MBE Question Thread Forum

[RC76]

I honestly dont recall that, but do recall getting tripped up on barbri's questions when i see something like the sidewalk in front of the state capital (public), versus the steps of the state capital (limited/non public).

So according to Barbri's MBE questions - the grounds of the State Capitol Building are a public forum but the grounds of the State Supreme Courthouse are a non-public forum....?

I would think ANY governmental property where high-level officials work is a non-public forum and the activity of citizens in that space can be heavily regulated for safety of the officials and efficacy of government process.

[Toubro]

Yeah the public non-public distinction is confusing. Also Chemerinsky said in his lecture that while most sidewalks are public forums, the sidewalk by USPS offices isn't…

[FormerChild]

Contracts – Formation: I've seen two different answers to this, one from Barbri and one from AdaptiBar. The basic fact pattern is this:

Throughout July, X and Y are negotiating X buying 100 widgets from Y, but they can't come to an agreement. On July 15, Y and X sign a statement saying that Y will sell the 100 widgets to X, if they can come to an agreement before July 25. On July 18, Y sends X a letter offering to sell the 100 widgets to X for $600. By coincidence, X sends Y a letter, also on July 18, offering to buy the 100 widgets from X for $600. The parties each receive their respective letters on July 20. Is there a contract?

Barbri says – "No contract exists between the [X] and the [Y], because of a lack of mutual assent."

AdaptiBar says – "A sale-of-goods contract may be made in any manner sufficient to show agreement, even though the moment of its making is undetermined."

I'm very confused …

[EzraFitz]

Contracts – Formation: I've seen two different answers to this, one from Barbri and one from AdaptiBar. The basic fact pattern is this:

Throughout July, X and Y are negotiating X buying 100 widgets from Y, but they can't come to an agreement. On July 15, Y and X sign a statement saying that Y will sell the 100 widgets to X, if they can come to an agreement before July 25. On July 18, Y sends X a letter offering to sell the 100 widgets to X for $600. By coincidence, X sends Y a letter, also on July 18, offering to buy the 100 widgets from X for $600. The parties each receive their respective letters on July 20. Is there a contract?

Barbri says – "No contract exists between the [X] and the [Y], because of a lack of mutual assent."

AdaptiBar says – "A sale-of-goods contract may be made in any manner sufficient to show agreement, even though the moment of its making is undetermined."

I'm very confused …

Both statement are correct. There is no contract because a lack of agreement. Even though both wanted the same terms, there was no actual agreement, no offer and acceptance. Rather, there were Cross Offers, whereby both parties made offers on the same terms, ignorant of the other's offer. Since neither actually accepted the other's offer, there is no contract. If you google "Cross Offer contract law" you can find more in depth explanations.

The Adaptibar statement is correct, in that the actual moment is irrelevant if there was an agreement. But the agreement must exist. So if there is a contract by conduct, it is likely impossible to tell exactly when a contract was formed, but that doesn't mean it is non-existent.

[acijku2]

From the NCBE Online Practice Exam 1 - #60 - Constitutional Law

"A group of students at a state university's law school wished to debate the future of affirmative action in that state and at that law school. For this debate they requested the use of a meeting room in the law school that is available on a first-come, first-served basis for extracurricular student use. Speakers presenting all sides of the issue were scheduled to participate. The law school administration refused to allow the use of any of its meeting rooms for this purpose solely because it believed that "such a debate, even if balanced, would have a negative effect on the morale of the law school community and might cause friction among the students that would disrupt the institution's educational mission."

Is the refusal of the law school administration to allow the use of its meeting room for this purpose constitutional?

Answer: (A) No, because the law school administration cannot demonstrate that its action was necessary to vindicate a compelling state interest.
Correct. The law school's denial of the meeting room to the student group violates the speech clause of the First Amendment. The meeting rooms are a limited public forum because the law school made the rooms generally available for extracurricular student use. Because the meeting rooms are a limited public forum, the law students had a First Amendment right to use a room for expressive activity consistent with their purpose (i.e., extracurricular student use). Because the law school's denial of the room was based on the content of the students' expression, the denial must be tested by strict scrutiny, which requires the law school to prove that its denial was necessary to serve a compelling governmental interest. It is unusual for the courts to uphold content-based speech restrictions at strict scrutiny, and the law school's concerns here are clearly insufficient to meet that test."

I'm under the impression, and Barbri outlines say, that regulation in a limited public forum only need be viewpoint neutral and reasonably related to a legitimate government purpose? I thought it was okay if they weren't content neutral? Very confused, please help.

[ConfusedL1]

From the NCBE Online Practice Exam 1 - #60 - Constitutional Law

"A group of students at a state university's law school wished to debate the future of affirmative action in that state and at that law school. For this debate they requested the use of a meeting room in the law school that is available on a first-come, first-served basis for extracurricular student use. Speakers presenting all sides of the issue were scheduled to participate. The law school administration refused to allow the use of any of its meeting rooms for this purpose solely because it believed that "such a debate, even if balanced, would have a negative effect on the morale of the law school community and might cause friction among the students that would disrupt the institution's educational mission."

Is the refusal of the law school administration to allow the use of its meeting room for this purpose constitutional?

Answer: (A) No, because the law school administration cannot demonstrate that its action was necessary to vindicate a compelling state interest.
Correct. The law school's denial of the meeting room to the student group violates the speech clause of the First Amendment. The meeting rooms are a limited public forum because the law school made the rooms generally available for extracurricular student use. Because the meeting rooms are a limited public forum, the law students had a First Amendment right to use a room for expressive activity consistent with their purpose (i.e., extracurricular student use). Because the law school's denial of the room was based on the content of the students' expression, the denial must be tested by strict scrutiny, which requires the law school to prove that its denial was necessary to serve a compelling governmental interest. It is unusual for the courts to uphold content-based speech restrictions at strict scrutiny, and the law school's concerns here are clearly insufficient to meet that test."

I'm under the impression, and Barbri outlines say, that regulation in a limited public forum only need be viewpoint neutral and reasonably related to a legitimate government purpose? I thought it was okay if they weren't content neutral? Very confused, please help.

I think this isn't because it of a viewpoint; it's because the entire restriction is content based. Viewpoint is about making sure the other side gets the same rights to speak. This outlaws the entire subject.

EDIT for example: Student center meeting rooms were a limited public forum in Widmar v Vincent and thus could be restricted in their use to students, but the university could not--the Court said--allow students to meet for academic, social, or political purposes, but not for religious purposes. That's similar to what happened here with this subject.

[acijku2]

From the NCBE Online Practice Exam 1 - #60 - Constitutional Law

"A group of students at a state university's law school wished to debate the future of affirmative action in that state and at that law school. For this debate they requested the use of a meeting room in the law school that is available on a first-come, first-served basis for extracurricular student use. Speakers presenting all sides of the issue were scheduled to participate. The law school administration refused to allow the use of any of its meeting rooms for this purpose solely because it believed that "such a debate, even if balanced, would have a negative effect on the morale of the law school community and might cause friction among the students that would disrupt the institution's educational mission."

Is the refusal of the law school administration to allow the use of its meeting room for this purpose constitutional?

Answer: (A) No, because the law school administration cannot demonstrate that its action was necessary to vindicate a compelling state interest.
Correct. The law school's denial of the meeting room to the student group violates the speech clause of the First Amendment. The meeting rooms are a limited public forum because the law school made the rooms generally available for extracurricular student use. Because the meeting rooms are a limited public forum, the law students had a First Amendment right to use a room for expressive activity consistent with their purpose (i.e., extracurricular student use). Because the law school's denial of the room was based on the content of the students' expression, the denial must be tested by strict scrutiny, which requires the law school to prove that its denial was necessary to serve a compelling governmental interest. It is unusual for the courts to uphold content-based speech restrictions at strict scrutiny, and the law school's concerns here are clearly insufficient to meet that test."

I'm under the impression, and Barbri outlines say, that regulation in a limited public forum only need be viewpoint neutral and reasonably related to a legitimate government purpose? I thought it was okay if they weren't content neutral? Very confused, please help.

I think this isn't because it of a viewpoint; it's because the entire restriction is content based. Viewpoint is about making sure the other side gets the same rights to speak. This outlaws the entire subject.

EDIT for example: Student center meeting rooms were a limited public forum in Widmar v Vincent and thus could be restricted in their use to students, but the university could not--the Court said--allow students to meet for academic, social, or political purposes, but not for religious purposes. That's similar to what happened here with this subject.

So regulation of a limited public forum needs to be content neutral too? This is contrary to what the barbri outlines say.

[EzraFitz]

From the NCBE Online Practice Exam 1 - #60 - Constitutional Law

"A group of students at a state university's law school wished to debate the future of affirmative action in that state and at that law school. For this debate they requested the use of a meeting room in the law school that is available on a first-come, first-served basis for extracurricular student use. Speakers presenting all sides of the issue were scheduled to participate. The law school administration refused to allow the use of any of its meeting rooms for this purpose solely because it believed that "such a debate, even if balanced, would have a negative effect on the morale of the law school community and might cause friction among the students that would disrupt the institution's educational mission."

Is the refusal of the law school administration to allow the use of its meeting room for this purpose constitutional?

Answer: (A) No, because the law school administration cannot demonstrate that its action was necessary to vindicate a compelling state interest.
Correct. The law school's denial of the meeting room to the student group violates the speech clause of the First Amendment. The meeting rooms are a limited public forum because the law school made the rooms generally available for extracurricular student use. Because the meeting rooms are a limited public forum, the law students had a First Amendment right to use a room for expressive activity consistent with their purpose (i.e., extracurricular student use). Because the law school's denial of the room was based on the content of the students' expression, the denial must be tested by strict scrutiny, which requires the law school to prove that its denial was necessary to serve a compelling governmental interest. It is unusual for the courts to uphold content-based speech restrictions at strict scrutiny, and the law school's concerns here are clearly insufficient to meet that test."

I'm under the impression, and Barbri outlines say, that regulation in a limited public forum only need be viewpoint neutral and reasonably related to a legitimate government purpose? I thought it was okay if they weren't content neutral? Very confused, please help.

I think this isn't because it of a viewpoint; it's because the entire restriction is content based. Viewpoint is about making sure the other side gets the same rights to speak. This outlaws the entire subject.

EDIT for example: Student center meeting rooms were a limited public forum in Widmar v Vincent and thus could be restricted in their use to students, but the university could not--the Court said--allow students to meet for academic, social, or political purposes, but not for religious purposes. That's similar to what happened here with this subject.

So regulation of a limited public forum needs to be content neutral too? This is contrary to what the barbri outlines say.

Being viewpoint neutral and reasonably related to a legitimate government purpose are the standards if the regulation is to reserve the forum for its intended use. But since the room was open for extra-curricular use, refusing to allow the debate was not for the purpose of reserving the forum for its intended use. Rather, it was a content based restriction, and thus must meet strict scrutiny.

[Samarcan]

From the NCBE Online Practice Exam 1 - #60 - Constitutional Law

"A group of students at a state university's law school wished to debate the future of affirmative action in that state and at that law school. For this debate they requested the use of a meeting room in the law school that is available on a first-come, first-served basis for extracurricular student use. Speakers presenting all sides of the issue were scheduled to participate. The law school administration refused to allow the use of any of its meeting rooms for this purpose solely because it believed that "such a debate, even if balanced, would have a negative effect on the morale of the law school community and might cause friction among the students that would disrupt the institution's educational mission."

Is the refusal of the law school administration to allow the use of its meeting room for this purpose constitutional?

Answer: (A) No, because the law school administration cannot demonstrate that its action was necessary to vindicate a compelling state interest.
Correct. The law school's denial of the meeting room to the student group violates the speech clause of the First Amendment. The meeting rooms are a limited public forum because the law school made the rooms generally available for extracurricular student use. Because the meeting rooms are a limited public forum, the law students had a First Amendment right to use a room for expressive activity consistent with their purpose (i.e., extracurricular student use). Because the law school's denial of the room was based on the content of the students' expression, the denial must be tested by strict scrutiny, which requires the law school to prove that its denial was necessary to serve a compelling governmental interest. It is unusual for the courts to uphold content-based speech restrictions at strict scrutiny, and the law school's concerns here are clearly insufficient to meet that test."

I'm under the impression, and Barbri outlines say, that regulation in a limited public forum only need be viewpoint neutral and reasonably related to a legitimate government purpose? I thought it was okay if they weren't content neutral? Very confused, please help.

I think this isn't because it of a viewpoint; it's because the entire restriction is content based. Viewpoint is about making sure the other side gets the same rights to speak. This outlaws the entire subject.

EDIT for example: Student center meeting rooms were a limited public forum in Widmar v Vincent and thus could be restricted in their use to students, but the university could not--the Court said--allow students to meet for academic, social, or political purposes, but not for religious purposes. That's similar to what happened here with this subject.

So regulation of a limited public forum needs to be content neutral too? This is contrary to what the barbri outlines say.

I think you're conflating "limited/designated public forums" with "non-public forums." The viewpoint-neutrality test you identify applies to the latter, not the former. For the former, the test is the same as the one for public forums when the place is open for speech; you use the standards for non-public forums when the place has been closed for speech. Barbri's explanation notes that the place is open for speech, so you don't use the viewpoint-neutrality standard.

[ConfusedL1]

From the NCBE Online Practice Exam 1 - #60 - Constitutional Law

"A group of students at a state university's law school wished to debate the future of affirmative action in that state and at that law school. For this debate they requested the use of a meeting room in the law school that is available on a first-come, first-served basis for extracurricular student use. Speakers presenting all sides of the issue were scheduled to participate. The law school administration refused to allow the use of any of its meeting rooms for this purpose solely because it believed that "such a debate, even if balanced, would have a negative effect on the morale of the law school community and might cause friction among the students that would disrupt the institution's educational mission."

Is the refusal of the law school administration to allow the use of its meeting room for this purpose constitutional?

Answer: (A) No, because the law school administration cannot demonstrate that its action was necessary to vindicate a compelling state interest.
Correct. The law school's denial of the meeting room to the student group violates the speech clause of the First Amendment. The meeting rooms are a limited public forum because the law school made the rooms generally available for extracurricular student use. Because the meeting rooms are a limited public forum, the law students had a First Amendment right to use a room for expressive activity consistent with their purpose (i.e., extracurricular student use). Because the law school's denial of the room was based on the content of the students' expression, the denial must be tested by strict scrutiny, which requires the law school to prove that its denial was necessary to serve a compelling governmental interest. It is unusual for the courts to uphold content-based speech restrictions at strict scrutiny, and the law school's concerns here are clearly insufficient to meet that test."

I'm under the impression, and Barbri outlines say, that regulation in a limited public forum only need be viewpoint neutral and reasonably related to a legitimate government purpose? I thought it was okay if they weren't content neutral? Very confused, please help.

I think this isn't because it of a viewpoint; it's because the entire restriction is content based. Viewpoint is about making sure the other side gets the same rights to speak. This outlaws the entire subject.

EDIT for example: Student center meeting rooms were a limited public forum in Widmar v Vincent and thus could be restricted in their use to students, but the university could not--the Court said--allow students to meet for academic, social, or political purposes, but not for religious purposes. That's similar to what happened here with this subject.

So regulation of a limited public forum needs to be content neutral too? This is contrary to what the barbri outlines say.

I think so, if the speech is restricted in a way that is inconsistent for the forum's intended use. (this phrase is actually bolded in the barbri outline).

EDIT: I think he's right that Barbri lumps limited and non-public forums together in a confusing way.

[Puffman1234]

Generally, with the way recording acts work, someone can convey an interest they don't actually have and the transferee can still prevail against challengers, because the law has been set out that way. The most basic example: O conveys to A, then O conveys to B, A or B records/has notice/whatever. Theoretically O shouldn't be able to convey anything to B because O already conveyed what he had to to A, but the recording act allows B to win vs. A if the act has been complied with. In these situations the person conveying, O, was at least some point the owner.

In contrast, what about when someone other than O, let's call him X, conveys O's estate to A? X is just a fraud, he has no claim to anything of O's. Then O conveys to B, who has actual notice of X's conveyance to A. B will still win, right? It doesn't matter if B knows about A. Surely X doesn't have any power to convey O's land and that shouldn't trump O's conveyance to B even if B knows about it?

[EzraFitz]

Generally, with the way recording acts work, someone can convey an interest they don't actually have and the transferee can still prevail against challengers, because the law has been set out that way. The most basic example: O conveys to A, then O conveys to B, A or B records/has notice/whatever. Theoretically O shouldn't be able to convey anything to B because O already conveyed what he had to to A, but the recording act allows B to win vs. A if the act has been complied with. In these situations the person conveying, O, was at least some point the owner.

In contrast, what about when someone other than O, let's call him X, conveys O's estate to A? X is just a fraud, he has no claim to anything of O's. Then O conveys to B, who has actual notice of X's conveyance to A. B will still win, right? It doesn't matter if B knows about A. Surely X doesn't have any power to convey O's land and that shouldn't trump O's conveyance to B even if B knows about it?

If B actually knows about A, there might be an issue.

These problems seem to come up more often where X conveys to A property that X does not own, and A records right away. O then conveys the same property to B. Because B had no way of knowing that A could be in the chain of title, A's recordation does NOT put B on notice. So B will still take, as he had no notice of A's right to the property.

I'm not sure how it would come out if B knew of X's conveyance to A. I've not seen a question like that, only ones like the above.

[varcom24]

Civ pro question from the Barbri MBE refresher:

The question stated that the plaintiff resided in State B. She was suing a employee-truck driver, and the employer-corporation for a car accident. Truck driver resided in N.D. of State A. The Corp was incorporated in State C, had its PPB in State D, and operated 20 stores in N.D. of State A. The accident took place in the S.D. of State A.

The question asked which venue(s) were proper?

The answer was: S.D. of State A, and the N.D. of State A. The explanation was that because both the employee-truck driver and employer-corporation resided in State A, venue was proper in whichever district in State A one of them resided (and then proper in S.D. of State A because that is where the accident took place).

Am I missing some distinction between where a Corporation is a citizen (where it's incorporated and has its PPB), and where it "resides" for venue purposes? I always assumed that the venue test, as applied in this situation, would mean venue is improper in N.D. of State A because truck driver and corporation are not citizens of the same state, and venue where the accident took place is proper

[malleus discentium]

Civ pro question from the Barbri MBE refresher:

The question stated that the plaintiff resided in State B. She was suing a employee-truck driver, and the employer-corporation for a car accident. Truck driver resided in N.D. of State A. The Corp was incorporated in State C, had its PPB in State D, and operated 20 stores in N.D. of State A. The accident took place in the S.D. of State A.

The question asked which venue(s) were proper?

The answer was: S.D. of State A, and the N.D. of State A. The explanation was that because both the employee-truck driver and employer-corporation resided in State A, venue was proper in whichever district in State A one of them resided (and then proper in S.D. of State A because that is where the accident took place).

Am I missing some distinction between where a Corporation is a citizen (where it's incorporated and has its PPB), and where it "resides" for venue purposes? I always assumed that the venue test, as applied in this situation, would mean venue is improper in N.D. of State A because truck driver and corporation are not citizens of the same state, and venue where the accident took place is proper

For purposes of diversity jurisdiction, corporations are citizens of the one place of incorporation and the PPB. For venue purposes, it is wherever the corporation is subject to personal jurisdiction (which means it is always the state of incorporation and PPB plus wherever a court has specific personal jurisdiction).

[varcom24]

Civ pro question from the Barbri MBE refresher:

The question stated that the plaintiff resided in State B. She was suing a employee-truck driver, and the employer-corporation for a car accident. Truck driver resided in N.D. of State A. The Corp was incorporated in State C, had its PPB in State D, and operated 20 stores in N.D. of State A. The accident took place in the S.D. of State A.

The question asked which venue(s) were proper?

The answer was: S.D. of State A, and the N.D. of State A. The explanation was that because both the employee-truck driver and employer-corporation resided in State A, venue was proper in whichever district in State A one of them resided (and then proper in S.D. of State A because that is where the accident took place).

Am I missing some distinction between where a Corporation is a citizen (where it's incorporated and has its PPB), and where it "resides" for venue purposes? I always assumed that the venue test, as applied in this situation, would mean venue is improper in N.D. of State A because truck driver and corporation are not citizens of the same state, and venue where the accident took place is proper

For purposes of diversity jurisdiction, corporations are citizens of the one place of incorporation and the PPB. For venue purposes, it is wherever the corporation is subject to personal jurisdiction (which means it is always the state of incorporation and PPB plus wherever a court has specific personal jurisdiction).

Isn't the personal jurisdiction inquiry limited to situations where no district in the U.S. satisfies either: (1) where one D resides, if all reside in the same state; or (2) the district in which the substantial part of the events/omissions giving rise to the claim occurred? In this question, because S.D. A is where the accident occurred, shouldn't that be the only appropriate venue?

(I know I'm probably wrong/that you're right, just surprised that I've been wrong about such a simple/commonly tested area because I've been scoring pretty well in civ pro MBE and essay questions)

EDITED: Just clicked. Thanks for the response malleus discentium!

[bballbb02]

Can someone explain the reasonable use theory and water rights and how natural and artificial uses of wate collide under this theory??

[ConfusedL1]

Can someone explain the reasonable use theory and water rights and how natural and artificial uses of wate collide under this theory??

I think I've seen literally one question on this. Here's the quick and dirty without looking anything up.

Basically everyone gets reasonable use, which is super hard to violate and is split into two hierarchical categories. Natural is anything for residential use, including wells your pool, your garden, etc. Artificial is anything closer to industrial use, your farms, irrigation networks, etc.

Basically naturally always trumps artificial. You can be upstream and waste a hell of a lot of water gardening and filling your massive pool while the farm down stream gets screwed under common law.

[ConfusedL1]

Question re aiding and abetting.

There were two questions that went something like:

1. Guy encourages his friend to run away from police after committing a crime. Not enough for accomplice liability.
2. Guy encourages his friend to kill some one yelling "kill him!" before the friend stabs another person. Enough for accomplice liability.

Can anyone explain the difference between those two? It seems like a very not bright line kind of test.

[TheWalrus]

Question re aiding and abetting.

There were two questions that went something like:

1. Guy encourages his friend to run away from police after committing a crime. Not enough for accomplice liability.
2. Guy encourages his friend to kill some one yelling "kill him!" before the friend stabs another person. Enough for accomplice liability.

Can anyone explain the difference between those two? It seems like a very not bright line kind of test.

Before and after.

[ConfusedL1]

Question re aiding and abetting.

There were two questions that went something like:

1. Guy encourages his friend to run away from police after committing a crime. Not enough for accomplice liability.
2. Guy encourages his friend to kill some one yelling "kill him!" before the friend stabs another person. Enough for accomplice liability.

Can anyone explain the difference between those two? It seems like a very not bright line kind of test.

Before and after.

That doesn't help. You can be accomplice both before and after the fact.

[pancakes3]

Question re aiding and abetting.

There were two questions that went something like:

1. Guy encourages his friend to run away from police after committing a crime. Not enough for accomplice liability.
2. Guy encourages his friend to kill some one yelling "kill him!" before the friend stabs another person. Enough for accomplice liability.

Can anyone explain the difference between those two? It seems like a very not bright line kind of test.

Before and after.

That doesn't help. You can be accomplice both before and after the fact.

... did the friend actually run from the police?

[ConfusedL1]

Question re aiding and abetting.

There were two questions that went something like:

1. Guy encourages his friend to run away from police after committing a crime. Not enough for accomplice liability.
2. Guy encourages his friend to kill some one yelling "kill him!" before the friend stabs another person. Enough for accomplice liability.

Can anyone explain the difference between those two? It seems like a very not bright line kind of test.

Before and after.

That doesn't help. You can be accomplice both before and after the fact.

... did the friend actually run from the police?

Yes

[uceoledinbdnrn]

Nah, to be an accessory after the fact you have to actively aid the person, not just encourage them.

[pancakes3]

what about accessory to running from the cops?

[cnk1220]

what about accessory to running from the cops?

Accessory after the fact is someone who with knowledge that the principal committed the crime, assists them to escape arrest- so in your example if you give the person your car to drive off in, knowing that they robbed a bank for example and are fleeing arrest- you are now an accessory after the fact.