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ellewoods123

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Re: Bar Prep Questions: Black Letter Law Thread

Post by ellewoods123 » Fri Jul 15, 2016 2:57 pm

Calvin Murphy wrote:
ellewoods123 wrote:
LionelHutzJD wrote:
ellewoods123 wrote:holdover residential tenant = held to monthly period tenancy
holdover commercial tenant = held to yearly periodic tenancy ONLY if lease was for more than a year? or held to a yearly periodic tenancy automatically if commercial tenant?
commercial tenant = yearly periodic if prior lease was year to year. monthly periodic if prior lease was month to month (although I still havent seen this in a question, nothing indicates to the contrary).

residential tenant = regardless of prior lease, month to month tenancy.
thanks!
I think the rule on commercial tenants is that they have a new tenancy for years for the original length, not to exceed one year. So like...if they had an 8-month tenancy, they will have a new 8-month tenancy. If they had a 5-year tenancy, they will have a new 1-year tenancy.

Yeah this is essentially my question. If you have a commercial tenant with a lease period of less than a year - are they still held to a yearly tenancy by Nature of being a commercial tenant? Or only held to yearly tenancy if original was for yearly. (I know that's what you just said lol just making sure we are asking the same thing)

Anyone?

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Re: Bar Prep Questions: Black Letter Law Thread

Post by BVest » Fri Jul 15, 2016 3:34 pm

ellewoods123 wrote:
Calvin Murphy wrote:
ellewoods123 wrote:
LionelHutzJD wrote:
ellewoods123 wrote:holdover residential tenant = held to monthly period tenancy
holdover commercial tenant = held to yearly periodic tenancy ONLY if lease was for more than a year? or held to a yearly periodic tenancy automatically if commercial tenant?
commercial tenant = yearly periodic if prior lease was year to year. monthly periodic if prior lease was month to month (although I still havent seen this in a question, nothing indicates to the contrary).

residential tenant = regardless of prior lease, month to month tenancy.
thanks!
I think the rule on commercial tenants is that they have a new tenancy for years for the original length, not to exceed one year. So like...if they had an 8-month tenancy, they will have a new 8-month tenancy. If they had a 5-year tenancy, they will have a new 1-year tenancy.

Yeah this is essentially my question. If you have a commercial tenant with a lease period of less than a year - are they still held to a yearly tenancy by Nature of being a commercial tenant? Or only held to yearly tenancy if original was for yearly. (I know that's what you just said lol just making sure we are asking the same thing)

Anyone?
As was said above, the holdover period is the same as the original lease period, up to one year. Original lease = 1 month; Holdover = 1 month. Original lease = 6 months; Holdover = 6 months. Original lease = 1 year, 2 years, 5 years, 50 years; holdover = 1 year.
Last edited by BVest on Sat Jan 27, 2018 3:22 am, edited 1 time in total.

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Re: Bar Prep Questions: Black Letter Law Thread

Post by wwwcol » Fri Jul 15, 2016 6:38 pm

A fisherman successfully sued a botanist in state court, claiming an implied easement on the botanist's property on grounds of longstanding use. The botanist thereafter sold the property to a hunter. The hunter then sued the fisherman in state court, seeking a declaration that the fisherman does not have an implied easement on the hunter's property on grounds of longstanding use. The fisherman's attorney then files a motion for summary judgment.

How should the court rule?

A. Grant the motion and dismiss the lawsuit on the ground of claim preclusion.
B. Dismiss the motion and retain the lawsuit because the hunter was not a party in the prior lawsuit.
C. Grant the motion and dismiss the lawsuit on the ground of issue preclusion.
D. Dismiss the motion and retain the lawsuit because the hunter waived the defense of res judicata by failing to file a motion to dismiss for failure to state a claim on which relief can be granted.

EXPLANATION:
A is incorrect. Claim preclusion refers to waiver of a legal theory that could have been, but was not, asserted in a prior lawsuit; there is no claim preclusion because the hunter asserts the same legal theory that the botanist did.

B is incorrect. Although non-parties typically cannot be bound by prior lawsuits, there are some exceptions, and successors-in-interest to land can be bound by prior lawsuits in which they were not a party.

C is correct. Here, the hunter is seeking to relitigate an issue that was decided in the fisherman's prior lawsuit with the botanist. Even though the hunter was not a party in the first lawsuit, as a successors-in-interest to the botanist's land, the hunter is in privy with the botanist and can therefore be bound by the prior lawsuit.

D is incorrect. Res judicata is not properly asserted in a motion to dismiss for failure to state a claim on which relief can be granted, and accordingly is not waived in these circumstances.
Still fucking up on the claim/issue preclusion stuff. Chose A, Adaptibar says correct answer is C. My barbri notes say, verbatim, "issue preclusion is not a ground for dismissal. it only prevents a party from raising an issue that has already been litigated". is barbri wrong, or is adaptibar?

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LionelHutzJD

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Re: Bar Prep Questions: Black Letter Law Thread

Post by LionelHutzJD » Fri Jul 15, 2016 6:43 pm

BVest wrote:
ellewoods123 wrote:
Calvin Murphy wrote:
ellewoods123 wrote:
LionelHutzJD wrote:
ellewoods123 wrote:holdover residential tenant = held to monthly period tenancy
holdover commercial tenant = held to yearly periodic tenancy ONLY if lease was for more than a year? or held to a yearly periodic tenancy automatically if commercial tenant?
commercial tenant = yearly periodic if prior lease was year to year. monthly periodic if prior lease was month to month (although I still havent seen this in a question, nothing indicates to the contrary).

residential tenant = regardless of prior lease, month to month tenancy.
thanks!
I think the rule on commercial tenants is that they have a new tenancy for years for the original length, not to exceed one year. So like...if they had an 8-month tenancy, they will have a new 8-month tenancy. If they had a 5-year tenancy, they will have a new 1-year tenancy.

Yeah this is essentially my question. If you have a commercial tenant with a lease period of less than a year - are they still held to a yearly tenancy by Nature of being a commercial tenant? Or only held to yearly tenancy if original was for yearly. (I know that's what you just said lol just making sure we are asking the same thing)

Anyone?
As was said above, the holdover period is the same as the original lease period, up to one year. Original lease = 1 month; Holdover = 1 month. Original lease = 6 months; Holdover = 6 months. Original lease = 1 year, 2 years, 5 years, 50 years; holdover = 1 year.
I haven't seen that, but you may very well be correct. So you're saying if you had a commercial tenant on a 6 month lease the holdover period is not month-to-month but rather a new 6 months lease? Seems like an odd result. Why wouldn't it just be month-to-month?

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Calvin Murphy

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Re: Bar Prep Questions: Black Letter Law Thread

Post by Calvin Murphy » Fri Jul 15, 2016 6:50 pm

LionelHutzJD wrote:
BVest wrote:
ellewoods123 wrote:
Calvin Murphy wrote:
ellewoods123 wrote:
LionelHutzJD wrote:
ellewoods123 wrote:holdover residential tenant = held to monthly period tenancy
holdover commercial tenant = held to yearly periodic tenancy ONLY if lease was for more than a year? or held to a yearly periodic tenancy automatically if commercial tenant?
commercial tenant = yearly periodic if prior lease was year to year. monthly periodic if prior lease was month to month (although I still havent seen this in a question, nothing indicates to the contrary).

residential tenant = regardless of prior lease, month to month tenancy.
thanks!
I think the rule on commercial tenants is that they have a new tenancy for years for the original length, not to exceed one year. So like...if they had an 8-month tenancy, they will have a new 8-month tenancy. If they had a 5-year tenancy, they will have a new 1-year tenancy.

Yeah this is essentially my question. If you have a commercial tenant with a lease period of less than a year - are they still held to a yearly tenancy by Nature of being a commercial tenant? Or only held to yearly tenancy if original was for yearly. (I know that's what you just said lol just making sure we are asking the same thing)

Anyone?
As was said above, the holdover period is the same as the original lease period, up to one year. Original lease = 1 month; Holdover = 1 month. Original lease = 6 months; Holdover = 6 months. Original lease = 1 year, 2 years, 5 years, 50 years; holdover = 1 year.
I haven't seen that, but you may very well be correct. So you're saying if you had a commercial tenant on a 6 month lease the holdover period is not month-to-month but rather a new 6 months lease? Seems like an odd result. Why wouldn't it just be month-to-month?
Because property. Residential leases and commercial leases are treated differently. I guess if you really want to try to rationalize it (and, keep in mind...rationalizing property isn't always TCR), it's kind of like the way merchants have different rules under the UCC. With a residential lease we hold the holdover only to a month-to-month lease so that they can move if their situation so necessitates. With a commercial lessee, the presumption is that they're sophisticated enough to move out before the tenancy is up...and...in the event that they don't, they probably have enough money to keep paying.

With residential stuff the law wants to be tenant friendly. With commercial stuff, there is more of an even-handed relationship.

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Re: Bar Prep Questions: Black Letter Law Thread

Post by LockBox » Fri Jul 15, 2016 7:10 pm

wwwcol wrote:
A fisherman successfully sued a botanist in state court, claiming an implied easement on the botanist's property on grounds of longstanding use. The botanist thereafter sold the property to a hunter. The hunter then sued the fisherman in state court, seeking a declaration that the fisherman does not have an implied easement on the hunter's property on grounds of longstanding use. The fisherman's attorney then files a motion for summary judgment.

How should the court rule?

A. Grant the motion and dismiss the lawsuit on the ground of claim preclusion.
B. Dismiss the motion and retain the lawsuit because the hunter was not a party in the prior lawsuit.
C. Grant the motion and dismiss the lawsuit on the ground of issue preclusion.
D. Dismiss the motion and retain the lawsuit because the hunter waived the defense of res judicata by failing to file a motion to dismiss for failure to state a claim on which relief can be granted.

EXPLANATION:
A is incorrect. Claim preclusion refers to waiver of a legal theory that could have been, but was not, asserted in a prior lawsuit; there is no claim preclusion because the hunter asserts the same legal theory that the botanist did.

B is incorrect. Although non-parties typically cannot be bound by prior lawsuits, there are some exceptions, and successors-in-interest to land can be bound by prior lawsuits in which they were not a party.

C is correct. Here, the hunter is seeking to relitigate an issue that was decided in the fisherman's prior lawsuit with the botanist. Even though the hunter was not a party in the first lawsuit, as a successors-in-interest to the botanist's land, the hunter is in privy with the botanist and can therefore be bound by the prior lawsuit.

D is incorrect. Res judicata is not properly asserted in a motion to dismiss for failure to state a claim on which relief can be granted, and accordingly is not waived in these circumstances.
Still fucking up on the claim/issue preclusion stuff. Chose A, Adaptibar says correct answer is C. My barbri notes say, verbatim, "issue preclusion is not a ground for dismissal. it only prevents a party from raising an issue that has already been litigated". is barbri wrong, or is adaptibar?
If that issue is the only issue in the case, where the issue was litigated and the issue is essential and there is a valid final judgment, then MSJ is appropriate. If dismissal wasn't appropriate, there wouldn't be any other issues to litigate here.

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Re: Bar Prep Questions: Black Letter Law Thread

Post by apricot » Sat Jul 16, 2016 12:44 pm

Jurisdiction to amend spousal support

I understand the rules around jurisdiction for custody orders and modifying custody orders.

What is the rule around jurisdiction to amend spousal support? I understand the following
- In rem jurisdiction (one spouse present in state) to get mere divorce
- Personal jurisdiction required to make spousal support and equitable distribution orders
- Equitable distribution can't be amended
- BUT - Where/who/when can amend this support order once made?

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Re: Bar Prep Questions: Black Letter Law Thread

Post by raptors_delight » Sat Jul 16, 2016 5:00 pm

In the case of felony murder, does the predicate felony merge into the murder charge? So, for example, if D shoots a customer in the course of robbing a store, can he be charged both with robbery and with murder, or only with murder?

My understanding is that there is no merger (so D could be charged with both crimes), but I've seen three practice questions from Themis that say the crimes merge and three actual past bar exam questions that suggest the crimes do not merge, so I'm thoroughly confused.

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Re: Bar Prep Questions: Black Letter Law Thread

Post by ellewoods123 » Sat Jul 16, 2016 5:19 pm

raptors_delight wrote:In the case of felony murder, does the predicate felony merge into the murder charge? So, for example, if D shoots a customer in the course of robbing a store, can he be charged both with robbery and with murder, or only with murder?

My understanding is that there is no merger (so D could be charged with both crimes), but I've seen three practice questions from Themis that say the crimes merge and three actual past bar exam questions that suggest the crimes do not merge, so I'm thoroughly confused.
Wouldn't D be charged with felony murder?

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Re: Bar Prep Questions: Black Letter Law Thread

Post by ballouttacontrol » Sat Jul 16, 2016 5:58 pm

There is no merger. The thing to watch out for is inherently violent felonies. Say, assault with a deadly weapon, but the victim accidentally is killed. In that case, the felony murder rule does not apply.

But, the defendant can still be charged with a depraved heart murder

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Re: Bar Prep Questions: Black Letter Law Thread

Post by raptors_delight » Sat Jul 16, 2016 7:06 pm

ballouttacontrol wrote:There is no merger. The thing to watch out for is inherently violent felonies. Say, assault with a deadly weapon, but the victim accidentally is killed. In that case, the felony murder rule does not apply.

But, the defendant can still be charged with a depraved heart murder
That's helpful—thanks. Good point about the possibility of depraved-heart murder.

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Re: Bar Prep Questions: Black Letter Law Thread

Post by ellewoods123 » Sat Jul 16, 2016 7:11 pm

this may be a dumb question but how do I know if statutory interpleader or rule interpleader applies?

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Re: Bar Prep Questions: Black Letter Law Thread

Post by ballouttacontrol » Sat Jul 16, 2016 7:16 pm

ellewoods123 wrote:this may be a dumb question but how do I know if statutory interpleader or rule interpleader applies?
You can use either one.

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ellewoods123

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Re: Bar Prep Questions: Black Letter Law Thread

Post by ellewoods123 » Sat Jul 16, 2016 7:20 pm

ballouttacontrol wrote:
ellewoods123 wrote:this may be a dumb question but how do I know if statutory interpleader or rule interpleader applies?
You can use either one.
thanks!

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Re: Bar Prep Questions: Black Letter Law Thread

Post by mvp99 » Sun Jul 17, 2016 12:35 pm

Double jeopardy. Can anyone provide a more complete rules(s) than the simple no retrial for the same crime.

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Re: Bar Prep Questions: Black Letter Law Thread

Post by ellewoods123 » Sun Jul 17, 2016 5:05 pm

mvp99 wrote:Double jeopardy. Can anyone provide a more complete rules(s) than the simple no retrial for the same crime.
For purposes of double jeopardy, two crimes will be deemed to be the same crime if each contains an element that the other does not. In a jury trial, double jeopardy attaches when the jury is sworn. In a bench trial, it attaches when the first witness is sworn. There are two major exceptions to this rule that will permit a defendant to be retried for the same crime (1) If D's first trial results in a hung jury, he can be retried or (2) if a mistrial is declared and granted at D's request.

If a D is tried for a greater offense, he cannot be subsequently tried for a lesser offense and vice versa.

thats all I know about double jeopardy does that help? is there anything else to know?

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Re: Bar Prep Questions: Black Letter Law Thread

Post by ellewoods123 » Sun Jul 17, 2016 5:12 pm

quitclaim deeds confusion. actually, generally rules of marketable title confusion

I understand that when a seller conveys a quitclaim deed, there are no covenants and the seller isn't even promising he has title to what he is about to convey. But I read at some point that even in a quitclaim deed, there is an implied promise to deliver marketable title at closing. is that true?

In every conveyance, there is an implied promise to deliver marketable title. However, if AFTER closing, buyer learns he does not have marketable title, he has no recourse? Or he has recourse based on breach of one of the other type of covenants in a generally warranty deed, but no recourse if quitclaim deed because no covenants?

Help :shock:

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Re: Bar Prep Questions: Black Letter Law Thread

Post by mvp99 » Sun Jul 17, 2016 6:04 pm

ellewoods123 wrote:quitclaim deeds confusion. actually, generally rules of marketable title confusion

I understand that when a seller conveys a quitclaim deed, there are no covenants and the seller isn't even promising he has title to what he is about to convey. But I read at some point that even in a quitclaim deed, there is an implied promise to deliver marketable title at closing. is that true?

In every conveyance, there is an implied promise to deliver marketable title. However, if AFTER closing, buyer learns he does not have marketable title, he has no recourse? Or he has recourse based on breach of one of the other type of covenants in a generally warranty deed, but no recourse if quitclaim deed because no covenants?

Help :shock:
True. Quitclaim is only as to express covenants. Implied covenant of marketable title is aways implied unless you expressly say there's no warranty as to marketable title. Remember that the implied term is only up to delivery. Once there is delivery the buyer only has a cause of action for [correction: present and] future covenants, if any, and real defenses.
Last edited by mvp99 on Sun Jul 17, 2016 6:16 pm, edited 1 time in total.

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Re: Bar Prep Questions: Black Letter Law Thread

Post by mvp99 » Sun Jul 17, 2016 6:06 pm

ellewoods123 wrote:
mvp99 wrote:Double jeopardy. Can anyone provide a more complete rules(s) than the simple no retrial for the same crime.
For purposes of double jeopardy, two crimes will be deemed to be the same crime if each contains an element that the other does not. In a jury trial, double jeopardy attaches when the jury is sworn. In a bench trial, it attaches when the first witness is sworn. There are two major exceptions to this rule that will permit a defendant to be retried for the same crime (1) If D's first trial results in a hung jury, he can be retried or (2) if a mistrial is declared and granted at D's request.

If a D is tried for a greater offense, he cannot be subsequently tried for a lesser offense and vice versa.

thats all I know about double jeopardy does that help? is there anything else to know?
Hey thanks. I also made this list:
20. Double jeopardy: attaches W sworn Bench trial; empaneling jury
a. Exceptions
i. Hung jury
ii. Ends b/c manifest necessity
iii. Non-merits acquittal
iv. Found guilty, appeals, reverse (unless ground was for insufficient evidence)
v. Different crime
1. Each crime requires proof of an additional element the other does no require.
21. Double jeopardy prohibits retrying D whose conviction has been reversed on appeal for any offense more serious than that for which she was convicted the first trial. Right is violated by mere retrial of more serious offense even if finally convicted of an offense no more serious.
22. The prosecution may not seek capital punishment in the second trial if the jury didn't impose capital punishment in the original trial.

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Re: Bar Prep Questions: Black Letter Law Thread

Post by LionelHutzJD » Sun Jul 17, 2016 6:10 pm

mvp99 wrote:
ellewoods123 wrote:quitclaim deeds confusion. actually, generally rules of marketable title confusion

I understand that when a seller conveys a quitclaim deed, there are no covenants and the seller isn't even promising he has title to what he is about to convey. But I read at some point that even in a quitclaim deed, there is an implied promise to deliver marketable title at closing. is that true?

In every conveyance, there is an implied promise to deliver marketable title. However, if AFTER closing, buyer learns he does not have marketable title, he has no recourse? Or he has recourse based on breach of one of the other type of covenants in a generally warranty deed, but no recourse if quitclaim deed because no covenants?

Help :shock:
True. Quitclaim is only as to express covenants. Implied covenant of marketable title is aways implied unless you expressly say there's no warranty as to marketable title. Remember that the implied term is only up to delivery. Once there is delivery the buyer only haas a cause of action for future covenants, if any, and real defenses.
True that the contract merges into the deed, but as to your last sentence, if there is a general warranty deed the buyer may have a cause of action for breach of present covenants, if any. Right?

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Re: Bar Prep Questions: Black Letter Law Thread

Post by mvp99 » Sun Jul 17, 2016 6:15 pm

LionelHutzJD wrote:
mvp99 wrote:
ellewoods123 wrote:quitclaim deeds confusion. actually, generally rules of marketable title confusion

I understand that when a seller conveys a quitclaim deed, there are no covenants and the seller isn't even promising he has title to what he is about to convey. But I read at some point that even in a quitclaim deed, there is an implied promise to deliver marketable title at closing. is that true?

In every conveyance, there is an implied promise to deliver marketable title. However, if AFTER closing, buyer learns he does not have marketable title, he has no recourse? Or he has recourse based on breach of one of the other type of covenants in a generally warranty deed, but no recourse if quitclaim deed because no covenants?

Help :shock:
True. Quitclaim is only as to express covenants. Implied covenant of marketable title is aways implied unless you expressly say there's no warranty as to marketable title. Remember that the implied term is only up to delivery. Once there is delivery the buyer only haas a cause of action for future covenants, if any, and real defenses.
True that the contract merges into the deed, but as to your last sentence, if there is a general warranty deed the buyer may have a cause of action for breach of present covenants, if any. Right?
You're totally right, present covenants too. I was mistakenly thinking of future grantees that may be able to enforce covenants but only future covenants because these covenants run with the land unlike present covenants.

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Re: Bar Prep Questions: Black Letter Law Thread

Post by mvp99 » Sun Jul 17, 2016 8:28 pm

Are the steps in front of a government building a public (like sidewalks) or limited use forum? Adaptibar says its public.

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Re: Bar Prep Questions: Black Letter Law Thread

Post by BVest » Sun Jul 17, 2016 9:59 pm

mvp99 wrote:Are the steps in front of a government building a public (like sidewalks) or limited use forum? Adaptibar says its public.
They're a public forum. Think of it this way, could the government limit the use of the steps to certain types of people? If so, it's a limited public forum. As an example, the city could not close its city hall steps to non-residents expressing themselves, but if the city also has conference rooms available in city hall for meetings, it could limit use of the of the conference rooms to residents of the city.
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Re: Bar Prep Questions: Black Letter Law Thread

Post by Confusedgraduate456 » Sun Jul 17, 2016 10:46 pm

Is there a good way to distinguish between when something is involuntary manslaughter (criminal negligence) and when something is murder under depraved heart? Just got two practice questions wrong because I thought testing explosives near a school was criminal negligence (it was depraved heart) and then thought that shooting into a vacant lot was depraved heart (but it was criminal negligence). It seems somewhat arbitrary.

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Re: Bar Prep Questions: Black Letter Law Thread

Post by Calvin Murphy » Sun Jul 17, 2016 11:07 pm

Confusedgraduate456 wrote:Is there a good way to distinguish between when something is involuntary manslaughter (criminal negligence) and when something is murder under depraved heart? Just got two practice questions wrong because I thought testing explosives near a school was criminal negligence (it was depraved heart) and then thought that shooting into a vacant lot was depraved heart (but it was criminal negligence). It seems somewhat arbitrary.
I'm definitely not going to write about it like this on the MEE if it comes up...but I think of it as the difference between someone doing something stupid (like pointing a roman candle at someone hoping to burn them) and someone who seems to have the psychopathic mental state that pop culture associates with murderers (playing russian roulette with someone with indifference as to whether there is a bullet in the chamber).

Seriously? What are you waiting for?

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