Themis Bar Review Hangout - July 2015 Exam Forum

[Pleasye]

Something that is bothering me, but I just want to confirm here, is that when the questions ask if you can sue on breach of contract for not delivering marketable title, and the answer is always 'You can not sue on breach of contract, because her contract obligations as to title merged into the deed,' is it basically just the word choice using 'breach of contract?' I mean, I assume you can sue on the deed, it just annoys me when questions assume that someone is bringing an invalid claim when there is a valid one. Dumb rant probably, but from the %'s it seems like people usually miss that question.

The implied covenant of marketable title is only implied in the K for the sale, once closing has happened, the covenant is extinguished and you cannot sue to enforce it. The deed may or may not contain present and future covenants that can be enforced, but that's not a breach of K action.

Sorry if you already know all this and I'm just blabbing.

[somuchbooty]

Something that is bothering me, but I just want to confirm here, is that when the questions ask if you can sue on breach of contract for not delivering marketable title, and the answer is always 'You can not sue on breach of contract, because her contract obligations as to title merged into the deed,' is it basically just the word choice using 'breach of contract?' I mean, I assume you can sue on the deed, it just annoys me when questions assume that someone is bringing an invalid claim when there is a valid one. Dumb rant probably, but from the %'s it seems like people usually miss that question.

The implied covenant of marketable title is only implied in the K for the sale, once closing has happened, the covenant is extinguished and you cannot sue to enforce it. The deed may or may not contain present and future covenants that can be enforced, but that's not a breach of K action.

Sorry if you already know all this and I'm just blabbing.

I actually wasn't considering that as in depth as I needed to, so thanks for reminding me.

[yngblkgifted]

Admittedly, I'm not even worried about the MBE anymore, but I'm 10 times more worried about the essays now that I've realized I can't write one without looking up a few things first in my notes.

I don't even know how to fix this. Review every possible essay subject for like 2 hours each? Read a ton of sample essays for each subject? All these prompts seem different so that scares me.

LOL me neither. I can usually spot the issue, but I need to turn to my notes to give a good rule statement.

I started making flashcards...it has helped a lot for certain subjects (conflicts/family law/corporations) but takes a lot of time and is so painful on the hand. Not used to writing things out. I used to use online flash cards though (a program called Anki allows you to make your own on your computer) and that was helpful as well/faster.

Talked to a Themis Rep about this and he said you should stay away from your outline while taking practice and especially graded essays because 1) it's a good representation of what it's going to be like on game day and 2) you need to cultivate the skill of making shit up on the fly if you don't know the exact rule statement.

[smalogna]

Admittedly, I'm not even worried about the MBE anymore, but I'm 10 times more worried about the essays now that I've realized I can't write one without looking up a few things first in my notes.

I don't even know how to fix this. Review every possible essay subject for like 2 hours each? Read a ton of sample essays for each subject? All these prompts seem different so that scares me.

LOL me neither. I can usually spot the issue, but I need to turn to my notes to give a good rule statement.

I started making flashcards...it has helped a lot for certain subjects (conflicts/family law/corporations) but takes a lot of time and is so painful on the hand. Not used to writing things out. I used to use online flash cards though (a program called Anki allows you to make your own on your computer) and that was helpful as well/faster.

Talked to a Themis Rep about this and he said you should stay away from your outline while taking practice and especially graded essays because 1) it's a good representation of what it's going to be like on game day and 2) you need to cultivate the skill of making shit up on the fly if you don't know the exact rule statement.

Yes. You don't want to panic on game day if you can't remember the perfect formulation of the rule statements in the outlines. Honestly, I think we collectively are making the rule statements to be a bigger deal than they are. Perfect memorization is not necessary and gaining the skill of conveying the rules in your own words, at least in my experience, has helped me learn them faster.

[annapach]

Admittedly, I'm not even worried about the MBE anymore, but I'm 10 times more worried about the essays now that I've realized I can't write one without looking up a few things first in my notes.

I don't even know how to fix this. Review every possible essay subject for like 2 hours each? Read a ton of sample essays for each subject? All these prompts seem different so that scares me.

LOL me neither. I can usually spot the issue, but I need to turn to my notes to give a good rule statement.

I started making flashcards...it has helped a lot for certain subjects (conflicts/family law/corporations) but takes a lot of time and is so painful on the hand. Not used to writing things out. I used to use online flash cards though (a program called Anki allows you to make your own on your computer) and that was helpful as well/faster.

Talked to a Themis Rep about this and he said you should stay away from your outline while taking practice and especially graded essays because 1) it's a good representation of what it's going to be like on game day and 2) you need to cultivate the skill of making shit up on the fly if you don't know the exact rule statement.

Yes. You don't want to panic on game day if you can't remember the perfect formulation of the rule statements in the outlines. Honestly, I think we collectively are making the rule statements to be a bigger deal than they are. Perfect memorization is not necessary and gaining the skill of conveying the rules in your own words, at least in my experience, has helped me learn them faster.

I think this is very true, and we do forget. My last graded essay was corporations and sales (my two least favorite/worst subjects). I didn't state a single rule, just used fancy words to describe the concepts i thought might apply, and I got 11/20. I also came a cross a sample answer (NJ) the other day where the person had literally described conspiracy as "when people agree to do something illegal." And that was a sample answer!

[zot1]

64 on my last MBE set. Oh the pain!

[always_raining]

64 on my last MBE set. Oh the pain!

Dont feel bad about it. Mine go from 80% to 60% — if you are doing the 50 question sets, you will even out over 200 questions.

[zot1]

64 on my last MBE set. Oh the pain!

Dont feel bad about it. Mine go from 80% to 60% — if you are doing the 50 question sets, you will even out over 200 questions.

I sure hope so. I got like 15 questions wrong in a row. It was painful. Like where did my knowledge go overnight?

[always_raining]

64 on my last MBE set. Oh the pain!

Dont feel bad about it. Mine go from 80% to 60% — if you are doing the 50 question sets, you will even out over 200 questions.

I sure hope so. I got like 15 questions wrong in a row. It was painful. Like where did my knowledge go overnight?

Seriously — I did practice set 9 the other day and got 65%. I got almost all of the civil procedure questions wrong even though Im generally not terrible at those. Some of the sets are just trickier than others, or they might test heavily a subject that Im not great at. Not a great feeling but I keep telling myself that it will even out.

[sd5289]

Spent all day yesterday making flash cards, reviewing, and doing the graded essay at the end of the night. My % to do today jumped up to 2.6%. As if.

[Ahyis]

NY Will's Practice Essay model answer...

[+] Spoiler

It actually writes a huge paragraph on Dependent Relative Revocation (DRR) which is NOT SETTLED IN NY, and concludes by saying that it is not settled in NY so . Why waste my time writing that garbage?

[hawkhill]

Of the four answer choices presented, answer choice D best states the standard for strict scrutiny, even though it uses the word "important" rather than "compelling" when describing the state's interest.

Oh come on

[sd5289]

Of the four answer choices presented, answer choice D best states the standard for strict scrutiny, even though it uses the word "important" rather than "compelling" when describing the state's interest.

Oh come on

Trust me. Pretty much everyone in this thread fell for that one and there's unanimous agreement that it was a bullshit question.

I've got a question about the K's final review outline:

On page 17 near the end it discusses the risk of loss problem in sale of goods K's. Now, both my memory and the long outline (and the lectures) discussed the 4-step analysis you use to determine who bears the risk of loss:

1) If K specifies, that controls
2) If not, but a party is in breach (regardless of what the breach is), that party bears it
3) If none of the above, and goods were shipped, depends on whether it's a shipment K or a delivery K.
- If shipment, risk of loss is on buyer
- If deliver, risk of loss is on seller
4) If none of the above, then look to see if seller is a merchant or non-merchant.
- If merchant, risk of loss is on seller until buyer receives goods
- If non-merchant, risk of loss moves to buyer once seller tenders the goods

As far as the final review outline, page 17 goes, well, it basically doesn't have any of that. Instead it's distinguishing between unidentified and identified goods. Anyone catch this and/or makes heads or tails of this?

[anon sequitur]

question about merging and attempts:

larceny and assault both merge with robbery as a lesser included offenses. But what about a successful assault in a failed robbery attempt? Can you not then be convicted of assault along with attempted robbery? If not, is it because you have to have an successful assault in order to even have an attempted robbery?

[hawkhill]

I've got a question about the K's final review outline:

On page 17 near the end it discusses the risk of loss problem in sale of goods K's. Now, both my memory and the long outline (and the lectures) discussed the 4-step analysis you use to determine who bears the risk of loss:

1) If K specifies, that controls
2) If not, but a party is in breach (regardless of what the breach is), that party bears it
3) If none of the above, and goods were shipped, depends on whether it's a shipment K or a delivery K.
- If shipment, risk of loss is on buyer
- If deliver, risk of loss is on seller
4) If none of the above, then look to see if seller is a merchant or non-merchant.
- If merchant, risk of loss is on seller until buyer receives goods
- If non-merchant, risk of loss moves to buyer once seller tenders the goods

As far as the final review outline, page 17 goes, well, it basically doesn't have any of that. Instead it's distinguishing between unidentified and identified goods. Anyone catch this and/or makes heads or tails of this?

I think the FRO is essentially saying the same, just skipping some steps..?

Unidentified goods—if goods are damaged/destroyed and there is no breach [or terms in the contract governing risk of loss], risk of loss is on seller until he satisfies delivery obligations (and then risk shifts to buyer) [left out here is the distinction between shipment/destination contracts]

[zot1]

64 on my last MBE set. Oh the pain!

Dont feel bad about it. Mine go from 80% to 60% — if you are doing the 50 question sets, you will even out over 200 questions.

I sure hope so. I got like 15 questions wrong in a row. It was painful. Like where did my knowledge go overnight?

Seriously — I did practice set 9 the other day and got 65%. I got almost all of the civil procedure questions wrong even though Im generally not terrible at those. Some of the sets are just trickier than others, or they might test heavily a subject that Im not great at. Not a great feeling but I keep telling myself that it will even out.

Oh hey, I got 1/6 for Civ Pro on that set too. Glad to know it wasn't just me.

Thanks for encouragement!

[Confused7]

Sorry to bump but I'm still really confused about this, and Themis has not been helpful.

More NY family law stuff...I'm really confused as to how adopted out kids can get their share in wills. I thought the rule was that they had to be specifically mentioned in the biological parent's will to get stuff. But there's also that test with the factors (if decedent died after 8/31/1987, if decedent was the adopted child's grandparent or descendent of a grandparent, and if the adopted parent is married to the child's biological parent). When do we apply each? I asked Themis but they weren't very clear.

[always_raining]

Having a hard time distinguishing IIED and NIED.

In a scenario when a person negligently kills another, for instance where a person is texting and driving and hits another car and kills one passenger but the other survives, would the other passenger's claim always be for NIED if the underlying claim is negligence? Or would it ever be IIED? I'm getting confused because the bystander claims in IIED and NIED seem very similar so I'm never sure which one to apply.

I guess my question is whether negligence can ever be so reckless that it constitutes intentional rather than negligent emotional distress?

[Nelson]

Of the four answer choices presented, answer choice D best states the standard for strict scrutiny, even though it uses the word "important" rather than "compelling" when describing the state's interest.

Oh come on

Trust me. Pretty much everyone in this thread fell for that one and there's unanimous agreement that it was a bullshit question.

I've got a question about the K's final review outline:

On page 17 near the end it discusses the risk of loss problem in sale of goods K's. Now, both my memory and the long outline (and the lectures) discussed the 4-step analysis you use to determine who bears the risk of loss:

1) If K specifies, that controls
2) If not, but a party is in breach (regardless of what the breach is), that party bears it
3) If none of the above, and goods were shipped, depends on whether it's a shipment K or a delivery K.
- If shipment, risk of loss is on buyer
- If deliver, risk of loss is on seller
4) If none of the above, then look to see if seller is a merchant or non-merchant.
- If merchant, risk of loss is on seller until buyer receives goods
- If non-merchant, risk of loss moves to buyer once seller tenders the goods

As far as the final review outline, page 17 goes, well, it basically doesn't have any of that. Instead it's distinguishing between unidentified and identified goods. Anyone catch this and/or makes heads or tails of this?

Destruction of identified goods is a separate thing. It applies only before risk of loss shifts to buyer. Destruction of identified goods is to help out the seller. It's a form of impracticability/failure of specified source essentially. If identified goods are totally destroyed before risk of loss passes to buyer without fault of either party, then the contract is avoided for both parties. So, e.g., I contract on April 15 to buy your crop of strawberries you planted on April 1 but delivery is set for June 30 when the strawberries are ripe. If the strawberries are destroyed in a hurricane on June 28, we're both off the hook.

[anon sequitur]

Having a hard time distinguishing IIED and NIED.

In a scenario when a person negligently kills another, for instance where a person is texting and driving and hits another car and kills one passenger but the other survives, would the other passenger's claim always be for NIED if the underlying claim is negligence? Or would it ever be IIED? I'm getting confused because the bystander claims in IIED and NIED seem very similar so I'm never sure which one to apply.

I guess my question is whether negligence can ever be so reckless that it constitutes intentional rather than negligent emotional distress?

No, IIED is basically a tort for being an unbelievable asshole, such that you scared/traumatized someone so badly that they suffer emotional distress. NIED is fundamentally different; decent people can be negligent or reckless sometimes.

[Confused7]

Having a hard time distinguishing IIED and NIED.

In a scenario when a person negligently kills another, for instance where a person is texting and driving and hits another car and kills one passenger but the other survives, would the other passenger's claim always be for NIED if the underlying claim is negligence? Or would it ever be IIED? I'm getting confused because the bystander claims in IIED and NIED seem very similar so I'm never sure which one to apply.

I guess my question is whether negligence can ever be so reckless that it constitutes intentional rather than negligent emotional distress?

I'm not sure if this answers your question but it helps to think of IIED and NIED as requiring different elements.

Intentional infliction of emotional distress - D intentionally or recklessly acts in such a way that is outrageous or extreme so as to cause severe emotional distress in P.

Negligent infliction of emotional distress - this only occurs when P think she's about to suffer a physical injury because of D's negligence, and the fear of suffering such an injury results in severe emotional distress which actually does then cause a physical injury. The only exceptions to the physical injury rule are when a hospital wrongly informs someone that their family has died, when a doctor misdiagnoses a patient, or a funeral home mishandles a corpse. Here, there are 2 tests for bystanders. If the bystander was within the zone of danger and satisfies the above, he can recover. If the bystander was NOT within the zone of danger, he can only recover if he was closely related to the victim, he was present at the scene, and he personally witnessed the accident to the victim.

[zot1]

Having a hard time distinguishing IIED and NIED.

In a scenario when a person negligently kills another, for instance where a person is texting and driving and hits another car and kills one passenger but the other survives, would the other passenger's claim always be for NIED if the underlying claim is negligence? Or would it ever be IIED? I'm getting confused because the bystander claims in IIED and NIED seem very similar so I'm never sure which one to apply.

I guess my question is whether negligence can ever be so reckless that it constitutes intentional rather than negligent emotional distress?

I'm not sure if this answers your question but it helps to think of IIED and NIED as requiring different elements.

Intentional infliction of emotional distress - D intentionally or recklessly acts in such a way that is outrageous or extreme so as to cause severe emotional distress in P.

Negligent infliction of emotional distress - this only occurs when P think she's about to suffer a physical injury because of D's negligence, and the fear of suffering such an injury results in severe emotional distress which actually does then cause a physical injury. The only exceptions to the physical injury rule are when a hospital wrongly informs someone that their family has died, when a doctor misdiagnoses a patient, or a funeral home mishandles a corpse. Here, there are 2 tests for bystanders. If the bystander was within the zone of danger and satisfies the above, he can recover. If the bystander was NOT within the zone of danger, he can only recover if he was closely related to the victim, he was present at the scene, and he personally witnessed the accident to the victim.

Yep ^! So if there's an intentional act involved think IIED, otherwise and negligence think NIED.

[annapach]

Just got an MBE question that confused me. It essentially said you could be found guilty of burglary/larceny whatever for stealing someone's drugs. Is this true? I'd think there would be a rule against protecting possessory interests in inherently illegal chattels.

[Confused7]

Just got an MBE question that confused me. It essentially said you could be found guilty of burglary/larceny whatever for stealing someone's drugs. Is this true? I'd think there would be a rule against protecting possessory interests in inherently illegal chattels.

I think as long as the first "thief" (or transgressor) has superior title to the property in question, then the second "thief" can commit burglary/larceny as to that property.

[Ahyis]

Sorry to bump but I'm still really confused about this, and Themis has not been helpful.

More NY family law stuff...I'm really confused as to how adopted out kids can get their share in wills. I thought the rule was that they had to be specifically mentioned in the biological parent's will to get stuff. But there's also that test with the factors (if decedent died after 8/31/1987, if decedent was the adopted child's grandparent or descendent of a grandparent, and if the adopted parent is married to the child's biological parent). When do we apply each? I asked Themis but they weren't very clear.

This confused the hell out of me too until I think I figured it out:

If you are ADOPTED OUT and there's no ANTI-LAPSE and you AREN'T MENTIONED - You can't take inheritance or a "to my children" class gift UNLESS that 3 part 1987 test allows you too

If you are ADOPTED OUT but there is AN ANTI-LAPSE STATUTE at work and you ARE SPECIFICALLY MENTIONED - You CAN inherit through ANTI-LAPSE