. Forum

[releasethehounds]

For what it's worth, the Texas essays usually have the bank that took the instrument and paid on in presenting it to the drawee bank, which sometimes pays and sometimes doesn't. That's when they want stuff delving into presentment and transfer warranties, it seems.

True. The warranties tend to occur when a bunch of banks look at/transfer the check. I think I'm just combining shit that really doesn't get combined IRL.

I probably have no basis for this opinion, but since you're also in a UBE jurisdiction (I think?), I would say if you can reason your way through the model answer for the last graded essay, the commercial paper one, that's probably about as bad as you're going to see.

And take solace that it's a pretty universally weak topic. I know it's not curved, but you're probably not in a worse position than anyone else. So if you can get some rules of law down, like 'is this a negotiable instrument, was there a negotiation, is this person an HDC, can the maker/drawer assert real or personal defenses', then you're doing pretty well. Also, it's 1/18th of your total score. Less than 1/18. 1/3 (approx.) of your total exam score is MEE * 1/6 = 1/18. It's way. way. way. oversimplified (like not literally .05%), and I realize that. but at least for me it helps me stop worrying so much.

I don't say that to encourage you to blow it off. But if it helps you on test day to know that even if you meet an essay that makes you go WHAT THE FUCKING FUCK, you can still get down enough to get some points, and that's still gonna be helpful.

[releasethehounds]

The robbery and the felony-murder don't merge, but there are some restrictions. If D is found not-guilty of the robbery, then he can't be found guilty of felony-murder. Also, the prosecutor can't bring a charge for robbery, get a not-guilty verdict, then bring a charge for felony-murder.

Torvon, this isn't directed specifically at you, just kind of the general ether, but... Yeah, remember: in most jurisdictions (except PA apparently?) a defense to felony murder is a defense to the underlying felony.

[Bikeflip]

For what it's worth, the Texas essays usually have the bank that took the instrument and paid on in presenting it to the drawee bank, which sometimes pays and sometimes doesn't. That's when they want stuff delving into presentment and transfer warranties, it seems.

True. The warranties tend to occur when a bunch of banks look at/transfer the check. I think I'm just combining shit that really doesn't get combined IRL.

I probably have no basis for this opinion, but since you're also in a UBE jurisdiction (I think?), I would say if you can reason your way through the model answer for the last graded essay, the commercial paper one, that's probably about as bad as you're going to see.

And take solace that it's a pretty universally weak topic. I know it's not curved, but you're probably not in a worse position than anyone else. So if you can get some rules of law down, like 'is this a negotiable instrument, was there a negotiation, is this person an HDC, can the maker/drawer assert real or personal defenses', then you're doing pretty well. Also, it's 1/18th of your total score. Less than 1/18. 1/3 (approx.) of your total exam score is MEE * 1/6 = 1/18. It's way. way. way. oversimplified (like not literally .05%), and I realize that. but at least for me it helps me stop worrying so much.

I don't say that to encourage you to blow it off. But if it helps you on test day to know that even if you meet an essay that makes you go WHAT THE FUCKING FUCK, you can still get down enough to get some points, and that's still gonna be helpful.

All true. What I really should do is go to bed before I make up some crazy rules and screw myself. I'm seeing connections that just aren't there, because I'm tired. Next thing I'll do will be to add secured transactions to crim pro all because both have "search" somewhere in their outlines.

[releasethehounds]

See, the thing is, I kinda feel okay about commercial paper, but the warranties are throwing me for a loop.

You're in great shape. I linked awhile back to a somewhat out-of-date outline (though I believe that it doesn't matter that the UCC's been updated, I think the bar examiners tell you to assume the UCC amendments haven't been adopted, but don't quote me on that) that covers the warranties really well (for me. there's not a ton, but i'm a less is more kinda gal).

http://lawschool.s3.amazonaws.com/UCC_Articles3-4.doc

Also, because I seem to remember a question earlier about this, per her outline:

b. Presentment theory runs in the absence of privity. Bank can sue any person that transferred the check after the forgery.
c. Drawee bank does not lose the right to sue on breach of presentment liability when it pays the check.
d. Drawee bank can ONLY sue on presentment warranty. (Depositary bank can sue on transfer warranty, but drawee bank cannot.)

not sure how helpful they are as i haven't gotten through all of them (there's literally like... 7, but they cover the biiig picture), but there's this too: http://quizlet.com/12950540/commercial- ... ash-cards/

[Bikeflip]

Thanks d00d

[Torvon]

The robbery and the felony-murder don't merge, but there are some restrictions. If D is found not-guilty of the robbery, then he can't be found guilty of felony-murder. Also, the prosecutor can't bring a charge for robbery, get a not-guilty verdict, then bring a charge for felony-murder.

Torvon, this isn't directed specifically at you, just kind of the general ether, but... Yeah, remember: in most jurisdictions (except PA apparently?) a defense to felony murder is a defense to the underlying felony.

I think you mean that the other way around. A defense to the underlying felony is a defense to felony-murder, which is true because you can't be convicted of felony-murder if you aren't convicted of the underlying felony. However, it is possible to be convicted of both robbery and felony-murder. Or to be convicted of both arson and felony-murder. So they don't merge like larceny and robbery would.

[releasethehounds]

The robbery and the felony-murder don't merge, but there are some restrictions. If D is found not-guilty of the robbery, then he can't be found guilty of felony-murder. Also, the prosecutor can't bring a charge for robbery, get a not-guilty verdict, then bring a charge for felony-murder.

Torvon, this isn't directed specifically at you, just kind of the general ether, but... Yeah, remember: in most jurisdictions (except PA apparently?) a defense to felony murder is a defense to the underlying felony.

I think you mean that the other way around. A defense to the underlying felony is a defense to felony-murder, which is true because you can't be convicted of felony-murder if you aren't convicted of the underlying felony. However, it is possible to be convicted of both robbery and felony-murder. Or to be convicted of both arson and felony-murder. So they don't merge like larceny and robbery would.

I did mean it that way, I just worded it really badly, I apologize. I meant that, essentially, if you can find a way to (successfully) defend against the underlying felony, you've successfully defended against FMR.

[Bikeflip]

Huh. So because of federalism, a federal law generally cannot be applied to state legislators acting in the course of their official duties. this is true even if the state legislator is committing a crime.

[releasethehounds]

Huh. So because of federalism, a federal law generally cannot be applied to state legislators acting in the course of their official duties. this is true even if the state legislator is committing a crime.

Man. That might be one of the only good things for states to come out of federalism. Usually the answer seems to be 'HAHAHA WE DO WHAT WE WANT CAUSE WE'RE CONGRESS/THE FEDS'

[Bikeflip]

Huh. So because of federalism, a federal law generally cannot be applied to state legislators acting in the course of their official duties. this is true even if the state legislator is committing a crime.

Man. That might be one of the only good things for states to come out of federalism. Usually the answer seems to be 'HAHAHA WE DO WHAT WE WANT CAUSE WE'RE CONGRESS/THE FEDS'

I should add that the crime was the legislator doing illegal shit with a state agency. Can't recall any more details ATM.

[JDCA2012]

Ok guys, this might sound so dumb and simple, but it has been ages since I reviewed Con Law - however, Themis has had me reviewing CA Comm Prop, Wills, Trusts like its the end of the world if I don't do those topics every day.
So basically, earlier today, I confused the hell out of myself regarding 1st Amendment standards of review, and wanted clarification for reviews, when they apply, and what facts trigger application. This is what I THINK things are, as of now, someone correct me if wrong

Expressive Conduct/Symbolic Speech: burning flags, leafletting - actions that are speech. Standard: 1) within government's power, 2) important government interest, 3) important interest is unrelated to the suppression of those ideas, 4) not unduly burdensome on speech (this last one I'm iffy, I see it written different ways all the time).
> If interest related to suppression of the speech > Strict Scrutiny

Speech in a Public Forum: If they are regulating the time, place, manner, it must be: 1) content neutral in subject matter and view point, 2) narrowly tailored to further important government interest, 3) ample alternative communication channels
> if not content neutral > Strict Scrutiny

Speech in NonPublic Forum: if time, place, manner, then 1) viewpoint neutral (but not subj matter), 2) reasonably related to legitimate purpose
> if not viewpoint neutral > Strict Scrutiny?

Speech in Limited Forum: (I think I had this wrong - what is the standard? for some reason I feel like themis said in something same as public, but maybe it said same as nonpublic and I can't find it, it's not in MBE condensed at moment)

(Commercial Speech I left it off, I know that it is its own thing)

So basically, anything that's content-based is Strict Scrutiny? No? I don't know, I am brain dead. Is there any easier way to remember all of these? Can you get away on the exam with just applying a general "intermediate" "SS" or "RB" instead of the specific things, or I am guessing not haha.
By the way, on the Simulated AM exam with the 3 appellants challenging convictions, how is "wandering around for purpose of begging" constituting speech in public forum vs. "symbolic expression"? I understand they clearly tipped us off as to the public, nonpublic forum stuff. But how is "wandering for purpose" of something speech? Isn't that wandering? (and they also said oh this is not vague, ok yeah ok).
If it didn't limited us to 1st Am. on it, I would have also maybe done an analysis based on restricting people's movement in public, or something.
Edited cuz im dumb

[JD_done]

Ks gurus, I want to confirm something about the pre-existing duty rule and consideration.

As I understand it, a pre-existing duty is not valid consideration at common law, but can become valid if someone gives something in addition to what she's already obligated to give, or alters the consideration somehow. On this last point, can the alteration seriously be anything? E.g., I have a pre-existing duty to deliver a blue shirt with silver buttons to you. We agree that I'll give you a blue shirt with gold buttons on it instead and you now pay me more money. That's all copacetic, right? Even if it's just the tiniest alteration in the pre-existing performance obligation?

Should be good. You're giving me something you weren't legally obligated to give me (because you were legally obligated to give me a blue shirt with silver buttons) in exchange for something I wasn't legally obligated to give you (mas dinero).

I believe the alteration can be absolutely anything. There was an MBE where a performer was hired to do a show at a party with a leopard. She said she couldn't do it anymore but could do it with a white tiger for $500 more. THis was adequate additional consideration even though the trainer was basically refusing to perform the original contract.

[Talar]

Ks gurus, I want to confirm something about the pre-existing duty rule and consideration.

As I understand it, a pre-existing duty is not valid consideration at common law, but can become valid if someone gives something in addition to what she's already obligated to give, or alters the consideration somehow. On this last point, can the alteration seriously be anything? E.g., I have a pre-existing duty to deliver a blue shirt with silver buttons to you. We agree that I'll give you a blue shirt with gold buttons on it instead and you now pay me more money. That's all copacetic, right? Even if it's just the tiniest alteration in the pre-existing performance obligation?

Should be good. You're giving me something you weren't legally obligated to give me (because you were legally obligated to give me a blue shirt with silver buttons) in exchange for something I wasn't legally obligated to give you (mas dinero).

I believe the alteration can be absolutely anything. There was an MBE where a performer was hired to do a show at a party with a leopard. She said she couldn't do it anymore but could do it with a white tiger for $500 more. THis was adequate additional consideration even though the trainer was basically refusing to perform the original contract.

Ya, this tricked me on that MBE practice exam we took. I was like "but wait, they're both furry and stuff...no way that's valid consideration." Wrong.

[BarbellDreams]

Can someone give me a lay explanation of covenants vs. equitable servitudes?

I know covenants must be in writing, touch and concern the land, must create a negative duty on at least one of the parties, and must have horizontal/vertical privity (has privity been abolished in favor of just checking chain of title?).

In contrast how does an equitable servitude work? I know they don't have to be in writing, but I usually always thought they had to be part of a common scheme. Now I see that the whole common scheme thing is more of the implied equitable servitude. So whats the difference between an express convenant and an express equitable servitude?

[elysiansmiles]

Can someone give me a lay explanation of covenants vs. equitable servitudes?

I know covenants must be in writing, touch and concern the land, must create a negative duty on at least one of the parties, and must have horizontal/vertical privity (has privity been abolished in favor of just checking chain of title?).

In contrast how does an equitable servitude work? I know they don't have to be in writing, but I usually always thought they had to be part of a common scheme. Now I see that the whole common scheme thing is more of the implied equitable servitude. So whats the difference between an express convenant and an express equitable servitude?

My understanding is that covenants work as you have described. Equitable servitudes (the non-implied kind) are basically covenants that fail to meet the requirements to be covenants. They're enforced in equity because they got close enough to count, basically - they dispense with the formality of privity . If it doesn't count as a real covenant, you can probably get it in as an equitable servitude, but you'll get an injunction as your only remedy. With a real covenant you can get damages.

Implied reciprocal servitudes I think are best to think of as a different beast entirely. They're the ones that require a common scheme (and don't need a writing - hence, implied).

Editted to correct the misunderstanding noted below.

[Talar]

Equitable servitudes still require a writing, I think, it's just the implied ones that don't (satisfied by a common scheme, etc).

[elysiansmiles]

Equitable servitudes still require a writing, I think, it's just the implied ones that don't (satisfied by a common scheme, etc).

Oh, you're right. For some reason Themis's outline made writing an element for covenants and just put in in the explanatory paragraph for equitable servitudes. With an ES you can ditch the privity requirement, but you still need a writing.

[dudeman2014]

Can someone give me a lay explanation of covenants vs. equitable servitudes?

I know covenants must be in writing, touch and concern the land, must create a negative duty on at least one of the parties, and must have horizontal/vertical privity (has privity been abolished in favor of just checking chain of title?).

In contrast how does an equitable servitude work? I know they don't have to be in writing, but I usually always thought they had to be part of a common scheme. Now I see that the whole common scheme thing is more of the implied equitable servitude. So whats the difference between an express convenant and an express equitable servitude?

My understanding is that covenants work as you have described. Equitable servitudes (the non-implied kind) are basically covenants that fail to meet the requirements to be covenants. They're enforced in equity because they got close enough to count, basically - they dispense with the formality of privity . If it doesn't count as a real covenant, you can probably get it in as an equitable servitude, but you'll get an injunction as your only remedy. With a real covenant you can get damages.

Implied reciprocal servitudes I think are best to think of as a different beast entirely. They're the ones that require a common scheme (and don't need a writing - hence, implied).

Editted to correct the misunderstanding noted below.

Chiming in here, this all looks correct to me I would just remind everyone of the "PINT" acronym for covenants (Privity, Intent, Notice, Touch and Concern the land), and, as stated above, equitable servitude is everything except privity, and only gets you equitable remedies.

Also, notice is NOT required for the benefit of a real covenant/equitable servitude to run, only for the burden.

[yeff]

apropros our conversation about car trunk searches yesterday, I did a NY crim practice essay that touched on similar issue, parts of which seems relevant:

Officer observed Driver driving a late model luxury automobile with Passenger sitting in the front passenger seat. After checking the license plate on his computer and learning the car was stolen, Officer pulled the car over. Officer observed that the steering column was broken and saw a screwdriver in the ignition. Officer placed both Driver and Passenger under arrest, searched the car, and recovered a loaded gun from the glove compartment....

The forgoing facts were presented to a grand jury, and Driver and Passenger were indicted for the crimes of criminal possession of a weapon and criminal possession of stolen property. At their arraignment, Lawyer filed a notice of appearance on behalf of both Driver and Passenger and entered not guilty pleas for both of them....

Lawyer timely filed a motion to dismiss the indictments against both Driver and Passenger claiming there was insufficient evidence presented to the grand jury to sustain either charge. In opposition, Prosecutor asserted that sufficient evidence was presented to the grand jury to sustain both charges against both Driver and Passenger.

As to both Driver and Passenger, the court denied the motion to dismiss (a) the criminal possession of stolen property charge and (b) the criminal possession of a weapon charge.

(1) Were rulings (a) and (b) correct as to each defendant?…

…(1)(b) The issue for ruling (b) is whether the grand jury heard sufficient evidence to indict Driver and Passenger for criminal possession of a weapon.

(Editor’s note: when this question appeared on the New York State bar exam, a different rule concerning the search of automobiles incident to an arrest governed. This answer is based on current law.)

As stated above, in New York, a grand jury indictment demonstrating probable cause to charge a defendant with a crime must be supported by evidence that would be admissible at trial. To be indicted on a charge of criminal possession of a weapon, the grand jury must have probable cause that the defendant knowingly possessed a weapon or firearm.

In this case, the sufficiency of the evidence supporting the indictment depends on whether the gun will be admissible at trial. The admissibility of the gun depends on whether the search of the automobile incident to the arrest of Driver and Passenger met the requirements of the Fourth Amendment. In other words, if the gun will not be admissible at trial, then it cannot be used at the grand jury proceedings to support an indictment.

Under New York law consistent with recent Supreme Court precedent, police conducting a search incident to an arrest cannot search a vehicle once the occupants are removed from the vehicle, unless the police have probable cause to believe that contraband or evidence of a crime will be found.

Here, there was a gun in the automobile’s glove compartment. After Officer arrested Driver and Passenger, Officer searched the car and found the gun. Although the facts do not explicitly say so, it is reasonable to assume that Driver and Passenger were no longer in the automobile after they were arrested and while Officer conducted the search. There is no evidence that Officer suspected either arrestee to be armed and therefore, because Officer did not have probable cause to suspect that evidence or contraband would be found in the automobile, Officer could not continue to search it. The gun will not be admissible at trial and may not be used to support an indictment for criminal possession of a weapon. Therefore, there is insufficient evidence available to the grand jury to support the charge of criminal possession of a weapon.

…

Despite my pro-defense bias I figured the cops would justify the car search as a search for evidence of the crime of possession of stolen property. E.g. they want to check the glovebox for a registration in another person's name, or search for contraband of auto theft, like tools used to break into cars.

Note that even if that rationale worked, it would be pretty tenuous vis-a-vis the trunk. BUT if they had PC to search for registration to get to the glovebox, seeing the gun could give them cause to search the trunk too.

[dudeman2014]

Yeah I mean I just picked that up from here:
http://legal-dictionary.thefreedictiona ... Bargaining

"When a prosecutor or defendant revokes a plea agreement, the statements made during the bargaining period are not admissible against the defendant in a subsequent trial. This rule is designed to foster free and open negotiations. There are, however, notable exceptions. The rule applies only to prosecutors: a defendant's statements to government agents are admissible. Furthermore, a prosecutor may use statements made by the defendant during plea negotiations at a subsequent trial to impeach the defendant's credibility after the defendant testifies."

Have no idea if it's even correct

I am pretty sure this is true, and what's more, I think if you testify, they can even use statements to impeach you that would normally be impermissible under Miranda.

Basically, if you are defendant, you never want to testify, because all bets are off at that point.

[locusdelicti]

Feeling a little directionless right now.

[elysiansmiles]

I just realized that tomorrow night I need to head to my hotel. Now I am officially freaking out.

[dsclaw]

Anyone else feel like they still do not know everything and yet also feel like they know enough? Weird feeling

[BarbellDreams]

Idk, I absolutely don't know everything, but I am a pretty good writer so I think I can BS my way out of it in the essays and the MBE subjects I know well enough to pass.

As I always say: Something will happen, one way or another, so there is no point in freaking out.

[dsclaw]

Not worried about the MBE at all, however there is a little worry about the NY essay portion. I am fine with some areas, but other areas there are so many distinctions that I know I am going to wind up applying a compound rule of NY and the federal rule. This is specifically in regards to Evidence. The Criminal Law standard for insanity and the the elements to get out of a solicitation, conspiracy and felony murder.

Also have a little bit of a worry about Commercial Paper and Secured Transactions... Other then that I am pretty confident.

Luckily you only have to be average to pass this exam and I have a feeling multiple people will have issues with atleast secured transactions and commercial paper.