BarBri Bar Review Hangout - July 2015 Exam Forum

[charlesxavier]

Question re: real covenants. Vertical privity requires that the successor in interest hold the entire durational interest held by the covenantor at the time of the covenant. What precisely does this mean insofar as sublessees or life tenants are concerned? They aren't burdened by the covenant? Seems weird to me...

The burden of the covenant won't run so you can't sue for damages but you can sue for an injunction because equitable servitudes don't require privity, right?

[Kage3212]

But there is strict liability for transporting nuclear waste if the damage is the result of the dangerous condition, right? I'm trying to find an example of where there wouldn't be strict liability for an activity because it is common to an area despite the fact that it can't be done safely.

I wouldn't worry too much. You'll know it's abnormally dangerous, and when you write your essay you'll get two points for the rule. One for saying it can't be safe despite reasonable care, and one for saying it's not common to the area.

Another SL question: If the accident was not the result of the dangerous condition e.g. nuclear waste transportation truck gets in routine car accident, where do we show that the plaintiff can't win under strict liability? Is it that the dangerous condition was not a but-for cause of the accident?

You got it. The abnormally dangerous activity has to be both the cause in fact and legal cause of the ultimate harm.

[Kage3212]

Question re: real covenants. Vertical privity requires that the successor in interest hold the entire durational interest held by the covenantor at the time of the covenant. What precisely does this mean insofar as sublessees or life tenants are concerned? They aren't burdened by the covenant? Seems weird to me...

The burden of the covenant won't run so you can't sue for damages but you can sue for an injunction because equitable servitudes don't require privity, right?

This cant be right because in the leasing context, covenants in the lease bind lessees. I have seen multiple questions and what not where subsequent assignees of a lease are bound by covenants from the original lessee.

[felonious monk]

But there is strict liability for transporting nuclear waste if the damage is the result of the dangerous condition, right? I'm trying to find an example of where there wouldn't be strict liability for an activity because it is common to an area despite the fact that it can't be done safely.

I wouldn't worry too much. You'll know it's abnormally dangerous, and when you write your essay you'll get two points for the rule. One for saying it can't be safe despite reasonable care, and one for saying it's not common to the area.

Another SL question: If the accident was not the result of the dangerous condition e.g. nuclear waste transportation truck gets in routine car accident, where do we show that the plaintiff can't win under strict liability? Is it that the dangerous condition was not a but-for cause of the accident?

I would just do the normal negligence analysis - i'd differentiate SL from negligence, but then say that in this case the type of harm suffered is not as a result of any abnormally dangerous activity, and therefore SL doesn't apply, but there was a breach of the relevant standard of care etc. etc...

[charlesxavier]

Question re: real covenants. Vertical privity requires that the successor in interest hold the entire durational interest held by the covenantor at the time of the covenant. What precisely does this mean insofar as sublessees or life tenants are concerned? They aren't burdened by the covenant? Seems weird to me...

The burden of the covenant won't run so you can't sue for damages but you can sue for an injunction because equitable servitudes don't require privity, right?

This cant be right because in the leasing context, covenants in the lease bind lessees. I have seen multiple questions and what not where subsequent assignees of a lease are bound by covenants from the original lessee.

Yes, but with an assignment the assignor gives their entire estate to the assignee and that is the requirement for vertical privity.

[kyle010723]

Barbri really is obsessed with accomplice liability for bigamy... just encountered another one in Crim MPQ6

[jwe-houston]

How are people remembering the distinction between claim preclusion and issue preclusion? I seem to confuse which doctrine will bar a subsequent action with some regularity.

Bumping this question -- any help appreciated!

How about this:
Claim preclusion = Res Judicata
Think of it like pre-trial dismissed w/ prejudice. P can't bring it up again. Prevents them from brining it up in another jurisdiction too. Just bring forward. P lost the case in Fed ct, tries to win in State ct.

Issue preclusion = Collateral Estoppel
Even though it's taught under civ pro, think of crim pro. Jury already found D guilty of committing crime X (w/ elements of a, b, and c). V files civil suit for damages. Doesn't have to prove a, b, or c elements in the civil case. That's a 1 to 1.
Think also of the Asbestos cases. The company that made asbestos has long since gone out of business, their successor still has cases come up. P's no longer have to prove asbestos causes cancer. That ISSUE was settled a long time ago by the Company's predecessor in interest. The only part to determine in the current case is whether P was exposed and harm done (does P qualify as a proper P for the trust fund). Prior D to Current P.

[Kage3212]

Question re: real covenants. Vertical privity requires that the successor in interest hold the entire durational interest held by the covenantor at the time of the covenant. What precisely does this mean insofar as sublessees or life tenants are concerned? They aren't burdened by the covenant? Seems weird to me...

The burden of the covenant won't run so you can't sue for damages but you can sue for an injunction because equitable servitudes don't require privity, right?

This cant be right because in the leasing context, covenants in the lease bind lessees. I have seen multiple questions and what not where subsequent assignees of a lease are bound by covenants from the original lessee.

Yes, but with an assignment the assignor gives their entire estate to the assignee and that is the requirement for vertical privity.

If you had Franz for real prop, check page 62 of the lecture outline. I have written in, any "non-hostile nexus," and near the top of page 62 it states "the only time that vertical privity will be absent is if A-1 acquired her interest through adverse possession"

[kykiske]

Wow, just finished Mixed Set 4. 31/50 (62%). That's slightly outside my average of 67-70% on these Mix Sets.

Encountered at least ten questions where I was like, WTF.

[charlesxavier]

Question re: real covenants. Vertical privity requires that the successor in interest hold the entire durational interest held by the covenantor at the time of the covenant. What precisely does this mean insofar as sublessees or life tenants are concerned? They aren't burdened by the covenant? Seems weird to me...

The burden of the covenant won't run so you can't sue for damages but you can sue for an injunction because equitable servitudes don't require privity, right?

This cant be right because in the leasing context, covenants in the lease bind lessees. I have seen multiple questions and what not where subsequent assignees of a lease are bound by covenants from the original lessee.

Yes, but with an assignment the assignor gives their entire estate to the assignee and that is the requirement for vertical privity.

If you had Franz for real prop, check page 62 of the lecture outline. I have written in, any "non-hostile nexus," and near the top of page 62 it states "the only time that vertical privity will be absent is if A-1 acquired her interest through adverse possession"

I have no idea what that means. Was that a state distinction? All I know is that page 85 of the long real property outline says "To be bound, the successor in interest to the covenanting party must hold the entire durational interest held by the covenantor at the time she made the covenant." It then gives an example of a life estate not being bound because the grantor had a FSA.

Edit: Are you looking at the test for the benefit to run? Vertical privity for the benefit to run simply requires any succeeding possessory estate.

[kyle010723]

Wow, just finished Mixed Set 4. 31/50 (62%). That's slightly outside my average of 67-70% on these Mix Sets.

Encountered at least ten questions where I was like, WTF.

That's how Set 2 was for me. You have good sets and bad sets, so don't sweat it.

[xChiTowNx]

Wow, just finished Mixed Set 4. 31/50 (62%). That's slightly outside my average of 67-70% on these Mix Sets.

Encountered at least ten questions where I was like, WTF.

That's how Set 2 was for me. You have good sets and bad sets, so don't sweat it.

Could be different for you, but I've found my issue is that I rush and make 5-10 mitakes more. When I've not rushed, I've gone 65-70%.

Also, pacing wise: 17 qs every 30 mins about right for the MBE?

[Danger Zone]

Wow, just finished Mixed Set 4. 31/50 (62%). That's slightly outside my average of 67-70% on these Mix Sets.

Encountered at least ten questions where I was like, WTF.

That's how Set 2 was for me. You have good sets and bad sets, so don't sweat it.

Could be different for you, but I've found my issue is that I rush and make 5-10 mitakes more. When I've not rushed, I've gone 65-70%.

Also, pacing wise: 17 qs every 30 mins about right for the MBE?

1.8 mins per question, so yeah, that's fairly close. Shoot for 18 in 30 mins though to stay under time rather than over.

[Kage3212]

Question re: real covenants. Vertical privity requires that the successor in interest hold the entire durational interest held by the covenantor at the time of the covenant. What precisely does this mean insofar as sublessees or life tenants are concerned? They aren't burdened by the covenant? Seems weird to me...

The burden of the covenant won't run so you can't sue for damages but you can sue for an injunction because equitable servitudes don't require privity, right?

This cant be right because in the leasing context, covenants in the lease bind lessees. I have seen multiple questions and what not where subsequent assignees of a lease are bound by covenants from the original lessee.

Yes, but with an assignment the assignor gives their entire estate to the assignee and that is the requirement for vertical privity.

If you had Franz for real prop, check page 62 of the lecture outline. I have written in, any "non-hostile nexus," and near the top of page 62 it states "the only time that vertical privity will be absent is if A-1 acquired her interest through adverse possession"

I have no idea what that means. Was that a state distinction? All I know is that page 85 of the long real property outline says "To be bound, the successor in interest to the covenanting party must hold the entire durational interest held by the covenantor at the time she made the covenant." It then gives an example of a life estate not being bound because the grantor had a FSA.

Edit: Are you looking at the test for the benefit to run? Vertical privity for the benefit to run simply requires any succeeding possessory estate.

It seems like this information is contradictory then. Where I am getting my information is from the Video Lecture Handout, taught by Paula Franzizie on Real Property. On page 62 of that lecture handout (at the very top) it says that the only way vertical privity will not be established is through Adverse Possession. I was assuming you had the same lecture handout, because I thought these MBE lectures were all the same nationally.

I do see now where you noted in page 85 of the big outline. I guess Paula just assumed that we would consider vertical privity was established via full possession of the property. Apparently she didn't contemplate the sublease and life tenant situations in her lecture. But good to know regardless. Thanks for the direction there!

[kykiske]

Wow, just finished Mixed Set 4. 31/50 (62%). That's slightly outside my average of 67-70% on these Mix Sets.

Encountered at least ten questions where I was like, WTF.

That's how Set 2 was for me. You have good sets and bad sets, so don't sweat it.

Could be different for you, but I've found my issue is that I rush and make 5-10 mitakes more. When I've not rushed, I've gone 65-70%.

Also, pacing wise: 17 qs every 30 mins about right for the MBE?

I agree. I finished Mixed Set 4 in about 50 minutes, which is super fast. On reviewing some of the questions I got wrong, I thought, "wow, can't believe I got that one wrong."

Wow, just finished Mixed Set 4. 31/50 (62%). That's slightly outside my average of 67-70% on these Mix Sets.

Encountered at least ten questions where I was like, WTF.

That's how Set 2 was for me. You have good sets and bad sets, so don't sweat it.

Thanks Kyle.

And looking on the bright side of things, even my worst set so far was not horrifically bad. 62% isn't outstanding, but it's not far from where I need to be.

[kyle010723]

Wow, just finished Mixed Set 4. 31/50 (62%). That's slightly outside my average of 67-70% on these Mix Sets.

Encountered at least ten questions where I was like, WTF.

That's how Set 2 was for me. You have good sets and bad sets, so don't sweat it.

Could be different for you, but I've found my issue is that I rush and make 5-10 mitakes more. When I've not rushed, I've gone 65-70%.

Also, pacing wise: 17 qs every 30 mins about right for the MBE?

Yea, 17 every 30 is close to the limit for how slow you can go. Typically I finish 25 every 30 to 35 min though. It took me about 1:10 to finish 50 today.

[BVest]

Unlikely to be tested but: for abnormally dangerous activities, in my notes I had something about them not being common to the area. Does that mean if something has historically been done somewhere on a consistent basis it won't be strict liability?

If it's common, it's not really "abnormally" dangerous.

I thought "abnormally dangerous" referred to the inability to make it safe despite due care?

It's both. Can't make it safe and not common to the area.

I thought common practice was a factor in determining whether an activity was abnormally dangerous or not... not an element to consider alongside "abnormally dangerous." Here's from my 1L outline on the topic:

Rest. 2d § 520: Factors for abnormally dangerous:
Whether there is a high degree of risk of harm
Whether the gravity of harm is likely to be great
Whether the risk cannot be eliminated by exercise of reasonable care
Whether the activity is not a matter of common usage
Whether activity is inappropriate to the place where it is carried out; and
The value of the activity to the community

-- COMPARE WITH --

Rest. 3d § 20: Abnormally Dangerous Activities
One who carries on abnormally dangerous activities is subject to strict liability for physical harm resulting from the activity
An activity is abnormally dangerous if:
An activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
The activity is not one of common usage

The example we used then was the tanker truck that was hauling gasoline to local gas stations. While one could argue that it was abnormally dangerous to carry flammable liquids down the highway because the potential harm can be great and it can't really be made safer, it is of common usage, appropriate to the place (where else but the highways), and a valuable service to the community. That said, the case we read on the subject came down in favor of strict liability, but our prof made a big deal about how they applied only the first three factors for Rest. 2d and completely ignored the other three factors. Given the law-prof-style ambiguity surrounding gasoline tankers, I assume that anything on the bar exam will have to be more clear cut in either direction.

[DportIA]

I got 77/100 on the Emanuel's AM a few weeks ago (settled to 72% on the remainder), I have been in the ballpark on essays, & finish the MPTs in 65 minutes every time. If I am burnt out out right now, I should just give it a rest right?

[kyle010723]

I got 77/100 on the Emanuel's AM a few weeks ago (settled to 72% on the remainder), I have been in the ballpark on essays, & finish the MPTs in 65 minutes every time. If I am burnt out out right now, I should just give it a rest right?

Yes

[Tiago Splitter]

I thought common practice was a factor in determining whether an activity was abnormally dangerous or not... not an element to consider alongside "abnormally dangerous."

I might be misunderstanding you but I think we agree. The factors Barbri uses in the essay explanations whether it is abnormally dangerous are that it can't be made safe despite due care and is not common in the community. The restatement seems to go further and I'm sure there are cases out there that we could confuse ourselves all day with but I'm gonna use barbri's definition for this one. Having said that I doubt there will be a close call on the exam where it really turns on something like how regularly citizens in a community transport nuclear waste.

[Good Guy Gaud]

I got 77/100 on the Emanuel's AM a few weeks ago (settled to 72% on the remainder), I have been in the ballpark on essays, & finish the MPTs in 65 minutes every time. If I am burnt out out right now, I should just give it a rest right?

Yes

Yea. Take the rest of the day off. Go drink a brew.

[brotherdarkness]

I am so fucked on these essays. And I haven't really touched MBE stuff in a while, so whatever ability I had there has probably dissipated.

[kyle010723]

I got 77/100 on the Emanuel's AM a few weeks ago (settled to 72% on the remainder), I have been in the ballpark on essays, & finish the MPTs in 65 minutes every time. If I am burnt out out right now, I should just give it a rest right?

Yes

Yea. Take the rest of the day off. Go drink a brew.

Given the option, drink with Guzman or Epstein?

[kyle010723]

I am so fucked on these essays. And I haven't really touched MBE stuff in a while, so whatever ability I had there has probably dissipated.

You've learned whatever you needed to know. Even if you take the next three days off, it will come back to you. Yes, essays, we are all equally screwed, but there really is nothing we can do at this point.

[Good Guy Gaud]

I got 77/100 on the Emanuel's AM a few weeks ago (settled to 72% on the remainder), I have been in the ballpark on essays, & finish the MPTs in 65 minutes every time. If I am burnt out out right now, I should just give it a rest right?

Yes

Yea. Take the rest of the day off. Go drink a brew.

Given the option, drink with Guzman or Epstein?

Probably Guzman. Epstein seems like the type of guy that would get me arrested lol