidence of the crime for which he was arrested can be found in the car.

  • Example 1: defendant is pulled over because his car matches the car that was just used in an armed robbery one mile away. defendant admits to having committed the robbery, but does not have the weapon on his person so he is arrested. police can search the vehicle, because they have reason to believe either the weapon or the proceeds from the robbery will be in the car.
  • Example 2: defendant is pulled over for speeding. during a routine warrant check, police discover defendant has an open warrant for a domestic abuse incident from 4 weeks ago. police don't have reason to believe evidence of that crime can be found in the car, so they cannot search.

    Automobile Search -- allowed because of the lessened expectation of privacy in an automobile, and the mobile nature of automobiles. Police officers need "probable cause" to believe that evidence or contraband can be found in the car. Can open any luggage, baggage, or container that may reasonably contain the items for which there was probable cause to search.

  • Example 1: defendant is pulled over because a named individual called 911 on his cell phone, reporting that the defendant was waving a gun at him while driving. Police can search the glove compartment, the center console, trunk might depend on what kind of car defendant is driving.
  • Example 2: defendant is pulled over because a named individual reported him as weaving through traffic and driving like he was drunk. When police pull him over, they don't notice any of the telltale signs of intoxication or drug use. As far as they can tell, he's just driving carelessly. They can't search his car because they have no probable cause to believe evidence of any crime he has committed is in the car.

    Inventory Search -- protect an arrestee's property, protect police from claims that they destroyed or stole an arrestee's property, and protect police from anything dangerous. must be regulated, search must follow those regulations, and search must be in good faith.

  • Example 1: defendant is arrested and his car is impounded. pursuant to police protocol, they conduct a search of his vehicle and find drugs in the center console. will probably be okay.
    Example 2: defendant is arrested and his car is impounded. police suspect he's a big drug dealer but can't find any evidence. they use a knife to rip open the upholstery in his backseat and find a cache of drugs. will not pass constitutional muster.

Remember-- the tricky part is that automobiles may fall under either the Search Incident to Arrest AND/OR the automobile exception.


Nice - but can't police with only reasonable suspicion detain without arrest and search for weapons?

YibanRen
Posts: 90
Joined: Sun Feb 15, 2015 12:25 am

Re: Last-minute bar "hard topics" help, all exams

Postby YibanRen » Sat Feb 21, 2015 8:47 pm

encore1101 wrote:
YibanRen wrote:Hey all:

I'm sure that most have at least one area of a particular topic (or maybe even an entire essay topic) that they've pretty much written off. It might be helpful for everyone to pool wisdom with simplistic/minimalist explanations of hard topics where they feel comfortable. Also, feel free to bring up hard topics to address.

Some examples that I've seen people list:

Crim Pro: Automobile-related rules


Remember the acronym: ESCAPIST

For automobile searches, they can fall under three of those warrant exceptions: Search Incident to Lawful Arrest, Automobiles, and/or Inventory Search. The confusing part is that a lot of situations can overlap, but there are some situations that won't. Mostly search incident to arrest and automobile exception.

Which exception to the warrant requirement depends on what the crime the suspect has committed. Remember the policy reasoning behind each exception to remember how far the police can go:

    Search Incident to Arrest -- Police protection and prevent destruction of evidence. Generally, limited to within the armspan of the defendant. Once the defendant is secured, you're probably not going to be able to invoke this exception, as the policy reasonings behind it no longer apply. If defendant has been arrested and secured, police officer can only search the vehicle if he has reason to believe evidence of the crime for which he was arrested can be found in the car.

  • Example 1: defendant is pulled over because his car matches the car that was just used in an armed robbery one mile away. defendant admits to having committed the robbery, but does not have the weapon on his person so he is arrested. police can search the vehicle, because they have reason to believe either the weapon or the proceeds from the robbery will be in the car.
  • Example 2: defendant is pulled over for speeding. during a routine warrant check, police discover defendant has an open warrant for a domestic abuse incident from 4 weeks ago. police don't have reason to believe evidence of that crime can be found in the car, so they cannot search.

    Automobile Search -- allowed because of the lessened expectation of privacy in an automobile, and the mobile nature of automobiles. Police officers need "probable cause" to believe that evidence or contraband can be found in the car. Can open any luggage, baggage, or container that may reasonably contain the items for which there was probable cause to search.

  • Example 1: defendant is pulled over because a named individual called 911 on his cell phone, reporting that the defendant was waving a gun at him while driving. Police can search the glove compartment, the center console, trunk might depend on what kind of car defendant is driving.
  • Example 2: defendant is pulled over because a named individual reported him as weaving through traffic and driving like he was drunk. When police pull him over, they don't notice any of the telltale signs of intoxication or drug use. As far as they can tell, he's just driving carelessly. They can't search his car because they have no probable cause to believe evidence of any crime he has committed is in the car.

    Inventory Search -- protect an arrestee's property, protect police from claims that they destroyed or stole an arrestee's property, and protect police from anything dangerous. must be regulated, search must follow those regulations, and search must be in good faith.

  • Example 1: defendant is arrested and his car is impounded. pursuant to police protocol, they conduct a search of his vehicle and find drugs in the center console. will probably be okay.
    Example 2: defendant is arrested and his car is impounded. police suspect he's a big drug dealer but can't find any evidence. they use a knife to rip open the upholstery in his backseat and find a cache of drugs. will not pass constitutional muster.

Remember-- the tricky part is that automobiles may fall under either the Search Incident to Arrest AND/OR the automobile exception.

A few more additions?
Investigatory Detention/Terry Stop? It is basically the same as a normal terry stop, where they are able to, if having a reasonable suspicion, search the driver/passenger for weapons?

Mutually applied checkpoints, as an exception to the PC requirement.

Felon is loose and may return is also a SILA exception.

YibanRen
Posts: 90
Joined: Sun Feb 15, 2015 12:25 am

Re: Last-minute bar "hard topics" help, all exams

Postby YibanRen » Sat Feb 21, 2015 8:48 pm

aretoodeetoo wrote:
encore1101 wrote:
YibanRen wrote:Hey all:

I'm sure that most have at least one area of a particular topic (or maybe even an entire essay topic) that they've pretty much written off. It might be helpful for everyone to pool wisdom with simplistic/minimalist explanations of hard topics where they feel comfortable. Also, feel free to bring up hard topics to address.

Some examples that I've seen people list:

Crim Pro: Automobile-related rules


Remember the acronym: ESCAPIST

For automobile searches, they can fall under three of those warrant exceptions: Search Incident to Lawful Arrest, Automobiles, and/or Inventory Search. The confusing part is that a lot of situations can overlap, but there are some situations that won't. Mostly search incident to arrest and automobile exception.

Which exception to the warrant requirement depends on what the crime the suspect has committed. Remember the policy reasoning behind each exception to remember how far the police can go:

    Search Incident to Arrest -- Police protection and prevent destruction of evidence. Generally, limited to within the armspan of the defendant. Once the defendant is secured, you're probably not going to be able to invoke this exception, as the policy reasonings behind it no longer apply. If defendant has been arrested and secured, police officer can only search the vehicle if he has reason to believe evidence of the crime for which he was arrested can be found in the car.

  • Example 1: defendant is pulled over because his car matches the car that was just used in an armed robbery one mile away. defendant admits to having committed the robbery, but does not have the weapon on his person so he is arrested. police can search the vehicle, because they have reason to believe either the weapon or the proceeds from the robbery will be in the car.
  • Example 2: defendant is pulled over for speeding. during a routine warrant check, police discover defendant has an open warrant for a domestic abuse incident from 4 weeks ago. police don't have reason to believe evidence of that crime can be found in the car, so they cannot search.

    Automobile Search -- allowed because of the lessened expectation of privacy in an automobile, and the mobile nature of automobiles. Police officers need "probable cause" to believe that evidence or contraband can be found in the car. Can open any luggage, baggage, or container that may reasonably contain the items for which there was probable cause to search.

  • Example 1: defendant is pulled over because a named individual called 911 on his cell phone, reporting that the defendant was waving a gun at him while driving. Police can search the glove compartment, the center console, trunk might depend on what kind of car defendant is driving.
  • Example 2: defendant is pulled over because a named individual reported him as weaving through traffic and driving like he was drunk. When police pull him over, they don't notice any of the telltale signs of intoxication or drug use. As far as they can tell, he's just driving carelessly. They can't search his car because they have no probable cause to believe evidence of any crime he has committed is in the car.

    Inventory Search -- protect an arrestee's property, protect police from claims that they destroyed or stole an arrestee's property, and protect police from anything dangerous. must be regulated, search must follow those regulations, and search must be in good faith.

  • Example 1: defendant is arrested and his car is impounded. pursuant to police protocol, they conduct a search of his vehicle and find drugs in the center console. will probably be okay.
    Example 2: defendant is arrested and his car is impounded. police suspect he's a big drug dealer but can't find any evidence. they use a knife to rip open the upholstery in his backseat and find a cache of drugs. will not pass constitutional muster.

Remember-- the tricky part is that automobiles may fall under either the Search Incident to Arrest AND/OR the automobile exception.


Nice - but can't police with only reasonable suspicion detain without arrest and search for weapons?


Yeah, this is a vehicle Terry Stop, or an Investigatory Detention, or any name you want to give it.

YibanRen
Posts: 90
Joined: Sun Feb 15, 2015 12:25 am

Re: Last-minute bar "hard topics" help, all exams

Postby YibanRen » Sat Feb 21, 2015 8:53 pm

YibanRen wrote:
encore1101 wrote:
YibanRen wrote:Hey all:

I'm sure that most have at least one area of a particular topic (or maybe even an entire essay topic) that they've pretty much written off. It might be helpful for everyone to pool wisdom with simplistic/minimalist explanations of hard topics where they feel comfortable. Also, feel free to bring up hard topics to address.

Some examples that I've seen people list:

Crim Pro: Automobile-related rules


Remember the acronym: ESCAPIST

For automobile searches, they can fall under three of those warrant exceptions: Search Incident to Lawful Arrest, Automobiles, and/or Inventory Search. The confusing part is that a lot of situations can overlap, but there are some situations that won't. Mostly search incident to arrest and automobile exception.

Which exception to the warrant requirement depends on what the crime the suspect has committed. Remember the policy reasoning behind each exception to remember how far the police can go:

    Search Incident to Arrest -- Police protection and prevent destruction of evidence. Generally, limited to within the armspan of the defendant. Once the defendant is secured, you're probably not going to be able to invoke this exception, as the policy reasonings behind it no longer apply. If defendant has been arrested and secured, police officer can only search the vehicle if he has reason to believe evidence of the crime for which he was arrested can be found in the car.

  • Example 1: defendant is pulled over because his car matches the car that was just used in an armed robbery one mile away. defendant admits to having committed the robbery, but does not have the weapon on his person so he is arrested. police can search the vehicle, because they have reason to believe either the weapon or the proceeds from the robbery will be in the car.
  • Example 2: defendant is pulled over for speeding. during a routine warrant check, police discover defendant has an open warrant for a domestic abuse incident from 4 weeks ago. police don't have reason to believe evidence of that crime can be found in the car, so they cannot search.

    Automobile Search -- allowed because of the lessened expectation of privacy in an automobile, and the mobile nature of automobiles. Police officers need "probable cause" to believe that evidence or contraband can be found in the car. Can open any luggage, baggage, or container that may reasonably contain the items for which there was probable cause to search.

  • Example 1: defendant is pulled over because a named individual called 911 on his cell phone, reporting that the defendant was waving a gun at him while driving. Police can search the glove compartment, the center console, trunk might depend on what kind of car defendant is driving.
  • Example 2: defendant is pulled over because a named individual reported him as weaving through traffic and driving like he was drunk. When police pull him over, they don't notice any of the telltale signs of intoxication or drug use. As far as they can tell, he's just driving carelessly. They can't search his car because they have no probable cause to believe evidence of any crime he has committed is in the car.

    Inventory Search -- protect an arrestee's property, protect police from claims that they destroyed or stole an arrestee's property, and protect police from anything dangerous. must be regulated, search must follow those regulations, and search must be in good faith.

  • Example 1: defendant is arrested and his car is impounded. pursuant to police protocol, they conduct a search of his vehicle and find drugs in the center console. will probably be okay.
    Example 2: defendant is arrested and his car is impounded. police suspect he's a big drug dealer but can't find any evidence. they use a knife to rip open the upholstery in his backseat and find a cache of drugs. will not pass constitutional muster.

Remember-- the tricky part is that automobiles may fall under either the Search Incident to Arrest AND/OR the automobile exception.

A few more additions?
Investigatory Detention/Terry Stop? It is basically the same as a normal terry stop, where they are able to, if having a reasonable suspicion, search the driver/passenger for weapons?

Mutually applied checkpoints, as an exception to the PC requirement.

Felon is loose and may return is also a SILA exception.


Oh, and Barbri used an automobile example as the Community Safety exception to the warrant requirement:

Cop sees newspaper on seat of car with open window as he walks by and thinks "there could be a handgun under that newspaper that a child in the community could get ahold of and shoot themselves," I will reach under the newspaper to see if there is a gun (no PC, not reasonable, suspicion for Terry Stop, just trying to protect the community at large from bad things)

User avatar
encore1101
Posts: 642
Joined: Tue Oct 22, 2013 10:13 am

Re: Last-minute bar "hard topics" help, all exams

Postby encore1101 » Sat Feb 21, 2015 8:59 pm

ilovetypos wrote:I have serious problems wrapping my head around many things, but in particular:


- Crim law: Accomplice liability


I'm sure I'm forgetting a lot...



Accomplice liability has its own mens rea/actus reus:

Defendant must intentionally aid or encourage the principal commit the crime.
Scope -- Accomplice is guilty of all crimes that he aided or encouraged, AND all foreseeable crimes along with the aided crime.

Avoiding Liability -- in order for an accomplice to "withdraw" from the crime, it depends on what his role was.
If he was merely an "encourager," he has to repudiate his encouragement before the crime is committed.
If he provided material aid, he must neutralize the aid or otherwise prevent the crime from happening.

Example: Danny robs a bank and runs out into the street. Alex is waiting to pick him up, so he has the engine idling and is double parked. Alex doesn't know Danny just robbed the bank. Danny runs in the car, and they drive away.
Alex is not an accomplice because he did not "intentionally aid" Danny commit the crime. As far as Alex knew, he was just taking his friend to the bank.

Change the facts. Alex does know Danny plans to rob the bank. Alex would be an accomplice.
Change the facts. Alex isn't driving, but he loans Danny his car. Whether Alex is an accomplice depends on whether he knew that Danny wanted to rob the bank, and offered his car to help him commit the crime. Note that if Alex knows Danny is going to rob the bank, he is not an accomplice just because he knows but doesn't report it.

Let's say Alex and Danny are planning on robbing the bank. Alex gets the guns they're going to use. On the day of the crime, Alex has second thoughts and backs out. Danny robs the bank. Alex is still an accomplice because he has provided material aid (provided the guns), but has not neutralized his aid or prevented the crime from happening.

Let's say Alex wants to rob the bank. He convinced Danny to go along with the plan. Alex backs out but doesn't tell Danny, who robs the bank anyway. Alex is an accomplice because he has not repudiated his encouragement. If he called Danny and said he wants to withdraw, then he is no longer an accomplice.

fslexcduck
Posts: 87
Joined: Fri Feb 13, 2015 7:42 am

Re: Last-minute bar "hard topics" help, all exams

Postby fslexcduck » Sat Feb 21, 2015 8:59 pm

YibanRen wrote:Cop sees newspaper on seat of car with open window as he walks by and thinks "there could be a handgun under that newspaper that a child in the community could get ahold of and shoot themselves," I will reach under the newspaper to see if there is a gun (no PC, not reasonable, suspicion for Terry Stop, just trying to protect the community at large from bad things)


This is OK? Seriously? Man, whoever makes common law is so naive.

fslexcduck
Posts: 87
Joined: Fri Feb 13, 2015 7:42 am

Re: Last-minute bar "hard topics" help, all exams

Postby fslexcduck » Sat Feb 21, 2015 9:01 pm

Encore, you seem like you know a lot about accomplice liability. You should step into the general February bar exam thread and take a crack at what we've been dealing with the last couple of pages there.

User avatar
encore1101
Posts: 642
Joined: Tue Oct 22, 2013 10:13 am

Re: Last-minute bar "hard topics" help, all exams

Postby encore1101 » Sat Feb 21, 2015 9:05 pm

aretoodeetoo wrote:Nice - but can't police with only reasonable suspicion detain without arrest and search for weapons?


There's a Terry Stop and Terry Search. A Terry Search will necessarily always include a Terry Stop, but not every Terry Stop will include a Terry Search.

Terry Stop -- LEO requires reasonable suspicion that a crime has been, will be, or is currently being committed.
Terry Search -- LEO requires reasonable suspicion that a suspect poses a danger to him or to others.

Excluding cars for the moment, if a cop sees you jaywalking, he can stop you. Absent some additional facts, he can't search you (this is not to say it doesn't happen, just as a matter of law), unless he can articulate why he thought you might have a weapon. In practice, cops will say whatever to justify it (evasive answers, indirect eye contact, nervousness, keeps adjusting belt, etc.).

A cop can pull you over for speeding (terry stop) but, absent some additional facts that indicates you're dangerous, he can't search you or your car (assuming none of the other exceptions apply).
Last edited by encore1101 on Sat Feb 21, 2015 9:08 pm, edited 1 time in total.

Cole45
Posts: 5
Joined: Fri Feb 20, 2015 7:13 am

Re: Last-minute bar "hard topics" help, all exams

Postby Cole45 » Sat Feb 21, 2015 9:07 pm

.[/quote]

I know what you mean. Strict Scrutiny always has the "no less restrictive means" as part of the test. It isn't always stated this way, but it is so. I think because it comes up more in speech tests they highlight it here.

The intermediate scrutiny test uses like three different terms to mean the same thing "substantially more than necessary," "narrowly tailored," "substantially related." These mean that the means they use to accomplish the purpose are not the least restrictive, but are pretty restrictive. I don't think there is more than one intermediate scrutiny test applied. It is just stated in different ways. Guys?[/quote]

Regarding Intermediate - there is, really, more than one test within IS - where the classification is sex-based, the govt has the burden not just to show substantial relation to further important govt interest, but also that there is an "exceedingly persuasive justification" for the sexes to be treated in a disparate fashion.

aretoodeetoo
Posts: 73
Joined: Fri Jan 09, 2015 6:05 am

Re: Last-minute bar "hard topics" help, all exams

Postby aretoodeetoo » Sat Feb 21, 2015 9:09 pm

fslexcduck wrote:
YibanRen wrote:Cop sees newspaper on seat of car with open window as he walks by and thinks "there could be a handgun under that newspaper that a child in the community could get ahold of and shoot themselves," I will reach under the newspaper to see if there is a gun (no PC, not reasonable, suspicion for Terry Stop, just trying to protect the community at large from bad things)


This is OK? Seriously? Man, whoever makes common law is so naive.


Ok wait, with no one in the car? I'm sure this isn't even going to be tested. But from what I remember they can do purely pretextual stops using traffic violations which seems pretty not cool.

aretoodeetoo
Posts: 73
Joined: Fri Jan 09, 2015 6:05 am

Re: Last-minute bar "hard topics" help, all exams

Postby aretoodeetoo » Sat Feb 21, 2015 9:27 pm

YibanRen wrote:Hey all:

I'm sure that most have at least one area of a particular topic (or maybe even an entire essay topic) that they've pretty much written off. It might be helpful for everyone to pool wisdom with simplistic/minimalist explanations of hard topics where they feel comfortable. Also, feel free to bring up hard topics to address.

Some examples that I've seen people list:

Real Property: Mortgages, Land Sale Ks, Equitable Servitudes/Covenants;
Evidence: Impeachment Methods/Character Evidence;
Contracts: Article 2 Remedies (Risk of Loss/Shipment rules);
Torts: Negligence: Duty to visitors of land;
Crim Pro: Automobile-related rules
Civ Pro: Complex Multiparty Litigation (Joinder, Interpleader, Impleader, Intervention);
Con Law: Negative Commerce Clause/Privileges and Immunities of Article IV, Privileges and Immunities of the 14th Amendment, State Taxation of Commerce


DCC - state/local laws can't place undue burden on interstate commerce
1. if state law doesn't discriminate but the burden on ic outweighs state benefits - unconstitutional
2. if state law does discriminate - strict scrutiny - necessary to important state interest
*always look for congressional approval/consent (good to go) or the market participant where the state isn't a regulator but an actual mp. be careful if it starts off as a MP and then later starts regulating or begins to act outside strictly market participant

p&i 4 - citizens get this only - law that discriminates against out-of-staters is strict scrutiny. not everything is a privilege though so hunting moose isn't - civil liberties/important economic activities are

p&i 14 - I really don't remember at all

State Tax: substantial nexus w/ state activities + fairly apportioned + fairly related to benefits provided by state

YibanRen
Posts: 90
Joined: Sun Feb 15, 2015 12:25 am

Re: Last-minute bar "hard topics" help, all exams

Postby YibanRen » Sat Feb 21, 2015 9:59 pm

aretoodeetoo wrote:
YibanRen wrote:Hey all:

I'm sure that most have at least one area of a particular topic (or maybe even an entire essay topic) that they've pretty much written off. It might be helpful for everyone to pool wisdom with simplistic/minimalist explanations of hard topics where they feel comfortable. Also, feel free to bring up hard topics to address.

Some examples that I've seen people list:

Real Property: Mortgages, Land Sale Ks, Equitable Servitudes/Covenants;
Evidence: Impeachment Methods/Character Evidence;
Contracts: Article 2 Remedies (Risk of Loss/Shipment rules);
Torts: Negligence: Duty to visitors of land;
Crim Pro: Automobile-related rules
Civ Pro: Complex Multiparty Litigation (Joinder, Interpleader, Impleader, Intervention);
Con Law: Negative Commerce Clause/Privileges and Immunities of Article IV, Privileges and Immunities of the 14th Amendment, State Taxation of Commerce


DCC - state/local laws can't place undue burden on interstate commerce
1. if state law doesn't discriminate but the burden on ic outweighs state benefits - unconstitutional
2. if state law does discriminate - strict scrutiny - necessary to important state interest
*always look for congressional approval/consent (good to go) or the market participant where the state isn't a regulator but an actual mp. be careful if it starts off as a MP and then later starts regulating or begins to act outside strictly market participant

p&i 4 - citizens get this only - law that discriminates against out-of-staters is strict scrutiny. not everything is a privilege though so hunting moose isn't - civil liberties/important economic activities are

p&i 14 - I really don't remember at all

State Tax: substantial nexus w/ state activities + fairly apportioned + fairly related to benefits provided by state


P i and 14: Wrong answer on MBE, and only when right to travel is violated. Basically, like having a mandatory minimum to receive welfare or medicaid bennies, if you moved as a citizen of another state.




Return to “Bar Exam Prep and Discussion Forum”

Who is online

Users browsing this forum: No registered users and 1 guest