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

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

Postby YibanRen » Sat Feb 21, 2015 10:02 pm

Is this rule statement correct?:

Impeachment of Witness: Prior Convictions: If w/in 10 years AND a felonymisdemeanor where truth is an essential element. Otherwise (over 10, or non EE crime) when judge determines probative value outweighs prejudice (Which may be more for crimes over 10 years).

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

Postby ilovetypos » Sat Feb 21, 2015 10:09 pm

Does anyone have a chart or list that describes subject matter jurisdiction when it comes to counterclaims, cross-claims, third parties, etc.? I tried to draw something out but it was an epic disaster. I mean something that just simply says something like:

- Cross-claim by third-party defendant against original defendant - supplemental jurisdiction as long as same T/O (diversity and a.i.c. not required)

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encore1101
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Re: Last-minute bar "hard topics" help, all exams

Postby encore1101 » Sat Feb 21, 2015 10:10 pm

aretoodeetoo wrote:
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.



This is a law that was pretty unique to the facts. Remember, and be sure to include this in your crimpro essay if appropriate, that the touchstone of the Fourth Amendment is "reasonableness," and most Fourth Amendment questions are going to be fact-sensitive questions.

For example, if a car is parked along along a residential road with an open window and its raining, a police officer that walks by would probably be justified in looking inside the dashboard to see if he can locate the owner of the car to inform him that his car is being soaked. If he finds a gun inside the dashboard, the gun won't be excluded, because the police officer wasn't acting pursuant to his "crime fighting" duties, but his community caretaker role.

On the other hand, if the car-with-an-open-window is parked inside a parking garage where EVERY car has its windows open, the cop has no real basis for reaching inside.

In the quoted narrative, if the police officer reasonably believes that a gun is somewhere in the neighborhood (for example, there was a parade earlier through the park with police officers as security, and one of them lost their gun), then they are no longer acting as "crime fighters" when they search for the gun, but they're acting as "community caretakers."
Last edited by encore1101 on Sat Feb 21, 2015 10:23 pm, edited 1 time in total.

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

Postby ilovetypos » Sat Feb 21, 2015 10:17 pm

YibanRen wrote:Is this rule statement correct?:

Impeachment of Witness: Prior Convictions: If w/in 10 years AND a felonymisdemeanor where truth is an essential element. Otherwise (over 10, or non EE crime) when judge determines probative value outweighs prejudice (Which may be more for crimes over 10 years).


I usually look at it like this. I think it's essentially the same as what you're saying, although characterized a bit differently.

- Prior conviction must be a felony that the witness was convicted of or released from prison in the last 10 years, whichever is later (subject to judge's 403 discretion) OR
- Prior conviction must be a misdemeanor that somehow goes to the witness's truthfulness or honesty (embezzlement, fraud, etc.) - truth doesn't have to be an element - and this is subject to the same 10-year limit. 403 doesn't apply to this type of conviction.

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

Postby YibanRen » Sat Feb 21, 2015 10:29 pm

ilovetypos wrote:
YibanRen wrote:Is this rule statement correct?:

Impeachment of Witness: Prior Convictions: If w/in 10 years AND a felonymisdemeanor where truth is an essential element. Otherwise (over 10, or non EE crime) when judge determines probative value outweighs prejudice (Which may be more for crimes over 10 years).


I usually look at it like this. I think it's essentially the same as what you're saying, although characterized a bit differently.

- Prior conviction must be a felony that the witness was convicted of or released from prison in the last 10 years, whichever is later (subject to judge's 403 discretion) OR
- Prior conviction must be a misdemeanor that somehow goes to the witness's truthfulness or honesty (embezzlement, fraud, etc.) - truth doesn't have to be an element - and this is subject to the same 10-year limit. 403 doesn't apply to this type of conviction.


Wait, so only the misdemeanor by default needs to relate to the EE for truth? The felony can be for anything?

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

Postby fslexcduck » Sat Feb 21, 2015 10:34 pm

That seems complicated to me. I just think of it like

"felonies less than 10 years old and any crime relating to truthfulness"

And then just remember that there's 403 stuff that comes in when it's a felony more than 10 years old or it's any non-truthfulness crime and you're dealing with a criminal defendant (because those situations aren't as probative/high value, so they don't automatically get in) and in those cases a separate determination needs to be made that it's probative enough (technically the 403 determination would be made for a truthfulness crime too but it's always going to pass 403 because it's SO probative of witness credibility).

I think for the most part they're not going to ask you to do the 403 analysis, and the first statement I made is going to be what controls.

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

Postby YibanRen » Sat Feb 21, 2015 11:40 pm

fslexcduck wrote:That seems complicated to me. I just think of it like

"felonies less than 10 years old and any crime relating to truthfulness"

And then just remember that there's 403 stuff that comes in when it's a felony more than 10 years old or it's any non-truthfulness crime and you're dealing with a criminal defendant (because those situations aren't as probative/high value, so they don't automatically get in) and in those cases a separate determination needs to be made that it's probative enough (technically the 403 determination would be made for a truthfulness crime too but it's always going to pass 403 because it's SO probative of witness credibility).

I think for the most part they're not going to ask you to do the 403 analysis, and the first statement I made is going to be what controls.


Thanks.

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

Postby YibanRen » Sat Feb 21, 2015 11:50 pm

So, mortgages, the topic that most people don't review, and bar prep courses just don't cover (much).

What do we need to know besides:

Equitable v. Legal Mortgage. In writing versus deed for consideration.

Holder in Due Course (how to become one): Value, endorsement and delivery of note, no knowledge of illegality.

Can I Foreclose on a Wrongfully transferred mortgage as a holder in due course? Yes, free of personal defenses against the original mortgagee (lack of consideration, fraud, waiver, unconscionable), not against real legal defenses (e.g, capacity, fraud in the factum, insolvency)

Consequences of Assuming Mortgage: Jointly Liable with Mortgagor.

Priority of Taker Subject to Mortgage: Non BFP loses. BFP wins in a notice state, or Race-notice where he is first to record.

Foreclosure/Redemption

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

Postby ilovetypos » Sun Feb 22, 2015 12:41 am

YibanRen wrote:So, mortgages, the topic that most people don't review, and bar prep courses just don't cover (much).

What do we need to know besides:

Equitable v. Legal Mortgage. In writing versus deed for consideration.

Holder in Due Course (how to become one): Value, endorsement and delivery of note, no knowledge of illegality.

Can I Foreclose on a Wrongfully transferred mortgage as a holder in due course? Yes, free of personal defenses against the original mortgagee (lack of consideration, fraud, waiver, unconscionable), not against real legal defenses (e.g, capacity, fraud in the factum, insolvency)

Consequences of Assuming Mortgage: Jointly Liable with Mortgagor.

Priority of Taker Subject to Mortgage: Non BFP loses. BFP wins in a notice state, or Race-notice where he is first to record.

Foreclosure/Redemption


- Foreclosing party must join junior debtors, or else the junior debtors' mortgage stays on the land. assuming they are joined, proceeds from the sale are paid in this order: (1) atty fees and foreclosure costs, (2) debt owed to foreclosing party, (3) debt owed to junior mortgage holders, and (4) anything left goes back to the debtor.

- Mortgages senior to the foreclosing party stay on the land, and the buyer takes the land subject to it (isn't personally liable but the senior holder could foreclose on the property if it's not paid).

- You can't waive the right to redemption prior to the sale. You have the ability to pay all the arrears (and all the debt if there's an acceleration clause) up until the sale. Some states let you have a certain period of time after the sale to redeem too.

- A modification (such as another loan) to a mortgage that was senior to another mortgage will cause it to be junior to the other mortgage (i.e. if Mortgage A was senior to Mortgage B, and Mortgage A secures an increased amount of debt, it will be junior to Mortgage A) (I might be stating this slightly incorrectly).

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

Postby redblueyellow » Sun Feb 22, 2015 1:19 am

ilovetypos wrote:- A modification (such as another loan) to a mortgage that was senior to another mortgage will cause it to be junior to the other mortgage (i.e. if Mortgage A was senior to Mortgage B, and Mortgage A secures an increased amount of debt, it will be junior to Mortgage A) (I might be stating this slightly incorrectly).


I think it should be "it will be junior to Mortgage B."

When the additional amount was secured by Mortgage A, then the excess portion is now junior to the mortgages that were originally behind it.

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

Postby Bigdoggetit » Mon Feb 23, 2015 12:02 am

For those of you that have commercial paper on your separate state essay exams, if you replace "enforcing a negotiable instrument" with "cash a check" it makes a lot more sense.

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

Postby YibanRen » Mon Feb 23, 2015 2:28 am

Bigdoggetit wrote:For those of you that have commercial paper on your separate state essay exams, if you replace "enforcing a negotiable instrument" with "cash a check" it makes a lot more sense.


Thanks for the tip. They took it off the MEE a few weeks ago, but this would have been super helpful when I was staring at the outline confused initially.

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

Postby YibanRen » Mon Feb 23, 2015 2:29 am

Okay, anyone want to try/have a nice short rule statement for Article 2 for risk of loss (including delivery rules)?

Thanks.

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

Postby Bigdoggetit » Mon Feb 23, 2015 2:47 am

For the true threats rule when dealing with 1st amendment free speech, think of a movie trailer.

"From the director of True Threats and Clear and Present Danger, comes the new hit block buster, Imminent Lawless action."

A true threat is speech or conduct that creates a clear and present danger of imminent lawless action.

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

Postby redblueyellow » Mon Feb 23, 2015 3:54 am

Bigdoggetit wrote:For the true threats rule when dealing with 1st amendment free speech, think of a movie trailer.

"From the director of True Threats and Clear and Present Danger, comes the new hit block buster, Imminent Lawless action."

A true threat is speech or conduct that creates a clear and present danger of imminent lawless action.


Never heard of a "True Threat." Is that the same as "Incitment of Violence" or "Speech that Incites Violence of Unlawful Action?" The test sounds similar, but Kaplan doesn't have it tied to clear and present danger, though.

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

Postby YibanRen » Mon Feb 23, 2015 4:14 am

redblueyellow wrote:
Bigdoggetit wrote:For the true threats rule when dealing with 1st amendment free speech, think of a movie trailer.

"From the director of True Threats and Clear and Present Danger, comes the new hit block buster, Imminent Lawless action."

A true threat is speech or conduct that creates a clear and present danger of imminent lawless action.


Never heard of a "True Threat." Is that the same as "Incitment of Violence" or "Speech that Incites Violence of Unlawful Action?" The test sounds similar, but Kaplan doesn't have it tied to clear and present danger, though.


I think the only parts of incitement conceptually that matter are: A) 1)substantial likelihood, of 2) imminent, 3) illegal activity and B) directed at incitement. I think any description will be fungible for these terms besides imminence and incitement.

numbertwo88
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Re: Last-minute bar "hard topics" help, all exams

Postby numbertwo88 » Mon Feb 23, 2015 2:52 pm

Is anyone especially gifted with intended beneficiaries in contracts?

They literally always trip me up and it seems like it should be easy to get but ... my brain isn't having it. At all.

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

Postby Bigdoggetit » Mon Feb 23, 2015 4:04 pm

Intended beneficiaries are quite easy. First step is whether they are intended or incidental. If there specifically named, stop right there, they are an intended beneficiary. This almost always the scenario on an essay question. The next step, does that intended beneficiary have any vested rights. He does if he manifests assent to the promise (in english, he is aware and agrees to it), brings a suit to enforce the contract, or, the most likely case, materially changes his position by relying on the contract. If the third party never learns of the contract, he essentially has no rights. If the call of the question asks if the third party brings suit will he win, the answer is almost certainly yes because by bringing suit the third party's rights automatically vest.

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

Postby Bigdoggetit » Mon Feb 23, 2015 4:09 pm

and just so you are aware, there are two others ways you can become an intended beneficiary, 1. you are to receive performance directly from the promisor, or 2. you are in some relationship with the promisee to indicate an intent to benefit. The usual scenario however will be that the 3rd party is named on the contract.

numbertwo88
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Re: Last-minute bar "hard topics" help, all exams

Postby numbertwo88 » Mon Feb 23, 2015 5:42 pm

Bigdoggetit wrote:and just so you are aware, there are two others ways you can become an intended beneficiary, 1. you are to receive performance directly from the promisor, or 2. you are in some relationship with the promisee to indicate an intent to benefit. The usual scenario however will be that the 3rd party is named on the contract.
Thanks! In the second way, I'm assuming you don't have to be named on the contract?

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

Postby Bigdoggetit » Mon Feb 23, 2015 7:40 pm

numbertwo88 wrote:
Bigdoggetit wrote:and just so you are aware, there are two others ways you can become an intended beneficiary, 1. you are to receive performance directly from the promisor, or 2. you are in some relationship with the promisee to indicate an intent to benefit. The usual scenario however will be that the 3rd party is named on the contract.
Thanks! In the second way, I'm assuming you don't have to be named on the contract?


That is my assumption, but that is the only element that i don't quite get as well. I think if you get that far and you just make a judgment call on an essay, you're already ahead of the game

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

Postby saraea » Wed Feb 25, 2015 11:32 pm

Anyone have a decent method for remembering the rules for real covenants/easements/equitable servitudes and keeping them all straight? (A little late to ask, I know)

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

Postby fslexcduck » Thu Feb 26, 2015 12:02 am

Easements I just use the image of cutting a path through some PINE trees (prescription, implication, necessity, estoppel). Easements end for pretty obvious reasons, IMO... end of necessity, abandonment, merger, express ending, bona fide purchaser without notice (this seems to end everything in the law)...

For covenants and equitable servitudes, it's pretty straightforward... it has to be about the land (i.e. touch and concern, and i.e it always is), intended to run with the land, and there has to be notice (ie recording, usually). That's for both of those, and the only difference is servitudes have injunction (specific performance) as a remedy, and covenants have damages. And covenants require strict vertical privity (in normal terms, the person must have taken the entire land rather than only a life estate or leasehold), while servitudes don't. This is also simple to remember if you remember the policy - it's easy to force someone not to build something on their land, but it's pretty fucked up to make someone pay you ton of money damages if they're just a life estate holder or whatever.

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

Postby redblueyellow » Thu Feb 26, 2015 2:31 am

If a beneficiary under a will is also in a fiduciary relationship with the testator (trustee, guardian, power of attorney, executor, etc), and also serves as a witness, are they an interested witness?

My gut reaction was "yes," but Kaplan's one sentence in their memorization guide says otherwise/is ambiguous.

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

Postby redblueyellow » Thu Feb 26, 2015 4:30 pm

That awkward moment when you have to write out a sentence and a half to describe a two word greek phrase...




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