Themis Bar Review Hangout - July 2015 Exam Forum

[always_raining]

CAN SOMEBODY PLEASE DEFEND THIS ABSURDITY TO ME??????????????????????????????????????????????????


A customer who was seriously injured in an accident on a retailer’s premises filed a complaint in a federal district court in State A. The complaint alleged in good faith that the customer was entitled to damages in excess of the amount-in-controversy requirement. At the time of the accident, which took place in State C, the customer and the retailer were citizens of State C. Prior to filing suit, the customer changed her domicile to State A for the sole purpose of being able to bring this action in federal court. After filing an answer, the retailer filed a motion to dismiss the action for lack of subject-matter jurisdiction.

Should the court grant this motion?

D) No, because the customer and retailer were citizens of different states when the customer commenced the action.

Answer choice D is correct. Subject-matter jurisdiction based on diversity of citizenship exists with respect to this action. At the time of the filing of the complaint, the plaintiff was a citizen of a different state (i.e., State A) than the defendant (i.e., State C) and the amount-in-controversy requirement was met. Answer choice A is incorrect because, although the plaintiff’s sole purpose in becoming a citizen of State A was to be able to meet the diversity requirement for bringing this action in federal court, the plaintiff, as a domiciliary of State A, is a citizen of a different state than the defendant-retailer. A party may voluntarily change state citizenship after the accrual of a cause of action but before the commencement of a lawsuit, and therefore establish or defeat diversity jurisdiction, so long as the change is not a sham. That is, if the change of domicile is intended to be permanent--even if the sole motivation is to create diversity--the change is permissible.

Yeah, we went through this exact question earlier in this thread. It's just a bad question.

So the thing in the outline is that you can't say you've moved but you haven't (you have a po box instead of physical address). As long as you have physically moved by the time of filing, it's okay.

^this. The move can't be "fake." If you actually move and don't plan to move right back after the litigation, then it's ok. You have to have intent to permanently stay somewhere in order to change domicile.

Does anyone else feel like the answers in the tort questions are particularly tricky? I read a question, know what the answer is before I head to the choices, and then all the choices are written in such a way that it's very difficult to figure out which one means the answer you think is correct...

[eloise16]

CAN SOMEBODY PLEASE DEFEND THIS ABSURDITY TO ME??????????????????????????????????????????????????


A customer who was seriously injured in an accident on a retailer’s premises filed a complaint in a federal district court in State A. The complaint alleged in good faith that the customer was entitled to damages in excess of the amount-in-controversy requirement. At the time of the accident, which took place in State C, the customer and the retailer were citizens of State C. Prior to filing suit, the customer changed her domicile to State A for the sole purpose of being able to bring this action in federal court. After filing an answer, the retailer filed a motion to dismiss the action for lack of subject-matter jurisdiction.

Should the court grant this motion?

D) No, because the customer and retailer were citizens of different states when the customer commenced the action.

Answer choice D is correct. Subject-matter jurisdiction based on diversity of citizenship exists with respect to this action. At the time of the filing of the complaint, the plaintiff was a citizen of a different state (i.e., State A) than the defendant (i.e., State C) and the amount-in-controversy requirement was met. Answer choice A is incorrect because, although the plaintiff’s sole purpose in becoming a citizen of State A was to be able to meet the diversity requirement for bringing this action in federal court, the plaintiff, as a domiciliary of State A, is a citizen of a different state than the defendant-retailer. A party may voluntarily change state citizenship after the accrual of a cause of action but before the commencement of a lawsuit, and therefore establish or defeat diversity jurisdiction, so long as the change is not a sham. That is, if the change of domicile is intended to be permanent--even if the sole motivation is to create diversity--the change is permissible.

Yeah, we went through this exact question earlier in this thread. It's just a bad question.

So the thing in the outline is that you can't say you've moved but you haven't (you have a po box instead of physical address). As long as you have physically moved by the time of filing, it's okay.

^this. The move can't be "fake." If you actually move and don't plan to move right back after the litigation, then it's ok. You have to have intent to permanently stay somewhere in order to change domicile.

Does anyone else feel like the answers in the tort questions are particularly tricky? I read a question, know what the answer is before I head to the choices, and then all the choices are written in such a way that it's very difficult to figure out which one means the answer you think is correct...

I asked Themis about this question last week because I was so enraged and they literally copy and pasted the answer explanation and emailed it to me. I honestly don't think they understood the reasoning either. I think it is just a bad question. Or the outline wasn't written properly with regard to this, and the lecturer also didn't understand it or explain it correctly.

[zot1]

I don't remember ever getting a frequency chart for essays, but it is quite possible that I missed it somehow. I emailed my advisor as Tripl3Espresso suggested, so I'm waiting for a response.

[zot1]

So it's a personal thing because I'm not meeting the goal where I'm supposed to be at so I usually feel down the entire day for not meeting that goal. In addition to that, I don't feel as strongly about my essays so I keep hoping/dreaming that my MBE scores could provide me with a cushion but given my scores, that seems more and more unlikely.

I'm there with you man. I've got everything riding on the MBE because I just freak out about memorizing rules for essays and so feel like I'm going to maybe be significantly below average there. When I click that button to submit a MBE question set, I know the result is going to seriously effect my mood for the rest of the day. I stopped doing question sets at night for awhile because I did badly on a few and it made me so anxious I couldn't sleep half the night.

Yep, pretty much. I want to take the day off and just play video games or something. But I'm being responsible and trying to memorize stuff.

[zot1]

I was the last to post scores so I guess I'm the one being called icky. I'll stop. Wasn't trying to humble brag.

I don't think it was a humblebrag, I know the feeling of being so damned stress and anxious because you're not seeing improvement that you expect based on your effort and then you get a question set and you see that high number and the anxiety melts away for a few minutes and you just feel so relieved, and you want to share. I've done it myself.

That said, I can understand being annoyed by it, and I won't do it again.

So it's a personal thing because I'm not meeting the goal where I'm supposed to be at so I usually feel down the entire day for not meeting that goal. In addition to that, I don't feel as strongly about my essays so I keep hoping/dreaming that my MBE scores could provide me with a cushion but given my scores, that seems more and more unlikely.

I was the same - I posted a while back to ask in what range people were hitting because I was stuck under 60 (and sometimes well under) - I just kept doing practising until it happened and then the exam technique and the rules just sunk in - so don't worry, you will have a breakthrough for sure!

Thanks! I can't wait for that moment to happen (if it happens )

[Lubberlubber]

I was the last to post scores so I guess I'm the one being called icky. I'll stop. Wasn't trying to humble brag.

I don't think it was a humblebrag, I know the feeling of being so damned stress and anxious because you're not seeing improvement that you expect based on your effort and then you get a question set and you see that high number and the anxiety melts away for a few minutes and you just feel so relieved, and you want to share. I've done it myself.

That said, I can understand being annoyed by it, and I won't do it again.

So it's a personal thing because I'm not meeting the goal where I'm supposed to be at so I usually feel down the entire day for not meeting that goal. In addition to that, I don't feel as strongly about my essays so I keep hoping/dreaming that my MBE scores could provide me with a cushion but given my scores, that seems more and more unlikely.

I was the same - I posted a while back to ask in what range people were hitting because I was stuck under 60 (and sometimes well under) - I just kept doing practising until it happened and then the exam technique and the rules just sunk in - so don't worry, you will have a breakthrough for sure!

Thanks! I can't wait for that moment to happen (if it happens )

Same here--I was consistently scoring in the 50s or 60s until last week, when I suddenly got it up to the 70s (hopefully that streak won't end) and everything became much clearer (like as in I understood all the answer choices and what rule they're testing). I think this is the "moment of clarity" that they were saying would happen close to the actual exam.

Just study the way you do now--if you're on TLS you must be among the super-neurotic and hardworking--and I'm sure that moment will come for you too.

[Ahyis]

I wonder if the neighbors are getting sick of hearing me periodically shout "Are you fucking kidding me?" at my computer at all hours of the day and night?

[zot1]

I wonder if the neighbors are getting sick of hearing me periodically shout "Are you fucking kidding me?" at my computer at all hours of the day and night?

LOL! Thanks for giving me the first laugh of the day.

I'm not a yeller, but I moved to a new place about a month ago. The neighbors rarely see me during the day and sometimes I run errands at night. I have no doubt they think I'm a drug dealer lol.

[imdonezo]

so out of curiousity. for the essay portion....

(1) when you know that NY deviates from the MBE rule, do you say "While the MBE would allow....; under NY law...." to show that you know the distinction? is there any advantage in that?

(2) what is the credited way of doing IRAC? Is it per element? like for 4th degree arson -- D must (1) recklessly damage property (2) by intentional starting of fire. Do you first right the first element, resolve that with facts THEN move to the second element and resolve that before conclusion? OR do you just write out the entire law and incorporate the facts on the next paragraph?

(3) How far do you have to go back to lay the foundation of the law? I never had to do such rigid IRAC as seen in some of the model answers. I feel like there are so many extraneous rules e.g., if there's an issue of consideration, the first sentence is like "A valid K requires offer, acceptance, consideration." That's obvious isn't it? Like why not just talk about the specific issue?

I know it is a shot in the dark but I like to move quickly through essays without thinking about all these things if they don't affect your scoring. I do know that you have to hit the issues, exceptions, etc. but the questions are more geared to whether we are trying to show graders that we know ALL LAW versus LAW IMPLICATED IN THE FACTS (I thought law school was all about the latter not the former).


while I can't expect people to actually know how these things are graded, any personal anecdotes on how they approached/plan to approach are appreciated.
thanks!

[muddup]

edited

[zot1]

Can someone explain to me how the NOTICE requirement is satisfied? I mean how does the 1986 Buyer have constructive notice about the covenants, when (a) the covenants are not in the Buyer's deeds, (b) nothing in the question says the recorded subdivision plan contained the restrictive covenant, and (c) nothing in the question says that the former deeds (the 60) were ever recorded.

Question 973

In 1980, the owner of a 200-acre tract prepared and duly recorded a subdivision plan called Pleasant Prairie. The plan showed 100 two-acre lots. The owner sold 60 of the lots to individual purchasers. Each deed referred to the recorded plan and also contained the following clause: "No swimming pool shall be constructed on any lot within Pleasant Prairie." In 1986, the owner sold the remaining 40 lots to a buyer by a deed that referred to the plan and contained the restriction relating to swimming pools. The buyer sold the 40 lots to individual purchasers. None of the deeds from the buyer referred to the plan or contained any reference to swimming pools. A purchaser who purchased his lot from the buyer has placed a swimming pool on it and one of the original purchasers of a lot from the original owner brings an action against the later purchaser to force him to fill the swimming pool. The result of this action will be in favor of

Answers:

Correct Answer: the early purchaser, because the restrictive covenant in her deed runs with the land.

Answer choice A is correct. The covenant contained in the early purchaser's deed runs with the land because: (1) it is in writing; (2) the intent was explicit in the recorded deeds; (3) the covenant touches and concerns the land; (4) the later purchaser had notice of the covenant from the prior deed; and (5) there is both horizontal and vertical privity. Answer choice B is incorrect because it is not relevant to the question. Answer choices C and D are incorrect because the prior deed recorded the covenant and the title to the entire servient estate can be traced back to the original owner. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.

Since it's a subdivision, I think the purchaser can look at the other deeds for notice. Honestly this question is tricky because I would have assumed this was an implied servitude and then purchaser would have had inquiry notice.

[UnamSanctam]

Beginning of bar prep I was consistently ~70%. Nowadays I'm always high 50s-low 60s. ¯\_(ツ)_/¯

[anon sequitur]

Beginning of bar prep I was consistently ~70%. Nowadays I'm always high 50s-low 60s. ¯\_(ツ)_/¯

Sometimes when I get a question wrong, I take a look at it and realize that if I asked this question of a reasonably intelligent high school kid, they'd get it right every time. It's only after my head's been stuffed with 800 exceptions to every rule, and I've got permanent PTSD from all the sucker punches I've been dealt on previous questions that I choose a worse answer choice.

[always_raining]

Can anyone explain how "consent" was not an element that the prosecution had to prove in this Q:

A statute provides: A person commits the crime of rape if he has sexual intercourse with a female, not his wife, without her consent.
The defendant is charged with the rape of a woman. At trial, the woman testifies to facts sufficient for a jury to find that the defendant had sexual intercourse with her, that she did not consent, and that the two were not married. The defendant testifies in his own defense that he believed that the woman had consented to sexual intercourse and that she was his common-law wife.

At the conclusion of the case, the court instructed the jury that in order to find the defendant guilty of rape, it must find beyond a reasonable doubt that he had sexual intercourse with the woman without her consent.

The court also instructed the jury that it should find the defendant not guilty if it found either that the woman was the defendant's wife or that the defendant reasonably believed that the woman had consented to the sexual intercourse, but that the burden of persuasion as to these issues was on the defendant.

The jury found the defendant guilty, and the defendant appealed, contending that the court's instructions on the issues of whether the woman was his wife and whether he reasonably believed she had consented violated his constitutional rights.

The defendant's constitutional rights were:
A. violated by the instructions as to both issues.

B. violated by the instruction as to whether the woman was his wife, but not violated by the instruction on belief as to consent.

C. violated by the instruction on belief as to consent, but not violated by the instruction as to whether the woman was his wife.

D. not violated by either part of the instructions.

[+] Spoiler

Answer choice B is correct. The due process requirement of a fair criminal trial requires that the prosecution prove all the elements of the case beyond a reasonable doubt. The issue of whether the woman was the defendant's wife was an element of the case, which the prosecution carries the burden of proving. The court did violate the defendant's rights, therefore, by instructing the jury that the defendant bore the burden of proving that element. The state is not forbidden, however, from placing the burden of proving an affirmative defense on the defendant. Consent is an affirmative defense to rape, which the defense may be burdened with proving. Therefore, there was no violation of the defendant's rights in the court's instruction regarding consent, making answer choice A incorrect. Answer choice C is incorrect because, as explained above, the instruction as to whether the woman was the defendant's wife is an element of the case which must be proven by the prosecution, while consent is an affirmative defense, which the defendant may have the burden of proving. Answer choice D is incorrect because the instruction as to whether the woman was the defendant's wife did violate the defendant's rights.

[zot1]

Got creamed on the last graded essay (corporations). I generally spotted the issues, the rule statements were alright, and then I deviated on the analysis from the model answer (I found liability when model answer didn't and vice versa). Bar essay graders are nice, right?

[sd5289]

Got creamed on the last graded essay (corporations). I generally spotted the issues, the rule statements were alright, and then I deviated on the analysis from the model answer (I found liability when model answer didn't and vice versa). Bar essay graders are nice, right?

That's not getting creamed in any way. So long as the analysis is halfway related to the facts, and you're using the rule in a semi-intelligible manner, you'll be fine. The model answer are just that, model answers not the answer. It's totally fine to come to a different conclusion so long as you're somewhat right on the rule and you applied that rule to the actual facts in the question. Don't worry about it.

I think I also went the opposite way on the Corps essay and my grade was fine.

[GULCPerson]

Got creamed on the last graded essay (corporations). I generally spotted the issues, the rule statements were alright, and then I deviated on the analysis from the model answer (I found liability when model answer didn't and vice versa). Bar essay graders are nice, right?

From everything I've heard, this is the best possible scenario (other than a perfect model answer). Good issue spotting, good rules, solid application of those rules, but deviation in conclusion (when applying your rules to the facts) should earn most of the available points.

[Nelson]

Getting creamed is what I did today and put in a bunch of crimes where the call of the question is civil liability.

[amorsebu14]

So it's a personal thing because I'm not meeting the goal where I'm supposed to be at so I usually feel down the entire day for not meeting that goal. In addition to that, I don't feel as strongly about my essays so I keep hoping/dreaming that my MBE scores could provide me with a cushion but given my scores, that seems more and more unlikely.

I'm there with you man. I've got everything riding on the MBE because I just freak out about memorizing rules for essays and so feel like I'm going to maybe be significantly below average there. When I click that button to submit a MBE question set, I know the result is going to seriously effect my mood for the rest of the day. I stopped doing question sets at night for awhile because I did badly on a few and it made me so anxious I couldn't sleep half the night.

Yep, pretty much. I want to take the day off and just play video games or something. But I'm being responsible and trying to memorize stuff.

Video games, nothing. Here's my heartbreak: My son (8) just crawled onto my lap and begged me to take some time off studying so I could go play baseball with him.

I'm the worst mommy ever. He will likely be shooting people from a tower someday, because I didn't play baseball with him and he felt forever unloved.

I'm sorry, society.

[zor]

So it's a personal thing because I'm not meeting the goal where I'm supposed to be at so I usually feel down the entire day for not meeting that goal. In addition to that, I don't feel as strongly about my essays so I keep hoping/dreaming that my MBE scores could provide me with a cushion but given my scores, that seems more and more unlikely.

I'm there with you man. I've got everything riding on the MBE because I just freak out about memorizing rules for essays and so feel like I'm going to maybe be significantly below average there. When I click that button to submit a MBE question set, I know the result is going to seriously effect my mood for the rest of the day. I stopped doing question sets at night for awhile because I did badly on a few and it made me so anxious I couldn't sleep half the night.

Yep, pretty much. I want to take the day off and just play video games or something. But I'm being responsible and trying to memorize stuff.

Video games, nothing. Here's my heartbreak: My son (8) just crawled onto my lap and begged me to take some time off studying so I could go play baseball with him.

I'm the worst mommy ever. He will likely be shooting people from a tower someday, because I didn't play baseball with him and he felt forever unloved.

I'm sorry, society.

I actually laughed out loud.

Seriously, though--go play baseball!

[zot1]

So it's a personal thing because I'm not meeting the goal where I'm supposed to be at so I usually feel down the entire day for not meeting that goal. In addition to that, I don't feel as strongly about my essays so I keep hoping/dreaming that my MBE scores could provide me with a cushion but given my scores, that seems more and more unlikely.

I'm there with you man. I've got everything riding on the MBE because I just freak out about memorizing rules for essays and so feel like I'm going to maybe be significantly below average there. When I click that button to submit a MBE question set, I know the result is going to seriously effect my mood for the rest of the day. I stopped doing question sets at night for awhile because I did badly on a few and it made me so anxious I couldn't sleep half the night.

Yep, pretty much. I want to take the day off and just play video games or something. But I'm being responsible and trying to memorize stuff.

Video games, nothing. Here's my heartbreak: My son (8) just crawled onto my lap and begged me to take some time off studying so I could go play baseball with him.

I'm the worst mommy ever. He will likely be shooting people from a tower someday, because I didn't play baseball with him and he felt forever unloved.

I'm sorry, society.

I actually laughed out loud.

Seriously, though--go play baseball!

Lol this! Go play!

[zot1]

Got creamed because my grader is very strict: if my rule doesn't have everything, the rest of my essay is considered garbage.

This is why I have essay anxiety, you guys.

[Pickled]

So it's a personal thing because I'm not meeting the goal where I'm supposed to be at so I usually feel down the entire day for not meeting that goal. In addition to that, I don't feel as strongly about my essays so I keep hoping/dreaming that my MBE scores could provide me with a cushion but given my scores, that seems more and more unlikely.

I'm there with you man. I've got everything riding on the MBE because I just freak out about memorizing rules for essays and so feel like I'm going to maybe be significantly below average there. When I click that button to submit a MBE question set, I know the result is going to seriously effect my mood for the rest of the day. I stopped doing question sets at night for awhile because I did badly on a few and it made me so anxious I couldn't sleep half the night.

Yep, pretty much. I want to take the day off and just play video games or something. But I'm being responsible and trying to memorize stuff.

Video games, nothing. Here's my heartbreak: My son (8) just crawled onto my lap and begged me to take some time off studying so I could go play baseball with him.

I'm the worst mommy ever. He will likely be shooting people from a tower someday, because I didn't play baseball with him and he felt forever unloved.

I'm sorry, society.

Same here. My kid has watched 3 movies today. 3!

[kjartan]

Got creamed because my grader is very strict: if my rule doesn't have everything, the rest of my essay is considered garbage.

This is why I have essay anxiety, you guys.

Actually, this is why Themis's essay grading is a complete joke.

[Lubberlubber]

Got creamed because my grader is very strict: if my rule doesn't have everything, the rest of my essay is considered garbage.

This is why I have essay anxiety, you guys.

Actually, this is why Themis's essay grading is a complete joke.

Yea does anyone actually what their scores translate to on the actual bar? Even roughly? I asked but they (surprise) gave an extremely unsatisfactory answer.