Themis Bar Review Hangout - July 2016 Forum

[Easy-E]

Those who did secured transactions essay #2454, did you talk about whether Banks interest was attached/perfected? The model answer just assumes it, which seems fine I guess, but it seemed worth discussing.

My state has its own state-specific essay, So I can't answer your question, but just wanted to share my general frustration on this topic. I never know when we are supposed to completely lay out the elements for some stuff. Like in contracts- do we have to go over offer, acceptance, consideration every time? Themis doesnt always. I looked at the model answers- my state bar has some 10-point answers available- and in certain situations they don't.

Likewise, for questions that involve agents- sometimes you have to explain why they are an agent, and sometimes its given.

Honestly, I think you have to just take the contextual clues- what does the problem seem to be focusing on? That being said, IMO, if you size up the question,and you feel like it wont be a long one- might as well throw in the definitions and really hit everything. Explaining unncessary stuff isn't oging to hurt you as long as you maintain good time.

That being said, I share your frustration on that point.

Yeah this kinda goes back to what I asked about that civ pro question. Sometimes the model answers include all this foundation stuff, sometimes they don't. If it seems like that's the main issue, or I have time, I'll cover it. But if an essay says "A & B previously entered into a valid, written contract for..." I'm not going to bother saying "Hey FYI that valid written contract had O+A+C of course, just saying".

[Hmasterflex]

Just got totally themed.

"Bernard and Beulah are considering forming a corporation, general partnership, LLP, and LLC. Which would you suggest?"


...Proceeds to discuss LPs

Ahh the classic self-theme. I've done that many a time.

No, the model answer talked about LPs. I didn't lol

[Hmasterflex]

Those who did secured transactions essay #2454, did you talk about whether Banks interest was attached/perfected? The model answer just assumes it, which seems fine I guess, but it seemed worth discussing.

My state has its own state-specific essay, So I can't answer your question, but just wanted to share my general frustration on this topic. I never know when we are supposed to completely lay out the elements for some stuff. Like in contracts- do we have to go over offer, acceptance, consideration every time? Themis doesnt always. I looked at the model answers- my state bar has some 10-point answers available- and in certain situations they don't.

Likewise, for questions that involve agents- sometimes you have to explain why they are an agent, and sometimes its given.

Honestly, I think you have to just take the contextual clues- what does the problem seem to be focusing on? That being said, IMO, if you size up the question,and you feel like it wont be a long one- might as well throw in the definitions and really hit everything. Explaining unncessary stuff isn't oging to hurt you as long as you maintain good time.

That being said, I share your frustration on that point.

Yeah this kinda goes back to what I asked about that civ pro question. Sometimes the model answers include all this foundation stuff, sometimes they don't. If it seems like that's the main issue, or I have time, I'll cover it. But if an essay says "A & B previously entered into a valid, written contract for..." I'm not going to bother saying "Hey FYI that valid written contract had O+A+C of course, just saying".

I think it depends on the facts. For example, if in ST we're talking about how a debtor/obligor entity changed its name, you probably wouldnt want to just jump in and explain that the secured party has to update its financing statement w/in 4 months (although you could). You would probably start with the explanation that an accurate name is required to establish priority and put others on notice.

How in-depth you go is a matter of preference. Different states look for different levels of explanation.

[rambleon65]

Those who did secured transactions essay #2454, did you talk about whether Banks interest was attached/perfected? The model answer just assumes it, which seems fine I guess, but it seemed worth discussing.

My state has its own state-specific essay, So I can't answer your question, but just wanted to share my general frustration on this topic. I never know when we are supposed to completely lay out the elements for some stuff. Like in contracts- do we have to go over offer, acceptance, consideration every time? Themis doesnt always. I looked at the model answers- my state bar has some 10-point answers available- and in certain situations they don't.

Likewise, for questions that involve agents- sometimes you have to explain why they are an agent, and sometimes its given.

Honestly, I think you have to just take the contextual clues- what does the problem seem to be focusing on? That being said, IMO, if you size up the question,and you feel like it wont be a long one- might as well throw in the definitions and really hit everything. Explaining unncessary stuff isn't oging to hurt you as long as you maintain good time.

That being said, I share your frustration on that point.

Yeah this kinda goes back to what I asked about that civ pro question. Sometimes the model answers include all this foundation stuff, sometimes they don't. If it seems like that's the main issue, or I have time, I'll cover it. But if an essay says "A & B previously entered into a valid, written contract for..." I'm not going to bother saying "Hey FYI that valid written contract had O+A+C of course, just saying".

What I'm going to do with those foundational questions, after a sentence on the facts, is, "nothing in the facts suggest that there was an issue with contract formation." (This is assuming there really isn't anything wrong it.) Better to get points on the actual issues they're looking for. If you have time remaining, you can always go back and add more beef to these foundational analysis, but get the real points first.

[unidentifiable]

has anyone else sort of stopped studying?

like, just light review, but more relaxation than studying?

[1down1togo]

What exactly is the black letter rule that everyone uses for minimum contacts. Like, i understand what they are, but what is the literal language that you all use? Themis, for my state essays anyway, seems to use a different definition everytime.

Most of the time it states that minimum contacts requires:
(1) That d's contacts with the state be purposeful and substantial that the D could reasonably foresee being drawn into court there AND
(2) that litigating the case there would not offend traditional notions of fair play and substantial justice.

Sometimes it only says (1) is needed. Even when it says (2) is needed, however, it never actually APPLIES IT- it just has the second part in the rule statement and then proceeds to only apply (1).

So, what exactly is the black letter law you all use for Minimum contacts?

[ellewoods123]

has anyone else sort of stopped studying?

like, just light review, but more relaxation than studying?

me. gotta stay calm. not tryin to find a lot of things I realize I don't know at this point. not worth it for my mental state

[ChocolateTruffle]

has anyone else sort of stopped studying?

like, just light review, but more relaxation than studying?

Since like two days ago, I'm awful Feeling really nervous and panicked now. I think I've made a huge mistake.

[unidentifiable]

has anyone else sort of stopped studying?

like, just light review, but more relaxation than studying?

me. gotta stay calm. not tryin to find a lot of things I realize I don't know at this point. not worth it for my mental state

cool, glad i'm not the only one

[unidentifiable]

has anyone else sort of stopped studying?

like, just light review, but more relaxation than studying?

Since like two days ago, I'm awful Feeling really nervous and panicked now. I think I've made a huge mistake.

Nah, we good. This shit is deep in our brains. We've learned the language enough to be semi-fluent, that's all that matters.

Definitely going to light review tomorrow, and probably Monday too, just to keep it fresh. But I think everything is cool (i really hope).

[ndp1234]

has anyone else sort of stopped studying?

like, just light review, but more relaxation than studying?

Me definitely. I'm at 99% right now with just review tasks left. My brain has just stopped absorbing. Watching telenovelas right now and reading TLS. I will do some light review of the MEE topics tomorrow. But probably nothing on Monday

[Hmasterflex]

As an out-of-state taker in TX, i'm paranoid about the amount of topics and am still going hard in the paint.

Ill probably go hard until Monday early afternoon

[Fivedham]

has anyone else sort of stopped studying?

like, just light review, but more relaxation than studying?

All I can muster up is doing some AdaptiBar Qs, outlining some of my remaining essays, and going over the handouts/Critical Pass cards. I did 150 MBE questions today, and I do feel like I'm peaking, so hopefully that carries through. My essay memorization is off though. But whatever, I'm aiming for a minimum of 12/20 on everything, which seems doable just by bullshit alone.

[NoLongerALurker]

Im confused what MEE essays are scored out of. Is it 6 essays scored out of 20 each, then 2 MPT's out of 40 each, then the MBE is 190 graded Q's scaled up to 200?

[Pulsar]

I'm at 59% completion (started in late June; long story). Taking the Illinois bar. Took the practice MBE and got a 77% on the first 100 and a 72% on the second 100. Am I screwed? Anyone know how the real MBE compares to the Themis one in terms of difficulty?

[rambleon65]

I'm at 59% completion (started in late June; long story). Taking the Illinois bar. Took the practice MBE and got a 77% on the first 100 and a 72% on the second 100. Am I screwed? Anyone know how the real MBE compares to the Themis one in terms of difficulty?

You're taking a fairly high-passage-rate bar and you have a great score already. Bust ass for the next few days, and you'll be fine. (most everyone on this thread, likely including me, are overkill at this point)

[1down1togo]

What exactly is the black letter rule that everyone uses for minimum contacts? Like, i understand what they are, but what is the literal language that you all use? Themis, for my state essays anyway, seems to use a different definition everytime.

Most of the time it states that minimum contacts requires:
(1) That d's contacts with the state be purposeful and substantial that the D could reasonably foresee being drawn into court there AND
(2) that litigating the case there would not offend traditional notions of fair play and substantial justice.

Sometimes it only says (1) is needed. Even when it says (2) is needed, however, it never actually APPLIES IT- it just has the second part in the rule statement and then proceeds to only apply (1).

So, what exactly is the black letter law you all use for Minimum contacts?

ANyone???

[WinSome]

What exactly is the black letter rule that everyone uses for minimum contacts? Like, i understand what they are, but what is the literal language that you all use? Themis, for my state essays anyway, seems to use a different definition everytime.

Most of the time it states that minimum contacts requires:
(1) That d's contacts with the state be purposeful and substantial that the D could reasonably foresee being drawn into court there AND
(2) that litigating the case there would not offend traditional notions of fair play and substantial justice.

Sometimes it only says (1) is needed. Even when it says (2) is needed, however, it never actually APPLIES IT- it just has the second part in the rule statement and then proceeds to only apply (1).

So, what exactly is the black letter law you all use for Minimum contacts?

ANyone???

I use (1) purposeful availment/foreseeable (2) fair play and substantial justice. Basically what you said. For the second prong, there's actual factors you can use from some SCOTUS cases, but I prefer just to kind of look if it would be fair because it seems like that's all the bar examiners want. If you're interested the factors you should use are burden on D, forum state's interest, P's interest in a convenient forum, interstate judicial system's interest in efficiency, and the shared interest of several states for social policies. Most of the time, the last two factors are not useful. Additionally, in my state at least, the bar examiners care more about state distinctions, so they really want you to use their long-arm statute for PJ and the constitutional issues are more of an afterthought. This could be different if your state's long-arm is to the extent of the Constitution.

[1down1togo]

What exactly is the black letter rule that everyone uses for minimum contacts? Like, i understand what they are, but what is the literal language that you all use? Themis, for my state essays anyway, seems to use a different definition everytime.

Most of the time it states that minimum contacts requires:
(1) That d's contacts with the state be purposeful and substantial that the D could reasonably foresee being drawn into court there AND
(2) that litigating the case there would not offend traditional notions of fair play and substantial justice.

Sometimes it only says (1) is needed. Even when it says (2) is needed, however, it never actually APPLIES IT- it just has the second part in the rule statement and then proceeds to only apply (1).

So, what exactly is the black letter law you all use for Minimum contacts?

ANyone???

I use (1) purposeful availment/foreseeable (2) fair play and substantial justice. Basically what you said. For the second prong, there's actual factors you can use from some SCOTUS cases, but I prefer just to kind of look if it would be fair because it seems like that's all the bar examiners want. If you're interested the factors you should use are burden on D, forum state's interest, P's interest in a convenient forum, interstate judicial system's interest in efficiency, and the shared interest of several states for social policies. Most of the time, the last two factors are not useful. Additionally, in my state at least, the bar examiners care more about state distinctions, so they really want you to use their long-arm statute for PJ and the constitutional issues are more of an afterthought. This could be different if your state's long-arm is to the extent of the Constitution.

thanks!

[ChocolateTruffle]

I feel stupid asking this question just two days before the exam. But are employees not in privity with their employers? I always thought they were. I ask because of this question:

[+] Spoiler

A CEO sued a catering company in federal district court under diversity jurisdiction for injuries resulting from the company’s alleged negligence in serving undercooked chicken at a business conference. Prior to trial, the judge granted the CEO’s motion for summary judgment, finding that a chef employed by the catering company had been negligent in preparing the chicken, and that the company was vicariously liable for the chef’s negligence. The catering company was only able to pay half the value of the judgment before filing for bankruptcy and dissolving. If the CEO subsequently sues the chef in the same federal court, will collateral estoppel preclude the chef from litigating his own negligence?

Answers:

No, because collateral estoppel cannot be used offensively.
Correct Answer: No, because the chef was not a party to the original action.
Yes, because issue preclusion does not require strict mutuality of parties.
You Selected: Yes, because the determination of the chef’s negligence was essential to the original judgment.

Rationale:

Answer choice B is correct. Collateral estoppel (or issue preclusion) requires that the party against whom the issue is to be precluded was a party to the original action or in privity with that party. Because the chef was not a party to the prior action, collateral estoppel cannot apply here with regard to the issue of the chef’s negligence. Answer choice A is incorrect. Although the offensive use of collateral estoppel is subject to restrictions, offensive use of collateral estoppel is not prohibited. Answer choice C is incorrect because, although issue preclusion does not require strict mutuality of parties, it does require that the party who is to be collaterally estopped (here, the chef) was a party to the original action or in privity with that party. Answer choice D is incorrect. Although the determination of an issue must have been essential to the prior judgment in order for collateral estoppel to apply with respect to that issue in the current case, and that requirement is met here, the requirement that the person who is collaterally estopped be a party to the original action or in privity with that party is not met.

[1down1togo]

I feel stupid asking this question just two days before the exam. But are employees not in privity with their employers? I always thought they were. I ask because of this question:

[+] Spoiler

A CEO sued a catering company in federal district court under diversity jurisdiction for injuries resulting from the company’s alleged negligence in serving undercooked chicken at a business conference. Prior to trial, the judge granted the CEO’s motion for summary judgment, finding that a chef employed by the catering company had been negligent in preparing the chicken, and that the company was vicariously liable for the chef’s negligence. The catering company was only able to pay half the value of the judgment before filing for bankruptcy and dissolving. If the CEO subsequently sues the chef in the same federal court, will collateral estoppel preclude the chef from litigating his own negligence?

Answers:

No, because collateral estoppel cannot be used offensively.
Correct Answer: No, because the chef was not a party to the original action.
Yes, because issue preclusion does not require strict mutuality of parties.
You Selected: Yes, because the determination of the chef’s negligence was essential to the original judgment.

Rationale:

Answer choice B is correct. Collateral estoppel (or issue preclusion) requires that the party against whom the issue is to be precluded was a party to the original action or in privity with that party. Because the chef was not a party to the prior action, collateral estoppel cannot apply here with regard to the issue of the chef’s negligence. Answer choice A is incorrect. Although the offensive use of collateral estoppel is subject to restrictions, offensive use of collateral estoppel is not prohibited. Answer choice C is incorrect because, although issue preclusion does not require strict mutuality of parties, it does require that the party who is to be collaterally estopped (here, the chef) was a party to the original action or in privity with that party. Answer choice D is incorrect. Although the determination of an issue must have been essential to the prior judgment in order for collateral estoppel to apply with respect to that issue in the current case, and that requirement is met here, the requirement that the person who is collaterally estopped be a party to the original action or in privity with that party is not met.

That confuses me because I feel like I recently got an estoppel question wrong because I though they were not in privity and the answer seemed to indicate that they were in privity.

[ndp1234]

I feel stupid asking this question just two days before the exam. But are employees not in privity with their employers? I always thought they were. I ask because of this question:

[+] Spoiler

A CEO sued a catering company in federal district court under diversity jurisdiction for injuries resulting from the company’s alleged negligence in serving undercooked chicken at a business conference. Prior to trial, the judge granted the CEO’s motion for summary judgment, finding that a chef employed by the catering company had been negligent in preparing the chicken, and that the company was vicariously liable for the chef’s negligence. The catering company was only able to pay half the value of the judgment before filing for bankruptcy and dissolving. If the CEO subsequently sues the chef in the same federal court, will collateral estoppel preclude the chef from litigating his own negligence?

Answers:

No, because collateral estoppel cannot be used offensively.
Correct Answer: No, because the chef was not a party to the original action.
Yes, because issue preclusion does not require strict mutuality of parties.
You Selected: Yes, because the determination of the chef’s negligence was essential to the original judgment.

Rationale:

Answer choice B is correct. Collateral estoppel (or issue preclusion) requires that the party against whom the issue is to be precluded was a party to the original action or in privity with that party. Because the chef was not a party to the prior action, collateral estoppel cannot apply here with regard to the issue of the chef’s negligence. Answer choice A is incorrect. Although the offensive use of collateral estoppel is subject to restrictions, offensive use of collateral estoppel is not prohibited. Answer choice C is incorrect because, although issue preclusion does not require strict mutuality of parties, it does require that the party who is to be collaterally estopped (here, the chef) was a party to the original action or in privity with that party. Answer choice D is incorrect. Although the determination of an issue must have been essential to the prior judgment in order for collateral estoppel to apply with respect to that issue in the current case, and that requirement is met here, the requirement that the person who is collaterally estopped be a party to the original action or in privity with that party is not met.

That confuses me because I feel like I recently got an estoppel question wrong because I though they were not in privity and the answer seemed to indicate that they were in privity.

To my understanding, privity in the preclusion context means when the interests are aligned together to be identical or almost identical (i.e. if the chef and the catering company were co-owners) Here, the relationship is merely employment, not a co-interest in the same thing. Employers are almost always going to have adverse interests to mere employees, so it would be unfair to identify them as in a privity relationship. For preclusion, I just analyze the fairness of the transaction if I have it down to 2 responses after applying the elements. Hope this helps!

[ChocolateTruffle]

I feel stupid asking this question just two days before the exam. But are employees not in privity with their employers? I always thought they were. I ask because of this question:

[+] Spoiler

A CEO sued a catering company in federal district court under diversity jurisdiction for injuries resulting from the company’s alleged negligence in serving undercooked chicken at a business conference. Prior to trial, the judge granted the CEO’s motion for summary judgment, finding that a chef employed by the catering company had been negligent in preparing the chicken, and that the company was vicariously liable for the chef’s negligence. The catering company was only able to pay half the value of the judgment before filing for bankruptcy and dissolving. If the CEO subsequently sues the chef in the same federal court, will collateral estoppel preclude the chef from litigating his own negligence?

Answers:

No, because collateral estoppel cannot be used offensively.
Correct Answer: No, because the chef was not a party to the original action.
Yes, because issue preclusion does not require strict mutuality of parties.
You Selected: Yes, because the determination of the chef’s negligence was essential to the original judgment.

Rationale:

Answer choice B is correct. Collateral estoppel (or issue preclusion) requires that the party against whom the issue is to be precluded was a party to the original action or in privity with that party. Because the chef was not a party to the prior action, collateral estoppel cannot apply here with regard to the issue of the chef’s negligence. Answer choice A is incorrect. Although the offensive use of collateral estoppel is subject to restrictions, offensive use of collateral estoppel is not prohibited. Answer choice C is incorrect because, although issue preclusion does not require strict mutuality of parties, it does require that the party who is to be collaterally estopped (here, the chef) was a party to the original action or in privity with that party. Answer choice D is incorrect. Although the determination of an issue must have been essential to the prior judgment in order for collateral estoppel to apply with respect to that issue in the current case, and that requirement is met here, the requirement that the person who is collaterally estopped be a party to the original action or in privity with that party is not met.

That confuses me because I feel like I recently got an estoppel question wrong because I though they were not in privity and the answer seemed to indicate that they were in privity.

To my understanding, privity in the preclusion context means when the interests are aligned together to be identical or almost identical (i.e. if the chef and the catering company were co-owners) Here, the relationship is merely employment, not a co-interest in the same thing. Employers are almost always going to have adverse interests to mere employees, so it would be unfair to identify them as in a privity relationship. For preclusion, I just analyze the fairness of the transaction if I have it down to 2 responses after applying the elements. Hope this helps!

It does, thank you!

[mu13ski]

Anyone else feel that the last couple of Mixed MBE sets were much more "in the weeds" and not necessarily big picture?

[Easy-E]

Anyone here do corporations essay #3406? Involved the Model Business Corporation Act?