MBE Question Thread Forum

[Puffman1234]

I agree that there has to be an extra layer of classification over "people whose fundamental rights are burdened," but in this case the class is "people who have more than two biological children." A person with one or no biological children wouldn't be affected so there's a classification beyond those whose rights are burdened. The Themis answer seems to acknowledge this, because it states that "people with more than 2 biological children" is a non-suspect class for EP purposes and that therefore the only EP test to apply is rational basis. I don't think that's right.

In your example, if eating broccoli were a fundamental right and the law said "people with more than 2 biological children cannot eat broccoli" but it didn't forbid anyone with one or no biological children, or any number of non-biological children, from eating broccoli, that wouldn't mean there wasn't a classification. It'd just be a non-suspect classification, which also burdened that non-suspect classification's exercise of fundamental rights while not burdening any other people's fundamental rights.

As far as I can see the only time a law will ever truly burden fundamental rights without any reference to some form of classification, be it suspect or not, is if it bars EVERYONE from something. If a state passed a law that said "NOBODY can have kids" that's 100% pure substantive due process. But if it made ANY non-suspect classification on who that law would apply to, then a member of that class (assuming standing) would have an as-applied substantive due process claim and an EP burdening-the-fundamental-rights-of-a-suspect-class claim.

That's just my take on it. If I'm totally wrong then I'd like to know why. If I'm not totally wrong then I hope the MBE questions are better written.

I would argue that:

a law that says "women have more than 2 kids" affects women and only women so women are the suspect class.
a law that says "no one can have more than 2 kids" affects people with no kids also, so it's tough to argue that there's a suspect class at all.
a law that says "people with more than 2 kids can't eat broccoli" would make "people with more than 2 kids" a suspect class but a law that says "no one can eat broccoli" is more of a deprivation of the life property liberty to eat broccoli.

of course there's no reason to say that it can't be both SDP and infringing on the equal protection of the law, but that's just how I issue-spotted your question.

Everything you've said here jibes with what I said as far as I can see, so I think we're in agreement.

I've done a bit more research on this and I'm pretty sure my analysis is correct. However, what I'm going to do on the MBE is always pick Substantive Due Process if it involves a non-suspect class and fundamental rights. Only if there is no substantive due process option and there is an EP option and it involves fundamental rights will I then pick EP. But there are other provisions that cover fundamental rights too, like the Comity Clause doesn't let a state discriminate against other state's citizens' with regard to fundamental rights. Hopefully context makes it clear.

I would have probably leaned to substantive due process as the "strongest argument" anyways when a fundamental right like procreation is being burdened, even if it's on the basis of a nonsuspect class, although I pretty sure SDP and EP are both available claims and arguably equally strong avenues of attack. The Themis answer saying that in this scenario rational basis only would apply is what made me think about it so much.

I'm going to get over it and move on now because I got other shit to do, lol.

[ConfusedL1]

I agree that there has to be an extra layer of classification over "people whose fundamental rights are burdened," but in this case the class is "people who have more than two biological children." A person with one or no biological children wouldn't be affected so there's a classification beyond those whose rights are burdened. The Themis answer seems to acknowledge this, because it states that "people with more than 2 biological children" is a non-suspect class for EP purposes and that therefore the only EP test to apply is rational basis. I don't think that's right.

In your example, if eating broccoli were a fundamental right and the law said "people with more than 2 biological children cannot eat broccoli" but it didn't forbid anyone with one or no biological children, or any number of non-biological children, from eating broccoli, that wouldn't mean there wasn't a classification. It'd just be a non-suspect classification, which also burdened that non-suspect classification's exercise of fundamental rights while not burdening any other people's fundamental rights.

As far as I can see the only time a law will ever truly burden fundamental rights without any reference to some form of classification, be it suspect or not, is if it bars EVERYONE from something. If a state passed a law that said "NOBODY can have kids" that's 100% pure substantive due process. But if it made ANY non-suspect classification on who that law would apply to, then a member of that class (assuming standing) would have an as-applied substantive due process claim and an EP burdening-the-fundamental-rights-of-a-suspect-class claim.

That's just my take on it. If I'm totally wrong then I'd like to know why. If I'm not totally wrong then I hope the MBE questions are better written.

I would argue that:

a law that says "women have more than 2 kids" affects women and only women so women are the suspect class.
a law that says "no one can have more than 2 kids" affects people with no kids also, so it's tough to argue that there's a suspect class at all.
a law that says "people with more than 2 kids can't eat broccoli" would make "people with more than 2 kids" a suspect class but a law that says "no one can eat broccoli" is more of a deprivation of the life property liberty to eat broccoli.

of course there's no reason to say that it can't be both SDP and infringing on the equal protection of the law, but that's just how I issue-spotted your question.

Everything you've said here jibes with what I said as far as I can see, so I think we're in agreement.

I've done a bit more research on this and I'm pretty sure my analysis is correct. However, what I'm going to do on the MBE is always pick Substantive Due Process if it involves a non-suspect class and fundamental rights. Only if there is no substantive due process option and there is an EP option and it involves fundamental rights will I then pick EP. But there are other provisions that cover fundamental rights too, like the Comity Clause doesn't let a state discriminate against other state's citizens' with regard to fundamental rights. Hopefully context makes it clear.

I would have probably leaned to substantive due process as the "strongest argument" anyways when a fundamental right like procreation is being burdened, even if it's on the basis of a nonsuspect class, although I pretty sure SDP and EP are both available claims and arguably equally strong avenues of attack. The Themis answer saying that in this scenario rational basis only would apply is what made me think about it so much.

I'm going to get over it and move on now because I got other shit to do, lol.

Out of curiosity, do you have a list of everything that's considered a fundamental right?

[TheWalrus]

Does anyone understand torts answer ___ assumes the risk? I think I've missed it every time.

[ConfusedL1]

Does anyone understand torts answer ___ assumes the risk? I think I've missed it every time.

If you knowingly put yourself in a position of foreseeable risk inherent in an activity, it can completely bar you from recovery under a contributory negligence regime at worst and give you some responsibility under a comparative regime at best.

[TheWalrus]

Can someone solicit a conspiracy?

[ConfusedL1]

Can someone solicit a conspiracy?

I think so, yes. In a sense, a solicitation IS an attempted conspiracy because it doesn't matter what the other person's response is.

[TheWalrus]

Final question, lol. When do jusicial proceedings for the 6th amendment?

[BulletTooth]

Does anyone understand coming to the nuisance? I thought it was never the correct answer, but I was reading this barbri outline and am now all confused.

I think it's ONLY helpful as a last ditch equitable defense if P KNEW of the nuisance before getting there, but I still think it'd be hard to offset a balancing that goes in favor of P.

I haven't ever seen it successfully plead in an answer, but I could see it showing up as a kind of "most promising" argument type question.

Coming to the nuisance used to be a complete defense to a nuisance claim. Now it's just one of the factor courts will look at to determine whether the interference is unreasonable. Because it's only one factor among many, the fact that the plaintiff came to the nuisance is never dispositive of a nuisance claim. Answers will try to bait you by saying that defendant wins because plaintiff came to the nuisance but this is not right.

[ConfusedL1]

Could some one please explain the fundamental rights you get under PI art. IV vs. the fundamental rights you get under due process

[Puffman1234]

Could some one please explain the fundamental rights you get under PI art. IV vs. the fundamental rights you get under due process

Fundamental rights mean fundamental rights afaik. According to Themis' outline the right to travel and the right to vote are frequently EP-related fundamental rights, and the one-person-one-vote and gerrymandering issues are always fundamental rights EP.

Imfringement of fundamental rights can be remedied in lots of different ways depending on context. Substantive due process protects fundamental rights, EP protects non-suspect-class-based burdens on fundamental rights, the Comity Clause of Article IV protects against discrimination against non-state US citizens' fundamental rights (and "serious" discrimination or "essential services" like the right to pursue commercial ventures).

SCOTUS is not particularly consistent in how it uses EP and SDP to do things. Sometimes they call it SDP, sometimes they call it EP, sometimes they combine them both (Lawrence and Obergefell).

[SchneefaLongoria]

Property question.....


If 1) the tenant properly assigns the lease, with no novation (so the assignee and original tenant remain liable), then 2) the assignee assigns the lease to a subsequent assignee, who is liable to the landlord? (Is it the original tenant and the second assignee, the fist and second assignees, or all three?)

[pancakes3]

Property question.....


If 1) the tenant properly assigns the lease, with no novation (so the assignee and original tenant remain liable), then 2) the assignee assigns the lease to a subsequent assignee, who is liable to the landlord? (Is it the original tenant and the second assignee, the fist and second assignees, or all three?)

original tenant is liable bc of privity of contract (always liable bc he's the one who signed the lease). 2nd assignee is liable bc of privity of estate (whoever's in possession is always liable). 1st assignee is clear.

if 1st assignee only subleases, he's still not liable to the landlord but he will be liable to the original tenant via privity of contract.

(i think)

[ConfusedL1]

Property question.....


If 1) the tenant properly assigns the lease, with no novation (so the assignee and original tenant remain liable), then 2) the assignee assigns the lease to a subsequent assignee, who is liable to the landlord? (Is it the original tenant and the second assignee, the fist and second assignees, or all three?)

original tenant is liable bc of privity of contract (always liable bc he's the one who signed the lease). 2nd assignee is liable bc of privity of estate (whoever's in possession is always liable). 1st assignee is clear.

if 1st assignee only subleases, he's still not liable to the landlord but he will be liable to the original tenant via privity of contract.

(i think)

EDITx2: never mind. I think the privity argument is right.

OK I found what I was looking for. The original tenant is basically always going to be liable, but the tenants in-between may not be. Meaning if the tenant the original tenant assigns it to assigns it AGAIN, they’re off the hook. A contracts then assigns to B. Both liable to LL. B assigns to C for rest of term. Now only A and C are liable.

Can anyone verify?

[TheWalrus]

Property question.....


If 1) the tenant properly assigns the lease, with no novation (so the assignee and original tenant remain liable), then 2) the assignee assigns the lease to a subsequent assignee, who is liable to the landlord? (Is it the original tenant and the second assignee, the fist and second assignees, or all three?)

original tenant is liable bc of privity of contract (always liable bc he's the one who signed the lease). 2nd assignee is liable bc of privity of estate (whoever's in possession is always liable). 1st assignee is clear.

if 1st assignee only subleases, he's still not liable to the landlord but he will be liable to the original tenant via privity of contract.

(i think)

EDITx2: never mind. I think the privity argument is right.

OK I found what I was looking for. The original tenant is basically always going to be liable, but the tenants in-between may not be. Meaning if the tenant the original tenant assigns it to assigns it AGAIN, they’re off the hook. A contracts then assigns to B. Both liable to LL. B assigns to C for rest of term. Now only A and C are liable.

Can anyone verify?

Correct.

[uceoledinbdnrn]

Final question, lol. When do jusicial proceedings for the 6th amendment?

https://www.radford.edu/content/va-chie ... unsel.html

https://www.collinsattorneys.com/the-di ... unsel.html


so basically whenever government lawyers get involved.

[ConfusedL1]

Can anyone flesh out embezzlement vs. larceny in this hypo? Want to make sure I have this right.

Cash register takes money from a customer.

If she puts it in her pocket directly = embezzlement. She had legal authority to take it but then converted it.
If she puts it in the cash register THEN takes it out later = larceny. She didn't have legal authority to remove it.

[TheWalrus]

Can anyone flesh out embezzlement vs. larceny in this hypo? Want to make sure I have this right.

Cash register takes money from a customer.

If she puts it in her pocket directly = embezzlement. She had legal authority to take it but then converted it.
If she puts it in the cash register THEN takes it out later = larceny. She didn't have legal authority to remove it.

Neither one is embezzlement.

[ConfusedL1]

Can anyone flesh out embezzlement vs. larceny in this hypo? Want to make sure I have this right.

Cash register takes money from a customer.

If she puts it in her pocket directly = embezzlement. She had legal authority to take it but then converted it.
If she puts it in the cash register THEN takes it out later = larceny. She didn't have legal authority to remove it.

Neither one is embezzlement.

Why? Embezzlement is the fraudulent conversion of personal property of another by a person in lawful possession of that property.

[TheWalrus]

Can anyone flesh out embezzlement vs. larceny in this hypo? Want to make sure I have this right.

Cash register takes money from a customer.

If she puts it in her pocket directly = embezzlement. She had legal authority to take it but then converted it.
If she puts it in the cash register THEN takes it out later = larceny. She didn't have legal authority to remove it.

Neither one is embezzlement.

Why? Embezzlement is the fraudulent conversion of personal property of another by a person in lawful possession of that property.

A cashier doesn't have lawful possession of money. It's just in their temporary control.

[ConfusedL1]

Can anyone flesh out embezzlement vs. larceny in this hypo? Want to make sure I have this right.

Cash register takes money from a customer.

If she puts it in her pocket directly = embezzlement. She had legal authority to take it but then converted it.
If she puts it in the cash register THEN takes it out later = larceny. She didn't have legal authority to remove it.

Neither one is embezzlement.

Why? Embezzlement is the fraudulent conversion of personal property of another by a person in lawful possession of that property.

A cashier doesn't have lawful possession of money. It's just in their temporary control.

That doesn't sound right to me. Do you have any support? I've never come across a distinction giving "lawful possession" a temporal quality. You either have lawful possession or you don't.

[bballbb02]

Yes a cashier does not have lawful possession, as soon as he places the $ into the register it becomes property of the company/store thus he is not liable for embezzlement.

[ConfusedL1]

Yes a cashier does not have lawful possession, as soon as he places the $ into the register it becomes property of the company/store thus he is not liable for embezzlement.

There were two hypos here. The one I'm referring to is below.

If she puts it in her pocket directly = embezzlement. She had legal authority to take it but then converted it.

[Bobby_Axelrod]

Can anyone flesh out embezzlement vs. larceny in this hypo? Want to make sure I have this right.

Cash register takes money from a customer.

If she puts it in her pocket directly = embezzlement. She had legal authority to take it but then converted it.
If she puts it in the cash register THEN takes it out later = larceny. She didn't have legal authority to remove it.

Neither one is embezzlement.

Why? Embezzlement is the fraudulent conversion of personal property of another by a person in lawful possession of that property.

A cashier doesn't have lawful possession of money. It's just in their temporary control.

Hmm.. It would seem that lawful temporary control is the same thing as lawful possession. I think if the cashier took the money and immediately placed it in her pocket, it would be embezzlement.

[champloo]

under an express satisfaction condition contract, if an artist paints a picture for P and P is honestly and genuinely not satisfied with it, can P still keep the picture? if P does keep the picture and P refuses to pay, can the artist sue for breach of that contract or does the artist have to bring a separate action (conversion?)?

[ConfusedL1]

under an express satisfaction condition contract, if an artist paints a picture for P and P is honestly and genuinely not satisfied with it, can P still keep the picture? if P does keep the picture and P refuses to pay, can the artist sue for breach of that contract or does the artist have to bring a separate action (conversion?)?

No breach is clear. I think keeping the product opens P up to a later equitable claim, though, to the extent P got any benefit.

This is separate from a hypo where the artist must paint a wall mural and P doesn't like it, though. no chance of getting that back. The artist could sue but I can't even imagine the suit being successful (damages, for one)