BarBri Bar Review Hangout - July 2015 Exam Forum

[diowad]

Did the first half of the refresher and got embarrassed by it. Probably won't even do the second half. Some of those questions are getting way too nuanced for what we need to know. Not to mention it's a confidence killer.

[BVest]

I thought the CMR said you had to have the magic words "may re-enter" or whatever, but the questions don't seem to follow that rule.

The long outline (Multistate RP page 3) says "courts often" require some language providing for the right of entry, and alternately view the condition language merely as covenant or precatory language. No telling if "often" is meant to indicate a majority or minority position, or just to make us aware of a split.

Scooped, but still worth noting they don't say "probably," rather "often."

[BVest]

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Remedy can be "then the grant is void" or "then grantor can reenter" or even implied if the context shows the intent to retake (which is more common when the condition is worded with "provided" -- e.g. "A to B, provided that B use it only for church purposes.")

But I think the court would probably construe this as a fee simple determinable, which has automatic termination rather than the power of termination.

I doubt it, since it lacks any durational language.

[kyle010723]

Did the first half of the refresher and got embarrassed by it. Probably won't even do the second half. Some of those questions are getting way too nuanced for what we need to know. Not to mention it's a confidence killer.

I am beginning to wonder that Barbri's claim that most people improved 15+ point between the simulation and the actual Bar is NOT because they actually improved, but the mere fact that Barbri's questions were harder than the real thing

[RaleighStClair]

.

Remedy can be "then the grant is void" or "then grantor can reenter" or even implied if the context shows the intent to retake (which is more common when the condition is worded with "provided" -- e.g. "A to B, provided that B use it only for church purposes.")

But I think the court would probably construe this as a fee simple determinable, which has automatic termination rather than the power of termination.

I doubt it, since it lacks any durational language.

I think the "A to B, provided that B use it only for church purposes" would just be an invalid attempt to create a FS subject to Condition Subsequent. Pretty sure you definitely have to clearly indicate that the grantor reserves the right to reenter and retake.

If I saw this, I would probably conclude that it would strike the latter portion and just create a FS to B.

Would be interested in seeing a question/explanation that provides otherwise though.

[charlesxavier]

Can anyone who has done No. 54 in Emanuels Practice MBE help me out.

[+] Spoiler

It's about defamation. The answer says that regardless of the status of the plaintiff, if the item is newsworthy malice must be proven. I don't understand how her giving sexual favors to the mayor for concessions is not newsworthy.

[brotherdarkness]

[removed pictures]

[brotherdarkness]

Sorry for the big pictures. Idk how to fix so whatever.

Anyway that appears to be creating the right of re-entry in the third party without magic words. But the lecture notes say that you must say "has the right to re-enter."

ETA -- Am I violating copyright laws by posting these pics? Fuck. I'll take it down shortly. For ppl with Barbri books, this is Real Property Set 1 Question 8.

[mr.hands]

I thought I had this down pat, but now I'm not sure that I understand where venue is proper. I understand the two part test: venue is proper i) where a substantial part of the events giving rise to the claim took place; and ii) the district where any defendant resides, if all defendants reside in the state where that district is located.

The second prong is confusing to me. If all defendants don't reside in the same state, then do we just ignore prong #2? And does "reside" mean "domicile"? I feel like sometimes we're supposed to consider personal jdx, but sometimes we dont..? (See Q54 MBE Refresher) Can someone clarify?

Venue is a three-part test.

First, are all Ds residents of the same state? If so, any district where one of those Ds is residing is proper.

If not, second step. Where did the issue giving rise to the suit occur? Venue is proper in that district.

And if you can't lay venue in either, then venue is proper wherever any D is subject to PJ.

As far as reside and venue, it's different than PJ. For venue, a defendant resides wherever it is subject to PJ. For PJ, a defendant resides in only two places (place of incorporation and nerve center)

Question on this. I thought it was more of a two part test. First, if all D's reside in the same state then any district where one of those D resides OR where the issue giving rise to the suit occurred. P has the choice between these two. Then, if neither, then wherever D is subject to PJ.

Can someone clear this up for me?

You are correct. There is no priority between the first two, P gets to pick the venue between (1) where all D's reside and (2) where claim arose. If neither, venue is proper wherever D is subject to PJ

[musicfor18]

Sorry for the big pictures. Idk how to fix so whatever.

Anyway that appears to be creating the right of re-entry in the third party without magic words. But the lecture notes say that you must say "has the right to re-enter."

ETA -- Am I violating copyright laws by posting these pics? Fuck. I'll take it down shortly. For ppl with Barbri books, this is Real Property Set 1 Question 8.

There's no "right of re-entry" in a third party. That's an executory interest.

[brotherdarkness]

Sorry for the big pictures. Idk how to fix so whatever.

Anyway that appears to be creating the right of re-entry in the third party without magic words. But the lecture notes say that you must say "has the right to re-enter."

ETA -- Am I violating copyright laws by posting these pics? Fuck. I'll take it down shortly. For ppl with Barbri books, this is Real Property Set 1 Question 8.

There's no "right of re-entry" in a third party. That's an executory interest.

Okay so if the condition subsequent is in a third party (i.e., executory), then no magic words. But if it's in the grantor, then magic words?

[musicfor18]

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Remedy can be "then the grant is void" or "then grantor can reenter" or even implied if the context shows the intent to retake (which is more common when the condition is worded with "provided" -- e.g. "A to B, provided that B use it only for church purposes.")

But I think the court would probably construe this as a fee simple determinable, which has automatic termination rather than the power of termination.

I doubt it, since it lacks any durational language.

I agree with you. I was wrong in my previous post that it would be a FSD. But the Multistate Outline doesn't say courts often require an express reservation of the right of re-entry. It says: "It is necessary to expressly reserve the right of entry in the grantor; this retained interest does not automatically arise as in the case of a fee simple determinable and possibility of reverter." (p. 3).

[Danger Zone]

You guys are killing me with this talking about law words

[Andrews989]

My PSP says its assigned 83% of the work so far. Seems a little low considering the class has been going on for 9 weeks and there's only one week left

[Outis Onoma]

You guys are killing me with this talking about law words

Seriously. Where are these guys pulling this stuff from. Do they have the CMR memorized?

[musicfor18]

Sorry for the big pictures. Idk how to fix so whatever.

Anyway that appears to be creating the right of re-entry in the third party without magic words. But the lecture notes say that you must say "has the right to re-enter."

ETA -- Am I violating copyright laws by posting these pics? Fuck. I'll take it down shortly. For ppl with Barbri books, this is Real Property Set 1 Question 8.

There's no "right of re-entry" in a third party. That's an executory interest.

Okay so if the condition subsequent is in a third party (i.e., executory), then no magic words. But if it's in the grantor, then magic words?

Not exactly. The condition subsequent isn't "in a party." It's just a condition that will cause the interest to shift somehow. The question is who does it shift to? If it shifts to a third party, then the third party's interest is called an "executory interest." By definition, that interest wouldn't exist unless you used some words to express it (i.e., "but if . . . . . , then to B"). If it shifts back to the grantor, it's a right of re-entry. The question is whether there will be a right of re-entry if the grant doesn't expressly say so. Barbri seems to say no; you have to expressly reserve it in the grant. If you don't, then the court is left to figure out how to construe the grant. For example: "To A, provided that A never serves coffee on the premises." Is it merely precatory language that the court will strike, giving A a fee simple? Or the court may construe it as a covenant not to serve coffee on the premises, etc. But, at least according to Barbri's outline and Franzese's lecture, the court will not imply a right of re-entry in the grantor.

[brotherdarkness]

Sorry for the big pictures. Idk how to fix so whatever.

Anyway that appears to be creating the right of re-entry in the third party without magic words. But the lecture notes say that you must say "has the right to re-enter."

ETA -- Am I violating copyright laws by posting these pics? Fuck. I'll take it down shortly. For ppl with Barbri books, this is Real Property Set 1 Question 8.

There's no "right of re-entry" in a third party. That's an executory interest.

Okay so if the condition subsequent is in a third party (i.e., executory), then no magic words. But if it's in the grantor, then magic words?

Not exactly. The condition subsequent isn't "in a party." It's just a condition that will cause the interest to shift somehow. The question is who does it shift to? If it shifts the a third party, then the third party's interest is called an "executory interest." By definition, that interest wouldn't exist unless you used some words to express it (i.e., "but if . . . . . , then to B"). If it shifts back to the grantor, it's a right of re-entry. The question is whether there will be a right of re-entry if the grant doesn't expressly say so. Barbara seems to say no; you have to expressly reserve it in the grant. If you don't, then the court is left to figure out how to construe the grant. For example: "To A, provided that A never serves coffee on the premises." Is it merely precatory language that the court will strike, giving A a fee simple? Or the court may construe it as a covenant not to serve coffee on the premises, etc. But, at least according to Barbri's outline and Franzese's lecture, the court will not imply a right of re-entry in the grantor.

Thanks. That makes a lot more sense now.

[gretchenweiners]

Is getting and doing Emmanuel's worth it? Is it necessary? (Is it too late to matter?)

Haven't as of yet. Feel good about how I'm doing with barbri MBEs: 131/200 on simulated, 69/100 on refresher, 67/100 on half-day, and generally hovering around 70ish% on sets...but also get nervous seeing how many people are also using Emmanuel's and having really different results or being tested on different nuances/exceptions.

With that stat and only a week to go, I wouldn't bother.

thanks!

[N.P.H.]

Anyone willing to explain the difference between the 5th and 6th amendment rights to counsel?

[Good Guy Gaud]

Anyone willing to explain the difference between the 5th and 6th amendment rights to counsel?

What specifically?

5th - custodial interrogation
6th - offense specific, applies at all critical stages of criminal prosecution after formal proceedings have begun

[charlesxavier]

For some reason my 5th edition of Emanuel didn't come with the card for civ pro questions. Anyone care to explain, if possible, why they're harder than barbri? I'm worried that they're going to hurt me on the real thing.

[BVest]

Anyone willing to explain the difference between the 5th and 6th amendment rights to counsel?

What specifically?

5th - custodial interrogation
6th - offense specific, applies at all critical stages of criminal prosecution after formal proceedings have begun

Examples:
5th: While in custody for a robbery charge, D invokes right to counsel and police leave him alone but in custody until attorney gets there. Several hours later while still waiting for lawyer, police reapproach him and ask about an unrelated stolen car, which he confesses to. 5th A violation (custodial, even though it's for a different offense).

6th: D is arrested for robbery, retains counsel, is arraigned and released on bail. Police approach him the next day to ask about the robbery and he confesses -- 6th A violation (formal proceedings have begon). ALTERNATELY, Police approach him the next day do ask about a stolen car unrelated to the robbery charge -- no 6th A violation (not the same offense).

[RaleighStClair]

For some reason my 5th edition of Emanuel didn't come with the card for civ pro questions. Anyone care to explain, if possible, why they're harder than barbri? I'm worried that they're going to hurt me on the real thing.

Same... I bought mine used and the code didn't work. A little worried about being underprepared for civ pro questions.

[N.P.H.]

Anyone willing to explain the difference between the 5th and 6th amendment rights to counsel?

What specifically?

5th - custodial interrogation
6th - offense specific, applies at all critical stages of criminal prosecution after formal proceedings have begun

Have you taken the refresher? I got question 99 correct, but I'm having trouble following the answer.

I know that 6th is offense-specific, thus no violation when asked about a different crime. But it says the 5th wasn't violated because defendant didn't request specifically for the assualt & battery investigation.

I always thought that the 6th was more narrow than the 5th because offense specific, but is the 5th interrogation-specific? If so, that means it's more-narrow than the 6th, right?

My previous understanding was "think 5th for miranda, think 6th for right to atty," but apparently that's not the case.

Sorry if this is confusing.

Edit: In response to BVest: If that's right, why was it proper under the 5th in this question? (sorry if you havent taken the refresher--def hadn't made bail and was still in custody)


Edit 2: Looked up the case this question is based on and sort of figured it out. If anyone is interested: No. Justice Antonin Scalia delivered the opinion for a 6-3 court. The Sixth Amendment ensures competent legal representation in courts of law, whereas the Fifth Amendment ensures adequate counsel when confronting police. Because the Amendments have different purposes, invoking the Sixth Amendment by retaining a public defender does not invoke the Fifth Amendment when speaking with the police about an unrelated criminal charge. The Court reasoned that "[o]ne might be quite willing to speak to the police without counsel present concerning many matters, but not the matter under prosecution." McNeil's decision to have a public defender represent him at a pretrial hearing for armed robbery could not possibly indicate the choices he wished to make in the future regarding other confrontations with police.

[Good Guy Gaud]

For some reason my 5th edition of Emanuel didn't come with the card for civ pro questions. Anyone care to explain, if possible, why they're harder than barbri? I'm worried that they're going to hurt me on the real thing.

It's tough to explain but they're much more nuanced. After going through about 20, it seems like BarBri is the birds-eye version and Emanuel is nitty-gritty.

If you haven't, you should check out the free samples that the NCBE offer. Assuming they are accurate indicators, they aren't as difficult as Emanuel's.