BarBri Bar Review Hangout - July 2015 Exam Forum

[redblueyellow]

Any helpful ways to keep Equal Protection, Privileges and Immunities, Dormant CC, and Substantive Due Process Analyses straight?

Looking for easy to recognize fact patterns that will make it immediately apparent what should be used where. I know these things generally, but just curious if anyone has found anything particularly helpful in thinking about these tests.

Discriminating against out of staters? P&I Doesn't this also apply to under DCC if economic?

State Burdening Interstate Commerce? DCC

Treating Similarly Situated Citizens Differently? EQP

Being dicks? Substantive Due process

Yes unless there is Congressional approval or it falls under the market participant exception

Does that mean by default we'd have to write DCC and P&I? I guess you can skip P&I as to corps, but what if it's out of state people trying to drive through the state for any purpose (business or leisure), but have to pay an additional toll when entering solely because they're from out of state (in-staters can go in and out of the state with no penalty, or at least, a significantly smaller one)?

At that point, does it cease to become a P&I issue and solely a commerce clause/DCC thing?

No it would be both, and you'd have to write about both on an essay. But in that case both DCC and P&I require that it be necessary to achieve an important government purpose, so the standard is the same.

If it does not discriminate against out of staters you just look at whether the benefits outweigh the burdens to see if it passes DCC muster. P&I would not come in to play.

Thanks! Looks like I was originally confounding equal protection and P&I (14th?). But Article IV P&I does apply to out of state discrimination on "fundamental to unity" (all economic) and the test is the same for intermediate scrutiny, except that there's an addition of a prong describing out of staters as a "peculiar source of evil."

[musicfor18]

Any helpful ways to keep Equal Protection, Privileges and Immunities, Dormant CC, and Substantive Due Process Analyses straight?

Looking for easy to recognize fact patterns that will make it immediately apparent what should be used where. I know these things generally, but just curious if anyone has found anything particularly helpful in thinking about these tests.

Discriminating against out of staters? P&I Doesn't this also apply to under DCC if economic?

State Burdening Interstate Commerce? DCC

Treating Similarly Situated Citizens Differently? EQP

Being dicks? Substantive Due process

Yes unless there is Congressional approval or it falls under the market participant exception

Does that mean by default we'd have to write DCC and P&I? I guess you can skip P&I as to corps, but what if it's out of state people trying to drive through the state for any purpose (business or leisure), but have to pay an additional toll when entering solely because they're from out of state (in-staters can go in and out of the state with no penalty, or at least, a significantly smaller one)?

At that point, does it cease to become a P&I issue and solely a commerce clause/DCC thing?

No it would be both, and you'd have to write about both on an essay. But in that case both DCC and P&I require that it be necessary to achieve an important government purpose, so the standard is the same.

If it does not discriminate against out of staters you just look at whether the benefits outweigh the burdens to see if it passes DCC muster. P&I would not come in to play.

Thanks! Looks like I was originally confounding equal protection and P&I (14th?). But Article IV P&I does apply to out of state discrimination on "fundamental to unity" (all economic) and the test is the same for intermediate scrutiny, except that there's an addition of a prong describing out of staters as a "peculiar source of evil."

What?

[charlesxavier]

Just finished off the emanuel full MBE. 158/200 (77/100 AM & 81/100 PM). Let's roll.

Man, what's with all these "It's easy to see why you would choose A, but if you realize I had orange juice this morning it's clear to see why B is more correct"?

Does anyone know how the scaling works with addition of Civil Procedure to the MBE? It appears that in February scaled scores were lower than in previous February exams.

[kykiske]

I'm trying to review some essays and MPT answers today. I just can't do it.

2,000 MBE questions (Barbri and Emmanuel's). 50 MEEs. 1 MPT. Over the course of 10 weeks of studying.

I think it's about time to close this rehearsal and relax until show-time on Tuesday & Wednesday.

[cdelgado]

Anyone do Mixed Set 6? I thought that one was a little rough compared to the others.

[charlesxavier]

For anyone who has doubts about the amount of effort it takes to pass in a lot of states (not all states) here are essays that got a 1, 3.5, and 7 out of 7. A 4 is passing. Notice how the 3.5 used the wrong rule, missed many issues, and is not organized...and it failed by .5.

https://drive.google.com/file/d/0ByDI91 ... sp=sharing

[kyle010723]

Anyone do Mixed Set 6? I thought that one was a little rough compared to the others.

I did that yesterday, lowest of all my mixed sets.

[xChiTowNx]

For anyone who has doubts about the amount of effort it takes to pass in a lot of states (not all states) here are essays that got a 1, 3.5, and 7 out of 7. A 4 is passing. Notice how the 3.5 used the wrong rule, missed many issues, and is not organized...and it failed by .5.

https://drive.google.com/file/d/0ByDI91 ... sp=sharing

damn now im hoping for at least one con law question based on these examples...

[kyle010723]

For anyone who has doubts about the amount of effort it takes to pass in a lot of states (not all states) here are essays that got a 1, 3.5, and 7 out of 7. A 4 is passing. Notice how the 3.5 used the wrong rule, missed many issues, and is not organized...and it failed by .5.

https://drive.google.com/file/d/0ByDI91 ... sp=sharing

Thanks! Now that was helpful!

[N.P.H.]

Do we actually have "mini-review" outlines?

AKA does Barbri actually provide outlines that could be reasonably construed as "mini?"

Or should I just review lecture notes...

[victortsoi]

For anyone who has doubts about the amount of effort it takes to pass in a lot of states (not all states) here are essays that got a 1, 3.5, and 7 out of 7. A 4 is passing. Notice how the 3.5 used the wrong rule, missed many issues, and is not organized...and it failed by .5.

https://drive.google.com/file/d/0ByDI91 ... sp=sharing

Thanks! Now that was helpful!

hmm. i wonder if he had used CRAC more clearly, whether he would be pushed to a 4 or so

[BVest]

Do we actually have "mini-review" outlines?

AKA does Barbri actually provide outlines that could be reasonably construed as "mini?"

Or should I just review lecture notes...

[Conviser] Mini-Review

[gretchenweiners]

Going over leansheets for property. Under foreclosure of mortgages, it mentions the general priority rule (first to record) and then says: BUT, purchase money mortgagee has "super-priority."

How does that play out? Trying to imagine a situation where purchase money mortgagee wouldn't already be the first mortgage--how could you have a mortgage on property predating the mortgage you obtained to purchase the property? Is the super-priority meaning a purchase money mortgagee has extra time to record? Like say, PMM on July 1 but doesn't record, random-reason mortgage on July 5 that immediately records, PMM records on July 10. Is that the type of situation where PMM has super-priority? I don't think I've come across a barbri question that turned on this issue yet.

[cdelgado]

For anyone who has doubts about the amount of effort it takes to pass in a lot of states (not all states) here are essays that got a 1, 3.5, and 7 out of 7. A 4 is passing. Notice how the 3.5 used the wrong rule, missed many issues, and is not organized...and it failed by .5.

https://drive.google.com/file/d/0ByDI91 ... sp=sharing

That kind of worries me as I've mentioned before.

In the heat of the moment, looking at that regulation, I might have called it non-discriminatory and used the undue burden analysis. I would have picked up on the tax. And then I would have failed it.

[charlesxavier]

For anyone who has doubts about the amount of effort it takes to pass in a lot of states (not all states) here are essays that got a 1, 3.5, and 7 out of 7. A 4 is passing. Notice how the 3.5 used the wrong rule, missed many issues, and is not organized...and it failed by .5.

https://drive.google.com/file/d/0ByDI91 ... sp=sharing

That kind of worries me as I've mentioned before.

In the heat of the moment, looking at that regulation, I might have called it non-discriminatory and used the undue burden analysis. I would have picked up on the tax. And then I would have failed it.

There's no way they didn't lose points for clarity/organization. It probably would have passed if organized better and any additional correct law wouldn't have hurt.

[BVest]

I'm at 77% vs 72% for my peers. I'd been surprised that I'd just barely been staying ahead of my peers since I was studying mostly full-time (5-6 hours a day early on to 8-10 hours the past few weeks). That worried me a little since I knew there must be some former PT law students, still working, who weren't able to keep up or do too much of the PSP before taking some time off right at the end.

It appears though that because Texas had two separate PSPs (one for Austin because we had our own lectures in a different order, and one for everyone else), we Austin folks were only compared to other Austin folks. And since none of the PT programs in the state are in Austin, I suspect that the bulk of folks who weren't capable of studying full-time were in the non-Austin group. While my peers were at 71% yesterday, the peers for the rest of the state were at 63%. (I understand that the Louisiana average was 43%, though they sat for their exam last week, so they had less time to push through it. Then again, Louisiana's exam is also 3 full days, so perhaps had more material they had to cover.)

[BVest]

Going over leansheets for property. Under foreclosure of mortgages, it mentions the general priority rule (first to record) and then says: BUT, purchase money mortgagee has "super-priority."

How does that play out? Trying to imagine a situation where purchase money mortgagee wouldn't already be the first mortgage--how could you have a mortgage on property predating the mortgage you obtained to purchase the property? Is the super-priority meaning a purchase money mortgagee has extra time to record? Like say, PMM on July 1 but doesn't record, random-reason mortgage on July 5 that immediately records, PMM records on July 10. Is that the type of situation where PMM has super-priority? I don't think I've come across a barbri question that turned on this issue yet.

If the recording act says something else, the recording act controls. As a result, the issue is unlikely to arise. See Conviser p. 62-64.

[stronitsing]

Going over leansheets for property. Under foreclosure of mortgages, it mentions the general priority rule (first to record) and then says: BUT, purchase money mortgagee has "super-priority."

How does that play out? Trying to imagine a situation where purchase money mortgagee wouldn't already be the first mortgage--how could you have a mortgage on property predating the mortgage you obtained to purchase the property? Is the super-priority meaning a purchase money mortgagee has extra time to record? Like say, PMM on July 1 but doesn't record, random-reason mortgage on July 5 that immediately records, PMM records on July 10. Is that the type of situation where PMM has super-priority? I don't think I've come across a barbri question that turned on this issue yet.

If the recording act says something else, the recording act controls. As a result, the issue is unlikely to arise. See Conviser p. 62-64.

it arises if there's a prior floating lien holder (gets interest in future things you buy) - so PMM gets priority if it records properly even though they come later

[gretchenweiners]

Going over leansheets for property. Under foreclosure of mortgages, it mentions the general priority rule (first to record) and then says: BUT, purchase money mortgagee has "super-priority."

How does that play out? Trying to imagine a situation where purchase money mortgagee wouldn't already be the first mortgage--how could you have a mortgage on property predating the mortgage you obtained to purchase the property? Is the super-priority meaning a purchase money mortgagee has extra time to record? Like say, PMM on July 1 but doesn't record, random-reason mortgage on July 5 that immediately records, PMM records on July 10. Is that the type of situation where PMM has super-priority? I don't think I've come across a barbri question that turned on this issue yet.

If the recording act says something else, the recording act controls. As a result, the issue is unlikely to arise. See Conviser p. 62-64.

it arises if there's a prior floating lien holder (gets interest in future things you buy) - so PMM gets priority if it records properly even though they come later

Ahhh, that all makes sense -- thank you both

[cdelgado]

If we have a question dealing with a residency requirement, based on some of the discussions I have seen we must treat this under Equal Protection. However, Mixed Set 6 question 1 implicated this scenario, and the correct answer was the Privileges OR Immunities Clause of the 14th Amendment. I know the EPC was not a choice on that question, but could someone help explain which one I use to analyze in case it is on an essay?

[musicfor18]

Going over leansheets for property. Under foreclosure of mortgages, it mentions the general priority rule (first to record) and then says: BUT, purchase money mortgagee has "super-priority."

How does that play out? Trying to imagine a situation where purchase money mortgagee wouldn't already be the first mortgage--how could you have a mortgage on property predating the mortgage you obtained to purchase the property? Is the super-priority meaning a purchase money mortgagee has extra time to record? Like say, PMM on July 1 but doesn't record, random-reason mortgage on July 5 that immediately records, PMM records on July 10. Is that the type of situation where PMM has super-priority? I don't think I've come across a barbri question that turned on this issue yet.

The PMM super-priority pretty much only comes up when the mortgagor has given a previous mortgage with an after-acquired property provision. E.g., takes out a loan secured by the debtor's land now owned and and after acquired. Then, you have the situation where the purchase money mortgagee has priority over the prior mortgagee with the after-acquired interest. Make sense?

[musicfor18]

If we have a question dealing with a residency requirement, based on some of the discussions I have seen we must treat this under Equal Protection. However, Mixed Set 6 question 1 implicated this scenario, and the correct answer was the Privileges OR Immunities Clause of the 14th Amendment. I know the EPC was not a choice on that question, but could someone help explain which one I use to analyze in case it is on an essay?

It would get strict scrutiny under the EPC because it discriminates between persons in their exercise of the fundamental right to interstate travel. It could also be analyzed under strict scrutiny directly under the P&I Clause of the 14th Amendment because that's where the right to interstate travel comes from. It's similar to a regulation that burdens the right to vote. If it discriminates between people in their ability to vote (a fundamental right under the 15th Amendment), then it gets SS under the EPC. Or you could challenge it directly under the 15th Amendment, but you'd probably only do that if, for example, a state passed a law that said no one in the state would vote. Otherwise, it's better to use fundamental-interest EPC analysis if there's any kind of classification (e.g., a state law that denied the right to vote to disabled people would get SS, not because disabled people are a suspect class, but because it discriminates on the basis of a fundamental right).

[Charger]

Can someone clarify remittitur and additur and when each can be used in federal court and in CA?

[musicfor18]

Can someone clarify remittitur and additur and when each can be used in federal court and in CA?

Remittitur can be used in federal and state court. Additur can only be used in state court because it violates the 7th Amendment. The reason state courts can use it is because the 7th Amendment hasn't been incorporated to apply to the states. In terms of when they're used, I think remittitur is used when a D moves for a new trial on the ground that the jury awarded excessive damages. If the judge agrees, the judge can give the D a choice of accepting a lower judgment or having a new trial. Additur is the opposite. If it appears the jury's damage award was lower than any reasonable juror could have found, then the state judge can give the P a choice between accepting a higher damage award or getting a new trial.

[Charger]

Can someone clarify remittitur and additur and when each can be used in federal court and in CA?

Remittitur can be used in federal and state court. Additur can only be used in state court because it violates the 7th Amendment. The reason state courts can use it is because the 7th Amendment hasn't been incorporated to apply to the states. In terms of when they're used, I think remittitur is used when a D moves for a new trial on the ground that the jury awarded excessive damages. If the judge agrees, the judge can give the D a choice of accepting a lower judgment or having a new trial. Additur is the opposite. If it appears the jury's damage award was lower than any reasonable juror could have found, then the state judge can give the P a choice between accepting a higher damage award or getting a new trial.

I'm confused. Critical Pass cards say, "Federal court cannot reduce jury award (violates 7th Amendment) but judge can order a new trial or offer remittitur or additur if convinced award is too high or low."

So the CP cards are making it seem like both can be used, provided that the party making the motion is given the choice of adding/reducing award and a new trial. Are the cards just wrong?

Edit: also, additur means adding to the jury award, right? Which you say can be used in state court only. But the critical pass cards say federal court cannot reduce award, which would be remittitur, right? I'm so confused.