MBE questions - majority / minority view

Discussions related to the bar exam are found in this forum
RavenAgain

New
Posts: 47
Joined: Thu Mar 16, 2017 5:25 pm

MBE questions - majority / minority view

Postby RavenAgain » Sat Jun 03, 2017 4:01 pm

Please feel free to add your MBE majority / minority questions ...

My question is on assault.

Courts are split whether apprehension of contact must be reasonable / objective or genuine / subjective.
However what is the majority view please? Thx!

User avatar
cnk1220

Silver
Posts: 987
Joined: Tue Jan 24, 2017 9:48 pm

Re: MBE questions - majority / minority view

Postby cnk1220 » Sat Jun 03, 2017 4:03 pm

RavenAgain wrote:Please feel free to add your MBE majority / minority questions ...

My question is on assault.

Courts are split whether apprehension of contact must be reasonable / objective or genuine / subjective.
However what is the majority view please? Thx!



Majority view is reasonable apprehension of immediate harmful/offensive contact to P.

RavenAgain

New
Posts: 47
Joined: Thu Mar 16, 2017 5:25 pm

Re: MBE questions - majority / minority view

Postby RavenAgain » Sat Jun 03, 2017 5:29 pm

cnk1220 wrote:
RavenAgain wrote:Please feel free to add your MBE majority / minority questions ...

My question is on assault.

Courts are split whether apprehension of contact must be reasonable / objective or genuine / subjective.
However what is the majority view please? Thx!



Majority view is reasonable apprehension of immediate harmful/offensive contact to P.


Is the contact standard being objective or subjective perceived?

User avatar
cnk1220

Silver
Posts: 987
Joined: Tue Jan 24, 2017 9:48 pm

Re: MBE questions - majority / minority view

Postby cnk1220 » Sat Jun 03, 2017 5:34 pm

RavenAgain wrote:
cnk1220 wrote:
RavenAgain wrote:Please feel free to add your MBE majority / minority questions ...

My question is on assault.

Courts are split whether apprehension of contact must be reasonable / objective or genuine / subjective.
However what is the majority view please? Thx!



Majority view is reasonable apprehension of immediate harmful/offensive contact to P.


Is the contact standard being objective or subjective perceived?


objective.

Halp

New
Posts: 22
Joined: Tue May 30, 2017 2:29 am

Re: MBE questions - majority / minority view

Postby Halp » Sun Jun 04, 2017 1:15 am

Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).

RavenAgain

New
Posts: 47
Joined: Thu Mar 16, 2017 5:25 pm

Re: MBE questions - majority / minority view

Postby RavenAgain » Sun Jun 04, 2017 3:01 pm

Halp wrote:Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).


I am inclined to disagree that both is applicable.
Objective sounds right, but I am not 100% certain. cnk1220 are you sure? Anyone?


Another question is re criminal law/ insanity - what is the difference between nature and quality?

Is "nature" the action of what the murderer does and "quality" the understanding what the result of the action is - i.e. death?

Thanks from Europe ;-)

User avatar
WestWingWatcher

Bronze
Posts: 176
Joined: Mon Dec 23, 2013 5:08 pm

Re: MBE questions - majority / minority view

Postby WestWingWatcher » Sun Jun 04, 2017 3:11 pm

Halp wrote:Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).


I think you're right.

RavenAgain

New
Posts: 47
Joined: Thu Mar 16, 2017 5:25 pm

Re: MBE questions - majority / minority view

Postby RavenAgain » Sun Jun 04, 2017 3:46 pm

WestWingWatcher wrote:
Halp wrote:Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).


I think you're right.


If that would be true then a hyper sensitive person might perceive a daily apprehension as assault but it would not be assault because the reasonable person would not feel the same way. So the reasonable test would "overrule" the subjective perception and it would not be assault here...

User avatar
cnk1220

Silver
Posts: 987
Joined: Tue Jan 24, 2017 9:48 pm

Re: MBE questions - majority / minority view

Postby cnk1220 » Sun Jun 04, 2017 3:54 pm

RavenAgain wrote:
WestWingWatcher wrote:
Halp wrote:Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).


I think you're right.


If that would be true then a hyper sensitive person might perceive a daily apprehension as assault but it would not be assault because the reasonable person would not feel the same way. So the reasonable test would "overrule" the subjective perception and it would not be assault here...



The apprehension is that of a reasonable, objective person ("reasonable person standard"), not subjective.

Assault is defined as " an intentional act that causes the plaintiff to experience reasonable apprehension of an immediate harmful or offensive contact."

If it were subjective then anything/everything could be perceived to the P as harmful or objective...something as simple/non-offensive/non-harmful as a shoulder tap...this doesn't make sense.

User avatar
WestWingWatcher

Bronze
Posts: 176
Joined: Mon Dec 23, 2013 5:08 pm

Re: MBE questions - majority / minority view

Postby WestWingWatcher » Sun Jun 04, 2017 3:59 pm

RavenAgain wrote:
WestWingWatcher wrote:
Halp wrote:Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).


I think you're right.


If that would be true then a hyper sensitive person might perceive a daily apprehension as assault but it would not be assault because the reasonable person would not feel the same way. So the reasonable test would "overrule" the subjective perception and it would not be assault here...


I think that is the correct result from my understanding? In tort, at least, a person can't say they were assaulted merely because of their hyper sensitivity (Unless the defendant knew about the sensitivity) if a reasonable person would not have been put in apprehension by D's action.

By contrast, even if D was acting in a way that would put a reasonable person in apprehension of harmful contact, if it did not put this specific P in apprehension, then it is not assault.

I think the same rules apply to criminal assault, but can't actually find anything in my materials that directly states that right now.

RavenAgain

New
Posts: 47
Joined: Thu Mar 16, 2017 5:25 pm

Re: MBE questions - majority / minority view

Postby RavenAgain » Sun Jun 04, 2017 4:07 pm

cnk1220 wrote:
RavenAgain wrote:
WestWingWatcher wrote:
Halp wrote:Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).


I think you're right.


If that would be true then a hyper sensitive person might perceive a daily apprehension as assault but it would not be assault because the reasonable person would not feel the same way. So the reasonable test would "overrule" the subjective perception and it would not be assault here...



The apprehension is that of a reasonable, objective person ("reasonable person standard"), not subjective.

Assault is defined as " an intentional act that causes the plaintiff to experience reasonable apprehension of an immediate harmful or offensive contact."

If it were subjective then anything/everything could be perceived to the P as harmful or objective...something as simple/non-offensive/non-harmful as a shoulder tap...this doesn't make sense.


I agree. Objective standard. Still if known by D that P is hypersensitive, D should be liable, but I can not find the rule for hypersensitives for intentional torts, which is probably the same across the board...

User avatar
Harvard_Naw

New
Posts: 47
Joined: Sun Mar 12, 2017 6:00 pm

Re: MBE questions - majority / minority view

Postby Harvard_Naw » Sun Jun 04, 2017 4:16 pm

RavenAgain wrote:
cnk1220 wrote:
RavenAgain wrote:
WestWingWatcher wrote:
Halp wrote:Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).


I think you're right.


If that would be true then a hyper sensitive person might perceive a daily apprehension as assault but it would not be assault because the reasonable person would not feel the same way. So the reasonable test would "overrule" the subjective perception and it would not be assault here...



The apprehension is that of a reasonable, objective person ("reasonable person standard"), not subjective.

Assault is defined as " an intentional act that causes the plaintiff to experience reasonable apprehension of an immediate harmful or offensive contact."

If it were subjective then anything/everything could be perceived to the P as harmful or objective...something as simple/non-offensive/non-harmful as a shoulder tap...this doesn't make sense.


I agree. Objective standard. Still if known by D that P is hypersensitive, D should be liable, but I can not find the rule for hypersensitives for intentional torts, which is probably the same across the board...


Hypersensitivities come into play with Intentional Infliction of Emotional Distress. IIED requires extreme and outrageous conduct by D. If D knows P has a supersensitivity, and D directs certain conduct toward P that enflames that sensitivity but would not otherwise be extreme or outrageous, such conduct would constitute extreme or outrageous conduct w/r/t IIED.

Halp

New
Posts: 22
Joined: Tue May 30, 2017 2:29 am

Re: MBE questions - majority / minority view

Postby Halp » Sun Jun 04, 2017 8:41 pm

The apprehension for assault must be reasonable, but must be subjectively experienced, i.e., just because it would be reasonable to apprehend a battery is not enough; if the victim, for example, just found it funny and laughed it off. That's what I meant by it has to be both. It must be both, not either alone.

EDIT: Whoops, bad example - if the victim did not SEE the additional thing besides mere words (was looking away), thrn no assault. But it would still be an assault even if victim was not scared, as long as they "apprehended" an immediatr contact.

RavenAgain

New
Posts: 47
Joined: Thu Mar 16, 2017 5:25 pm

Re: MBE questions - majority / minority view

Postby RavenAgain » Tue Jun 06, 2017 12:45 pm

Halp wrote:The apprehension for assault must be reasonable, but must be subjectively experienced, i.e., just because it would be reasonable to apprehend a battery is not enough; if the victim, for example, just found it funny and laughed it off. That's what I meant by it has to be both. It must be both, not either alone.

EDIT: Whoops, bad example - if the victim did not SEE the additional thing besides mere words (was looking away), thrn no assault. But it would still be an assault even if victim was not scared, as long as they "apprehended" an immediatr contact.


Many thanks!

I have two more MBE questions:

2. Criminal law/ insanity - what is the difference between nature and quality?
Is "nature" the action of what the murderer does and "quality" the understanding what the result of the action is - i.e. death?

3. Civil Pro/ Joinder - What if an indispensable party is from the same state as the Plaintiff in a diversity case in Federal court, and there would be prejudice not to include the indispensable party? The court would have to continue without the indispensable party?

User avatar
lady_gaga

New
Posts: 9
Joined: Fri Oct 29, 2010 7:33 pm

Re: MBE questions - majority / minority view

Postby lady_gaga » Tue Jan 02, 2018 1:25 pm

I'm not sure if this is because I'm a foreign-trained bar taker but I cannot figure out why my study materials refer to minority and majority views with regard to crim law.

Can anyone please just give me the quick lowdown on what these mean and when they are applicable?

I've spent way too much time online and on the forum trying to find the answer, thanks in advance!

kc128

Bronze
Posts: 132
Joined: Tue Oct 17, 2017 4:13 pm

Re: MBE questions - majority / minority view

Postby kc128 » Tue Jan 02, 2018 3:43 pm

lady_gaga wrote:I'm not sure if this is because I'm a foreign-trained bar taker but I cannot figure out why my study materials refer to minority and majority views with regard to crim law.

Can anyone please just give me the quick lowdown on what these mean and when they are applicable?

I've spent way too much time online and on the forum trying to find the answer, thanks in advance!


Majority is what the multi-state (MBE follows) so minority rules typically refer to the exception.

Dumb example, but majority is that a burglary need not occur "at nighttime". Compare to the minority rule that holds "nighttime" is still a required element of burglary.

User avatar
pancakes3

Platinum
Posts: 6623
Joined: Sun Jul 20, 2014 2:49 pm

Re: MBE questions - majority / minority view

Postby pancakes3 » Tue Jan 02, 2018 3:58 pm

kc128 wrote:
lady_gaga wrote:I'm not sure if this is because I'm a foreign-trained bar taker but I cannot figure out why my study materials refer to minority and majority views with regard to crim law.

Can anyone please just give me the quick lowdown on what these mean and when they are applicable?

I've spent way too much time online and on the forum trying to find the answer, thanks in advance!


Majority is what the multi-state (MBE follows) so minority rules typically refer to the exception.

Dumb example, but majority is that a burglary need not occur "at nighttime". Compare to the minority rule that holds "nighttime" is still a required element of burglary.


the thing that first came to mind wrt to MBE where minority rules came up a lot was for the standard for insanity where they would say: "Under McNaughton" or whatever, what's the standard.

User avatar
caiti

New
Posts: 29
Joined: Fri Nov 08, 2013 8:46 pm

Re: MBE questions - majority / minority view

Postby caiti » Tue Jan 02, 2018 4:27 pm

lady_gaga wrote:I'm not sure if this is because I'm a foreign-trained bar taker but I cannot figure out why my study materials refer to minority and majority views with regard to crim law.

Can anyone please just give me the quick lowdown on what these mean and when they are applicable?

I've spent way too much time online and on the forum trying to find the answer, thanks in advance!


This is because in the USA, every state (and there are 50 of them) sets their own criminal law. The majority/minority refers to what the law is in a majority (or minority) of states. There is no requirement that every state does the same thing, so the law can be different in each state. The majority view is the one adopted by the majority of the 50 states. The minority has a smaller amount of states with that kind of law.

Your materials will tell you when it is relevant to know the majority and minority views. Assault and conspiracy are two I remember off the top of my head, there might be a few others.

User avatar
lady_gaga

New
Posts: 9
Joined: Fri Oct 29, 2010 7:33 pm

Re: MBE questions - majority / minority view

Postby lady_gaga » Tue Jan 02, 2018 5:13 pm

caiti wrote:
lady_gaga wrote:I'm not sure if this is because I'm a foreign-trained bar taker but I cannot figure out why my study materials refer to minority and majority views with regard to crim law.

Can anyone please just give me the quick lowdown on what these mean and when they are applicable?

I've spent way too much time online and on the forum trying to find the answer, thanks in advance!


This is because in the USA, every state (and there are 50 of them) sets their own criminal law. The majority/minority refers to what the law is in a majority (or minority) of states. There is no requirement that every state does the same thing, so the law can be different in each state. The majority view is the one adopted by the majority of the 50 states. The minority has a smaller amount of states with that kind of law.

Your materials will tell you when it is relevant to know the majority and minority views. Assault and conspiracy are two I remember off the top of my head, there might be a few others.


Thank you so much- this makes perfect sense now, cheers!

FinallyPassedTheBar

Bronze
Posts: 387
Joined: Sat Nov 21, 2015 5:27 am

Re: MBE questions - majority / minority view

Postby FinallyPassedTheBar » Tue Jan 02, 2018 11:41 pm

It has to be both objective and subjective.

Objective in that a reasonable person would feel the threat.

And subjective in that the person actually did feel the threat.

Meaning that if the apprehension of contact was reasonable, but the the person did not actually feel apprehension, then there is no assault.



Return to “Bar Exam Prep and Discussion Forum�

Who is online

Users browsing this forum: a5L, JuanitaFromTheDiner, NorthGroundsRat, not guilty, python123456, White Dwarf and 77 guests