July 2016 California Bar Exam Forum

[duncanmn95]

THEMIS
If you're taking the Themis course, try watching the Professor Christopher Ide-Don lectures (essay lectures) in 0.5X (shift + <-), it's amazing.

[a male human]

Since Trust has just been tested in the Feb. exam, and it is not a subject that traditionally will come up consecutively, can I assume it will not appear on this exam?

No

[Rap Genius]

I am currently memorizing and ran into a little problem. I know these words are important but I'm not sure whether the Dormant Commerce Clause requires the government to have a "compelling" or an "important" state interest (due to conflicting materials).

[LockBox]

I am currently memorizing and ran into a little problem. I know these words are important but I'm not sure whether the Dormant Commerce Clause requires the government to have a "compelling" or an "important" state interest (due to conflicting materials).

Someone please correct me if i'm wrong, but if the state law/statute/regulation discriminates against out-of-staters, then the state must show that the regulation is necessary to serve an important government interest (intermediate scrutiny). There is an exception if the state is acting as a market participant (a buyer or seller of the goods related to the regulation) or Congress has approved the regulation.

Where it is non-discriminatory against out-of-state interests, I believe rational basis is used. Either way, I don't believe there is an instance under the Dormant Commerce Clause where strict scrutiny is used.

[Rap Genius]

Thanks,

In my Kaplan Bar Points it says that if the law discriminates it must be "narrowly tailored ... to serve a compelling state interest." Which I suppose is clearly wrong given what you said above. If it only creates an incidental burden on interstate commerce, then the local benefits are balanced against the burden caused.

[SlowLearner]

THIS...I had the same question and this is what I could find...

Barbri CMR from 2013
"A discriminatory state of local law may be valid if it furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available.

Proponics / Barsecrets material
"..the law must be necessary to a compelling state interest, with no reasonable alternative means."
There is a note attached to this that says
"Note that sometimes the Court uses the phrase "important safety regulation" as the government interest."

Baressay.com outline
"Discriminatory Laws – Violates DCC unless necessary to achieve an important government purpose
...Necessary – State must show no less discriminatory alternative"

[SlowLearner]

So this is a bit of a rant, a bit of sharing and a question..

I am self studying but forked out for 10 essays on bargraders.com. I looked for some independent reviews before I committed but there really were none, so I am sharing here so that others may learn.

This was the part that drew me in "Insider Feedback from Former Bar Graders — Rather than learning that you've merely passed or failed a given question, our former Bar Graders give you constructive feedback to help you refine and improve your essay writing skills.". I knew it was a little sales bunk but wanted to believe.

O yes, my writing is weak and I have been working hard to improve, so this is to help me consolidate my writing in the last few weeks.

Here is the detail of my first two essays and feedback:

Essay 1 Tort 60
Grader wrote, "This was a 60/55. You showed some promise here but you also missed a number of the key issues. Additionally, I notice that you are not using the IRAC structure. Instead you are listing information out in subparagraphs. Please use a proper IRAC with all 4 components present.
Keep working hard." (This was true - sort of.. I was trying to use separate paragraphs for each element and I guess it got jumbled)

The following comment was repeated 5 times in relation to most of my conclusions..
"Conclusion - Paula will not succeed with an action for False Light."
[Grader wrote] "Proper conclusions address the legal doctrine."
(FYI - Their own model answer concluded with "Thus, Paula will not be successful in claiming false light.")
Honestly, I have no idea what I am to learn from that comment.

There were 5 other comments,
"ok" after a rule statement (twice)
"adequate" after a rule statement
"you are using some sort of listing format and you need to use IRA C" - (which was fair enough)
"Analysis is not what someone COULD argue. You must put the facts on top of the rule" (again fair enough)

Essay 2 Contract 50
Grader wrote "As you can see from the scoring grid and my in-text comments, the primary problem here was that you discussed these facts as if we were analyzing a standard contract, but you should have been discussing guarantees and related topics. Once you went so far off track, there really was no way to bring your score up. Spend some time reading the model answer so that you know how to identify and respond to such questions in the future. Keep practicing and good luck on the exam!"

Most of the essay was deleted as irrelevant except for the last bit on remedies. It looks like this was taken from an exam around 2000 since all the dates in the question use that year. It starts with words "Adam owns a small clothing store..." but I could not find it on barissues.com or baressay.com. More to the point, I have scanned my materials and cannot find anything on guarantees except as it relates to the Statute of Frauds (i.e. surety needs to be in writing).

So a real question - has anyone come across "guarantee" in Contracts (in a Calbar essay context)?

My conclusion on bargraders.com so far...

THE PROS
-the pressure of having to write under a timed environment (but their system does not shut you off as you might think, as I typed over by 5 minutes, so it is not very strict).
-their report card gives a listing and check marks for IRAC for each major issue.
-the 24 hour turnaround time

THE CONS
-I felt like I learned more by looking at other people's essay on baressay.com
-their feedback is thin on the "constructive feedback to help you refine and improve your essay writing skills"
(think one word)
-$50 a pop or less depending how many you buy

[naenae2745]

anybody think the simulated MBE was easier than the MPQ sets?

[Stupiddreams]

Anyone has experience with LA Convention Center?

Do they have a clock or do I have to bring a watch? Is there a place so I can put my bag and ceil phone?

[FlowBro]

Sorry to hijack, but anybody out there with Pasadena Convention Center experience/tips? Is staying at the Westin Pasadena a good idea?

[KM2016]

Anyone has experience with LA Convention Center?

Do they have a clock or do I have to bring a watch? Is there a place so I can put my bag and ceil phone?

Pretty sure it's the first time it's at the convention center. The LA site used to be in Century City but was just moved this year (I think).

[a male human]

SlowLearner, thank you for contributing some clarity into the discussion about important/compelling interest and reviewing a service others may use. Just wanted to throw you some props.

And for anyone who might know, this was buried in SlowLearner's post:

So a real question - has anyone come across "guarantee" in Contracts (in a Calbar essay context)?

[alicen]

...
Essay 1 Tort 60
Grader wrote, "This was a 60/55. You showed some promise here but you also missed a number of the key issues. Additionally, I notice that you are not using the IRAC structure. Instead you are listing information out in subparagraphs. Please use a proper IRAC with all 4 components present.
Keep working hard." (This was true - sort of.. I was trying to use separate paragraphs for each element and I guess it got jumbled)
...
So a real question - has anyone come across "guarantee" in Contracts (in a Calbar essay context)?

SlowLearner, thank you for sharing all of this! This really helpful. I haven't come across any "guarantee" issues in my prep (I'm using Themis), but I haven't done THAT many contracts essays so far. Was it about the statute of frauds and whether guarantees had to be in writing?

Could you explain more how you were structuring your analysis ("listing information out in subparagraphs" / "separate paragraphs for each element"). Did your essay structure have a subheading, a rule statement, and then some analysis/facts underneath? Also, when the grader commented, "Analysis is not what someone COULD argue. You must put the facts on top of the rule," does that mean you shouldn't write sentences like, "H will argue..."? I've seen a lot of that type of structure on baressays, and I actually thought that's what they were looking for.

[a male human]

alicen:
I think that comment was about ping-pong arguments... X will argue this... Y will argue that... No wait but X could also argue this...

You can for sure say "H will argue..." You can even say "However, W will argue..." But that second part is unnecessary.

A call of the question requires a definitive conclusion. What’s the point of bringing up counter-interpretations of the facts when you’re going to decide one way anyway? Waste of precious time and likely to make you move the goalpost or use strawman arguments. We’re looking for a reasonable argument for one side in a short amount of time.

If you have a legal defense (like intoxication, shopkeeper's privilege, or whatever applies to the cause of action), don't conclude yet, and discuss the defense instead. If you conclude that the defendant indeed has a defense, then you can conclude that the defendant will not be liable/convicted of the cause of action you discussed earlier.

Ping-pong arguments are not needed in essays, unless you have an actual legal theory as a defense (or writing an objective memo for a performance test).

Put simply: No ping-pong arguments interpreting the facts. Use legal theories as a defense using reasonable interpretations of the facts.
Source: http://us8.campaign-archive1.com/?u=284 ... 01c12d5280

Does anyone disagree? It worked for me since I used ZERO ping-pong (factual) arguments and still passed.

[naenae2745]

does anyone know how to identify CA remedy questions? none of the essays explicitly tell you to apply CA law. granted, i haven't found any substantial differences between CA remedies and those remedies described in the MBE K and torts materials.

[stella55]

How are you all going about memorizing? I am doing BarBri and am about 70% done but still feel I don't know a lot cold. I'm still at the point for some of the CA-specific subjects where I have to look at an outline before doing an essay because I'm not positive about some of the BLL. Any advice for simplifying and memorizing would be much appreciated. Thank you!

[raekaya]

I'll be taking the test in Oakland. I would like to bike there and bring my own lunch. I know you can't bring food into the test center, but does anyone know whether you are allowed to leave a backpack/lunch box in the hallway outside that you are allowed to actually access during lunch?

[LockBox]

I'll be taking the test in Oakland. I would like to bike there and bring my own lunch. I know you can't bring food into the test center, but does anyone know whether you are allowed to leave a backpack/lunch box in the hallway outside that you are allowed to actually access during lunch?

You can leave your bag in the hallway outside of the convention doors. There is also food provided in the hotel and nearby for a cost, obviously.

[ledv]

I know you arent allowed to have separate erasers or sharpeners...but what about pencil grips??!

[MsAvocadoPit]

I am confused about how the bar is "curved." is it curved downward or in our favor, upward? I don't understand why Barbri keeps telling us to rely on percentile rank, I just want to get as many questions right as possible.

[a male human]

I believe it is meant that scores are statistically adjusted for difficulty. That is, a 1440 on one exam is reflective of the same ability as a 1440 on another exam, even if the raw scores are different. Each exam itself will, of course, be easier or harder than others. As I am not a statistician, I defer to their calculations.

I don't believe it is "curved" in the sense that a certain number of people have to fail. If that were true, they would say x% of people will pass or fail. However, historically, pass rates fluctuate somewhat (like 10% differences just among February results and just among July results).

Either way, you should be trying to get as many questions right as possible!

[rcharter1978]

So this is a bit of a rant, a bit of sharing and a question..

I am self studying but forked out for 10 essays on bargraders.com. I looked for some independent reviews before I committed but there really were none, so I am sharing here so that others may learn.

This was the part that drew me in "Insider Feedback from Former Bar Graders — Rather than learning that you've merely passed or failed a given question, our former Bar Graders give you constructive feedback to help you refine and improve your essay writing skills.". I knew it was a little sales bunk but wanted to believe.

O yes, my writing is weak and I have been working hard to improve, so this is to help me consolidate my writing in the last few weeks.

Here is the detail of my first two essays and feedback:

Essay 1 Tort 60
Grader wrote, "This was a 60/55. You showed some promise here but you also missed a number of the key issues. Additionally, I notice that you are not using the IRAC structure. Instead you are listing information out in subparagraphs. Please use a proper IRAC with all 4 components present.
Keep working hard." (This was true - sort of.. I was trying to use separate paragraphs for each element and I guess it got jumbled)

The following comment was repeated 5 times in relation to most of my conclusions..
"Conclusion - Paula will not succeed with an action for False Light."
[Grader wrote] "Proper conclusions address the legal doctrine."
(FYI - Their own model answer concluded with "Thus, Paula will not be successful in claiming false light.")
Honestly, I have no idea what I am to learn from that comment.

There were 5 other comments,
"ok" after a rule statement (twice)
"adequate" after a rule statement
"you are using some sort of listing format and you need to use IRA C" - (which was fair enough)
"Analysis is not what someone COULD argue. You must put the facts on top of the rule" (again fair enough)

Essay 2 Contract 50
Grader wrote "As you can see from the scoring grid and my in-text comments, the primary problem here was that you discussed these facts as if we were analyzing a standard contract, but you should have been discussing guarantees and related topics. Once you went so far off track, there really was no way to bring your score up. Spend some time reading the model answer so that you know how to identify and respond to such questions in the future. Keep practicing and good luck on the exam!"

Most of the essay was deleted as irrelevant except for the last bit on remedies. It looks like this was taken from an exam around 2000 since all the dates in the question use that year. It starts with words "Adam owns a small clothing store..." but I could not find it on barissues.com or baressay.com. More to the point, I have scanned my materials and cannot find anything on guarantees except as it relates to the Statute of Frauds (i.e. surety needs to be in writing).

So a real question - has anyone come across "guarantee" in Contracts (in a Calbar essay context)?

My conclusion on bargraders.com so far...

THE PROS
-the pressure of having to write under a timed environment (but their system does not shut you off as you might think, as I typed over by 5 minutes, so it is not very strict).
-their report card gives a listing and check marks for IRAC for each major issue.
-the 24 hour turnaround time

THE CONS
-I felt like I learned more by looking at other people's essay on baressay.com
-their feedback is thin on the "constructive feedback to help you refine and improve your essay writing skills"
(think one word)
-$50 a pop or less depending how many you buy

I think a guarantee can come up in the contract context, but I would think it would be more testable as an oral guarantee, or that concept under the UCC where a person depends on the statement made by a person who is "in the industry." I'm gonna get my contract outline to check. I'd be interested to see the actual question to see if there was a clear indication as to whether you were supposed to discuss the guarantee vs. the contract.

But, its possible that you're just reading really, really fast (which I do) and so you're like "a-ha! a contract, let me tell you everything I know about contracts!"

It also sounds like you might not be analyzing every element. I think the subheadings thing is good, so I'm not sure what the issue is there.

Do you feel like you're approaching it like "In order to succeed on a claim of false light, A will have to prove (listing of the elements)" and then using the headings/subheadings to discuss the elements and subelements? To me, that is the way that makes the most sense. Does that make sense? I think its so easy to get lost in your own writing any other way.

ETA: Warranties/Guarantees in Contracts

In looking over my contracts outline, it appears that in UCC contracts there was a discussion of three types of warranties

1. Express - words that promise, describe, or state facts OR a sample of model which is conduct that creates an express warranty. It has to be pretty specific to distinguish from sales talk which is more general and doesn't constitute a warranty

2. Implied Warranty of Merchantability - when someone buys from a merchant, there is an automatic warranty that the goods are fit for ordinary purpose for which the goods are used. This applies only when the seller is a merchant that deals in goods of the kind which is sold. And the warranty is only for the ordinary purpose/use of the goods

3. Implied Warranty of Fitness for a Particular Purpose - knowledge of purposeful reliance. It has three elements: 1) buyer has a particular purpose, 2) buyer is relying on the seller to select suitable goods, and 3) seller has reason to know of buyers purpose, and of the buyers reliance. This goes beyond the implied warranty of merchantability in that it is not just for ordinary use, but is a warranty for the buyers particular use of the item, even if that use is not ordinary.

There are also limitations on these warranties

1. Statute of Limitations - 4 years from tender of delivery
2. Privity - the contract must be between p and d
3. Buyers examination - no implied warranties as to defects which would have been obvious on examination IF the buyer examines the goods
4. Disclaimers - implied warranties can be disclaimed....express warranties cannot be disclaimed. To disclaim an implied warranty the langugage must be conspicuous OR must be "as is," or "with all faults."

[rcharter1978]

does anyone know how to identify CA remedy questions? none of the essays explicitly tell you to apply CA law. granted, i haven't found any substantial differences between CA remedies and those remedies described in the MBE K and torts materials.

I don't think there are any big differences that would apply. When they want you to apply California law, they have been pretty clear about it IIRC. For ethics questions they have said to apply California and ABA. For the last evidence question, they specifically asked that you apply California Evidence Rules. I feel like they have to be clear or else there is too much room for debate/argument/righteous complaint.

[rcharter1978]

alicen:
I think that comment was about ping-pong arguments... X will argue this... Y will argue that... No wait but X could also argue this...

You can for sure say "H will argue..." You can even say "However, W will argue..." But that second part is unnecessary.

A call of the question requires a definitive conclusion. What’s the point of bringing up counter-interpretations of the facts when you’re going to decide one way anyway? Waste of precious time and likely to make you move the goalpost or use strawman arguments. We’re looking for a reasonable argument for one side in a short amount of time.

If you have a legal defense (like intoxication, shopkeeper's privilege, or whatever applies to the cause of action), don't conclude yet, and discuss the defense instead. If you conclude that the defendant indeed has a defense, then you can conclude that the defendant will not be liable/convicted of the cause of action you discussed earlier.

Ping-pong arguments are not needed in essays, unless you have an actual legal theory as a defense (or writing an objective memo for a performance test).

Put simply: No ping-pong arguments interpreting the facts. Use legal theories as a defense using reasonable interpretations of the facts.
Source: http://us8.campaign-archive1.com/?u=284 ... 01c12d5280

Does anyone disagree? It worked for me since I used ZERO ping-pong (factual) arguments and still passed.

My tutor (a former bar grader) agrees with you wholeheartedly. He HATED ping pong arguments, and it took me a while to unlearn the habit, but once I did, I could see where he was coming from.

[rcharter1978]

Anyone has experience with LA Convention Center?

Do they have a clock or do I have to bring a watch? Is there a place so I can put my bag and ceil phone?

Even if the CC has a clock, please get your own little clock. It was such a gigantic help when I took the exam, I didn't really have to turn or arch back to see the clock because it was directly in my eyeline.

I'm pretty sure I picked up one at WalMart for like $5.00, it was perfect. Small enough to be regulation, big enough so that I could easily see the time/how much time had passed. I think a watch may have been too small for me, but if it works for you, thats cool. I just wouldn't depend on the CC clock, because you don't know where you'll be sitting, if you'll be able to see it, or if it will even be working.