MBE Question Thread Forum

[TheWalrus]

Can someone dumbsplain to me the difference between the 5th and 6th amendment?

Thanks.

[uceoledinbdnrn]

Can someone dumbsplain to me the difference between the 5th and 6th amendment?

Thanks.

I assume you're talking about the 5th Amendment right to an attorney vs the 6th Amendment right to an attorney.

5th Amendment right has to be claimed. 6th has to be waived.

6th Amendment right only attaches when criminal proceedings begin.

There's probably a lot more, but those are the two major differences. You get arrested and police read you your Miranda rights you can request an attorney under the 5th Amendment and they have to stop questioning you for a while. Once the state brings charges or whatever, you have a 6th amendment right to be represented at every critical stage of the proceedings unless you affirmatively declare your intentions to be represented pro se.

[Halp]

Can some one clear up third party beneficiaries?

I thought a donee beneficiary could never sue a promisee, but it appears there is only one exception for reliance. Is that correct?

Yes, that's correct. It's simply an equitable thing.

Err I thought donees' interests could also vest by suit or (invited method of) assent, just like for creditors. No?

[EzraFitz]

Can someone dumbsplain to me the difference between the 5th and 6th amendment?

Thanks.

5th Amendment: Applies during custodial interrogation. Once you unambiguously and unequivocally ask for an attorney ("Maybe I should talk to my lawyer" not enough), questioning must cease until you get one. Need to both be in custody (feel you couldn't leave) and interrogated (voluntary statements aren't included).

6th Amendment: Applies after charges are brought. Offense specific, so you can be questioned about something unrelated to the charges brought against you, even without attorney present. But if you are represented, you can't be questioned about it without your attorney.

[EzraFitz]

Can some one clear up third party beneficiaries?

I thought a donee beneficiary could never sue a promisee, but it appears there is only one exception for reliance. Is that correct?

Yes, that's correct. It's simply an equitable thing.

Err I thought donees' interests could also vest by suit or (invited method of) assent, just like for creditors. No?

Donees' rights can vest, but they cannot sue the promisee ever, because of a lack of privity of contract. They can only sue the promisor.

[TheWalrus]

Can someone dumbsplain to me the difference between the 5th and 6th amendment?

Thanks.

5th Amendment: Applies during custodial interrogation. Once you unambiguously and unequivocally ask for an attorney ("Maybe I should talk to my lawyer" not enough), questioning must cease until you get one. Need to both be in custody (feel you couldn't leave) and interrogated (voluntary statements aren't included).

6th Amendment: Applies after charges are brought. Offense specific, so you can be questioned about something unrelated to the charges brought against you, even without attorney present. But if you are represented, you can't be questioned about it without your attorney.

Can you waive the 6th amendment?

[pancakes3]

Can someone dumbsplain to me the difference between the 5th and 6th amendment?

Thanks.

5th Amendment: Applies during custodial interrogation. Once you unambiguously and unequivocally ask for an attorney ("Maybe I should talk to my lawyer" not enough), questioning must cease until you get one. Need to both be in custody (feel you couldn't leave) and interrogated (voluntary statements aren't included).

6th Amendment: Applies after charges are brought. Offense specific, so you can be questioned about something unrelated to the charges brought against you, even without attorney present. But if you are represented, you can't be questioned about it without your attorney.

Can you waive the 6th amendment?

You can waive the right to an attorney but if you're represented, no. The cops can't even approach you to obtain a waiver bc the Atty has to be present (They can approach you to interrogate wrt a different crime). I suppose once the Atty present, you can confess all you want but that's not really waiving the 6th A.

[EzraFitz]

Can someone dumbsplain to me the difference between the 5th and 6th amendment?

Thanks.

5th Amendment: Applies during custodial interrogation. Once you unambiguously and unequivocally ask for an attorney ("Maybe I should talk to my lawyer" not enough), questioning must cease until you get one. Need to both be in custody (feel you couldn't leave) and interrogated (voluntary statements aren't included).

6th Amendment: Applies after charges are brought. Offense specific, so you can be questioned about something unrelated to the charges brought against you, even without attorney present. But if you are represented, you can't be questioned about it without your attorney.

Can you waive the 6th amendment?

You can waive the right to an attorney but if you're represented, no. The cops can't even approach you to obtain a waiver bc the Atty has to be present (They can approach you to interrogate wrt a different crime). I suppose once the Atty present, you can confess all you want but that's not really waiving the 6th A.

The above is correct with one exception. If you were appointed counsel without requesting it (e.g. for a preliminary hearing), police can ask you to waive your 6th Amendment right to counsel and talk to them about the crime.

See Montejo v. Louisiana 556 U.S. 778.

[bballbb02]

I understand the limirations on supplemental jurisdiction when it is a diversity case-claims by plaintiffs or parties joined as plaintiffs are barred....

However, I saw a question in a diversity case where the defendant impleaded a third party defendant and then the original plaintiff brought a claim against the third party defendant which was allowed b/c it was same T/O..I answered no b/c no SMJ and figured I was right.

Turns out that the original plaintiff can bring a claim against a thiird party D who was brought in by an impleaded claim as long as the original P''s claim is same T/O....is this correct?? Do I have the limitation on supplemental jurisdiction messed up?

[pancakes3]

I understand the limirations on supplemental jurisdiction when it is a diversity case-claims by plaintiffs or parties joined as plaintiffs are barred....

However, I saw a question in a diversity case where the defendant impleaded a third party defendant and then the original plaintiff brought a claim against the third party defendant which was allowed b/c it was same T/O..I answered no b/c no SMJ and figured I was right.

Turns out that the original plaintiff can bring a claim against a thiird party D who was brought in by an impleaded claim as long as the original P''s claim is same T/O....is this correct?? Do I have the limitation on supplemental jurisdiction messed up?

I think it's allowed if:
a) be same T/O
b) can't destroy diversity

big picture is that Supp doesn't auto-bar, it just has strict limitations: Same T/O, and not destroy diversity, and also reserves the right to decline to exert jx.

but i'm iffy on this stuff too.

[Bobby_Axelrod]

Q 21 from Refresher:

Civ pro question about SMJ and aggregation.

3 claims:
1) Fed securities claim for $130k
2) breach of K related to Fed securities claim for $72k
3) unrelated negligence claim for $5k

Q: Which claims get into fed court?

A: All of them.

I understand that you can aggregate completely unrelated claims to pass the $75k threshold for diversity. But, what if, in this question, the breach of K claim weren't included? So you just have the Fed securities claim and the unrelated negligence claim. You can still get the negligence claim into fed court by using diversity jurisdiction and aggregating it with the Fed securities claim, right? I'm asking because Barbri's explanation states that "the customer may aggregate all the claims he has against the broker, and the aggregate amount of the state law claims ($77,000) [(the breach of k and the negligence claims)] meets the minimum amount in controversy requirement. Thus, the court has jurisdiction over the state law claims."

[EzraFitz]

Q 21 from Refresher:

Civ pro question about SMJ and aggregation.

3 claims:
1) Fed securities claim for $130k
2) breach of K related to Fed securities claim for $72k
3) unrelated negligence claim for $5k

Q: Which claims get into fed court?

A: All of them.

I understand that you can aggregate completely unrelated claims to pass the $75k threshold for diversity. But, what if, in this question, the breach of K claim weren't included? So you just have the Fed securities claim and the unrelated negligence claim. You can still get the negligence claim into fed court by using diversity jurisdiction and aggregating it with the Fed securities claim, right? I'm asking because Barbri's explanation states that "the customer may aggregate all the claims he has against the broker, and the aggregate amount of the state law claims ($77,000) [(the breach of k and the negligence claims)] meets the minimum amount in controversy requirement. Thus, the court has jurisdiction over the state law claims."

The explanation notes that the securities claim also could have been gotten under Diversity jurisdiction. So this makes it seem to me that it could be aggregated with the negligence claim if the breach of K claim did not exist.

[Bobby_Axelrod]

Q 21 from Refresher:

Civ pro question about SMJ and aggregation.

3 claims:
1) Fed securities claim for $130k
2) breach of K related to Fed securities claim for $72k
3) unrelated negligence claim for $5k

Q: Which claims get into fed court?

A: All of them.

I understand that you can aggregate completely unrelated claims to pass the $75k threshold for diversity. But, what if, in this question, the breach of K claim weren't included? So you just have the Fed securities claim and the unrelated negligence claim. You can still get the negligence claim into fed court by using diversity jurisdiction and aggregating it with the Fed securities claim, right? I'm asking because Barbri's explanation states that "the customer may aggregate all the claims he has against the broker, and the aggregate amount of the state law claims ($77,000) [(the breach of k and the negligence claims)] meets the minimum amount in controversy requirement. Thus, the court has jurisdiction over the state law claims."

The explanation notes that the securities claim also could have been gotten under Diversity jurisdiction. So this makes it seem to me that it could be aggregated with the negligence claim if the breach of K claim did not exist.

Yeah, I agree. Barbri's phrasing (as quoted above) just seemed odd.

[FormerChild]

Criminal Law – Larceny: Does it have to be a trespassory taking, or just a taking? Barbri emphasized that it had to be trespassory, but on all of the adaptibar questions I've done they do not include the word trespassory in the elements of the offense. TIA

[EzraFitz]

Criminal Law – Larceny: Does it have to be a trespassory taking, or just a taking? Barbri emphasized that it had to be trespassory, but on all of the adaptibar questions I've done they do not include the word trespassory in the elements of the offense. TIA

Trespassory in this context essentially means you didn't have the right to have possession of it. This is why you can't commit larceny of your own property, and partly how embezzlement is different (you had a right to possession, so it couldn't be a trespassory taking).

[cnk1220]

Criminal Law – Larceny: Does it have to be a trespassory taking, or just a taking? Barbri emphasized that it had to be trespassory, but on all of the adaptibar questions I've done they do not include the word trespassory in the elements of the offense. TIA

Trespassory in this context essentially means you didn't have the right to have possession of it. This is why you can't commit larceny of your own property, and partly how embezzlement is different (you had a right to possession, so it couldn't be a trespassory taking).

Just to clarify (b/c I have seen this on an MBE question) you technically can commit larceny of your own property if at the time you take your property back it is rightfully in possession of another. The Q i remember- guy commits larceny of his own property (car) by taking it back from the mechanic who lawfully had it to do repairs without paying for the repairs.

[EzraFitz]

Criminal Law – Larceny: Does it have to be a trespassory taking, or just a taking? Barbri emphasized that it had to be trespassory, but on all of the adaptibar questions I've done they do not include the word trespassory in the elements of the offense. TIA

Trespassory in this context essentially means you didn't have the right to have possession of it. This is why you can't commit larceny of your own property, and partly how embezzlement is different (you had a right to possession, so it couldn't be a trespassory taking).

Just to clarify (b/c I have seen this on an MBE question) you technically can commit larceny of your own property if at the time you take your property back it is rightfully in possession of another. The Q i remember- guy commits larceny of his own property (car) by taking it back from the mechanic who lawfully had it to do repairs without paying for the repairs.

Yes true, I should have clarified that I meant you can't commit larceny of your own property in your rightful possession. It's all about possession rights.

[ConfusedL1]

Can some one clear up third party beneficiaries?

I thought a donee beneficiary could never sue a promisee, but it appears there is only one exception for reliance. Is that correct?

Yes, that's correct. It's simply an equitable thing.

Err I thought donees' interests could also vest by suit or (invited method of) assent, just like for creditors. No?

Donees' rights can vest, but they cannot sue the promisee ever, because of a lack of privity of contract. They can only sue the promisor.

Formally that's right, but the promissee CAN sue if the donee relies. Privity doesn't matter because of a promissory estoppel/reliance theory claim.

Barbri had a question on this. CEO wants to reward a top salesman so enters a contract with admissions officer to get his kid in school. He tells the guy and kid what he did. Kid doesn't apply for other places to his detriment. Admissions guy is replaced and the whole thing falls apart. Kid can't sue as a third-party beneficiary, but he sure as hell can under promissory estoppel.

[EzraFitz]

Can some one clear up third party beneficiaries?

I thought a donee beneficiary could never sue a promisee, but it appears there is only one exception for reliance. Is that correct?

Yes, that's correct. It's simply an equitable thing.

Err I thought donees' interests could also vest by suit or (invited method of) assent, just like for creditors. No?

Donees' rights can vest, but they cannot sue the promisee ever, because of a lack of privity of contract. They can only sue the promisor.

Formally that's right, but the promissee CAN sue if the donee relies. Privity doesn't matter because of a promissory estoppel/reliance theory claim.

Barbri had a question on this. CEO wants to reward a top salesman so enters a contract with admissions officer to get his kid in school. He tells the guy and kid what he did. Kid doesn't apply for other places to his detriment. Admissions guy is replaced and the whole thing falls apart. Kid can't sue as a third-party beneficiary, but he sure as hell can under promissory estoppel.

This is true. Sorry, reading comprehension getting me down lately. I thought the question was referring to suing the Promisee on contract solely. The vesting and such are all related to suing the Promisor, so I assumed the asker was asking about suing the Promisee on the contract. Brain dead. One week y'all.

[varcom24]

This question is from the NCBE website/sample questions:

A company contracted with a builder to construct a new corporate headquarters for a fixed price of $100 million. At the time of the contract, structural steel was widely available and was included in the contract as a $6 million item. Before work began on the project, tornado damage shut down the production facility of the biggest structural steel supplier in the country, and the price of structural steel increased by 20% as a result. The builder informed the company of the steel price increase, and the parties then orally agreed to increase the project price to $101 million. The builder proceeded with construction and delivered the project on time. The company paid the builder $100 million but refused to pay the additional $1 million.

If the builder sues the company for $1 million, is the builder likely to prevail?

The answer is Yes, because the modification was fair and equitable in view of the unanticipated increase in the price of structural steel.

my question: I'm having a hard time with this. I know that contracts under the UCC can be modified if it is fair and equitable without new consideration. But I also know that the UCC applies to sale of goods. So, if the UCC is being extended here, therefore making this a "goods" contract, wouldn't the statute of frauds require a writing (since the increase would be over $500 of "goods"). Isn't the rule that if the contract as modified would fall under the Statute of Frauds, the modification will as well?

[ConfusedL1]

This question is from the NCBE website/sample questions:

A company contracted with a builder to construct a new corporate headquarters for a fixed price of $100 million. At the time of the contract, structural steel was widely available and was included in the contract as a $6 million item. Before work began on the project, tornado damage shut down the production facility of the biggest structural steel supplier in the country, and the price of structural steel increased by 20% as a result. The builder informed the company of the steel price increase, and the parties then orally agreed to increase the project price to $101 million. The builder proceeded with construction and delivered the project on time. The company paid the builder $100 million but refused to pay the additional $1 million.

If the builder sues the company for $1 million, is the builder likely to prevail?

The answer is Yes, because the modification was fair and equitable in view of the unanticipated increase in the price of structural steel.

my question: I'm having a hard time with this. I know that contracts under the UCC can be modified if it is fair and equitable without new consideration. But I also know that the UCC applies to sale of goods. So, if the UCC is being extended here, therefore making this a "goods" contract, wouldn't the statute of frauds require a writing (since the increase would be over $500 of "goods"). Isn't the rule that if the contract as modified would fall under the Statute of Frauds, the modification will as well?

To your first point, a contract under common law can't be modified unless there's new consideration, yes, but the modern view permits it if the modification is because of an unanticipated issue and it was fair and equitable. The UCC doesn't apply here because this isn't a sale a goods, but if it did it's must more liberal and allows modifications without any of those conditions/consideration.

As for the SOF, was that one of the answer choices? I think it doesn't apply here because it's a service contract and we don't have the facts necessary to know if it's for over a year (don't be confused that they're talking about steel).

[RC76]

This wont have anything to do with UCC. It is strictly a contract for services, therefore common law applies. Although generally, common law does not treat preexisting duties as consideration for a new contract, there are exceptions. In this case, the exception is a something unexpected happened after the contract, which allows modifications to be made (if made in good faith and agreed on by the parties). Other exceptions are a change in performance, or payment by a third party.

And since this isnt a sale of goods (or anyother SoF requirment), it wont have to be in writing.

This question is from the NCBE website/sample questions:

A company contracted with a builder to construct a new corporate headquarters for a fixed price of $100 million. At the time of the contract, structural steel was widely available and was included in the contract as a $6 million item. Before work began on the project, tornado damage shut down the production facility of the biggest structural steel supplier in the country, and the price of structural steel increased by 20% as a result. The builder informed the company of the steel price increase, and the parties then orally agreed to increase the project price to $101 million. The builder proceeded with construction and delivered the project on time. The company paid the builder $100 million but refused to pay the additional $1 million.

If the builder sues the company for $1 million, is the builder likely to prevail?

The answer is Yes, because the modification was fair and equitable in view of the unanticipated increase in the price of structural steel.

my question: I'm having a hard time with this. I know that contracts under the UCC can be modified if it is fair and equitable without new consideration. But I also know that the UCC applies to sale of goods. So, if the UCC is being extended here, therefore making this a "goods" contract, wouldn't the statute of frauds require a writing (since the increase would be over $500 of "goods"). Isn't the rule that if the contract as modified would fall under the Statute of Frauds, the modification will as well?

[varcom24]

Thanks for the responses!

I guess I was tripped up by the use of the "fair and equitable" language rather than "good faith," as that is the language that appears in the UCC for modifications without consideration.

[JayDubya]

So according to Barbri's MBE questions - the grounds of the State Capitol Building are a public forum but the grounds of the State Supreme Courthouse are a non-public forum....?

I would think ANY governmental property where high-level officials work is a non-public forum and the activity of citizens in that space can be heavily regulated for safety of the officials and efficacy of government process.

[EzraFitz]

So according to Barbri's MBE questions - the grounds of the State Capitol Building are a public forum but the grounds of the State Supreme Courthouse are a non-public forum....?

I would think ANY governmental property where high-level officials work is a non-public forum and the activity of citizens in that space can be heavily regulated for safety of the officials and efficacy of government process.

I think the distinction arises from the duties of the officials. State Capitol Buildings house legislators. Legislators can (and do) listen to constituents and often make decisions based on what "the people" want. So it is traditionally acceptable to protest and act in such a way to get their attention.

Judges on the other hand are supposed to follow the law, not the will of the people. Thus there is no specific benefit to the public from protesting on State Supreme Courthouse grounds. Even if the judges agree with the protestors, it shouldn't affect their decisions.