BarBri Bar Review Hangout - July 2016 (UBE -NY) Forum

[Ref]

Corporations:

In Freer's lecture he said that a Corporation must receive "par" value upon an issuance of stock. If the stock is sold below "par" (water) then the director or purchaser must make up the difference.

However, in the CMR it states "The RMBCA generally has eliminated the concept of par and allows corps. to issue shares for whatever consideration the directors deem appropriate" It makes no mention of making of the "water" (This is my best attempt at explaining a Corps. scenario, I apologize)

Can anyone clarify whether a director or purchaser must make up of the difference of stock issued below "par"?

If I'm understanding your question directly, 'par value' is eliminated in RMBCA states. I think Del. is the last bastion of par value. So in RMBCA states, there's no such thing as 'water,' because there's no minimum threshold above which you must sell your stock.

Does that answer your question?

[LionelHutzJD]

Corporations:

In Freer's lecture he said that a Corporation must receive "par" value upon an issuance of stock. If the stock is sold below "par" (water) then the director or purchaser must make up the difference.

However, in the CMR it states "The RMBCA generally has eliminated the concept of par and allows corps. to issue shares for whatever consideration the directors deem appropriate" It makes no mention of making of the "water" (This is my best attempt at explaining a Corps. scenario, I apologize)

Can anyone clarify whether a director or purchaser must make up of the difference of stock issued below "par"?

If I'm understanding your question directly, 'par value' is eliminated in RMBCA states. I think Del. is the last bastion of par value. So in RMBCA states, there's no such thing as 'water,' because there's no minimum threshold above which you must sell your stock.

Does that answer your question?

So on an essay it's advisable to discuss both if I see an issue where there is an issuance and consideration is below par?

[mvp99]

12 on the wills essay, did not expect that to happen

[+] Spoiler

I don't know why the answer didn't address duress "Virtually any act of persuasion that over-comes the free will and judgment of another, including exhortations, importunings, insinuations, flattery, trickery, and deception, may amount to undue influence. Undue influence differs from duress, which consists of the intentional use of force, or threat of force, to coerce another into a grossly unfair transaction. Blackmail, Extortion, bad faith threats of criminal prosecution, and oppressive Abuse of Process are classic examples of duress."

It was clear Harriet made a serious threat to a protected person (elder). Further, there was no mention of the fact that she's probably barred from receiving any property b/c of elder abuse

[Ref]

Corporations:

In Freer's lecture he said that a Corporation must receive "par" value upon an issuance of stock. If the stock is sold below "par" (water) then the director or purchaser must make up the difference.

However, in the CMR it states "The RMBCA generally has eliminated the concept of par and allows corps. to issue shares for whatever consideration the directors deem appropriate" It makes no mention of making of the "water" (This is my best attempt at explaining a Corps. scenario, I apologize)

Can anyone clarify whether a director or purchaser must make up of the difference of stock issued below "par"?

If I'm understanding your question directly, 'par value' is eliminated in RMBCA states. I think Del. is the last bastion of par value. So in RMBCA states, there's no such thing as 'water,' because there's no minimum threshold above which you must sell your stock.

Does that answer your question?

So on an essay it's advisable to discuss both if I see an issue where there is an issuance and consideration is below par?

Hmm, I think if they mention there is a par value, then you know what law they want you to talk about. RMBCA states don't have par at all - so if the question is asking you about stock sold below par, then the approving directors WILL be liable, because there WILL be 'water.'

[LionelHutzJD]

Corporations:

In Freer's lecture he said that a Corporation must receive "par" value upon an issuance of stock. If the stock is sold below "par" (water) then the director or purchaser must make up the difference.

However, in the CMR it states "The RMBCA generally has eliminated the concept of par and allows corps. to issue shares for whatever consideration the directors deem appropriate" It makes no mention of making of the "water" (This is my best attempt at explaining a Corps. scenario, I apologize)

Can anyone clarify whether a director or purchaser must make up of the difference of stock issued below "par"?

If I'm understanding your question directly, 'par value' is eliminated in RMBCA states. I think Del. is the last bastion of par value. So in RMBCA states, there's no such thing as 'water,' because there's no minimum threshold above which you must sell your stock.

Does that answer your question?

So on an essay it's advisable to discuss both if I see an issue where there is an issuance and consideration is below par?

Hmm, I think if they mention there is a par value, then you know what law they want you to talk about. RMBCA states don't have par at all - so if the question is asking you about stock sold below par, then the approving directors WILL be liable, because there WILL be 'water.'

Thank you!

[JoeySkoko]

from the written practice exam last week (finally doing it)....

[+] Spoiler

Do we agree that a chef is a merchant under UCC?
Does this mean someone that has knowledge and skill in ANY good is a merchant? So a golfer is a merchant in golf balls? A porn star is a merchant in sex toys????

[yodamiked]

Trying to decide if I should waste half my day going through those MBE Refresher videos at double speed. Has anyone done them that thinks they're worth the time, or would I be better off going through the answers in the book for the ones I struggled with?

I found them helpful. Double speed, no note taking, just letting it jog my thoughts. Comments on what were unusually difficult questions (that I usually got wrong) are good to understand what to expect. I find that if I read the answers to myself, I never really revisit it, it's in one ear and out the other. Plus you don't pick up on tactics or general comments about the type of question it is and why they gave it to us.

Thanks, I decided to do them. They seemed relatively helpful. It turned out that some of the questions I got right, I got right for the wrong reasons, so it was good to be forced to go over all the questions.

It's hard to tell at this point what I should be focusing on. In some ways I wish the exam was tomorrow...and in other ways I wish I had another two months.

[LionelHutzJD]

Trying to decide if I should waste half my day going through those MBE Refresher videos at double speed. Has anyone done them that thinks they're worth the time, or would I be better off going through the answers in the book for the ones I struggled with?

I found them helpful. Double speed, no note taking, just letting it jog my thoughts. Comments on what were unusually difficult questions (that I usually got wrong) are good to understand what to expect. I find that if I read the answers to myself, I never really revisit it, it's in one ear and out the other. Plus you don't pick up on tactics or general comments about the type of question it is and why they gave it to us.

Thanks, I decided to do them. They seemed relatively helpful. It turned out that some of the questions I got right, I got right for the wrong reasons, so it was good to be forced to go over all the questions.

It's hard to tell at this point what I should be focusing on. In some ways I wish the exam was tomorrow...and in other ways I wish I had another two months.

Totally agree. I feel like my MBE score isn't going to go up drastically at this point.

[ballouttacontrol]

Probably a stupid question but...

So, venue is proper where D resides, or where a substantial part of the claim occurred. A corporation resides in any district it is subject to PJ. A defendant is subject to specific PJ wherever a substantial portion of the harm occurred.

So logically, venue and PJ for a corporation are the exact same? Is there any problem with my understanding anywhere here?

[ellewoods123]

if anyones interested I just did 1-100 of the full day exam in the MPQ book. I thought it was pretty fair (68/100) although I did see one or two repeats from the simulated.

[mvp99]

Probably a stupid question but...

So, venue is proper where D resides, or where a substantial part of the claim occurred. A corporation resides in any district it is subject to PJ. A defendant is subject to specific PJ wherever a substantial portion of the harm occurred.

So logically, venue and PJ for a corporation are the exact same? Is there any problem with my understanding anywhere here?

where D resides, if all D's are from the same state

I would keep the rules separate. For corporations, venue is proper in every state where the corp is subject to PJ as to the action. For individuals venue is proper in the same district as they are domiciled .
For non-citizens venue is proper everywhere.

Also for the rule I bolded above, I believe if a corporation is subject to PJ in state A and B and Defendant resides in state A district X, then state A district X is proper even though for Corp. venue is also proper in state B, since all D "reside" on the same state.

[ballouttacontrol]

Probably a stupid question but...

So, venue is proper where D resides, or where a substantial part of the claim occurred. A corporation resides in any district it is subject to PJ. A defendant is subject to specific PJ wherever a substantial portion of the harm occurred.

So logically, venue and PJ for a corporation are the exact same? Is there any problem with my understanding anywhere here?

where D resides, if all D's are from the same state

I would keep the rules separate. For corporations, venue is proper in every state where the corp is subject to PJ as to the action. For individuals venue is proper in the same district as they are domiciled .
For non-citizens venue is proper everywhere.

Also for the rule I bolded above, I believe if a corporation is subject to PJ in state A and B and Defendant resides in state A district X, then state A district X is proper even though for Corp. venue is also proper in state B, since all D "reside" on the same state.

Makes sense. To clarify tho, in the situation you are suing one corporation defendant, thePJ and Venue analyses are essentially identical. Correct?

[mvp99]

Probably a stupid question but...

So, venue is proper where D resides, or where a substantial part of the claim occurred. A corporation resides in any district it is subject to PJ. A defendant is subject to specific PJ wherever a substantial portion of the harm occurred.

So logically, venue and PJ for a corporation are the exact same? Is there any problem with my understanding anywhere here?

where D resides, if all D's are from the same state

I would keep the rules separate. For corporations, venue is proper in every state where the corp is subject to PJ as to the action. For individuals venue is proper in the same district as they are domiciled .
For non-citizens venue is proper everywhere.

Also for the rule I bolded above, I believe if a corporation is subject to PJ in state A and B and Defendant resides in state A district X, then state A district X is proper even though for Corp. venue is also proper in state B, since all D "reside" on the same state.

Makes sense. To clarify tho, in the situation you are suing one corporation defendant, the PJ and Venue analyses are essentially identical. Correct?

I believe so, yes.

[LionelHutzJD]

Probably a stupid question but...

So, venue is proper where D resides, or where a substantial part of the claim occurred. A corporation resides in any district it is subject to PJ. A defendant is subject to specific PJ wherever a substantial portion of the harm occurred.

So logically, venue and PJ for a corporation are the exact same? Is there any problem with my understanding anywhere here?

where D resides, if all D's are from the same state

I would keep the rules separate. For corporations, venue is proper in every state where the corp is subject to PJ as to the action. For individuals venue is proper in the same district as they are domiciled .
For non-citizens venue is proper everywhere.

Also for the rule I bolded above, I believe if a corporation is subject to PJ in state A and B and Defendant resides in state A district X, then state A district X is proper even though for Corp. venue is also proper in state B, since all D "reside" on the same state.

Makes sense. To clarify tho, in the situation you are suing one corporation defendant, the PJ and Venue analyses are essentially identical. Correct?

I believe so, yes.

There will always be the constitutional analysis if we're talking specific PJ. There is no constitutional analysis under venue.

[mvp99]

Probably a stupid question but...

So, venue is proper where D resides, or where a substantial part of the claim occurred. A corporation resides in any district it is subject to PJ. A defendant is subject to specific PJ wherever a substantial portion of the harm occurred.

So logically, venue and PJ for a corporation are the exact same? Is there any problem with my understanding anywhere here?

where D resides, if all D's are from the same state

I would keep the rules separate. For corporations, venue is proper in every state where the corp is subject to PJ as to the action. For individuals venue is proper in the same district as they are domiciled .
For non-citizens venue is proper everywhere.

Also for the rule I bolded above, I believe if a corporation is subject to PJ in state A and B and Defendant resides in state A district X, then state A district X is proper even though for Corp. venue is also proper in state B, since all D "reside" on the same state.

Makes sense. To clarify tho, in the situation you are suing one corporation defendant, the PJ and Venue analyses are essentially identical. Correct?

I believe so, yes.

There will always be the constitutional analysis if we're talking specific PJ. There is no constitutional analysis under venue.

True but only because you have to do it as to PJ, and you apply your PJ conclusion to venue. If that's not what you mean I'm lost.

When does USDA (we don't know if heir predeceased T, presumed he survived) or the 120-hour rule (must survive to take 120) apply or what is its significance?

CMR: it says a person cannot take under a will or in intestacy if they predeceased T unless it is otherwise specified in a document that survivorship is irrelevant.

But what are we doing when we apply per capita with representation and give a share of T's property to B's descendants when we know B predeceased T? is B actually not "taking" anything and we're effectively bypassing B's estate and giving the property directly to his children?

The only significance of this rule that I can think of (and therefore the significance of USDA and 120-hour rule) is that if we determine B didn't predecease T then B's wife under a statute might be entitled to something from B's estate.

[ellewoods123]

Can someone explain the defense of legal impossibility when defendant is charged with attempt? Initially I thought that: if the defendant actually achieved all of the acts he intended and would not commit a crime, then no attempt. (This has been true in a select number of barbri Qs)

But then there was this random barbri question where the defendant bought a cigarette thinking It was a marijuana cigarette but it wasn't and the answer was he COULD be charged with attempt because his subjective intent was to commit a crime. And ever since that question I keep applying that rationale and it appears to be wrong

Which is it?

[Internetdan]

Can someone explain the defense of legal impossibility when defendant is charged with attempt? Initially I thought that: if the defendant actually achieved all of the acts he intended and would not commit a crime, then no attempt. (This has been true in a select number of barbri Qs)

But then there was this random barbri question where the defendant bought a cigarette thinking It was a marijuana cigarette but it wasn't and the answer was he COULD be charged with attempt because his subjective intent was to commit a crime. And ever since that question I keep applying that rationale and it appears to be wrong

Which is it?

You're legal impossibility thought is right.

The marijuana cigarette is a factual impossibility question, and will be attempt any time someone thinks they are buying drugs, buying stolen property, etc. when it really isn't. The point is in the real world, if what they thought they were doing is a crime they have attempt, but if really no crime would exist even if they thought were breaking the law (for instance buying tobacco which they thought was illegal and it wasn't) no attempt.

[LionelHutzJD]

Probably a stupid question but...

So, venue is proper where D resides, or where a substantial part of the claim occurred. A corporation resides in any district it is subject to PJ. A defendant is subject to specific PJ wherever a substantial portion of the harm occurred.

So logically, venue and PJ for a corporation are the exact same? Is there any problem with my understanding anywhere here?

where D resides, if all D's are from the same state

I would keep the rules separate. For corporations, venue is proper in every state where the corp is subject to PJ as to the action. For individuals venue is proper in the same district as they are domiciled .
For non-citizens venue is proper everywhere.

Also for the rule I bolded above, I believe if a corporation is subject to PJ in state A and B and Defendant resides in state A district X, then state A district X is proper even though for Corp. venue is also proper in state B, since all D "reside" on the same state.

Makes sense. To clarify tho, in the situation you are suing one corporation defendant, the PJ and Venue analyses are essentially identical. Correct?

I believe so, yes.

There will always be the constitutional analysis if we're talking specific PJ. There is no constitutional analysis under venue.

True but only because you have to do it as to PJ, and you apply your PJ conclusion to venue. If that's not what you mean I'm lost.

When does USDA (we don't know if heir predeceased T, presumed he survived) or the 120-hour rule (must survive to take 120) apply or what is its significance?

CMR: it says a person cannot take under a will or in intestacy if they predeceased T unless it is otherwise specified in a document that survivorship is irrelevant.

But what are we doing when we apply per capita with representation and give a share of T's property to B's descendants when we know B predeceased T? is B actually not "taking" anything and we're effectively bypassing B's estate and giving the property directly to his children?

The only significance of this rule that I can think of (and therefore the significance of USDA and 120-hour rule) is that if we determine B didn't predecease T then B's wife under a statute might be entitled to something from B's estate.

The majority of states follow the UPC 120 hour survival rule (note: the UPC adopted this rule from the USDA). It's significance is that a beneficiary (under either a will or through intestate distribution) MUST survive the Testator by 120 hours in order to take. The policy reason for this is that if the Testator had known that the beneficiary would be dead within 120 hours of HIS (T's) death, then Testator would not have made the distribution.

But what are we doing when we apply per capita with representation and give a share of T's property to B's descendants when we know B predeceased T? is B actually not "taking" anything and we're effectively bypassing B's estate and giving the property directly to his children?

If i understand this correctly, the simple answer here is yes. If we know B predeceased T then under intestate distribution, any descendant of B will take. B will not take because he is dead.

[mvp99]

Can someone explain the defense of legal impossibility when defendant is charged with attempt? Initially I thought that: if the defendant actually achieved all of the acts he intended and would not commit a crime, then no attempt. (This has been true in a select number of barbri Qs)

But then there was this random barbri question where the defendant bought a cigarette thinking It was a marijuana cigarette but it wasn't and the answer was he COULD be charged with attempt because his subjective intent was to commit a crime. And ever since that question I keep applying that rationale and it appears to be wrong

Which is it?

Isn't the marijuana example a factual mistake that doesn't negate mens rea? I thought legal impossibility is when you believe you're committing a crime when it's actually not a crime but a lawful act. Like If I did voodoo on someone wanting to harm them, legal impossibility would be a defense?

[ballouttacontrol]

Probably a stupid question but...

So, venue is proper where D resides, or where a substantial part of the claim occurred. A corporation resides in any district it is subject to PJ. A defendant is subject to specific PJ wherever a substantial portion of the harm occurred.

So logically, venue and PJ for a corporation are the exact same? Is there any problem with my understanding anywhere here?

where D resides, if all D's are from the same state

I would keep the rules separate. For corporations, venue is proper in every state where the corp is subject to PJ as to the action. For individuals venue is proper in the same district as they are domiciled .
For non-citizens venue is proper everywhere.

Also for the rule I bolded above, I believe if a corporation is subject to PJ in state A and B and Defendant resides in state A district X, then state A district X is proper even though for Corp. venue is also proper in state B, since all D "reside" on the same state.

Makes sense. To clarify tho, in the situation you are suing one corporation defendant, the PJ and Venue analyses are essentially identical. Correct?

I believe so, yes.

There will always be the constitutional analysis if we're talking specific PJ. There is no constitutional analysis under venue.

True but only because you have to do it as to PJ, and you apply your PJ conclusion to venue. If that's not what you mean I'm lost.

When does USDA (we don't know if heir predeceased T, presumed he survived) or the 120-hour rule (must survive to take 120) apply or what is its significance?

CMR: it says a person cannot take under a will or in intestacy if they predeceased T unless it is otherwise specified in a document that survivorship is irrelevant.

But what are we doing when we apply per capita with representation and give a share of T's property to B's descendants when we know B predeceased T? is B actually not "taking" anything and we're effectively bypassing B's estate and giving the property directly to his children?

The only significance of this rule that I can think of (and therefore the significance of USDA and 120-hour rule) is that if we determine B didn't predecease T then B's wife under a statute might be entitled to something from B's estate.

Thanks for your help on my question.

As to yours, if B survives T, B will take what T bequeathed to him, and then when B dies the property acquired from T will be devised according to B's will. But if USDA applies, B counts as predeceasing T, so the bequest to B will lapse, in which case you first look to T's will for a provision on point, and if none, you would apply anti lapse statute, if sufficient familial relationship. You are correct that one effect could be the bypassing of B's spouse.

[mrscooter1]

Question 46 from Set 2:

[+] Spoiler

Why does the Rule of Perpetuities not kick in here? The contingent remainder in the brother's heirs may not become vested until more than 21 years after the friend dies, no?

[generaltoast]

Question 46 from Set 2:

[+] Spoiler

Why does the Rule of Perpetuities not kick in here? The contingent remainder in the brother's heirs may not become vested until more than 21 years after the friend dies, no?

This may be completely wrong, but the CMR says the measuring life for RAP purposes is one who is "connected with the vesting of the interest". So the brother should be the measuring life. In which case we will know at his death exactly who his heirs are.

[mvp99]

Question 46 from Set 2:

[+] Spoiler

Why does the Rule of Perpetuities not kick in here? The contingent remainder in the brother's heirs may not become vested until more than 21 years after the friend dies, no?

This may be completely wrong, but the CMR says the measuring life for RAP purposes is one who is "connected with the vesting of the interest". So the brother should be the measuring life. In which case we will know at his death exactly who his heirs are.

The brother might be a measuring life but I think the correct definition is that a measuring life is an identifiable life in being at time of the conveyance. Don't know what they are referring to when they say "connection" but I never heard that word in the definition before.

[FrancisScottKey]

For those that have not yet received your Seat Ticket via e-mail (which was my situation until 5 minutes ago), you can look-up your Seat Ticket here: https://www.nybarapply.org/tla/ (You'll need your BOLE ID (available at the top of previous NY Bar Adminstrative e-mails) and your birthdate).

Just passing along the info because I nearly panicked when I realized I had yet to receive my Seat Ticket. Hope this is helpful to someone.

[bnghle234]

Q 55 Refresher: I love how the explanation is like

[+] Spoiler

"yea you were right, it has no secular purpose but the SC allowed it anyway even though it doesn't meet the Lemon test"

I took two classes on the First Amendment and I knew the answer to this only because of that. Mean question to ask, Barbri. Mean.

that was so brutal. there's no way to know that unless you knew the specific case because it definitely does not meet the lemon test.