BarBri - NY Exam - July 2014 Forum

[TLSNYC]

Does anyone know what the essays are graded out of? I'm getting confused when I read all of this info about scaling etc. Do they grade each essay out of a certain number and then convert it to the scaled score? If so, what is the original scale they use.

[turquoiseturtle]

No, as I said, I think Barbri goes through and finds the most difficult/weird/obscure essays and includes those as the released essays, when in reality the average essay is substantially easier.

For example, imagine your LSAT study book giving you "Real Released Logic Games" and then giving you the 10 most difficult of all time. If you actually opened up the old tests, you would see that the games were generally much easier than those.

Again, 5ky you bring down the panic volume from about a 9 to about a 6 (which is livable). I feel like we owe you money as our therapist/bar exam coach.

Ahh apologies, I didn't understand what you were saying at first. I do think that they assign us the weirder ones to complete and/or outline. However, in NYT there are almost 150 essays split between the testing (with only Barbri model answers) and questions (with the two sample student answers). They run from 2000-July 2013. With that number, I think that they do include all the essays, although clearly you could look up even older ones pre-dating 2000. The weirder ones are in the "testing" section and those are the ones actually assigned, but I've still encountered a few weird ones in the "questions" section.


Anyway, doesn't matter that much. A few substantive questions that I'd appreciate anyone taking a shot at:

1. Reviewing trusts, my notes have that you need two witnesses or the instrument to be notarized. Does this mean that if it was a testamentary trust, created in the will, the will itself could fail because it was notarized (no witnesses) but the trust in it would be valid?

2. Related, in a random old essay I read this weekend in NYT, the barbri model answer applied cy press to some attempted disposition in a will to a charity (I can't remember what the problem with the disposition was). But I swear that I read in a different essay (or maybe multiple choice) that cy pres is only for trusts, not for wills (and that's what I learned in my Trusts/Estates class too).

Any thoughts on either?

[encore1101]

No, as I said, I think Barbri goes through and finds the most difficult/weird/obscure essays and includes those as the released essays, when in reality the average essay is substantially easier.

For example, imagine your LSAT study book giving you "Real Released Logic Games" and then giving you the 10 most difficult of all time. If you actually opened up the old tests, you would see that the games were generally much easier than those.

Again, 5ky you bring down the panic volume from about a 9 to about a 6 (which is livable). I feel like we owe you money as our therapist/bar exam coach.

Ahh apologies, I didn't understand what you were saying at first. I do think that they assign us the weirder ones to complete and/or outline. However, in NYT there are almost 150 essays split between the testing (with only Barbri model answers) and questions (with the two sample student answers). They run from 2000-July 2013. With that number, I think that they do include all the essays, although clearly you could look up even older ones pre-dating 2000. The weirder ones are in the "testing" section and those are the ones actually assigned, but I've still encountered a few weird ones in the "questions" section.


Anyway, doesn't matter that much. A few substantive questions that I'd appreciate anyone taking a shot at:

1. Reviewing trusts, my notes have that you need two witnesses or the instrument to be notarized. Does this mean that if it was a testamentary trust, created in the will, the will itself could fail because it was notarized (no witnesses) but the trust in it would be valid?

2. Related, in a random old essay I read this weekend in NYT, the barbri model answer applied cy press to some attempted disposition in a will to a charity (I can't remember what the problem with the disposition was). But I swear that I read in a different essay (or maybe multiple choice) that cy pres is only for trusts, not for wills (and that's what I learned in my Trusts/Estates class too).

Any thoughts on either?

Take this with a grain of salt:

1. No, because the instrument creating the trust (the will) wasn't valid to begin with, so there's no way to give effect to the contents inside. For example, giving a gift requires donative intent, delivery, and acceptance. If I had a will that bequeathed a gift onto someone, but the will wasn't valid in its execution, you wouldn't still give the gift to the person because I manifested donative intent+delivery. If the will isn't admitted into probate, none of its terms are given effect.

2. Cy-pres can happen for wills, but it's not exactly the same way. It works by saving a bequest that would otherwise be invalid against the Rule Against Perpetuities, by looking as facts they are presently, instead at the time of creation of the future interest.

[jets098]

This is the second time I've had to ask something like this but does anybody have the Professional Responsibility NY PDF filled in. I just went to look it over and apparently didn't save it after the lecture.

Any help is greatly appreciated. Thanks.

[5ky]

Does anyone know what the essays are graded out of? I'm getting confused when I read all of this info about scaling etc. Do they grade each essay out of a certain number and then convert it to the scaled score? If so, what is the original scale they use.

I am fairly sure it is graded on a 1-10 basis, and they scale it such that whatever is the average essay is a 5.

I never really fully understood the way that NY bar was scored. Seperac has a calculator, but it's homemade and it never appeared to me to be a truly accurate picture of the way things are scored.

Ultimately, it doesn't really matter. It's what, 40% MBE, 40% NY essay, 10% NYMC and 10% MPT. That's about as much information as you need to know, because the rest (scaling, etc) is 100% out of your control.

[Stringer6]

I'm curious if anyone wrote about sovereign immunity on the essay assigned today (about Erie, NY). Barbri is really starting to get on my nerves.

[Guchster]

I'm curious if anyone wrote about sovereign immunity on the essay assigned today (about Erie, NY). Barbri is really starting to get on my nerves.

Ohhhh. I was so confused--I was like, holy shit I completely missed the Erie Doctrine issue and the answer (lol, it's Erie, NY in the Q); sorry I'm so burned out.

I read it at some point on the torts amp thing but completely missed the issue here. Meh. I think Barbri is trying to prepare us for the fact that no matter how much we study and go nuts, there's probably going to be a marginal issue that we've never encountered or learned on the bar and to learn to be okay with facing it when it comes. It also makes us panic and prompts us to learn ALL THE FUCKING LAWS, which makes me so stressed I lose motivation to study.

It sounds like as long as we have a good handle on the big, important topics, it's completely fine to miss the random, arbitrary stuff.

[BaiAilian2013]

No, as I said, I think Barbri goes through and finds the most difficult/weird/obscure essays and includes those as the released essays, when in reality the average essay is substantially easier.

For example, imagine your LSAT study book giving you "Real Released Logic Games" and then giving you the 10 most difficult of all time. If you actually opened up the old tests, you would see that the games were generally much easier than those.

Again, 5ky you bring down the panic volume from about a 9 to about a 6 (which is livable). I feel like we owe you money as our therapist/bar exam coach.

Ahh apologies, I didn't understand what you were saying at first. I do think that they assign us the weirder ones to complete and/or outline. However, in NYT there are almost 150 essays split between the testing (with only Barbri model answers) and questions (with the two sample student answers). They run from 2000-July 2013. With that number, I think that they do include all the essays, although clearly you could look up even older ones pre-dating 2000. The weirder ones are in the "testing" section and those are the ones actually assigned, but I've still encountered a few weird ones in the "questions" section.


Anyway, doesn't matter that much. A few substantive questions that I'd appreciate anyone taking a shot at:

1. Reviewing trusts, my notes have that you need two witnesses or the instrument to be notarized. Does this mean that if it was a testamentary trust, created in the will, the will itself could fail because it was notarized (no witnesses) but the trust in it would be valid?

2. Related, in a random old essay I read this weekend in NYT, the barbri model answer applied cy press to some attempted disposition in a will to a charity (I can't remember what the problem with the disposition was). But I swear that I read in a different essay (or maybe multiple choice) that cy pres is only for trusts, not for wills (and that's what I learned in my Trusts/Estates class too).

Any thoughts on either?

Take this with a grain of salt:

1. No, because the instrument creating the trust (the will) wasn't valid to begin with, so there's no way to give effect to the contents inside. For example, giving a gift requires donative intent, delivery, and acceptance. If I had a will that bequeathed a gift onto someone, but the will wasn't valid in its execution, you wouldn't still give the gift to the person because I manifested donative intent+delivery. If the will isn't admitted into probate, none of its terms are given effect.

Correct. If the will itself is not validly executed, nothing in the will is good.

2. Cy-pres can happen for wills, but it's not exactly the same way. It works by saving a bequest that would otherwise be invalid against the Rule Against Perpetuities, by looking as facts they are presently, instead at the time of creation of the future interest.

Nope, sounds like you are thinking of the second look doctrine. Cy pres is an equitable doctrine and it really is usually for trusts, but I guess I can see a court, or a bar taker, citing to it in order to modify an outright bequest. Same general area of law, same philosophy, etc.

[encore1101]

Nope, sounds like you are thinking of the second look doctrine. Cy pres is an equitable doctrine and it really is usually for trusts, but I guess I can see a court, or a bar taker, citing to it in order to modify an outright bequest. Same general area of law, same philosophy, etc.

Other jurisdictions apply the "wait and see" or "cy-près doctrine" that validates contingent remainders and executory interests that would be void under the traditional rule in certain circumstances.[7]

http://en.wikipedia.org/wiki/Cy-pr%C3%A8s_doctrine

[belowthelaw57]

I'm curious if anyone wrote about sovereign immunity on the essay assigned today (about Erie, NY). Barbri is really starting to get on my nerves.

I completely missed it and just went through with the negligence per se analysis ignoring that it was a government function. I checked and the only place where government function immunity is referenced is in the CMR Tort Distinctions. It wasn't starred, and it wasn't mentioned at all in our lecture.

[belowthelaw57]

I'm curious if anyone wrote about sovereign immunity on the essay assigned today (about Erie, NY). Barbri is really starting to get on my nerves.

Ohhhh. I was so confused--I was like, holy shit I completely missed the Erie Doctrine issue and the answer (lol, it's Erie, NY in the Q); sorry I'm so burned out.

I read it at some point on the torts amp thing but completely missed the issue here. Meh. I think Barbri is trying to prepare us for the fact that no matter how much we study and go nuts, there's probably going to be a marginal issue that we've never encountered or learned on the bar and to learn to be okay with facing it when it comes. It also makes us panic and prompts us to learn ALL THE FUCKING LAWS, which makes me so stressed I lose motivation to study.

It sounds like as long as we have a good handle on the big, important topics, it's completely fine to miss the random, arbitrary stuff.

That's why I question whether it makes sense to review every lecture handout they tell us to review. tomorrow we have 3 topics to cover. I think it's cutting into the time I have to do extra essays and practice questions and I wonder whether I might be better served just doing practice questions and not reviewing so much blackletter especially on obscure stuff.

[BaiAilian2013]

Nope, sounds like you are thinking of the second look doctrine. Cy pres is an equitable doctrine and it really is usually for trusts, but I guess I can see a court, or a bar taker, citing to it in order to modify an outright bequest. Same general area of law, same philosophy, etc.

Other jurisdictions apply the "wait and see" or "cy-près doctrine" that validates contingent remainders and executory interests that would be void under the traditional rule in certain circumstances.[7]

http://en.wikipedia.org/wiki/Cy-pr%C3%A8s_doctrine

Huh? The cy pres page says nothing relevant about the RAP (nor should it). I see that the RAP page accuses "other jurisdictions" of using cy pres as a synonym for wait-and-see (the analog to second look outside the power of appointment context), but I am a T&E lawyer and I have no idea why, and my real point is that if you use the term that way on an essay, the T&E lawyers grading your essay won't know why either. Free non-legal advice, take
it or leave it.

[plath]

OK so just practiced a PMBR question regarding a women who has solicited her friend to commit larceny while heavily intoxicated. So I figured -- solicitation --> specific intent crime --> voluntary intoxication can be a defense as it negates the specific intent to encourage other to commit a crime. Imagine my surprise when this was the answer:

Voluntary intoxication is not a defense to solicitation at common law. Even though the law student thought better of her recommendation the next day when she was not intoxicated, the fact that she urged her friend to steal the boyfriend's motorcycle makes her guilty of solicitation.

At common law, solicitation was the crime of enticing, advising, inciting, inducing, urging, or otherwise encouraging another to commit a felony or breach of the peace. The solicitor must intend that the solicitee perform criminal acts. Voluntary intoxication was not a defense at common law. Here, although the law student was intoxicated, she strongly urged her friend to commit a felony. The law student is guilty of solicitation despite the fact that the friend did not commit the felony.

Test tip: Voluntary intoxication is the topic that the question is testing but it will not be a good defense to a crime if it does not cancel out the mens rea or actus reus necessary to commit the crime. Here, the fact that she was intoxicated may have lowered her inhibitions so that she felt that stealing a motorcycle was a good idea because she did not like the boyfriend. She is still guilty of solicitation though, because she definitely had the specific intent to and did encourage her friend to steal the motorcycle and teach that boyfriend a lesson.

WTF? how was I expected to conclude that she "definitely had the specific intent to solicit?" what am I missing here?

[belowthelaw57]

OK so just practiced a PMBR question regarding a women who has solicited her friend to commit larceny while heavily intoxicated. So I figured -- solicitation --> specific intent crime --> voluntary intoxication can be a defense as it negates the specific intent to encourage other to commit a crime. Imagine my surprise when this was the answer:

Voluntary intoxication is not a defense to solicitation at common law. Even though the law student thought better of her recommendation the next day when she was not intoxicated, the fact that she urged her friend to steal the boyfriend's motorcycle makes her guilty of solicitation.

At common law, solicitation was the crime of enticing, advising, inciting, inducing, urging, or otherwise encouraging another to commit a felony or breach of the peace. The solicitor must intend that the solicitee perform criminal acts. Voluntary intoxication was not a defense at common law. Here, although the law student was intoxicated, she strongly urged her friend to commit a felony. The law student is guilty of solicitation despite the fact that the friend did not commit the felony.

Test tip: Voluntary intoxication is the topic that the question is testing but it will not be a good defense to a crime if it does not cancel out the mens rea or actus reus necessary to commit the crime. Here, the fact that she was intoxicated may have lowered her inhibitions so that she felt that stealing a motorcycle was a good idea because she did not like the boyfriend. She is still guilty of solicitation though, because she definitely had the specific intent to and did encourage her friend to steal the motorcycle and teach that boyfriend a lesson.

WTF? how was I expected to conclude that she "definitely had the specific intent to solicit?" what am I missing here?

The only thing I can think of is going back to lecture, where Conwell told us that you need to be extremely intoxicated to assert a voluntary intoxication. He described it in the lecture as having to drink so much that your intent to do anything is an "insuperable mental challenge." I think it must be that the defendant in this hypo was drunk, but not drunk enough to be able to succeed in a voluntary intoxication defense. I'm guessing there was something else in the facts to suggest she wasn't really that drunk, or there was a stronger answer.

I have no idea about the statement that it's not a common law defense under any circumstances. That makes no sense to me.

[turquoiseturtle]

Nope, sounds like you are thinking of the second look doctrine. Cy pres is an equitable doctrine and it really is usually for trusts, but I guess I can see a court, or a bar taker, citing to it in order to modify an outright bequest. Same general area of law, same philosophy, etc.

Other jurisdictions apply the "wait and see" or "cy-près doctrine" that validates contingent remainders and executory interests that would be void under the traditional rule in certain circumstances.[7]

http://en.wikipedia.org/wiki/Cy-pr%C3%A8s_doctrine

Huh? The cy pres page says nothing relevant about the RAP (nor should it). I see that the RAP page accuses "other jurisdictions" of using cy pres as a synonym for wait-and-see (the analog to second look outside the power of appointment context), but I am a T&E lawyer and I have no idea why, and my real point is that if you use the term that way on an essay, the T&E lawyers grading your essay won't know why either. Free non-legal advice, take
it or leave it.

I am definitely thinking of cy press, not of second look.

Found the actual question, its July 2005, and number 47 in the testing section. Lady does her will and says "I direct that ten per cent (10%) of my net estate be given to a charity which helps indigent children, in accordance with a writing which will be found in my safe at home."

Obviously the main part of the question is incorporation by reference, which doesn't happen in NY (although, the Barbri model answer says it does for charities so long as the document existed at the time of will creation, we didn't learn this in the wills lecture though). The question does specifically state that the charity argues that "the court should apply the doctrine of cy pres" so it isn't out of left field, but I'm certain I would have said "no, its only for trusts, not wills." Barbri clearly applies cy pres ("the court should apply the doctrine of cy pres.")

This issue isn't that important, so no need to spend more brainpower on it, but it doesn't seem right to me.

[thetashster]

for negligent infliction of emotional distress...

does there need to be physical manifestation of any sort of symptom for the bystander or special relationship category? and for the bystander category, the parent/family member has to be in the "zone of danger" also right?

i know there needs to be a manifestation of symptoms for the near-miss. i didn't think there needed to be for the other categories, but i swear i came across a question recently where they said physical symptoms were necessary.

[turquoiseturtle]

for negligent infliction of emotional distress...

does there need to be physical manifestation of any sort of symptom for the bystander or special relationship category? and for the bystander category, the parent/family member has to be in the "zone of danger" also right?

i know there needs to be a manifestation of symptoms for the near-miss. i didn't think there needed to be for the other categories, but i swear i came across a question recently where they said physical symptoms were necessary.

From my torts class, we definitely learned no physical symptom for the bystander/family member and we also learned that they had to actually see it/experience it (I think I remember a case where they heard the injury?), but not be in the zone of danger. From Barbri though, answers seem to have always require physical injury and always require being in the zone of danger.

[thetashster]

Nope, sounds like you are thinking of the second look doctrine. Cy pres is an equitable doctrine and it really is usually for trusts, but I guess I can see a court, or a bar taker, citing to it in order to modify an outright bequest. Same general area of law, same philosophy, etc.

Other jurisdictions apply the "wait and see" or "cy-près doctrine" that validates contingent remainders and executory interests that would be void under the traditional rule in certain circumstances.[7]

http://en.wikipedia.org/wiki/Cy-pr%C3%A8s_doctrine

Huh? The cy pres page says nothing relevant about the RAP (nor should it). I see that the RAP page accuses "other jurisdictions" of using cy pres as a synonym for wait-and-see (the analog to second look outside the power of appointment context), but I am a T&E lawyer and I have no idea why, and my real point is that if you use the term that way on an essay, the T&E lawyers grading your essay won't know why either. Free non-legal advice, take
it or leave it.

I am definitely thinking of cy press, not of second look.

Found the actual question, its July 2005, and number 47 in the testing section. Lady does her will and says "I direct that ten per cent (10%) of my net estate be given to a charity which helps indigent children, in accordance with a writing which will be found in my safe at home."

Obviously the main part of the question is incorporation by reference, which doesn't happen in NY (although, the Barbri model answer says it does for charities so long as the document existed at the time of will creation, we didn't learn this in the wills lecture though). The question does specifically state that the charity argues that "the court should apply the doctrine of cy pres" so it isn't out of left field, but I'm certain I would have said "no, its only for trusts, not wills." Barbri clearly applies cy pres ("the court should apply the doctrine of cy pres.")

This issue isn't that important, so no need to spend more brainpower on it, but it doesn't seem right to me.

The rule statement i have for cy pres (don't know if it will be helpful):

Cy pres is an equitable doctrine that applies to outright bequests as well as charitable trusts. Courts w ill apply cy pres to modify a charitable devise consistent with and "as near as possible" with the settlor's or testator's intent IF the purpose of the trust or bequest is frustrated.

[plath]

OK so just practiced a PMBR question regarding a women who has solicited her friend to commit larceny while heavily intoxicated. So I figured -- solicitation --> specific intent crime --> voluntary intoxication can be a defense as it negates the specific intent to encourage other to commit a crime. Imagine my surprise when this was the answer:

Voluntary intoxication is not a defense to solicitation at common law. Even though the law student thought better of her recommendation the next day when she was not intoxicated, the fact that she urged her friend to steal the boyfriend's motorcycle makes her guilty of solicitation.

At common law, solicitation was the crime of enticing, advising, inciting, inducing, urging, or otherwise encouraging another to commit a felony or breach of the peace. The solicitor must intend that the solicitee perform criminal acts. Voluntary intoxication was not a defense at common law. Here, although the law student was intoxicated, she strongly urged her friend to commit a felony. The law student is guilty of solicitation despite the fact that the friend did not commit the felony.

Test tip: Voluntary intoxication is the topic that the question is testing but it will not be a good defense to a crime if it does not cancel out the mens rea or actus reus necessary to commit the crime. Here, the fact that she was intoxicated may have lowered her inhibitions so that she felt that stealing a motorcycle was a good idea because she did not like the boyfriend. She is still guilty of solicitation though, because she definitely had the specific intent to and did encourage her friend to steal the motorcycle and teach that boyfriend a lesson.

WTF? how was I expected to conclude that she "definitely had the specific intent to solicit?" what am I missing here?

The only thing I can think of is going back to lecture, where Conwell told us that you need to be extremely intoxicated to assert a voluntary intoxication. He described it in the lecture as having to drink so much that your intent to do anything is an "insuperable mental challenge." I think it must be that the defendant in this hypo was drunk, but not drunk enough to be able to succeed in a voluntary intoxication defense. I'm guessing there was something else in the facts to suggest she wasn't really that drunk, or there was a stronger answer.

I have no idea about the statement that it's not a common law defense under any circumstances. That makes no sense to me.

Thanks. So I am NOT losing it completely - b/c it IS a defense, right?
As for the fact pattern - it said that she was so intoxicated that the next morning she had no idea what she had said. Honestly, it feels like such a Russian roulette sometimes

[turquoiseturtle]

The rule statement i have for cy pres (don't know if it will be helpful):

Cy pres is an equitable doctrine that applies to outright bequests as well as charitable trusts. Courts w ill apply cy pres to modify a charitable devise consistent with and "as near as possible" with the settlor's or testator's intent IF the purpose of the trust or bequest is frustrated.

Ooh thank you. That makes it pretty clear that it should be applied to bequests.

[turquoiseturtle]

OK so just practiced a PMBR question regarding a women who has solicited her friend to commit larceny while heavily intoxicated. So I figured -- solicitation --> specific intent crime --> voluntary intoxication can be a defense as it negates the specific intent to encourage other to commit a crime. Imagine my surprise when this was the answer:

Voluntary intoxication is not a defense to solicitation at common law. Even though the law student thought better of her recommendation the next day when she was not intoxicated, the fact that she urged her friend to steal the boyfriend's motorcycle makes her guilty of solicitation.

At common law, solicitation was the crime of enticing, advising, inciting, inducing, urging, or otherwise encouraging another to commit a felony or breach of the peace. The solicitor must intend that the solicitee perform criminal acts. Voluntary intoxication was not a defense at common law. Here, although the law student was intoxicated, she strongly urged her friend to commit a felony. The law student is guilty of solicitation despite the fact that the friend did not commit the felony.

Test tip: Voluntary intoxication is the topic that the question is testing but it will not be a good defense to a crime if it does not cancel out the mens rea or actus reus necessary to commit the crime. Here, the fact that she was intoxicated may have lowered her inhibitions so that she felt that stealing a motorcycle was a good idea because she did not like the boyfriend. She is still guilty of solicitation though, because she definitely had the specific intent to and did encourage her friend to steal the motorcycle and teach that boyfriend a lesson.

WTF? how was I expected to conclude that she "definitely had the specific intent to solicit?" what am I missing here?

The only thing I can think of is going back to lecture, where Conwell told us that you need to be extremely intoxicated to assert a voluntary intoxication. He described it in the lecture as having to drink so much that your intent to do anything is an "insuperable mental challenge." I think it must be that the defendant in this hypo was drunk, but not drunk enough to be able to succeed in a voluntary intoxication defense. I'm guessing there was something else in the facts to suggest she wasn't really that drunk, or there was a stronger answer.

I have no idea about the statement that it's not a common law defense under any circumstances. That makes no sense to me.

Thanks. So I am NOT losing it completely - b/c it IS a defense, right?
As for the fact pattern - it said that she was so intoxicated that the next morning she had no idea what she had said. Honestly, it feels like such a Russian roulette sometimes

Is the answer saying that voluntary intoxication isn't a defense to solicitation at common law or isn't a defense to specific intent crimes at common law. Because I read it as saying it just wasn't a defense to solicitation, which would just be a little exception to the general rule.

[thetashster]

Not sure if anybody else has looked at this... but if you scroll down to the subject outlines, it tells you where the questions will be coming from.

--LinkRemoved--

maybe it's too late, or maybe it'll help people like me who wanna crawl under their bed with their cat and hide forever.

[plath]

OK so just practiced a PMBR question regarding a women who has solicited her friend to commit larceny while heavily intoxicated. So I figured -- solicitation --> specific intent crime --> voluntary intoxication can be a defense as it negates the specific intent to encourage other to commit a crime. Imagine my surprise when this was the answer:

Voluntary intoxication is not a defense to solicitation at common law. Even though the law student thought better of her recommendation the next day when she was not intoxicated, the fact that she urged her friend to steal the boyfriend's motorcycle makes her guilty of solicitation.

At common law, solicitation was the crime of enticing, advising, inciting, inducing, urging, or otherwise encouraging another to commit a felony or breach of the peace. The solicitor must intend that the solicitee perform criminal acts. Voluntary intoxication was not a defense at common law. Here, although the law student was intoxicated, she strongly urged her friend to commit a felony. The law student is guilty of solicitation despite the fact that the friend did not commit the felony.

Test tip: Voluntary intoxication is the topic that the question is testing but it will not be a good defense to a crime if it does not cancel out the mens rea or actus reus necessary to commit the crime. Here, the fact that she was intoxicated may have lowered her inhibitions so that she felt that stealing a motorcycle was a good idea because she did not like the boyfriend. She is still guilty of solicitation though, because she definitely had the specific intent to and did encourage her friend to steal the motorcycle and teach that boyfriend a lesson.

WTF? how was I expected to conclude that she "definitely had the specific intent to solicit?" what am I missing here?

The only thing I can think of is going back to lecture, where Conwell told us that you need to be extremely intoxicated to assert a voluntary intoxication. He described it in the lecture as having to drink so much that your intent to do anything is an "insuperable mental challenge." I think it must be that the defendant in this hypo was drunk, but not drunk enough to be able to succeed in a voluntary intoxication defense. I'm guessing there was something else in the facts to suggest she wasn't really that drunk, or there was a stronger answer.

I have no idea about the statement that it's not a common law defense under any circumstances. That makes no sense to me.

Thanks. So I am NOT losing it completely - b/c it IS a defense, right?
As for the fact pattern - it said that she was so intoxicated that the next morning she had no idea what she had said. Honestly, it feels like such a Russian roulette sometimes

Is the answer saying that voluntary intoxication isn't a defense to solicitation at common law or isn't a defense to specific intent crimes at common law. Because I read it as saying it just wasn't a defense to solicitation, which would just be a little exception to the general rule.

I'm as lost as you are. This is the exact wording of the explanation.
Either way, I checked the CMR and it does not mention any exception to the rule that voluntary intoxication serves as a defense to specific intent crimes (including inchoate crimes like solicitation).

[thetashster]

OK so just practiced a PMBR question regarding a women who has solicited her friend to commit larceny while heavily intoxicated. So I figured -- solicitation --> specific intent crime --> voluntary intoxication can be a defense as it negates the specific intent to encourage other to commit a crime. Imagine my surprise when this was the answer:

Voluntary intoxication is not a defense to solicitation at common law. Even though the law student thought better of her recommendation the next day when she was not intoxicated, the fact that she urged her friend to steal the boyfriend's motorcycle makes her guilty of solicitation.

At common law, solicitation was the crime of enticing, advising, inciting, inducing, urging, or otherwise encouraging another to commit a felony or breach of the peace. The solicitor must intend that the solicitee perform criminal acts. Voluntary intoxication was not a defense at common law. Here, although the law student was intoxicated, she strongly urged her friend to commit a felony. The law student is guilty of solicitation despite the fact that the friend did not commit the felony.

Test tip: Voluntary intoxication is the topic that the question is testing but it will not be a good defense to a crime if it does not cancel out the mens rea or actus reus necessary to commit the crime. Here, the fact that she was intoxicated may have lowered her inhibitions so that she felt that stealing a motorcycle was a good idea because she did not like the boyfriend. She is still guilty of solicitation though, because she definitely had the specific intent to and did encourage her friend to steal the motorcycle and teach that boyfriend a lesson.

WTF? how was I expected to conclude that she "definitely had the specific intent to solicit?" what am I missing here?

The only thing I can think of is going back to lecture, where Conwell told us that you need to be extremely intoxicated to assert a voluntary intoxication. He described it in the lecture as having to drink so much that your intent to do anything is an "insuperable mental challenge." I think it must be that the defendant in this hypo was drunk, but not drunk enough to be able to succeed in a voluntary intoxication defense. I'm guessing there was something else in the facts to suggest she wasn't really that drunk, or there was a stronger answer.

I have no idea about the statement that it's not a common law defense under any circumstances. That makes no sense to me.

Thanks. So I am NOT losing it completely - b/c it IS a defense, right?
As for the fact pattern - it said that she was so intoxicated that the next morning she had no idea what she had said. Honestly, it feels like such a Russian roulette sometimes

Is the answer saying that voluntary intoxication isn't a defense to solicitation at common law or isn't a defense to specific intent crimes at common law. Because I read it as saying it just wasn't a defense to solicitation, which would just be a little exception to the general rule.

just looked at the rule statements. voluntary intoxication IS a defense only if it prevents you from forming the requisite intent to commit the crime. so it's a little bit of everything that's been discussed. in other words, i think you'd have to be SO DRUNK that you literally cannot function. being just normal drunk lowers your inhibitions, so you can still intend to do something. think of every time you've danced on that table, you had the intent, it was just a very misplaced and bad intent.

[plath]

just looked at the rule statements. voluntary intoxication IS a defense only if it prevents you from forming the requisite intent to commit the crime. so it's a little bit of everything that's been discussed. in other words, i think you'd have to be SO DRUNK that you literally cannot function. being just normal drunk lowers your inhibitions, so you can still intend to do something. think of every time you've danced on that table, you had the intent, it was just a very misplaced and bad intent.

Yea, that I realize, but how do I tell which is which? The fact that she "was so intoxicated that she remembered nothing the next day" is not enough?