Barbri MBE Questions -- Errors? Forum

[bgdddymtty]

I don't have it in front of me, but I vaguely remember the question. I don't have an issue accepting Barbri on those types of questions, because if you're looking for the "best" answer, the answer saying "The statute is constitutional because of XYZ" is always going to be a better answer than "The statute is constitutional unless it is unconstitutional." The latter is obviously a correct statement, but it's not really applicable to the facts of the question.

If you start playing that game, then it wouldn't even be true. What I mean is if you start looking for possible conflicts not in the facts of the question, you couldn't really say it would necessarily be constitutional unless it violated federal civil rights law. Once you open the door to saying unnamed federal laws might present a problem, then simply ruling out one of these (civil rights) doesn't automatically make it constitutional; there are still innumerable possible reasons why it could be unconstitutional. That's how I think of it, anyway.

One of the most common ways in which answer choices both on the MBE and on most other standardized tests are wrong is that they are overbroad. When one answer makes a blanket statement and then another comes in and supplies a missing caveat, the latter answer is the better one. And it's Standardized Test Question Writing 101 for a sucker choice to sound great and provide a lot of correct information, while the correct answer is more plain and simple but corrects the flaw present in the sucker choice.

You're right that a one-paragraph prompt can't possibly give you every single relevant fact regarding a situation. If no answer choice brought up the Supremacy Clause issue, I'd think A was fine, particularly since it seems unlikely that there would be a federal law that contradicted the state law presented in the prompt. As soon as another answer choice brings that up, though, it's relevant to the analysis.

[5ky]

Wait looking back at my answer I picked the same answer as you. I forgot the facts of the question dealt specifically with discrimination itself, which I think changes things for me.

If an answer brings up a potential issue not squarely raised by the facts, I'll still follow my statement above (which is what I was basing it on, i.e. B was bringing in something not fairly raised as a possibility by the facts). But where the entire question is about discrimination, I'm not really sure I buy that anymore

[Matteliszt]

Wait looking back at my answer I picked the same answer as you. I forgot the facts of the question dealt specifically with discrimination itself, which I think changes things for me.

If an answer brings up a potential issue not squarely raised by the facts, I'll still follow my statement above (which is what I was basing it on, i.e. B was bringing in something not fairly raised as a possibility by the facts). But where the entire question is about discrimination, I'm not really sure I buy that anymore

I picked the same answer as both of you. B is wrong because the way it reads is "X is fine UNLESS Y" So, the way that question reads is that the statute is constitutional UNLESS its preempted by the Supremacy Clause. That's not correct. there are a gazillion other ways the law could be unconstitutional. It's really dumb and tricky.


I think the take away is be wary of unless and only answers.

[bgdddymtty]

Wait looking back at my answer I picked the same answer as you. I forgot the facts of the question dealt specifically with discrimination itself, which I think changes things for me.

If an answer brings up a potential issue not squarely raised by the facts, I'll still follow my statement above (which is what I was basing it on, i.e. B was bringing in something not fairly raised as a possibility by the facts). But where the entire question is about discrimination, I'm not really sure I buy that anymore

I picked the same answer as both of you. B is wrong because the way it reads is "X is fine UNLESS Y" So, the way that question reads is that the statute is constitutional UNLESS its preempted by the Supremacy Clause. That's not correct. there are a gazillion other ways the law could be unconstitutional. It's really dumb and tricky.


I think the take away is be wary of unless and only answers.

But if that's true, A is even more wrong.

[Matteliszt]

Wait looking back at my answer I picked the same answer as you. I forgot the facts of the question dealt specifically with discrimination itself, which I think changes things for me.

If an answer brings up a potential issue not squarely raised by the facts, I'll still follow my statement above (which is what I was basing it on, i.e. B was bringing in something not fairly raised as a possibility by the facts). But where the entire question is about discrimination, I'm not really sure I buy that anymore

I picked the same answer as both of you. B is wrong because the way it reads is "X is fine UNLESS Y" So, the way that question reads is that the statute is constitutional UNLESS its preempted by the Supremacy Clause. That's not correct. there are a gazillion other ways the law could be unconstitutional. It's really dumb and tricky.


I think the take away is be wary of unless and only answers.

But if that's true, A is even more wrong.

I don't follow. The way I read it, A is talking about the State's police power, which is true, the state can make any legislation it wants, provided it does not conflict with a federal power or a constitutional right. The legislation does neither (arguably a First Amendment claim could be made, but that's not in any of the answer stems). B alludes to this line of thinking but is incorrect because the statute is not Constitutional "unless it conflicts with federal civil rights legislation"(is preempted). It could be unconstitutional if it violated the First Amendment. It could be unconstitutional if it somehow burdened interstate commerce. B is very limited in scope.

[bgdddymtty]

Wait looking back at my answer I picked the same answer as you. I forgot the facts of the question dealt specifically with discrimination itself, which I think changes things for me.

If an answer brings up a potential issue not squarely raised by the facts, I'll still follow my statement above (which is what I was basing it on, i.e. B was bringing in something not fairly raised as a possibility by the facts). But where the entire question is about discrimination, I'm not really sure I buy that anymore

I picked the same answer as both of you. B is wrong because the way it reads is "X is fine UNLESS Y" So, the way that question reads is that the statute is constitutional UNLESS its preempted by the Supremacy Clause. That's not correct. there are a gazillion other ways the law could be unconstitutional. It's really dumb and tricky.


I think the take away is be wary of unless and only answers.

But if that's true, A is even more wrong.

I don't follow. The way I read it, A is talking about the State's police power, which is true, the state can make any legislation it wants, provided it does not conflict with a federal power or a constitutional right. The legislation does neither (arguably a First Amendment claim could be made, but that's not in any of the answer stems). B alludes to this line of thinking but is incorrect because the statute is not Constitutional "unless it conflicts with federal civil rights legislation"(is preempted). It could be unconstitutional if it violated the First Amendment. It could be unconstitutional if it somehow burdened interstate commerce. B is very limited in scope.

To put it in the terminology you used before, B says "X is fine unless Y." A says "X is fine." (A also provides an explanation as to why X is fine, but that's not necessary for a correct answer nor relevant to this part of the analysis.) If the objection is that "X is fine unless Y" is wrong because there is also issue Z that could theoretically get in the way, then that same objection must apply to the statement "X is fine," because it neglects to mention both Y and Z.

I think the thing that trips people up on standardized tests is the idea of choosing "the best answer." On standardized, multiple-choice tests, each question has one, and only one, objectively correct answer. Each of the other answers is flawed--that's the key principle--in one way or another. If not, protests are successfully lodged and questions have to be thrown out. An answer is flawed by having an incorrect explanatory clause, but omitting such a clause is not a flaw (unless the question specifically calls for "who wins, and why" or something to that effect).

Here, C and D are obviously flawed, so we're left with A and B. A says constitutional; B says constitutional unless Supremacy Clause problem. The only relevant question, then, is is there a potential Supremacy Clause problem? The explanation book itself answers this question in the affirmative, as I pointed out in my original post. Therefore, A is flawed in a relevant way and B is not.

[BCLS]

Can you guys help me out with Contract MEE #15? I can't seem to wrap my head around why this is a modification versus an accord and satisfaction-- isn't it an accord since it is future promise to perform something different (doing it earlier for less)? Thanks!!

[bgdddymtty]

Can you guys help me out with Contract MEE #15? I can't seem to wrap my head around why this is a modification versus an accord and satisfaction-- isn't it an accord since it is future promise to perform something different (doing it earlier for less)? Thanks!!

An accord is a (second) agreement between the two parties to accept performance as future satisfaction of a present duty. It arises when one party doesn't perform as agreed, and the aggrieved party agrees that if the breaching party performs, he will accept that in satisfaction of the earlier contract. If the breaching party fails to perform on the accord, the aggrieved party can sue on either the original agreement or on the accord. Contrast this with a modification, where the parties agree to a new contract in present satisfaction of the original agreement. In that case, the original contract is considered to be fully satisfied regardless of what happens on the new contract. If the original breaching party fails to perform on the modification, the aggrieved party can only sue on the modification. Neither of those is really in play here, though, because there's no second agreement subsequent to the original breach.

Under Article 2, if a buyer places an order, that's an offer. If the seller ships goods in response to the order, that's an acceptance. If the seller ships the wrong goods, that's an acceptance and a simultaneous breach. The only exception is that if the seller ships nonconforming goods (ones that don't match what the buyer ordered), but includes a notification that the nonconforming goods are being offered as an accommodation, that operates as a counteroffer.

Here, the ball manufacturer just screwed up by sending the wrong balls, so they've accepted and breached.

[BCLS]

Can you guys help me out with Contract MEE #15? I can't seem to wrap my head around why this is a modification versus an accord and satisfaction-- isn't it an accord since it is future promise to perform something different (doing it earlier for less)? Thanks!!

An accord is a (second) agreement between the two parties to accept performance as future satisfaction of a present duty. It arises when one party doesn't perform as agreed, and the aggrieved party agrees that if the breaching party performs, he will accept that in satisfaction of the earlier contract. If the breaching party fails to perform on the accord, the aggrieved party can sue on either the original agreement or on the accord. Contrast this with a modification, where the parties agree to a new contract in present satisfaction of the original agreement. In that case, the original contract is considered to be fully satisfied regardless of what happens on the new contract. If the original breaching party fails to perform on the modification, the aggrieved party can only sue on the modification. Neither of those is really in play here, though, because there's no second agreement subsequent to the original breach.

Under Article 2, if a buyer places an order, that's an offer. If the seller ships goods in response to the order, that's an acceptance. If the seller ships the wrong goods, that's an acceptance and a simultaneous breach. The only exception is that if the seller ships nonconforming goods (ones that don't match what the buyer ordered), but includes a notification that the nonconforming goods are being offered as an accommodation, that operates as a counteroffer.

Here, the ball manufacturer just screwed up by sending the wrong balls, so they've accepted and breached.

Thank you so much for your helpful response! I think we are talking about different essays. I wonder if your MEE books has them in a different order? This is the contracts essay where one party agrees to accept 15k earlier (instead of 30k) because he has an awesome investment opportunity. Do you have that essay?

[bgdddymtty]

Can you guys help me out with Contract MEE #15? I can't seem to wrap my head around why this is a modification versus an accord and satisfaction-- isn't it an accord since it is future promise to perform something different (doing it earlier for less)? Thanks!!

An accord is a (second) agreement between the two parties to accept performance as future satisfaction of a present duty. It arises when one party doesn't perform as agreed, and the aggrieved party agrees that if the breaching party performs, he will accept that in satisfaction of the earlier contract. If the breaching party fails to perform on the accord, the aggrieved party can sue on either the original agreement or on the accord. Contrast this with a modification, where the parties agree to a new contract in present satisfaction of the original agreement. In that case, the original contract is considered to be fully satisfied regardless of what happens on the new contract. If the original breaching party fails to perform on the modification, the aggrieved party can only sue on the modification. Neither of those is really in play here, though, because there's no second agreement subsequent to the original breach.

Under Article 2, if a buyer places an order, that's an offer. If the seller ships goods in response to the order, that's an acceptance. If the seller ships the wrong goods, that's an acceptance and a simultaneous breach. The only exception is that if the seller ships nonconforming goods (ones that don't match what the buyer ordered), but includes a notification that the nonconforming goods are being offered as an accommodation, that operates as a counteroffer.

Here, the ball manufacturer just screwed up by sending the wrong balls, so they've accepted and breached.

Thank you so much for your helpful response! I think we are talking about different essays. I wonder if your MEE books has them in a different order? This is the contracts essay where one party agrees to accept 15k earlier (instead of 30k) because he has an awesome investment opportunity. Do you have that essay?

I apologize. I totally missed the "MEE" part of your post. I was explaining question #15 of the Contracts PRE. And I'm headed to Texas, so I don't have an MEE book.

[bgdddymtty]

A minor complaint: in the explanation video for the Con Law PRE, Steve Palmer blithely swats away the law in #23 as obviously unconstitutionally vague because of the phrase "behavior that amounts to a breach of the peace." He seems to act like there's no way that a reasonable person would know what that means. The thing is, both "breach of the peace" and "disturbing the peace" are well-established terms of art in the law. I can accept that it's the correct answer to the question since the call only asks for the defendant's best argument and the other three are not good at all, but it seems like an odd choice for a supposedly impermissibly vague term.

[Matteliszt]

Here, C and D are obviously flawed, so we're left with A and B. A says constitutional; B says constitutional unless Supremacy Clause problem. The only relevant question, then, is is there a potential Supremacy Clause problem? The explanation book itself answers this question in the affirmative, as I pointed out in my original post. Therefore, A is flawed in a relevant way and B is not.

According to strategies and tactics for the mbe - "Where 'unless' is the modifier, When this modifier is used the reasoning MUST be the only circumstance under which the result cannot occur. If you can think of even ONE other way, the result might come about, the response cannot be correct"

I agree with what you said above, and I'm not trying to argue. I just opened this book and saw that and that of our discussion RE:Question 14.

[5ky]

Not an MBE question, but sometimes Barbri's call on essay questions makes no sense.

For a corporations question, asking "What are B's rights with regard to the shares sold to D?" is not a very good call when the issue is to figure out what liability B faces for his sale to D. I presume the actual bar will be a little more precise

[bgdddymtty]

I presume the actual bar will be a little more precise

That's what I have to keep telling myself.

[ninereal]

Torts, Set 3, Q3: answer assumes that it's a pure comparative negligence jurisdiction without anything whatsoever in the fact pattern that says that. Extra frustrating because I looked at it, thought "oh, well, that'll depend on the jurisdiction's negligence rules, but it doesn't say anything about it, so I'll assume it's the majority approach, which is partial comparative negligence."

[5ky]

Torts, Set 3, Q3: answer assumes that it's a pure comparative negligence jurisdiction without anything whatsoever in the fact pattern that says that. Extra frustrating because I looked at it, thought "oh, well, that'll depend on the jurisdiction's negligence rules, but it doesn't say anything about it, so I'll assume it's the majority approach, which is partial comparative negligence."

Barbri specifically tells you to assume that pure comparative negligence applies unless the question states otherwise. It says this on the instructions page of the MBE, too.