Themis Bar Review Hangout - July 2015 Exam

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Nelson
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Nelson » Thu Jul 23, 2015 10:20 am

anon sequitur wrote:is there any difference between doing a milestone exam with 100 MBE questions and just doing an MBE practice set with 100 questions? I'd hope that with a 100 questions you'd be getting a test-like sample of difficult and subjects. I just ask because I don't like reviewing my answers on the milestone page, it's just a wall of text.

I did two of the hundred question sets yesterday as a practice MBE and I think they seemed similar in difficulty and topic spread to the milestone. I have noticed that the questions seem to be getting older as you move up through the sets, probably because they assume a lot of people won't make it through all of the mixed sets (more NCBE modified questions and some old fact pattern styles that I don't think are as indicative of the MBE lately).

Ahyis
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Ahyis » Thu Jul 23, 2015 11:12 am

"When an intervening force is unforeseeable, a defendant will still be liable for his acts if the result was nevertheless foreseeable."

Hahahahahaha... whatever. So if I punched you, and you stagger back, and a meteor hits and kills you, I guess the result of you being obliterated was foreseeable, even if a meteor strike wasn't?

seeladyliv
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby seeladyliv » Thu Jul 23, 2015 12:32 pm

smalogna wrote:
seeladyliv wrote:Isn't a 133 on the MBE a passable score?


133 scaled you're in danger territory. Sorry that you had that experience Seeladyliv but thanks for the advice, duly noted.




In some UBE states my collective score would have been a pass. but not my state. I don't know what my raw score was, i assume somewhere around 115-120ish, which was 20-30 points lower then what i had been scoring on my practice MBEs.[/quote]

That scares me. I've been getting the scores I need in practice MBEs so I thought I was in the clear but if you took that much of a drastic drop in MBE from practices to the actual exam...[/quote]

I really don't think my score had anything to do with the amount of content i knew. i think it was more test fatigue. i could barely focus by the second 100 set and i'm sure i was missing a lot of questions i otherwise would have gotten right. i'm sure you'll do great. i only offered my advice for people to get some sleep and keep anxiety under control because i think that's what did me in.

adevine39
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby adevine39 » Thu Jul 23, 2015 12:40 pm

I just re-watched all of the NY CPLR lectures, and while they are boring, at least the guy giving the lectures has really pretty eyes.

zot1
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby zot1 » Thu Jul 23, 2015 12:46 pm

I get that Themis has to repeat some questions for the MBE sets, I just wish they would use the questions I've missed in the past (and there are MANY of 'em) rather than those I've gotten right.

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Lawbro
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Lawbro » Thu Jul 23, 2015 12:49 pm

Here's a conlaw question that I don't really understand

[+] Spoiler
A Congressional statute provides that any state that does not enact a statute requiring its residents to have car insurance for all personal vehicles will receive a drastically reduced amount of federal funding for road repair. A state refuses to enact such a statute because it does not want to discourage car purchases by those who cannot afford insurance premiums.

The federal statute relating to disbursement of highway funds conditioned on the insurance requirement is probably


Answer choices

A. Unconstitutional.

B. Constitutional only on the basis of the spending power.

C. Constitutional only on the basis of the commerce power.

D. Constitutional on the basis of both the spending power and the commerce power.

Correct answer was D, but I chose B. Isn't commandeering not allowed under the commerce clause?

Confused7
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Confused7 » Thu Jul 23, 2015 12:53 pm

Lawbro wrote:Here's a conlaw question that I don't really understand

[+] Spoiler
A Congressional statute provides that any state that does not enact a statute requiring its residents to have car insurance for all personal vehicles will receive a drastically reduced amount of federal funding for road repair. A state refuses to enact such a statute because it does not want to discourage car purchases by those who cannot afford insurance premiums.

The federal statute relating to disbursement of highway funds conditioned on the insurance requirement is probably


Answer choices

A. Unconstitutional.

B. Constitutional only on the basis of the spending power.

C. Constitutional only on the basis of the commerce power.

D. Constitutional on the basis of both the spending power and the commerce power.

Correct answer was D, but I chose B. Isn't commandeering not allowed under the commerce clause?


You're right that Congress cannot commandeer state/local officials to carry out federal programs. However, they CAN "bribe" states to help them carry out such programs by telling them that they will get more/less federal funds. Remember that Congress' power under the Spending Clause is very broad (for the "general welfare") and Congress has exclusive power to regulate interstate commerce absent the dormant commerce clause. Here, Congress is constitutionally exercising its broad spending power by "bribing" states (which is totally OK) and also regulating the instrumentalities of interstate commerce (cars).

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somuchbooty
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby somuchbooty » Thu Jul 23, 2015 12:53 pm

Lawbro wrote:Here's a conlaw question that I don't really understand

[+] Spoiler
A Congressional statute provides that any state that does not enact a statute requiring its residents to have car insurance for all personal vehicles will receive a drastically reduced amount of federal funding for road repair. A state refuses to enact such a statute because it does not want to discourage car purchases by those who cannot afford insurance premiums.

The federal statute relating to disbursement of highway funds conditioned on the insurance requirement is probably


Answer choices

A. Unconstitutional.

B. Constitutional only on the basis of the spending power.

C. Constitutional only on the basis of the commerce power.

D. Constitutional on the basis of both the spending power and the commerce power.

Correct answer was D, but I chose B. Isn't commandeering not allowed under the commerce clause?


I think it's only commandeering if it's a flat out obligation. This is an incentive.

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Nelson
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Nelson » Thu Jul 23, 2015 1:02 pm

Federal income tax is terrible.

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Lawbro
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Lawbro » Thu Jul 23, 2015 1:02 pm

That makes sense. Thanks!

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BelugaWhale
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby BelugaWhale » Thu Jul 23, 2015 1:10 pm

somuchbooty wrote:
Lawbro wrote:Here's a conlaw question that I don't really understand

[+] Spoiler
A Congressional statute provides that any state that does not enact a statute requiring its residents to have car insurance for all personal vehicles will receive a drastically reduced amount of federal funding for road repair. A state refuses to enact such a statute because it does not want to discourage car purchases by those who cannot afford insurance premiums.

The federal statute relating to disbursement of highway funds conditioned on the insurance requirement is probably


Answer choices

A. Unconstitutional.

B. Constitutional only on the basis of the spending power.

C. Constitutional only on the basis of the commerce power.

D. Constitutional on the basis of both the spending power and the commerce power.

Correct answer was D, but I chose B. Isn't commandeering not allowed under the commerce clause?


I think it's only commandeering if it's a flat out obligation. This is an incentive.

Having said that, I think this is actually a close call. Fed gov't can condition the receipt of federal funds but it can't be a "gun to the head". In other words, the conditioning can't be so oppressive that the state really must accept or else lose out on substantial benefits. Here, the fact that the question says the state would receive drastically reduced federal funding makes it a close call. I think this is based on the Dole case.

Ahyis
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Ahyis » Thu Jul 23, 2015 1:27 pm

zot1 wrote:I get that Themis has to repeat some questions for the MBE sets, I just wish they would use the questions I've missed in the past (and there are MANY of 'em) rather than those I've gotten right.


While I've gotten a few that I've gotten right in the past, most of my repeats have been ones I've gotten wrong.

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Lawbro
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Lawbro » Thu Jul 23, 2015 1:28 pm

BelugaWhale wrote:
somuchbooty wrote:
Lawbro wrote:Here's a conlaw question that I don't really understand

[+] Spoiler
A Congressional statute provides that any state that does not enact a statute requiring its residents to have car insurance for all personal vehicles will receive a drastically reduced amount of federal funding for road repair. A state refuses to enact such a statute because it does not want to discourage car purchases by those who cannot afford insurance premiums.

The federal statute relating to disbursement of highway funds conditioned on the insurance requirement is probably


Answer choices

A. Unconstitutional.

B. Constitutional only on the basis of the spending power.

C. Constitutional only on the basis of the commerce power.

D. Constitutional on the basis of both the spending power and the commerce power.

Correct answer was D, but I chose B. Isn't commandeering not allowed under the commerce clause?


I think it's only commandeering if it's a flat out obligation. This is an incentive.

Having said that, I think this is actually a close call. Fed gov't can condition the receipt of federal funds but it can't be a "gun to the head". In other words, the conditioning can't be so oppressive that the state really must accept or else lose out on substantial benefits. Here, the fact that the question says the state would receive drastically reduced federal funding makes it a close call. I think this is based on the Dole case.


Yeah, I was hinging on the use of that word. I think it's not a great question

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somuchbooty
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby somuchbooty » Thu Jul 23, 2015 1:30 pm

But if you think about how shitty it would be for people to be driving around on the road without car insurance, it seems less offensive though. But I agree, not a great question, but I do think it is somewhat of a balancing act and the details of what is being encouraged are relevant to the right answer at times.

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sd5289
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby sd5289 » Thu Jul 23, 2015 1:33 pm

Confused7 wrote:
Lawbro wrote:Here's a conlaw question that I don't really understand

[+] Spoiler
A Congressional statute provides that any state that does not enact a statute requiring its residents to have car insurance for all personal vehicles will receive a drastically reduced amount of federal funding for road repair. A state refuses to enact such a statute because it does not want to discourage car purchases by those who cannot afford insurance premiums.

The federal statute relating to disbursement of highway funds conditioned on the insurance requirement is probably


Answer choices

A. Unconstitutional.

B. Constitutional only on the basis of the spending power.

C. Constitutional only on the basis of the commerce power.

D. Constitutional on the basis of both the spending power and the commerce power.

Correct answer was D, but I chose B. Isn't commandeering not allowed under the commerce clause?


You're right that Congress cannot commandeer state/local officials to carry out federal programs. However, they CAN "bribe" states to help them carry out such programs by telling them that they will get more/less federal funds. Remember that Congress' power under the Spending Clause is very broad (for the "general welfare") and Congress has exclusive power to regulate interstate commerce absent the dormant commerce clause. Here, Congress is constitutionally exercising its broad spending power by "bribing" states (which is totally OK) and also regulating the instrumentalities of interstate commerce (cars).


Agreed. Whenever I see some kind of federal funding scheme tied to a statute that looks like an incentive, I immediately go to spending power. Commandeering is when the feds order the state to carry out a congressional statute via commerce power. I have to admit that the "drastically reduced" part would have given me pause, and I likely would've been debating between B and D. What was the Themis spread on this question (you can see that when you review the completed set)?

Confused7
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Confused7 » Thu Jul 23, 2015 1:34 pm

somuchbooty wrote:But if you think about how shitty it would be for people to be driving around on the road without car insurance, it seems less offensive though. But I agree, not a great question, but I do think it is somewhat of a balancing act and the details of what is being encouraged are relevant to the right answer at times.


Unless you're in NY and have to know about no-fault insurance as part of the endless things we need to know. :roll:

lilypad144
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby lilypad144 » Thu Jul 23, 2015 1:38 pm

Can anyone explain impeachment to me? I just realized I have been mixing it up with character evidence this entire time and have been crying for a half hour. I can't seem to understand it. When can we use opinion/reputation and when specific instances or extrinsic?

Dear god, I'm gonna fail so bad.

zot1
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby zot1 » Thu Jul 23, 2015 1:53 pm

Ahyis wrote:
zot1 wrote:I get that Themis has to repeat some questions for the MBE sets, I just wish they would use the questions I've missed in the past (and there are MANY of 'em) rather than those I've gotten right.


While I've gotten a few that I've gotten right in the past, most of my repeats have been ones I've gotten wrong.


Lucky. I usually get more previously-right than wrong answers. At first I feel good because I can get it right. But then I feel bad because I feel like I only got it right because I've done it before (sometimes even four times) and like I would have gotten a different question. I digress.

eloise16
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby eloise16 » Thu Jul 23, 2015 1:57 pm

lilypad144 wrote:Can anyone explain impeachment to me? I just realized I have been mixing it up with character evidence this entire time and have been crying for a half hour. I can't seem to understand it. When can we use opinion/reputation and when specific instances or extrinsic?

Dear god, I'm gonna fail so bad.


Also plz explain the difference between specific instances of conduct versus prior bad acts? Are they the same? Different?

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Nelson
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Nelson » Thu Jul 23, 2015 1:57 pm

lilypad144 wrote:Can anyone explain impeachment to me? I just realized I have been mixing it up with character evidence this entire time and have been crying for a half hour. I can't seem to understand it. When can we use opinion/reputation and when specific instances or extrinsic?

Dear god, I'm gonna fail so bad.

You can always impeach a witness with opinion or reputation evidence about their character for truthfulness. You can only use extrinsic evidence for impeachment (i.e. the extrinsic evidence is not relevant to the material substantive issue in the case) 1) if it's the witness's own prior inconsistent statement and the witness is on the stand, given an opportunity to explain or deny, and can be crossed/redirected by the other side; or 2) it's a criminal conviction that satisfies FRE 609. Otherwise, you're not going to be able to use extrinsic evidence. You can inquire into specific instances of conduct on cross that are probative of character for truthfulness only (so not just general bad character), but you have to take the witness's answer.

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BelugaWhale
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby BelugaWhale » Thu Jul 23, 2015 2:01 pm

eloise16 wrote:
lilypad144 wrote:Can anyone explain impeachment to me? I just realized I have been mixing it up with character evidence this entire time and have been crying for a half hour. I can't seem to understand it. When can we use opinion/reputation and when specific instances or extrinsic?

Dear god, I'm gonna fail so bad.


Also plz explain the difference between specific instances of conduct versus prior bad acts? Are they the same? Different?

Character and impeachment evidence overlap but the thing you need to keep in mind is that the 404 rules apply to defendants while the FRE 600ish rules apply to WITNESSES. (note though, that if a defendant takes the stand both the FRE 400 and 600 rules apply).

The 400 rules (like 404) are the general character evidence rules, that is you can't convict the defendant just because the D did shady stuff in the past.

The 600 rules are character evidence rules about the WITNESS and trying to destroy their credibility.

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Lawbro
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Lawbro » Thu Jul 23, 2015 2:02 pm

Don't panic, it'll all be good. I'll try explain but I welcome others to add to/correct what I'm saying.

Character Evidence:

In Criminal cases, only D can bring in evidence of his good character. But if he brings it up, Prosecutor can cross him and ask about specific instances showing bad conduct (but prosecutor can't bring in extrinsic evidence to prove that), or can bring in extrinsic evidence (such as other witnesses) to give opinion or reputation evidence about his bad character.

In civil cases, nobody can bring in character evidence unless character is at issue (negligent hiring, defamation, etc), or a limited sex crime exception applies.

Impeachment:

This is used to discredit the witness (who can also be the D if he testifies). You can bring in prior inconsistent statements, past crimes he was convicted of, reputation or opinion evidence that he is UNTRUTHFUL, and in some cases prior bad acts (but only if the prior bad acts evidence untruthfulness, and once again extrinsic evidence is not allowed).

The main difference is that character evidence can be used in certain situations to show the D's propensity or lack of propensity to commit the crime (ie for substantive purposes). Impeachment is used to show that the witness (which can be D) is lying or potentially lying about his testimony (impeachment purposes)

Confused7
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Confused7 » Thu Jul 23, 2015 2:06 pm

lilypad144 wrote:Can anyone explain impeachment to me? I just realized I have been mixing it up with character evidence this entire time and have been crying for a half hour. I can't seem to understand it. When can we use opinion/reputation and when specific instances or extrinsic?

Dear god, I'm gonna fail so bad.


Everyone else's explanations are pretty on point. I can see we've collectively done a lot of studying! :D Also, don't forget that even though you can't use character evidence to prove propensity, you can use it for MIMIC purposes (motive, intent, absence of mistake, identity, and common plan).

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Lawbro
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Lawbro » Thu Jul 23, 2015 2:13 pm

Confused7 wrote:
lilypad144 wrote:Can anyone explain impeachment to me? I just realized I have been mixing it up with character evidence this entire time and have been crying for a half hour. I can't seem to understand it. When can we use opinion/reputation and when specific instances or extrinsic?

Dear god, I'm gonna fail so bad.


Everyone else's explanations are pretty on point. I can see we've collectively done a lot of studying! :D Also, don't forget that even though you can't use character evidence to prove propensity, you can use it for MIMIC purposes (motive, intent, absence of mistake, identity, and common plan).


Hmm, I was under the impression you can use character evidence to show propensity. For example, somebody might give reputation testimony that D (in an assault case) is a violent person.

Confused7
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Confused7 » Thu Jul 23, 2015 2:15 pm

Lawbro wrote:
Confused7 wrote:
lilypad144 wrote:Can anyone explain impeachment to me? I just realized I have been mixing it up with character evidence this entire time and have been crying for a half hour. I can't seem to understand it. When can we use opinion/reputation and when specific instances or extrinsic?

Dear god, I'm gonna fail so bad.


Everyone else's explanations are pretty on point. I can see we've collectively done a lot of studying! :D Also, don't forget that even though you can't use character evidence to prove propensity, you can use it for MIMIC purposes (motive, intent, absence of mistake, identity, and common plan).


Hmm, I was under the impression you can use character evidence to show propensity. For example, somebody might give reputation testimony that D (in an assault case) is a violent person.


Well, that would be after the defendant "opens the door" by arguing peacefulness right? But the prosecution cannot itself initiate the crusade.




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