Themis Bar Review Hangout - July 2014 Exam Forum

[Xifeng]

I realize this question is ridiculous and clearly not related to Themis in any way, but whatever.

So with the no-jacket rule, does that mean no cardigans or layers of any kind? I wonder if this is going to be some crazy over-airconditioned hellhole or disgustingly warm and sweaty with stress.

I would like for this to be over now.

[SilverE2]

I realize this question is ridiculous and clearly not related to Themis in any way, but whatever.

So with the no-jacket rule, does that mean no cardigans or layers of any kind? I wonder if this is going to be some crazy over-airconditioned hellhole or disgustingly warm and sweaty with stress.

I would like for this to be over now.

Wow, that blows. We don't have a no jacket rule here in Florida. Just no hoods or hats.

I would just wear a sweater if I were you, to be safe.

[094320]

..

[Bildungsroman]

The CO rules prohibit "garments with hoods, pockets, linings or significant bulk." I refuse to believe that we aren't allowed to have any pockets. That would limit my pants options to my old gym shorts or a pair of long underwear.

[bport hopeful]

Im gonna go on the meanest bender after this.

I need to take up drinking.

God, now we're moving to a new apartment on the Saturday after the exam. I would appreciate it if someone just shot me now. I won't mind. I'll leave you something in my will.

Im moving tomorrow and saturday...

[bport hopeful]

For an agreed price of $20 million, a builder contracted with a company to design and build on the company's commercial plot a 15-story office building. In excavating for the foundation and underground utilities, the builder encountered a massive layer of granite at a depth of 15 feet. By reasonable safety criteria, the building's foundation required a minimum excavation of 25 feet. When the contract was made, neither the company nor the builder was aware of the subsurface granite, for the presence of which neither party had hired a qualified expert to test. Claiming accurately that removal of enough granite to permit the construction as planned would cost him an additional $3 million and a probable net loss on the contract of $2 million, the builder refused to proceed with the work unless the company would promise to pay an additional $2.5 million for the completed building.

If the company refuses and sues the builder for breach of contract, which of the following will the court probably decide?
A. The builder is excused under the modern doctrine of supervening impossibility, which includes severe impracticability.
B. The builder is excused because the contract is voidable on account of the parties' mutual mistake concerning an essential underlying fact.
C. The company prevails because the builder assumed the risk of encountering subsurface granite that was unknown to the company.
D. The company prevails, unless subsurface granite was previously unknown anywhere in the vicinity of the company's construction site.
Incorrect: Answer choice C is correct. While neither party was aware of the existence of the granite, the possibility of encountering subsurface granite in an excavation is not so unusual that the non-occurrence of finding it could be found to be a basic assumption of the contract. The builder therefore assumed the risk that such granite would be found when he accepted the contract. Answer choice A is incorrect, as supervening impossibility only applies where an event occurs and the non-occurrence of which was a basic assumption on which the contract was made. Here, there is no indication that the non-existence of subsurface granite was a basic assumption of the parties. Answer choice B is incorrect. Mutual mistake occurs when both parties are mistaken as to an essential element of the contract. Here there was no "mistake." The parties simply did not consider what might be under the surface of the site. Answer choice D is incorrect, as even if subsurface granite was previously unknown anywhere in the vicinity of the company's site, the builder still assumed the risk of encountering subsurface granite that was unknown to the company.

I came across this question, only replace mud with granite, and the answer was different. I think.

[mmmnnn]

For an agreed price of $20 million, a builder contracted with a company to design and build on the company's commercial plot a 15-story office building. In excavating for the foundation and underground utilities, the builder encountered a massive layer of granite at a depth of 15 feet. By reasonable safety criteria, the building's foundation required a minimum excavation of 25 feet. When the contract was made, neither the company nor the builder was aware of the subsurface granite, for the presence of which neither party had hired a qualified expert to test. Claiming accurately that removal of enough granite to permit the construction as planned would cost him an additional $3 million and a probable net loss on the contract of $2 million, the builder refused to proceed with the work unless the company would promise to pay an additional $2.5 million for the completed building.

If the company refuses and sues the builder for breach of contract, which of the following will the court probably decide?
A. The builder is excused under the modern doctrine of supervening impossibility, which includes severe impracticability.
B. The builder is excused because the contract is voidable on account of the parties' mutual mistake concerning an essential underlying fact.
C. The company prevails because the builder assumed the risk of encountering subsurface granite that was unknown to the company.
D. The company prevails, unless subsurface granite was previously unknown anywhere in the vicinity of the company's construction site.
Incorrect: Answer choice C is correct. While neither party was aware of the existence of the granite, the possibility of encountering subsurface granite in an excavation is not so unusual that the non-occurrence of finding it could be found to be a basic assumption of the contract. The builder therefore assumed the risk that such granite would be found when he accepted the contract. Answer choice A is incorrect, as supervening impossibility only applies where an event occurs and the non-occurrence of which was a basic assumption on which the contract was made. Here, there is no indication that the non-existence of subsurface granite was a basic assumption of the parties. Answer choice B is incorrect. Mutual mistake occurs when both parties are mistaken as to an essential element of the contract. Here there was no "mistake." The parties simply did not consider what might be under the surface of the site. Answer choice D is incorrect, as even if subsurface granite was previously unknown anywhere in the vicinity of the company's site, the builder still assumed the risk of encountering subsurface granite that was unknown to the company.

I came across this question, only replace mud with granite, and the answer was different. I think.

Yep.

[puttycake]

Im gonna go on the meanest bender after this.

I need to take up drinking.

God, now we're moving to a new apartment on the Saturday after the exam. I would appreciate it if someone just shot me now. I won't mind. I'll leave you something in my will.

Im moving tomorrow and saturday...

Okay, first you kill me, then I'll kill you.

This could totally work.

(Why I'm going into law, not science.)

[dtl]

Im gonna go on the meanest bender after this.

I need to take up drinking.

God, now we're moving to a new apartment on the Saturday after the exam. I would appreciate it if someone just shot me now. I won't mind. I'll leave you something in my will.

Im moving tomorrow and saturday...

Okay, first you kill me, then I'll kill you.

This could totally work.

(Why I'm going into law, not science.)

Die within 120 hours of each other and you will have both killed each other first.

[Tanicius]

Themis. What are you doing? Go home.

I need an answer to this. I have now seen two completely contradictory answer explanations for whether felony murder's underlying felony merges with the felony murder.

Compare:

In a common-law jurisdiction, if the defendant is charged with murder and arson, he should be:
A. convicted of both offenses.

At common law, arson is the malicious burning of the dwelling of another. The defendant's act of driving his car into a gasoline tank created an obvious likelihood that a burning would ensue, thus satisfying the malice requirement of arson. The question limits the discussion to common law arson, but as the gas station was also the owner's home, even the common law definition of dwelling is satisfied. Murder is an unlawful killing of a human being committed with malice aforethought. The defendant's conduct of driving into the gas tank amounts to a reckless indifference to an unjustifiably high risk to human life (depraved heart), which satisfies the malice requirement. Additionally, arson can be the underlying felony for a felony murder conviction.

with this:

Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony. Robbery is one such inherently dangerous felony. The underlying felony will generally merge into the crime of felony murder, so here, the robbery merges into the felony murder and the man can only be convicted and punished for felony murder, not both felony murder and robbery.

[Xifeng]

Sometimes I'm just reading these questions, and it escalates like CRAZY.

The defendant, while eating in a restaurant, noticed that a departing customer at the next table had left a five-dollar bill as a tip for the waitress. The defendant reached over, picked up the five-dollar bill, and put it in his pocket. As he stood up to leave, another customer who had seen him take the money ran over to him and hit him in the face with her umbrella. Enraged, the defendant choked the customer to death.

Like what

[lawyerwannabe]

It merges.

I got that question too and got it wrong as well. I think it was just poorly worded, etc.

[Tanicius]

It merges.

I got that question too and got it wrong as well. I think it was just poorly worded, etc.

By poorly worded do you mean it's a typo? Like it means to say "EITHER arson or murder?" in stead of "both"? The question and "correct" answer are both damn-near unequivocal. They say he SHOULD be CONVICTED of both offenses.

[puttycake]

Themis. What are you doing? Go home.

I need an answer to this. I have now seen two completely contradictory answer explanations for whether felony murder's underlying felony merges with the felony murder.

Compare:

In a common-law jurisdiction, if the defendant is charged with murder and arson, he should be:
A. convicted of both offenses.

At common law, arson is the malicious burning of the dwelling of another. The defendant's act of driving his car into a gasoline tank created an obvious likelihood that a burning would ensue, thus satisfying the malice requirement of arson. The question limits the discussion to common law arson, but as the gas station was also the owner's home, even the common law definition of dwelling is satisfied. Murder is an unlawful killing of a human being committed with malice aforethought. The defendant's conduct of driving into the gas tank amounts to a reckless indifference to an unjustifiably high risk to human life (depraved heart), which satisfies the malice requirement. Additionally, arson can be the underlying felony for a felony murder conviction.

with this:

Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony. Robbery is one such inherently dangerous felony. The underlying felony will generally merge into the crime of felony murder, so here, the robbery merges into the felony murder and the man can only be convicted and punished for felony murder, not both felony murder and robbery.

This might be insane, and it doesn't account for part of it, but I could see it being both because there was actually intent to commit BOTH the murder (which required malice) AND the arson (which requires malice). It wasn't just that the arson caused an unintended murder but the intent was there to cause the murder.

That doesn't explain the line starting with "Additionally..." though.

[Apple Tree]

Themis. What are you doing? Go home.

I need an answer to this. I have now seen two completely contradictory answer explanations for whether felony murder's underlying felony merges with the felony murder.

Compare:

In a common-law jurisdiction, if the defendant is charged with murder and arson, he should be:
A. convicted of both offenses.

At common law, arson is the malicious burning of the dwelling of another. The defendant's act of driving his car into a gasoline tank created an obvious likelihood that a burning would ensue, thus satisfying the malice requirement of arson. The question limits the discussion to common law arson, but as the gas station was also the owner's home, even the common law definition of dwelling is satisfied. Murder is an unlawful killing of a human being committed with malice aforethought. The defendant's conduct of driving into the gas tank amounts to a reckless indifference to an unjustifiably high risk to human life (depraved heart), which satisfies the malice requirement. Additionally, arson can be the underlying felony for a felony murder conviction.

with this:

Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony. Robbery is one such inherently dangerous felony. The underlying felony will generally merge into the crime of felony murder, so here, the robbery merges into the felony murder and the man can only be convicted and punished for felony murder, not both felony murder and robbery.

Wow I'm so confused. I thought the underlying felony always merged into the FM?? Whatever, that's the rule I'm sticking to.

[lawyerwannabe]

It merges.

I got that question too and got it wrong as well. I think it was just poorly worded, etc.

By poorly worded do you mean it's a typo? Like it means to say "EITHER arson or murder?" in stead of "both"? The question and "correct" answer are both damn-near unequivocal. They say he SHOULD be CONVICTED of both offenses.

I mean more like just a mistake pretty much. There are a few of these throughout the MBE PQs. I would just move on knowing you know the correct rule.

[Kiwi917]

It merges.

I got that question too and got it wrong as well. I think it was just poorly worded, etc.

By poorly worded do you mean it's a typo? Like it means to say "EITHER arson or murder?" in stead of "both"? The question and "correct" answer are both damn-near unequivocal. They say he SHOULD be CONVICTED of both offenses.

I'm probably completely misunderstanding this, but aren't they saying that the defendant could be convicted of both depraved-heart murder and arson? If you just ignore the sentence about FMR, then it makes sense that the answer would be murder and arson, because arson doesn't merge with depraved-heart murder. My guess is someone tacked on the FMR bit without realizing that it makes no sense in this context.

[Apple Tree]

Can someone explain to me if an underlying felony merges with the FM? I thought you can be charged with both, but can only be convicted of one or the other.

Edit: From wikipedia:
Furthermore, the merger doctrine excludes felonies that are presupposed by a murder charge. For example, nearly all murders involve some type of assault, but so do many cases of manslaughter. To count any death that occurred during the course of an assault as felony murder would obliterate a distinction carefully set by the legislature; however, merger may not apply when an assault against one person results in the death of another.

To counter the common law style interpretations of what does and does not merge with murder (and thus what does not and does qualify for felony murder), many jurisdictions in the United States explicitly list what offenses qualify. The American Law Institute's Model Penal Code lists robbery, rape or forcible deviant sexual intercourse, arson, burglary, and felonious escape. Federal law specifies additional crimes, including terrorism, kidnapping, and carjacking.

So it seems like the BARRK felony does NOT merge with FM.

[Gotti]

I know this has come up before but WHAT the hell is this question

Defendant, a shoe importer/exporter, telephoned Plaintiff, a shoe wholesaler. Defendant and Plaintiff regularly did business, both buying and selling shoes to each other. In December, the parties discussed the purchase of shoes. After the conversation, Plaintiff sent Defendant a dated confirmation slip, which included the following terms: "WE HAVE SOLD TO YOU 250,000 SHOES." The confirmation slip called for delivery the following August. Defendant's treasurer signed the slip and returned it to Plaintiff five days later. By letter dated in July, Plaintiff notified Defendant that he was awaiting instructions on how to deliver the shoes to Plaintiff. Defendant responded by letter stating that Plaintiff was mistaken, and that Defendant intended to sell shoes to Plaintiff rather than make a purchase. To cover, Plaintiff sold the shoes at a loss and brought suit against Defendant. Plaintiff moved for summary judgment, and Defendant sought admission of parol evidence to prove that the parties' intent was to purchase shoes from rather than to sell shoes to Plaintiff.

How should the court rule on Defendant's request for admission of parol evidence?
A. Deny the motion because triable issues of fact exist as to whether the confirmation slip signed by Defendant was intended to be the final expression of Defendant and Plaintiff's agreement.
B. Deny the motion because parol evidence does not bar evidence offered to show that a contract between the parties never existed.
C. Deny the motion because the confirmation slip failed to include an express indication that Defendant and Plaintiff intended the slip to be the final expression of their agreement.
D. Grant the motion because the confirmation slip was intended to be the final expression of Defendant and Plaintiff's agreement.

Answer choice D is correct. When the terms of a contract are in a writing intended by the parties to be a final expression of their agreement, the terms cannot be contradicted by extrinsic evidence of a prior agreement or a contemporaneous oral agreement. However, terms can be explained or supplemented by course of dealing or performance between the parties. Here, the essential terms of the transaction are plainly set forth in the confirmation slip. Defendant's agent signed and returned the confirmation slip signifying acceptance of these terms. Nothing in the confirmation slip suggests it was to be a memorandum of a preliminary or tentative understanding with respect to these terms. On the contrary, the slip clearly demonstrates the final expression of the parties' agreement that "WE HAVE SOLD TO YOU 250,000 SHOES." These terms cannot be contradicted by extrinsic evidence but they may be explained or supplemented by showing course of dealing or performance between the parties.

So:
1. Plaintiff sends over a form saying WE HAVE SOLD YOU 250K SHOES & then later asks Defendant when they want their shoes delivered
2. Defendant says no we meant to SELL you shoes, not buy them.
3. Plaintiff sells shoes to someone else at a loss & sues Defendant for breach
4. Plaintiff moves for summary judgment
5. Defendant wants to introduce parol evidence to show the parties' intent, i.e., D wants to show D intended the BUY shoes from P?

...and the answer is that parol evidence SHOULD be admitted because it was the full and complete agreement between the parties?

am i missing something?

[Gotti]

Can someone explain to me if an underlying felony merges with the FM? I thought you can be charged with both, but can only be convicted of one or the other.

Edit: From wikipedia:
Furthermore, the merger doctrine excludes felonies that are presupposed by a murder charge. For example, nearly all murders involve some type of assault, but so do many cases of manslaughter. To count any death that occurred during the course of an assault as felony murder would obliterate a distinction carefully set by the legislature; however, merger may not apply when an assault against one person results in the death of another.

To counter the common law style interpretations of what does and does not merge with murder (and thus what does not and does qualify for felony murder), many jurisdictions in the United States explicitly list what offenses qualify. The American Law Institute's Model Penal Code lists robbery, rape or forcible deviant sexual intercourse, arson, burglary, and felonious escape. Federal law specifies additional crimes, including terrorism, kidnapping, and carjacking.

So it seems like the BARRK felony does NOT merge with FM.

For the purposes of the MBE:

BARRK felonies merge into felony murder, because you wouldn't have the requisite elements of murder without the BARRK felony.

You can be charged and tried for both FM + underlying felony but not convicted of both (only one)

[Apple Tree]

Can someone explain to me if an underlying felony merges with the FM? I thought you can be charged with both, but can only be convicted of one or the other.

Edit: From wikipedia:
Furthermore, the merger doctrine excludes felonies that are presupposed by a murder charge. For example, nearly all murders involve some type of assault, but so do many cases of manslaughter. To count any death that occurred during the course of an assault as felony murder would obliterate a distinction carefully set by the legislature; however, merger may not apply when an assault against one person results in the death of another.

To counter the common law style interpretations of what does and does not merge with murder (and thus what does not and does qualify for felony murder), many jurisdictions in the United States explicitly list what offenses qualify. The American Law Institute's Model Penal Code lists robbery, rape or forcible deviant sexual intercourse, arson, burglary, and felonious escape. Federal law specifies additional crimes, including terrorism, kidnapping, and carjacking.

So it seems like the BARRK felony does NOT merge with FM.

For the purposes of the MBE:

BARRK felonies merge into felony murder, because you wouldn't have the requisite elements of murder without the BARRK felony.

You can be charged and tried for both FM + underlying felony but not convicted of both (only one)

Well, that's what I thought too, but see that earlier post:

Quote:
In a common-law jurisdiction, if the defendant is charged with murder and arson, he should be:
A. convicted of both offenses.

At common law, arson is the malicious burning of the dwelling of another. The defendant's act of driving his car into a gasoline tank created an obvious likelihood that a burning would ensue, thus satisfying the malice requirement of arson. The question limits the discussion to common law arson, but as the gas station was also the owner's home, even the common law definition of dwelling is satisfied. Murder is an unlawful killing of a human being committed with malice aforethought. The defendant's conduct of driving into the gas tank amounts to a reckless indifference to an unjustifiably high risk to human life (depraved heart), which satisfies the malice requirement. Additionally, arson can be the underlying felony for a felony murder conviction.

I asked my friends at Barbri they said BARRK felonies don't merge, only assault/battery....

[Prime]

Half the MBE answers are so poorly worded that I have no idea what they are getting at. Not only that but my mixed sets have been all over the place once I hit mixed set 10.

As for Newman? I'm not sure how it is for other states but Texas students get him for Commercial Paper AND Corporations. Yay Texas.

[AIpwns]

Can someone please help me figure out this con law question?


50. (Question ID#1174)

A state has enacted a new election code designed to increase voter responsibility in the exercise of the franchise and to enlarge citizen participation in the electoral process. None of its provisions conflicts with federal statutes.

Which of the following is the strongest reason for finding unconstitutional a requirement in the state election code that each voter must be literate in English?
A. The requirement violates Article I Section 2 of the Constitution, which provides that representatives to Congress be chosen "by the People of the several States." B. The requirement violates Article I, Section 4 of the Constitution, which gives Congress the power to "make or alter" state regulations providing for the "Times" and "Manner" of holding elections for senators and representatives. C. The requirement violates the due process clause of the Fourteenth Amendment. D. The requirement violates the equal protection of the laws clause of the Fourteenth Amendment.
Incorrect: Answer choice D is correct. Fundamental rights (including the right to vote) protected by substantive due process are also often protected by the Equal Protection Clause. Under strict scrutiny, a law interfering with a fundamental right will be upheld only if it is necessary to achieve a compelling governmental interest, which is not indicated here. Note that impingement of the right to vote may trigger an inquiry under the Due Process or Equal Protection clauses. The Equal Protection Clause is applied if the law deals with the denial of rights to a particular group, as opposed to everyone. Here, answer choice A is incorrect because it is not relevant and misses the fundamental right issue. Answer choice B is incorrect because it seems to attempt to implicate a free speech issue, which does not apply here. Answer choice C is incorrect because it is the Equal Protection Clause which applies to discrimination against some people, rather than due process protections that affect all people.


The way I thought about was the right to vote is a fundamental right triggering strict scrutiny under the DP Clause. The EP Clause would apply, but you would only apply a rational basis test due to the class of people being discriminated against (non english speakers) not being a suspect class. Therefore, although you could apply both tests, DP would be the better way to go. Where am I going wrong?

For example, if you passed a law that said non-english speakers can't be phone operators that would be EP because being a phone operator isn't a fundamental right.

[AIpwns]

Can someone explain to me if an underlying felony merges with the FM? I thought you can be charged with both, but can only be convicted of one or the other.

Edit: From wikipedia:
Furthermore, the merger doctrine excludes felonies that are presupposed by a murder charge. For example, nearly all murders involve some type of assault, but so do many cases of manslaughter. To count any death that occurred during the course of an assault as felony murder would obliterate a distinction carefully set by the legislature; however, merger may not apply when an assault against one person results in the death of another.

To counter the common law style interpretations of what does and does not merge with murder (and thus what does not and does qualify for felony murder), many jurisdictions in the United States explicitly list what offenses qualify. The American Law Institute's Model Penal Code lists robbery, rape or forcible deviant sexual intercourse, arson, burglary, and felonious escape. Federal law specifies additional crimes, including terrorism, kidnapping, and carjacking.

So it seems like the BARRK felony does NOT merge with FM.

For the purposes of the MBE:

BARRK felonies merge into felony murder, because you wouldn't have the requisite elements of murder without the BARRK felony.

You can be charged and tried for both FM + underlying felony but not convicted of both (only one)

Well, that's what I thought too, but see that earlier post:

Quote:
In a common-law jurisdiction, if the defendant is charged with murder and arson, he should be:
A. convicted of both offenses.

At common law, arson is the malicious burning of the dwelling of another. The defendant's act of driving his car into a gasoline tank created an obvious likelihood that a burning would ensue, thus satisfying the malice requirement of arson. The question limits the discussion to common law arson, but as the gas station was also the owner's home, even the common law definition of dwelling is satisfied. Murder is an unlawful killing of a human being committed with malice aforethought. The defendant's conduct of driving into the gas tank amounts to a reckless indifference to an unjustifiably high risk to human life (depraved heart), which satisfies the malice requirement. Additionally, arson can be the underlying felony for a felony murder conviction.

I asked my friends at Barbri they said BARRK felonies don't merge, only assault/battery....

When I took Barbri I was taught that felonies don't merge.

[mmmnnn]

I have not yet seen a single question/answer where a person can be rightfully convicted of both the underlying felony and felony murder. At least one of those had to be an old MBE, so I'm sticking with that.

As explained above, I think the gas station question is asking whether the person had the requisite state of mind for both crimes. The answer explanation (like so many of Themis's explanations) needlessly confuses matters and/or misstates the law.