Themis Bar Review Hangout - July 2014 Exam Forum

[dtl]

Let's say A and B conspire to steal money. They then steal the money and are both guilty of larceny. Now let's say A tells B, "Hold on to my share, please." B ends up stealing A's share. Why is B's crime against A larceny rather than embezzlement? Is it impossible for B to be in "lawful possession" of A's property under these facts? I've tended to think of embezzlement as taking money/things that you've been given permission to hold (absent fraud/trickery), which seems satisfied here.

It is conversion when you are given legal possession, or "given to you in trust, or belonging to your employer." It refers to stealing the title from the person who entrusted you with its possession for whatever reason.

So if A owns the money, but gives it to B to go to the store and buy him some cigarettes, and B flees the state, it is embezzlement. A had the entire bundle of rights on the money, gave a 'license' to possess to B for a particular purpose, and B used the opportunity to convert it entirely.

But if the money was stolen, A did not have legal title to the money in the first place. So it satisfies larceny, but not embezzlement.

I guess if the situations were *really* attenuated a court might see it as embezzlement. A stole the money X years ago, and for all intents and purposes has title, or at least some sort of color of title.

Edit: I changed some stuff, but then saw I was quoted below, so reverted it.

[Lasers]

Let's say A and B conspire to steal money. They then steal the money and are both guilty of larceny. Now let's say A tells B, "Hold on to my share, please." B ends up stealing A's share. Why is B's crime against A larceny rather than embezzlement? Is it impossible for B to be in "lawful possession" of A's property under these facts? I've tended to think of embezzlement as taking money/things that you've been given permission to hold (absent fraud/trickery), which seems satisfied here.

It is conversion when you are given legal possession, or "given to you in trust, or belonging to your employer." It refers to stealing the title from the person who entrusted you with its possession for whatever reason.

So if A owns the money, but gives it to B to go to the store and buy him some cigarettes, and B flees the state, it is embezzlement. A had the entire bundle of rights on the money, gave a 'license' to possess to B for a particular purpose, and B used the opportunity to convert it entirely.

But if the money was stolen, A did not have legal title to the money in the first place. So it satisfies larceny, but not embezzlement.

I guess if the situations were *really* attenuated a court might see it as embezzlement. A stole the money X years ago, and for all intents and purposes has title, or at least some sort of color of title.

on a somewhat unrelated note: i saw a difficult barbri question about a truck driver with lawful possession of a trailer. the driver went into the trailer and then broke bulk by taking a single wine bottle out. the act of taking that bottle out was larceny, not embezzlement, which i can sort of justify, but not totally understand. lawful possession of a trailer does not give lawful possession to an individual item? i'm not sure, but i hope the actual test doesn't get that attenuated.

[dtl]

on a somewhat unrelated note: i saw a difficult barbri question about a truck driver with lawful possession of a trailer. the driver went into the trailer and then broke bulk by taking a single wine bottle out. the act of taking that bottle out was larceny, not embezzlement, which i can sort of justify, but not totally understand. lawful possession of a trailer does not give lawful possession to an individual item? i'm not sure, but i hope the actual test doesn't get that attenuated.

I think the big thing is that the bottles were entrusted to the truck driver for the purpose of transporting them, and he broke that trust.

I think of it as embezzlement is grounded in fraudulent conduct when legally entrusted with something. Whenever I see a employer-employee, professional-client or spousal relationship my ears perk up to the possibility of it being embezzlement. So far that has gone over pretty well on practice MBE questions and such, but I am not sure if its the right way to look at it.

[Lasers]

on a somewhat unrelated note: i saw a difficult barbri question about a truck driver with lawful possession of a trailer. the driver went into the trailer and then broke bulk by taking a single wine bottle out. the act of taking that bottle out was larceny, not embezzlement, which i can sort of justify, but not totally understand. lawful possession of a trailer does not give lawful possession to an individual item? i'm not sure, but i hope the actual test doesn't get that attenuated.

I think the big thing is that the bottles were entrusted to the truck driver for the purpose of transporting them, and he broke that trust.

I think of it as embezzlement is grounded in fraudulent conduct when legally entrusted with something. Whenever I see a employer-employee, professional-client or spousal relationship my ears perk up to the possibility of it being embezzlement. So far that has gone over pretty well on practice MBE questions and such, but I am not sure if its the right way to look at it.

i can see it, but breaking the trust almost seems to imply it should be embezzlement, not larceny. maybe it's something to do with scope? like if you steal it outside the scope of your lawful possession, then it's larceny rather than embezzlement?

[klbisho4]

A seller agreed to sell and a buyer agreed to buy a described lot on which a single-family residence had been built. Under the contract, the seller agreed to convey marketable title subject only to conditions, covenants, and restrictions of record and all applicable zoning laws and ordinances. The lot was subject to a 10-foot side line setback originally set forth in the developer's duly recorded subdivision plot. The applicable zoning ordinance zones the property for single-family units and requires an 8.5-foot side line setback. Prior to closing, a survey of the property was made. It revealed that a portion of the seller's house was 8.4 feet from the side line. The buyer refused to consummate the transaction on the ground that the seller's title is not marketable. In an appropriate action, the seller seeks specific performance.

Who will prevail in such an action?
A. The seller, because any suit against the buyer concerning the setback would be frivolous.
B. The seller, because the setback violation falls within the doctrine de minimis non curat lex.
C. The buyer, because any variation, however small, amounts to a breach of contract.
D. The buyer, because the fact that the buyer may be exposed to litigation is sufficient to make the title unmarketable.

This is what I hate about Themis questions. They bust out with legal phrases that are never used anywhere in the outlines or lectures, and expect us to just be like, oh yea when I was at Hogwarts Law School, I totally learned that spell.

*waves wand* De minimis non curat lex!

FYI this is not a Themis question. It's a released NCBE question because I just got it on my Adaptibar practice questions. I do agree however, that Themis writes the most absurd answers.

[dtl]

i can see it, but breaking the trust almost seems to imply it should be embezzlement, not larceny. maybe it's something to do with scope? like if you steal it outside the scope of your lawful possession, then it's larceny rather than embezzlement?

Oh I actually misread and thought BarBri had it as embezzlement. In that case, I am not sure. I guess if the question stated he only had possession of the trailer, and had no right to open it, then it would be larceny?

I do not know.

[iLoveFruits&Veggies]

I'm scared to death of CA essays. I just know that they will throw in some weird stuff and make some of the essays really hard. I just hope I will be calm enough to give a passing answer. And I've been neglecting MBE for the essays and now all this talk of people's MBE score going down...

I feel like I'm going to freeze and forget what little I know. I'm just going to sit there and have nothing to say. I think at this point, the only chance I have of passing is if the essays are: evidence, crim & crim pro, agency/partnerships/corporations, contracts, professional responsibility and maybe a really easy wills/trusts question... with obvious issues and nothing sneaky or rarely tested! And I'll need a very nice grader too!! If I don't get ALL of that, I'll be facing the first round of CA Civ Pro on the MBEs in Feb 2015!! BLAH!!!

[Gotti]

So in my Real Property outline (page 12), it says "There is no right to reimbursement from co-tenants for necessary repairs. The co-tenant who makes the repairs can get credit in a partition."

My boyfriend's barbri outline says: "A co-tenant that pays more than her pro rata share for necessary repairs is entitled to contribution from the other co-tenants provided that she notifies them of the need of the repair."


So......?

[094320]

..

[Gotti]

So in my Real Property outline (page 12), it says "There is no right to reimbursement from co-tenants for necessary repairs. The co-tenant who makes the repairs can get credit in a partition."

My boyfriend's barbri outline says: "A co-tenant that pays more than her pro rata share for necessary repairs is entitled to contribution from the other co-tenants provided that she notifies them of the need of the repair."


So......?

I think it's something like you have to notify them of the repairs for contribution. If you don't, no contribution, but you can get credit in a partition.

Oh that makes more sense. But still, that's not a very clear description on Themis' part

[Gotti]

Oh and going back to the whole felony murder discussion, I think someone said that kaplan AND barbri people think they don't "merge" (or whatever the term is). I just found a kaplan question explanation saying the exact opposite-- "In order for one to be found guilty of murder under the felony-murder rule, he must also be found guilty of the underlying felony."

Just putting that out there.

[iLoveFruits&Veggies]

Oh and going back to the whole felony murder discussion, I think someone said that kaplan AND barbri people think they don't "merge" (or whatever the term is). I just found a kaplan question explanation saying the exact opposite-- "In order for one to be found guilty of murder under the felony-murder rule, he must also be found guilty of the underlying felony."

Just putting that out there.

Finding differences in "model" answers too! Driving me batty. The only positive note is maybe, just maybe, they think more than one format is OK - and MAYBE different rules are OK too if your analysis is good. One would think though for something as big as felony murder, everyone would be on the same page!

[ioezeigbo]

Hey guys,
Hope final round of studying is going well. I have a substantive law Q about assignments and sublets for those of you who get property lol

In the Themis Outline (pg 24 of Real Property), it states that "sublesser is not in privity of estate or contract with the landlord." .
However, my Critical Pass flashcards state the opposite (that the sublessor is in privity of estate and contract with the landlord, and I have also seen explanatory Qs that state the same rule (that sublessor is in privity with landlord). I have been stumped on a few landlord-tenant Qs in this final stretch, so was wondering if anyone has (i) noticed the disparity and (ii) could clarify. Landlord-tenant is one of the few facets of property that make sense to me so I just want to make sure I get the right rules down. Thanks!

[iLoveFruits&Veggies]

Hey guys,
Hope final round of studying is going well. I have a substantive law Q about assignments and sublets for those of you who get property lol

In the Themis Outline (pg 24 of Real Property), it states that "sublesser is not in privity of estate or contract with the landlord." .
However, my Critical Pass flashcards state the opposite (that the sublessor is in privity of estate and contract with the landlord, and I have also seen explanatory Qs that state the same rule (that sublessor is in privity with landlord). I have been stumped on a few landlord-tenant Qs in this final stretch, so was wondering if anyone has (i) noticed the disparity and (ii) could clarify. Landlord-tenant is one of the few facets of property that make sense to me so I just want to make sure I get the right rules down. Thanks!

I understood it to be that if the assignment is for the duration of the original lease, then there is privity. The original tenant is leaving and not coming back. But let's say it's a 6 month lease, and the tenant is only subleasing it out for the 3rd and 4th month, then returning for the last two months, then there's no privity between the landlord and the subleaser. The original tenant is still on the hook, and the landlord can't go after the person who was only there for 2 months in the middle of the lease. Again, I'm definitely not the smartest one on here and feeling DOOMED for the CA Bar, so feel free to jump in with other advice if you have it, y'all

[yips]

Hey guys,
Hope final round of studying is going well. I have a substantive law Q about assignments and sublets for those of you who get property lol

In the Themis Outline (pg 24 of Real Property), it states that "sublesser is not in privity of estate or contract with the landlord." .
However, my Critical Pass flashcards state the opposite (that the sublessor is in privity of estate and contract with the landlord, and I have also seen explanatory Qs that state the same rule (that sublessor is in privity with landlord). I have been stumped on a few landlord-tenant Qs in this final stretch, so was wondering if anyone has (i) noticed the disparity and (ii) could clarify. Landlord-tenant is one of the few facets of property that make sense to me so I just want to make sure I get the right rules down. Thanks!

The Themis outline actually says "sublessee is not in privity of estate or contract with the landlord," which is correct.

The CP card says that the sublessor is in privity of estate and contract, meaning the relationship between that person (i.e., the original tenant) and the landlord is unchanged. This is also correct.

Taken together: sublessor (original tenant) remains in privity of both estate and contract with the landlord. Sublessee is not in privity at all.

[Gotti]

I don't understand why Themis can't internally mark questions you've done as "DONE" instead of the same questions appearing again and again and again. I hate their portal.

[ConsiderMeMilesDavis]

sometimes I will just sit there and try to think of everything I know about a subject (which is probably not a good idea without a fact pattern) and just draw an absolute blank...simple concepts and rules starting to blur together...is voluntary intoxication a defense to a inverse commerce clause attack if the defendant sends confirming memo?

I feel like I peaked a few days ago with MBE material (high 70's/low 80's on mixed-50), but now feel like I'm losing ground/steam/sanity fast as I try to make up ground on state specific law. SHIT.

[Bildungsroman]

Oh and going back to the whole felony murder discussion, I think someone said that kaplan AND barbri people think they don't "merge" (or whatever the term is). I just found a kaplan question explanation saying the exact opposite-- "In order for one to be found guilty of murder under the felony-murder rule, he must also be found guilty of the underlying felony."

Just putting that out there.

I missed this discussion earlier, but the underlying felony is definitely a lesser included offense in the felony murder. Every element necessary to convict of the underlying felony is also necessary to convict of felony murder, so they fail the Blockburger test. The result is that you can't be tried for felony murder if you've already been acquitted of the underlying felony, and you can't be convicted of both felony murder and the underlying felony. I looked at the earlier discussion in this thread and I disagree with the theory put forth that there is some conviction/sentencing bifurcation that allows conviction for both the felony and the felony murder but that prevents sentencing based on both. The bar is on conviction for lesser included offenses, not just punishment for lesser included offenses.

Having not seen the original question, my guess is that the Kaplan explanation you've quoted is just being inartful and saying "be found guilty of the underlying felony" when they really should be saying "satisfy all of the elements of the underlying felony" or "be capable of being found guilty of the underlying felony" or something like that.


Edit: And now, having done some more MBE practice questions, I am even more convinced of this. For example, question # 3082 involves a death that occurs during the commission of arson. The correct answer is that the defendant can be convicted of either arson or murder, but not both, because arson merges with felony murder and the defendant "can only be convicted of one or the other." Question 4242 had a similar background (robber accidentally discharges gun during robbery and kills clerk; what liability for accomplice?) and the same answer (merger means the crime is only felony murder, not murder and attempted robbery).

[iLoveFruits&Veggies]

sometimes I will just sit there and try to think of everything I know about a subject (which is probably not a good idea without a fact pattern) and just draw an absolute blank...simple concepts and rules starting to blur together...is voluntary intoxication a defense to a inverse commerce clause attack if the defendant sends confirming memo?

I feel like I peaked a few days ago with MBE material (high 70's/low 80's on mixed-50), but now feel like I'm losing ground/steam/sanity fast as I try to make up ground on state specific law. SHIT.

Yep. Definitely experiencing the losing my mind thing going on here... suddenly the more I study the less I know... just hoping that it's all stored in my brain somewhere and will reveal itself again during the exam, because right now, it really feels like I don't know anything but random gibberish. Felt smarter a week ago. Ugh. Someone needs to do a doctoral thesis on the psychological & physical impact of the preparation and undertaking of the Bar Exam. Good Luck Everyone!!!

[FlanAl]

anyone practice making up law for an essay where they have no idea what the law is? I feel like I might have to do this on test day, but really don't feel like I'll be good at it. Making up law and analyzing it is what we're supposed to do right? I haven't watched the essay advice video in a while.

[Gopackgo2010]

anyone practice making up law for an essay where they have no idea what the law is? I feel like I might have to do this on test day, but really don't feel like I'll be good at it. Making up law and analyzing it is what we're supposed to do right? I haven't watched the essay advice video in a while.

That's what I would do.

[Gopackgo2010]

Oh and going back to the whole felony murder discussion, I think someone said that kaplan AND barbri people think they don't "merge" (or whatever the term is). I just found a kaplan question explanation saying the exact opposite-- "In order for one to be found guilty of murder under the felony-murder rule, he must also be found guilty of the underlying felony."

Just putting that out there.

I missed this discussion earlier, but the underlying felony is definitely a lesser included offense in the felony murder. Every element necessary to convict of the underlying felony is also necessary to convict of felony murder, so they fail the Blockburger test. The result is that you can't be tried for felony murder if you've already been acquitted of the underlying felony, and you can't be convicted of both felony murder and the underlying felony. I looked at the earlier discussion in this thread and I disagree with the theory put forth that there is some conviction/sentencing bifurcation that allows conviction for both the felony and the felony murder but that prevents sentencing based on both. The bar is on conviction for lesser included offenses, not just punishment for lesser included offenses.

Having not seen the original question, my guess is that the Kaplan explanation you've quoted is just being inartful and saying "be found guilty of the underlying felony" when they really should be saying "satisfy all of the elements of the underlying felony" or "be capable of being found guilty of the underlying felony" or something like that.


Edit: And now, having done some more MBE practice questions, I am even more convinced of this. For example, question # 3082 involves a death that occurs during the commission of arson. The correct answer is that the defendant can be convicted of either arson or murder, but not both, because arson merges with felony murder and the defendant "can only be convicted of one or the other." Question 4242 had a similar background (robber accidentally discharges gun during robbery and kills clerk; what liability for accomplice?) and the same answer (merger means the crime is only felony murder, not murder and attempted robbery).

Are you by chance referring to that arson question in one of the mixed sets where the guy drives into the gas pump with his car and it explodes, and the gas station and the clerk's apartment above the gas station catches on fire killing the clerk? I have to check, but I believe that one said he could be convicted of both arson and murder. I got it right since I thought in that case it was Depraved Heart and Arson, which is different from Felony Murder and Arson, on the basis that he was drunk and really no facts indicating he intended to commit an arson. But, in the very last line of the answer explanation they did me a favor, since I felt pretty good about getting that right, and said he could also be convicted of felony murder (either by itself or in addition to arson) which made me think what? what? what? Sorry, that I don't remember the stem exactly, but I'm 99% it said the word convicted, rather than charged. And all the answer choices said Murder alone, arson alone, murder and arson, and murder or arson. I try and forget about it when this type of thing happens, but since there's a nice FMR discussion going on, thought I'd chime in and complain too lol

[Tanicius]

Oh and going back to the whole felony murder discussion, I think someone said that kaplan AND barbri people think they don't "merge" (or whatever the term is). I just found a kaplan question explanation saying the exact opposite-- "In order for one to be found guilty of murder under the felony-murder rule, he must also be found guilty of the underlying felony."

Just putting that out there.

I missed this discussion earlier, but the underlying felony is definitely a lesser included offense in the felony murder. Every element necessary to convict of the underlying felony is also necessary to convict of felony murder, so they fail the Blockburger test. The result is that you can't be tried for felony murder if you've already been acquitted of the underlying felony, and you can't be convicted of both felony murder and the underlying felony. I looked at the earlier discussion in this thread and I disagree with the theory put forth that there is some conviction/sentencing bifurcation that allows conviction for both the felony and the felony murder but that prevents sentencing based on both. The bar is on conviction for lesser included offenses, not just punishment for lesser included offenses.

Having not seen the original question, my guess is that the Kaplan explanation you've quoted is just being inartful and saying "be found guilty of the underlying felony" when they really should be saying "satisfy all of the elements of the underlying felony" or "be capable of being found guilty of the underlying felony" or something like that.


Edit: And now, having done some more MBE practice questions, I am even more convinced of this. For example, question # 3082 involves a death that occurs during the commission of arson. The correct answer is that the defendant can be convicted of either arson or murder, but not both, because arson merges with felony murder and the defendant "can only be convicted of one or the other." Question 4242 had a similar background (robber accidentally discharges gun during robbery and kills clerk; what liability for accomplice?) and the same answer (merger means the crime is only felony murder, not murder and attempted robbery).

Are you by chance referring to that arson question in one of the mixed sets where the guy drives into the gas pump with his car and it explodes, and the gas station and the clerk's apartment above the gas station catches on fire killing the clerk? I have to check, but I believe that one said he could be convicted of both arson and murder. I got it right since I thought in that case it was Depraved Heart and Arson, which is different from Felony Murder and Arson, on the basis that he was drunk and really no facts indicating he intended to commit an arson. But, in the very last line of the answer explanation they did me a favor, since I felt pretty good about getting that right, and said he could also be convicted of felony murder (either by itself or in addition to arson) which made me think what? what? what? Sorry, that I don't remember the stem exactly, but I'm 99% it said the word convicted, rather than charged. And all the answer choices said Murder alone, arson alone, murder and arson, and murder or arson. I try and forget about it when this type of thing happens, but since there's a nice FMR discussion going on, thought I'd chime in and complain too lol

You description of the question is exactly right, and it's ultimately what caused me to explode and go on a knowledge-quenching tirade across multiple TLS threads and Reddit. I still never found a definitive answer.

[Gopackgo2010]

Is anyone taking the CA Bar in Pasadena and driving there from your house rather than getting a hotel, or I guess this applies to everyone, regardless of where they're taking it? I always planned on just getting up early and driving there from my house, but everyone I know freaked me out with their "you need to be walking distance, no more than 5 mins walking on foot, must get a hotel!!!!!." I live 21 miles away (about 30 mins w/out traffic), but I am coming from West LA. I figure If I wake up super early, like 5am, I should be there with plenty of time (like 2 hours early) and avoid traffic. About a month ago, my friend who lives 5 mins away from the convention center did tell me that he would let me stay at his house during the bar, but like all good unenforceable contracts, he breached (Damn family reunions lol) and I am left remedy-less. This is not risky right? It's just law student/bar exam induced paranoia right? I mean at this point it's either stay at my house (wake up early-which I probably would do anyway), pay $300/night for a decent hotel, or $60-80/ for an almost certain bed bug infested motel.

[Gopackgo2010]

Oh and going back to the whole felony murder discussion, I think someone said that kaplan AND barbri people think they don't "merge" (or whatever the term is). I just found a kaplan question explanation saying the exact opposite-- "In order for one to be found guilty of murder under the felony-murder rule, he must also be found guilty of the underlying felony."

Just putting that out there.

I missed this discussion earlier, but the underlying felony is definitely a lesser included offense in the felony murder. Every element necessary to convict of the underlying felony is also necessary to convict of felony murder, so they fail the Blockburger test. The result is that you can't be tried for felony murder if you've already been acquitted of the underlying felony, and you can't be convicted of both felony murder and the underlying felony. I looked at the earlier discussion in this thread and I disagree with the theory put forth that there is some conviction/sentencing bifurcation that allows conviction for both the felony and the felony murder but that prevents sentencing based on both. The bar is on conviction for lesser included offenses, not just punishment for lesser included offenses.

Having not seen the original question, my guess is that the Kaplan explanation you've quoted is just being inartful and saying "be found guilty of the underlying felony" when they really should be saying "satisfy all of the elements of the underlying felony" or "be capable of being found guilty of the underlying felony" or something like that.


Edit: And now, having done some more MBE practice questions, I am even more convinced of this. For example, question # 3082 involves a death that occurs during the commission of arson. The correct answer is that the defendant can be convicted of either arson or murder, but not both, because arson merges with felony murder and the defendant "can only be convicted of one or the other." Question 4242 had a similar background (robber accidentally discharges gun during robbery and kills clerk; what liability for accomplice?) and the same answer (merger means the crime is only felony murder, not murder and attempted robbery).

Are you by chance referring to that arson question in one of the mixed sets where the guy drives into the gas pump with his car and it explodes, and the gas station and the clerk's apartment above the gas station catches on fire killing the clerk? I have to check, but I believe that one said he could be convicted of both arson and murder. I got it right since I thought in that case it was Depraved Heart and Arson, which is different from Felony Murder and Arson, on the basis that he was drunk and really no facts indicating he intended to commit an arson. But, in the very last line of the answer explanation they did me a favor, since I felt pretty good about getting that right, and said he could also be convicted of felony murder (either by itself or in addition to arson) which made me think what? what? what? Sorry, that I don't remember the stem exactly, but I'm 99% it said the word convicted, rather than charged. And all the answer choices said Murder alone, arson alone, murder and arson, and murder or arson. I try and forget about it when this type of thing happens, but since there's a nice FMR discussion going on, thought I'd chime in and complain too lol

You description of the question is exactly right, and it's ultimately what caused me to explode and go on a knowledge-quenching tirade across multiple TLS threads and Reddit. I still never found a definitive answer.

I'm 99% sure whoever wrote that was just wrong.