BarBri Bar Review Hangout - July 2015 Exam Forum

[Redamon1]

Does anybody have a good grasp on what constitutes a limited public forum versus a designated public forum?

Just the standards applied to each. Would also be interested if someone had a good way of determining this.

There's a big problem with distinguishing designated public forum from limited public forum. I even asked Chemerinsky, and he agreed with me. In a designated public forum, the government can't engage in subject-matter discrimination. In a limited public forum, it can. The problem is: How do you tell a permissible limited public forum that's limited to certain subject matters from an impermissible designated forum that discriminates based on subject matter? Chemerinsky said "That's a question I often ask myself."

FWIW I wrote in a question to Barbri on this point and I also got a general answer of the type that doesn't help much distinguish which is which in a fact pattern. Maybe the key is to argue both sides on the exam, apply the rules for both, and then come to a conclusion. That way, even if you ended up picking the wrong one, the grader sees you know your stuff and the distinction between designated public v. limited public forum was a close call.

[ohhoney]

Honestly think I might be losing it. Any chance someone could explain to me Question 17 in the Emanuel AM exam? I don't understand how C can be correct when my notes say that to impeach a witness based on extrinsic evidence of bias, you have to first ask the witness about the bias (see evidence lecture notes pg. 39). Here, the witness is unavailable because he invoked 5th Am. privilege, so wouldn't that make it impossible to confront him with the bias, making impeachment through extrinsic evidence of bias impossible? Am I crazy? (yes.) Thanks in advance!

[stronitsing]

Does anybody have a good grasp on what constitutes a limited public forum versus a designated public forum?

Just the standards applied to each. Would also be interested if someone had a good way of determining this.

There's a big problem with distinguishing designated public forum from limited public forum. I even asked Chemerinsky, and he agreed with me. In a designated public forum, the government can't engage in subject-matter discrimination. In a limited public forum, it can. The problem is: How do you tell a permissible limited public forum that's limited to certain subject matters from an impermissible designated forum that discriminates based on subject matter? Chemerinsky said "That's a question I often ask myself."

FWIW I wrote in a question to Barbri on this point and I also got a general answer of the type that doesn't help much distinguish which is which in a fact pattern. Maybe the key is to argue both sides on the exam, apply the rules for both, and then come to a conclusion. That way, even if you ended up picking the wrong one, the grader sees you know your stuff and the distinction between designated public v. limited public forum was a close call.

Yeah that makes sense. I'm more worried about it coming up on the MBE, but I'm guessing it should be relatively clear if it does

[Redamon1]

High School Journalism Class exception? How is that a thing...?!

I got that one wrong as well. Not much more you can do besides laugh. On the plus side, it's so ridiculous you won't forget it.

Another fun question was about prayer before legislative meetings. I said that it violated the Establishment Clause / Lemon Test. Answer: Yes, it does violate the Establishment Clause / Lemon Test, but such prayers are tradition and therefore we'll allow it.

Yea, because the justification of having a "long history" is clearly the best constitutional argument

THIS right here is my problem with the con law questions. Supposedly con law is easy because the MBE can only test you on clear-cut rules. But in con law, that means testing you on an actual SCOTUS case, like the one above about the prayers, which I happened to remember from the news. But those cases are far from clear-cut; their ambiguity and randomness is the reason they went up to SCOTUS in the first place! So basically, it comes down to learning about a bunch of arbitrary SCOTUS rulings on fine points of constitutional law. Notice and hearing for this but not for that. Intermediate scrutiny for this and random other mixed test for that. Religious figures in this context is an endorsement of religion, but in that context is effect-neutral.......

[3|ink]

High School Journalism Class exception? How is that a thing...?!

I got that one wrong as well. Not much more you can do besides laugh. On the plus side, it's so ridiculous you won't forget it.

Another fun question was about prayer before legislative meetings. I said that it violated the Establishment Clause / Lemon Test. Answer: Yes, it does violate the Establishment Clause / Lemon Test, but such prayers are tradition and therefore we'll allow it.

Yea, because the justification of having a "long history" is clearly the best constitutional argument

THIS right here is my problem with the con law questions. Supposedly con law is easy because the MBE can only test you on clear-cut rules. But in con law, that means testing you on an actual SCOTUS case, like the one above about the prayers, which I happened to remember from the news. But those cases are far from clear-cut; their ambiguity and randomness is the reason they went up to SCOTUS in the first place! So basically, it comes down to learning about a bunch of arbitrary SCOTUS rulings on fine points of constitutional law. Notice and hearing for this but not for that. Intermediate scrutiny for this and random other mixed test for that. Religious figures in this context is an endorsement of religion, but in that context is effect-neutral.......

My thoughts exactly.

[kyle010723]

Honestly think I might be losing it. Any chance someone could explain to me Question 17 in the Emanuel AM exam? I don't understand how C can be correct when my notes say that to impeach a witness based on extrinsic evidence of bias, you have to first ask the witness about the bias (see evidence lecture notes pg. 39). Here, the witness is unavailable because he invoked 5th Am. privilege, so wouldn't that make it impossible to confront him with the bias, making impeachment through extrinsic evidence of bias impossible? Am I crazy? (yes.) Thanks in advance!

I just got home and left my Emanuel at the library, so I can only give you a general answer. If the witness is a party in the suit, no obligation for opportunity to comment. What you are thinking is when the witness is NOT a party to the suit, then the witness must be given an opportunity to comment on extrinsic evidence (either before or after is fine).

[Good Guy Gaud]

39/50 MPQ Set 5.

Danger Zone was right about these being confidence boosters.

[kyle010723]

39/50 MPQ Set 5.

Danger Zone was right about these being confidence boosters.

That's why I am doing one of them per day, haha.

[Good Guy Gaud]

39/50 MPQ Set 5.

Danger Zone was right about these being confidence boosters.

That's why I am doing one of them per day, haha.

Yea, haha. I'm totally doing the same.

[RaleighStClair]

Honestly think I might be losing it. Any chance someone could explain to me Question 17 in the Emanuel AM exam? I don't understand how C can be correct when my notes say that to impeach a witness based on extrinsic evidence of bias, you have to first ask the witness about the bias (see evidence lecture notes pg. 39). Here, the witness is unavailable because he invoked 5th Am. privilege, so wouldn't that make it impossible to confront him with the bias, making impeachment through extrinsic evidence of bias impossible? Am I crazy? (yes.) Thanks in advance!

I just got home and left my Emanuel at the library, so I can only give you a general answer. If the witness is a party in the suit, no obligation for opportunity to comment. What you are thinking is when the witness is NOT a party to the suit, then the witness must be given an opportunity to comment on extrinsic evidence (either before or after is fine).

That's a good point, OP. I didn't think of that. But regardless, C was the most clear of the four based on general bias principles.

This witness was not a party to the suit; the bias was being offered by D to impeach a prosecution witness for bias.

[RaleighStClair]

Honestly think I might be losing it. Any chance someone could explain to me Question 17 in the Emanuel AM exam? I don't understand how C can be correct when my notes say that to impeach a witness based on extrinsic evidence of bias, you have to first ask the witness about the bias (see evidence lecture notes pg. 39). Here, the witness is unavailable because he invoked 5th Am. privilege, so wouldn't that make it impossible to confront him with the bias, making impeachment through extrinsic evidence of bias impossible? Am I crazy? (yes.) Thanks in advance!

I just got home and left my Emanuel at the library, so I can only give you a general answer. If the witness is a party in the suit, no obligation for opportunity to comment. What you are thinking is when the witness is NOT a party to the suit, then the witness must be given an opportunity to comment on extrinsic evidence (either before or after is fine).

That's a good point, OP. I didn't think of that. But regardless, C was the most clear of the four based on general bias principles.

This witness was not a party to the suit; the bias was being offered by D to impeach a prosecution witness for bias.

Maybe it's exactly because he was unavailable that he didn't need to be given an opportunity to confront. After all, because it was former testimony, the state already did and had the opportunity to examine him.

[kyle010723]

Honestly think I might be losing it. Any chance someone could explain to me Question 17 in the Emanuel AM exam? I don't understand how C can be correct when my notes say that to impeach a witness based on extrinsic evidence of bias, you have to first ask the witness about the bias (see evidence lecture notes pg. 39). Here, the witness is unavailable because he invoked 5th Am. privilege, so wouldn't that make it impossible to confront him with the bias, making impeachment through extrinsic evidence of bias impossible? Am I crazy? (yes.) Thanks in advance!

I just got home and left my Emanuel at the library, so I can only give you a general answer. If the witness is a party in the suit, no obligation for opportunity to comment. What you are thinking is when the witness is NOT a party to the suit, then the witness must be given an opportunity to comment on extrinsic evidence (either before or after is fine).

That's a good point, OP. I didn't think of that. But regardless, C was the most clear of the four based on general bias principles.

This witness was not a party to the suit; the bias was being offered by D to impeach a prosecution witness for bias.

Wait, my note says you only need to give opportunity to comment for impeachment through prior inconsistent statement. The only objection to bias is 403 and and extrinsic evidence for bias must lay foundation, I dont have anything about comment for bias...

[RaleighStClair]

Honestly think I might be losing it. Any chance someone could explain to me Question 17 in the Emanuel AM exam? I don't understand how C can be correct when my notes say that to impeach a witness based on extrinsic evidence of bias, you have to first ask the witness about the bias (see evidence lecture notes pg. 39). Here, the witness is unavailable because he invoked 5th Am. privilege, so wouldn't that make it impossible to confront him with the bias, making impeachment through extrinsic evidence of bias impossible? Am I crazy? (yes.) Thanks in advance!

I just got home and left my Emanuel at the library, so I can only give you a general answer. If the witness is a party in the suit, no obligation for opportunity to comment. What you are thinking is when the witness is NOT a party to the suit, then the witness must be given an opportunity to comment on extrinsic evidence (either before or after is fine).

That's a good point, OP. I didn't think of that. But regardless, C was the most clear of the four based on general bias principles.

This witness was not a party to the suit; the bias was being offered by D to impeach a prosecution witness for bias.

Wait, my note says you only need to give opportunity to comment for impeachment through prior inconsistent statement. The only objection to bias is 403 and and extrinsic evidence for bias must lay foundation, I dont have anything about comment for bias...

My Lean Sheet chart does say that "W must be asked on cross about facts showing bias before admission of extrinsic evidence." I'm wondering if maybe that only applies when the witness is available to testify at trial.

[kyle010723]

My Lean Sheet chart does say that "W must be asked on cross about facts showing bias before admission of extrinsic evidence." I'm wondering if maybe that only applies when the witness is available to testify at trial.

Yea, no clue. I'll let other evidence wizd take this one, hopefully we wouldn't see something this detailed on MBE

[Outis Onoma]

Got 90% on the emanuel torts section.

Just posting to brag / get ego boost. That's what we do here, right?

[kyle010723]

Got 90% on the emanuel torts section.

Just posting to brag / get ego boost. That's what we do here, right?

Hahaha, good job!

[Good Guy Gaud]

Got 90% on the emanuel torts section.

Just posting to brag / get ego boost. That's what we do here, right?

Hell yea! This thread is about all aspects of the bar (ie., cursing BarBri, poasting success, expressing frustration)

[3|ink]

Sigh. I haven't touched an MBE question since Sunday. Spent all day reading the first third of my state outlines. Except it was more like a quarter.

Ah fuck.

[kyle010723]

Sign... doing essays on family law makes me want to throw myself against a wall.

[kykiske]

Yay, got 35/50 on Mixed Set 3. Not bad. Not bad.

[Andrews989]

39/50 MPQ Set 5.

Danger Zone was right about these being confidence boosters.

That's why I am doing one of them per day, haha.

Where is mixed set 5?

[kyle010723]

39/50 MPQ Set 5.

Danger Zone was right about these being confidence boosters.

That's why I am doing one of them per day, haha.

Where is mixed set 5?

Under additional resources on your enrolled student page, not PSP

[brotherdarkness]

39/50 MPQ Set 5.

Danger Zone was right about these being confidence boosters.

That's why I am doing one of them per day, haha.

Where is mixed set 5?

Go to "enrolled student center" on the top right (hover your mouse over the gear thing). Then click "practice questions" on the right (underneath "additional bar review materials").

There are a total of seven mixed sets.

[old_soul]

Sigh. I haven't touched an MBE question since Sunday. Spent all day reading the first third of my state outlines. Except it was more like a quarter.

Ah fuck.

Don't worry, I didn't do any for a week either while I was "covering" state topics. I feel like I have a very very shallow and narrow understanding of my state subjects. And my state counts them as 60%.

A good compromise is to keep working on your problem areas -- don't have to do a lot of mbes every day, just do at least a couple, if not a dozen, so you're still in the zone.

[Good Guy Gaud]

Woo! We are all so close to crushing this exam and FINALLY getting it out of our lives!