MBE Question Thread Forum

[ConfusedL1]

Can a judge allow a jury to hear disputes about evidence?

In my notes I have that a Judge has discretion for a jury to attend a hearing about whether evidence is hearsay

BUT

I have that a jury is not allowed to attend hearings on preliminary issues.

[TheWalrus]

Can a judge allow a jury to hear disputes about evidence?

In my notes I have that a Judge has discretion for a jury to attend a hearing about whether evidence is hearsay

BUT

I have that a jury is not allowed to attend hearings on preliminary issues.

Hearsay is not a preliminary issue, because it's determined during trial. I missed it as well.

[TheWalrus]

If you use deceit to get money is it always false pretenses and never larceny by trick?

[ConfusedL1]

If you use deceit to get money is it always false pretenses and never larceny by trick?

That's a good question. Does money ever NOT count as title?

[jphiggo]

If you use deceit to get money is it always false pretenses and never larceny by trick?

That's a good question. Does money ever NOT count as title?

It can be larceny by trick.

Example that I somewhat remember from some terrible Barbri hypo: Say Lilly owes your friend, Fred, some money. You know this and desire to keep the money for yourself. You tell Lilly a lie that Fred wants you to pick up the money for him from Lilly. Lilly gives you the money to give to Fred. However, you keep the money. Here, you've committed a larceny by trick. When Lilly gave you the money to give to Fred, she was not giving title of the money to you, only possession.

[RavenAgain]

I have tried to find an answer online but just seem not to find anything. Maybe someone knows this and can help?
What is the duration of the Statute of Limitation for contracts and torts under US federal and California rules please?
When does it begin to run?
Tort - runs from when you know about it?
Contract - runs from breach?
Thanks!

[Toubro]

If you use deceit to get money is it always false pretenses and never larceny by trick?

That's a good question. Does money ever NOT count as title?

It can be larceny by trick.

Example that I somewhat remember from some terrible Barbri hypo: Say Lilly owes your friend, Fred, some money. You know this and desire to keep the money for yourself. You tell Lilly a lie that Fred wants you to pick up the money for him from Lilly. Lilly gives you the money to give to Fred. However, you keep the money. Here, you've committed a larceny by trick. When Lilly gave you the money to give to Fred, she was not giving title of the money to you, only possession.

Yes^. The Barbri question was when a roommate emailed his other roommate's banker btw.

[happyhour1122]

If you use deceit to get money is it always false pretenses and never larceny by trick?

That's a good question. Does money ever NOT count as title?

It can be larceny by trick.

Example that I somewhat remember from some terrible Barbri hypo: Say Lilly owes your friend, Fred, some money. You know this and desire to keep the money for yourself. You tell Lilly a lie that Fred wants you to pick up the money for him from Lilly. Lilly gives you the money to give to Fred. However, you keep the money. Here, you've committed a larceny by trick. When Lilly gave you the money to give to Fred, she was not giving title of the money to you, only possession.

very nice.

[BulletTooth]

Can a judge allow a jury to hear disputes about evidence?

In my notes I have that a Judge has discretion for a jury to attend a hearing about whether evidence is hearsay

BUT

I have that a jury is not allowed to attend hearings on preliminary issues.

FRE 103(d) says that a judge should, to the extent practicable, conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means. Basically, if one of the parties objects to what is about to be offered into evidence, the judge shouldn't let the parties talk about the piece of evidence (which is potentially inadmissible) in front of the jury. Instead, the judge should have counsel approach the bench and explain why the evidence is or is not admissible.

I think that a judge allowing the jury to sit in on a hearing where the parties are disputing what is and is not hearsay would run afoul of this rule because there's a high chance that inadmissible evidence will be discussed.

[ConfusedL1]

Is an "initial aggressor" defined ONLY as one who initiated a physical attack?

So, if I yell at some one over and over and over until they try to fight me, I'm STILL not the initial aggressor as long as I don't physically attack them.

[champloo]

is frustration of purpose defense rare? there's a question on AB about 2/3 of land being taken by the gov't and that the taking consisted of all tillable land on the property. there's no info on whether or not the tenant used the land to farm or any other info about how much of the land he used and for what purpose. I get that the circumstances would probably not amount to a frustration of purpose (given the absent of any info on the use and purpose of the land by the tenant) but the answer explanation only states that frustration of purpose is irrelevant without explaining why it's irrelevant. does this mean that frustration of purpose defense is not even possible in this situation or that frustration of purpose defense could be relevant but not so without more information?

[pancakes3]

is frustration of purpose defense rare? there's a question on AB about 2/3 of land being taken by the gov't and that the taking consisted of all tillable land on the property. there's no info on whether or not the tenant used the land to farm or any other info about how much of the land he used and for what purpose. I get that the circumstances would probably not amount to a frustration of purpose (given the absent of any info on the use and purpose of the land by the tenant) but the answer explanation only states that frustration of purpose is irrelevant without explaining why it's irrelevant. does this mean that frustration of purpose defense is not even possible in this situation or that frustration of purpose defense could be relevant but not so without more information?

the latter.

all they're saying is that "frustration of purpose" is irrelevant in a question that doesn't provide facts about purpose. "tillable land" is a red herring.

[dlrbfl]

Civ Pro Question: can the verdict-winner file Renewed motion for JMOL (RJMOL)?

The Critical Pass flash card says "losing party can filed RJMOL." But in one MBE question, the winning party that technically won the verdict but was awarded inadequate damages filed for RJMOL and a new trial, which was granted. I know that even the winning party may file a motion for new trial if the damages are inadequate, but can they also file RJMOL?
Thank you!

[champloo]

is frustration of purpose defense rare? there's a question on AB about 2/3 of land being taken by the gov't and that the taking consisted of all tillable land on the property. there's no info on whether or not the tenant used the land to farm or any other info about how much of the land he used and for what purpose. I get that the circumstances would probably not amount to a frustration of purpose (given the absent of any info on the use and purpose of the land by the tenant) but the answer explanation only states that frustration of purpose is irrelevant without explaining why it's irrelevant. does this mean that frustration of purpose defense is not even possible in this situation or that frustration of purpose defense could be relevant but not so without more information?

the latter.

all they're saying is that "frustration of purpose" is irrelevant in a question that doesn't provide facts about purpose. "tillable land" is a red herring.

thanks for the quick reply. sounds intuitive but i guess i wasn't thinking straight. good to know for future questions.

[TheWalrus]

Does congress have the power to regulate and limit federal courts jurisdiction?

[BulletTooth]

Does congress have the power to regulate and limit federal courts jurisdiction?

Generally, yes.

Congress can do whatever they want with the district courts and courts of appeal as Congress has the power to ordain and establish inferior courts. In other words, because Congress has the power to ordain and establish inferior courts, it can limit their jurisdiction in wahtever way it wants.

Without getting too in-depth, Congress can place some limit the Supreme Court's appellate jurisdiction (Ex Parte McCardle) but it cannot add or take away from the Supreme Court's jurisdiction as defined in Article III. The extent to which Congress could limit the Supreme Court's appellate jurisdiction is an open question and probably wouldn't show up on the MBE.

[bballbb02]

Is remedying past discrimination a compelling govt interest that will meet strict scrutiny for race/national origins classifications.?..?..in other words, if the law's goal is to remedy past wrongs will that be upheld?? --I ask because I have seen varying answers on the subject

[BulletTooth]

Is remedying past discrimination a compelling govt interest that will meet strict scrutiny for race/national origins classifications.?..?..in other words, if the law's goal is to remedy past wrongs will that be upheld?? --I ask because I have seen varying answers on the subject

Yes, remedying past discrimination on the basis of gender, race, etc. is a compelling government interest, but the law still needs to be narrowly tailored to that interest. For MBE problems, you want to make sure that the law is narrowly tailored to remedying past discrimination--keep and eye out for laws that are overbroad. I'd also watch out for questions where the government is trying to remedy de facto desegregation (i.e., segregation that occurred without any government action), which is something that it cannot do.

[dlrbfl]

So there's the whole shipment contract, destination contract stuff for non-identified goods and the risk of loss, but how about identified goods?
Outline says "if the risk of loss had already passed to buyer, seller can demand performance." When does the risk of loss shift to buyer in a contract for identified goods?

[TheWalrus]

So there's the whole shipment contract, destination contract stuff for non-identified goods and the risk of loss, but how about identified goods?
Outline says "if the risk of loss had already passed to buyer, seller can demand performance." When does the risk of loss shift to buyer in a contract for identified goods?

I believe when they are made available to the buyer.

[dlrbfl]

When the transferee "assumes" the mortgage and becomes primarily and personally liable for the mortgage, the original borrower (transferor) becomes secondarily liable. Does this mean that the mortgagee must go after the transferee first, and the original borrower is only liable when transferee can't pay? Or can the mortgagee pick and choose who to sue?

[bballbb02]

Can someone please explain the principle of admitting a Prior inconsistent statement for impeachment and also substantive evidence??,,is there anything to tip you off that a PINS should not be admitted as substantive evidence?

[BulletTooth]

Can someone please explain the principle of admitting a Prior inconsistent statement for impeachment and also substantive evidence??,,is there anything to tip you off that a PINS should not be admitted as substantive evidence?

You can always use a prior inconsistent statement to impeach a witness. Under the FRE 801(d)(1), a prior inconsistent statement can be used substantively if the declarant testifies and is subject to cross examination and the prior inconsistent was given under penalty of perjury at a trial, deposition, hearing, or other proceeding. The key is really that FRE 801(d)(1) only covers a narrow subset of prior inconsistent statements--those given under penalty of perjury at some sort of court proceeding. If 801(d)(1) is not met, the statement can only be used to impeach (not to prove the truth of the matter asserted).

For example, boyfriend abused girlfriend and shortly after the abuse the girlfriend told the cops about the abuse: "boyfriend beat me up." At a domestic violence trial, girlfriend is called to the stand and testifies that boyfriend has never beat her. The prosecution can use her prior inconsistent statement ("boyfriend beat me up") to impeach her credibility, but the prosecution cannot use the statement to prove that boyfriend actually beat her. The statement is not admissible to prove the truth of the matter asserted because it was not given under oath at a trial other proceeding. See 801(d)(1). Thus, if the girlfriend testimony is the only evidence, boyfriend would be entitled to a directed verdict, because the prosecution has no substantive evidence that he abused the girlfriend.

[champloo]

if A steals something from B then sells it to C (who buys it in good faith), can B recover from C? does it matter that the thing stolen was unique? what if A buys something from B using counterfeit money who then sells it to C (again bought in good faith)? can a true owner never recover property improperly taken from him from a third party bona fide purchaser?

edit: does bona fide purchaser = good faith purchaser?

[slimjims27]

Hi friends!

I literally have not been here since 0L. **Looks around fondly** Okay, here's my question:

My understanding is that if you failed to put any one of the 12(b)2-5 defenses in your answer OR motion, you can amend if you're still within the 21 day period. But my Barbri explanation books says "If D has made a Rule12(b) motion to dismiss, he has not preserved the defense even if he puts it an amended answer." Does the "21 day to amend" rule only apply to pleadings?