BarBri Bar Review Hangout - February 2016 Exam Forum

[BrokenMouse]

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[MrMustache]

I picked A because I thought that denying states ALL highway construction funding for failing to prohibit speeds over 55 would be excessive. But it's D. Didn't the exact case on this say something like this was ok because they were only taking away ~10% of highway funding for failing to obey the condition?

After reading the question, I picked A also. In Chemerinsky's lecture notes, on page 7, it says that the conditions cannot be unduly coercive. Saying that they'll take ALL funding away seem like the definition of unduly coercive. I'd like to know if this is an official MBE question, because if it's not, BarBri can shove it.

Edit: Also, I hate "this answer is wrong because it is not right" explanations.

Don't look at the question like Congress taking away something from the states, it is just Congress's regulating the states through spending power by grants with strings attached, which is constitutional as long as the conditions are clearly stated, reasonably relate to the federal purpose, and not unduly coercive. 55 mph is not unduly coercive. Answer D, because Congress has a power to attach reasonable conditions to any grant it gives through the spending power, and you choose commerce power whenever you see highways as a channel of interstate commerce.

I guess my brain is refusing to function properly this close to the exam. I didn't think that the 55 mph was coercive, I thought the taking of all highway funds away as punishment was coercive. For example, Congress can take away 10% of highway funding from states that don't require drinking age to be 21. I didn't think they could take away 100%.

Now that I look at it again, is it because the Tenth Amendment applies only to powers NOT granted to the U.S., nor prohibited to the states? And because of Commerce Clause, Congress can regulate channels (i.e. highways) of interstate commerce however it wants to? So the test to see if regulation is unduly coercive does not apply?

[Ineedhelpplease]

I'm really confused - I know there is strict liability for abnormally dangerous activities, products liability, and wild animals, but I have a note in my Torts outline that says strict liability isn't available to trespassers. The CMR says an owner is strictly liable to licensees and invitees for injuries caused by wild animals, then it says strict liability will generally not be imposed in favor of trespassers.

I'm doing the Emanuel's practice MBE and the question (#46) is about a man having problems with trespassers walking on his grass, so he gets a skunk to deter them. A trespasser suffers injuries from the skunk's smell, and it asks what the probable result of the trespasser's claim will be. The correct answer is "recover, because the skunk was not a domesticated animal," but I picked "not recover, because the walker was a trespasser" because I have it stuck in my head that trespassers can't recover under strict liability. Emanuel's explanation doesn't address trespassers at all, just about the skunk technically being a wild animal.

It would seem to me that strict liability means in all cases regardless of status, but is Barbri or Emanuels right??

I think because trespassers are distinguished - unknown and anticipated - an owner owes a duty to warn or make safe any dangerous conditions the owner knows about to an anticipated trespasser (like in the question) and the owner purposefully put a skunk there to deter the anticipated trespassers.

The skunk and strict liability thing would not have jumped out at me. But knowing that the trespasser was owed a duty by the owner that would have directed me to him being able to recover.

[mtyler19]

I'm really confused - I know there is strict liability for abnormally dangerous activities, products liability, and wild animals, but I have a note in my Torts outline that says strict liability isn't available to trespassers. The CMR says an owner is strictly liable to licensees and invitees for injuries caused by wild animals, then it says strict liability will generally not be imposed in favor of trespassers.

I'm doing the Emanuel's practice MBE and the question (#46) is about a man having problems with trespassers walking on his grass, so he gets a skunk to deter them. A trespasser suffers injuries from the skunk's smell, and it asks what the probable result of the trespasser's claim will be. The correct answer is "recover, because the skunk was not a domesticated animal," but I picked "not recover, because the walker was a trespasser" because I have it stuck in my head that trespassers can't recover under strict liability. Emanuel's explanation doesn't address trespassers at all, just about the skunk technically being a wild animal.

It would seem to me that strict liability means in all cases regardless of status, but is Barbri or Emanuels right??

I got this wrong too but explanation was great. Remember this walker is a trespasser but no duty rule applies only to undicovered trespassers. This skunk was setup to attack ppl whom he anticipated would trespass. You owe a duty to warn of dangers to anticipated trespassers like kids etc.

So is the fact that he had a sign up saying "beware of skunk" just trying to throw me off? The explanation for the one I picked being wrong says "although the walker's status will determine the duty the homeowner owes to the walker as an entrant on the land, it will not determine the homeowners liability on these facts..." It does talk about anticipated vs undiscovered, but it says "these are not relevant here because they all address levels of fault that will be necessary for landowner liability. Instead, here the homeowner will be liable without any fault at all because the skunk will be considered a wild animal, making the homeowner strictly liable for any damages it creates...The walker's status as a trespasser will not relieve the homeowner of liability." Idk I think its so late in the game nothing is sticking for me anymore

[Sue]

I picked A because I thought that denying states ALL highway construction funding for failing to prohibit speeds over 55 would be excessive. But it's D. Didn't the exact case on this say something like this was ok because they were only taking away ~10% of highway funding for failing to obey the condition?

After reading the question, I picked A also. In Chemerinsky's lecture notes, on page 7, it says that the conditions cannot be unduly coercive. Saying that they'll take ALL funding away seem like the definition of unduly coercive. I'd like to know if this is an official MBE question, because if it's not, BarBri can shove it.

Edit: Also, I hate "this answer is wrong because it is not right" explanations.

Don't look at the question like Congress taking away something from the states, it is just Congress's regulating the states through spending power by grants with strings attached, which is constitutional as long as the conditions are clearly stated, reasonably relate to the federal purpose, and not unduly coercive. 55 mph is not unduly coercive. Answer D, because Congress has a power to attach reasonable conditions to any grant it gives through the spending power, and you choose commerce power whenever you see highways as a channel of interstate commerce.

I guess my brain is refusing to function properly this close to the exam. I didn't think that the 55 mph was coercive, I thought the taking of all highway funds away as punishment was coercive. For example, Congress can take away 10% of highway funding from states that don't require drinking age to be 21. I didn't think they could take away 100%.

Now that I look at it again, is it because the Tenth Amendment applies only to powers NOT granted to the U.S., nor prohibited to the states? And because of Commerce Clause, Congress can regulate channels (i.e. highways) of interstate commerce however it wants to? So the test to see if regulation is unduly coercive does not apply?

Right, generally we say fed. regulation is const-al if it applies to both public and private sector (minimum wage laws). Fed. regulation that is not applicable to private business, but only to the states is limited by Tenth Amend. Except for civil rights (Congress may restrict state activities that violate civil liberties), and spending power conditions (discussed above). Through spending power, C may regulate the states with giving grants, but placing some reasonable conditions on getting these grants that are not unduly coercive. It is not like the states have right to get federal funding and the Congress is limiting it here in this example, it is mostly Congress's implementing its commerce power to provide for general welfare, for public purpose of safety (not more than 55mph) and attach whatever strings/conditions that are reasonable/not unduly coercive.

P.S. If I use this same IRAC to explain things on Tuesday, I am dead.

[fadedsunrise]

I picked A because I thought that denying states ALL highway construction funding for failing to prohibit speeds over 55 would be excessive. But it's D. Didn't the exact case on this say something like this was ok because they were only taking away ~10% of highway funding for failing to obey the condition?

After reading the question, I picked A also. In Chemerinsky's lecture notes, on page 7, it says that the conditions cannot be unduly coercive. Saying that they'll take ALL funding away seem like the definition of unduly coercive. I'd like to know if this is an official MBE question, because if it's not, BarBri can shove it.

Edit: Also, I hate "this answer is wrong because it is not right" explanations.

Don't look at the question like Congress taking away something from the states, it is just Congress's regulating the states through spending power by grants with strings attached, which is constitutional as long as the conditions are clearly stated, reasonably relate to the federal purpose, and not unduly coercive. 55 mph is not unduly coercive. Answer D, because Congress has a power to attach reasonable conditions to any grant it gives through the spending power, and you choose commerce power whenever you see highways as a channel of interstate commerce.

I guess my brain is refusing to function properly this close to the exam. I didn't think that the 55 mph was coercive, I thought the taking of all highway funds away as punishment was coercive. For example, Congress can take away 10% of highway funding from states that don't require drinking age to be 21. I didn't think they could take away 100%.

Now that I look at it again, is it because the Tenth Amendment applies only to powers NOT granted to the U.S., nor prohibited to the states? And because of Commerce Clause, Congress can regulate channels (i.e. highways) of interstate commerce however it wants to? So the test to see if regulation is unduly coercive does not apply?

Right, generally we say fed. regulation is const-al if it applies to both public and private sector (minimum wage laws). Fed. regulation that is not applicable to private business, but only to the states is limited by Tenth Amend. Except for civil rights (Congress may restrict state activities that violate civil liberties), and spending power conditions (discussed above). Through spending power, C may regulate the states with giving grants, but placing some reasonable conditions on getting these grants that are not unduly coercive. It is not like the states have right to get federal funding and the Congress is limiting it here in this example, it is mostly Congress's implementing its commerce power to provide for general welfare, for public purpose of safety (not more than 55mph) and attach whatever strings/conditions that are reasonable/not unduly coercive.

P.S. If I use this same IRAC to explain things on Tuesday, I am dead.

Ooh, thanks, that makes sense. I had the same gut reaction as Mustache, which is why I went with A at first.

[bball700]

Anyone so burnt out that they can't mange to put together more than 6 hours a day at this point. I feel as if my subconscious is like chill we got this, I don't want to work anymore. But my brain won't listen to that little voice that is always right.

[fadedsunrise]

Anyone so burnt out that they can't mange to put together more than 6 hours a day at this point. I feel as if my subconscious is like chill we got this, I don't want to work anymore. But my brain won't listen to that little voice that is always right.

YES

I'm forcing myself to put together 5-6 hours today by grinding MBEs because its easier to chunk them out and take micro brakes at regular intervals. Tried doing two essays and spectacularly misread the issues. Tried just reading an outline and could not make it through one page. May just crash early tonight and try to get out essays tomorrow and Sunday.

[bball700]

Anyone so burnt out that they can't mange to put together more than 6 hours a day at this point. I feel as if my subconscious is like chill we got this, I don't want to work anymore. But my brain won't listen to that little voice that is always right.

YES

I'm forcing myself to put together 5-6 hours today by grinding MBEs because its easier to chunk them out and take micro brakes at regular intervals. Tried doing two essays and spectacularly misread the issues. Tried just reading an outline and could not make it through one page. May just crash early tonight and try to get out essays tomorrow and Sunday.

Yea I honestly feel exactly like that. I was expecting to go through outlines the last three days and just refresh everything but anytime I sit down w an outline I want to fling the book across the room. MBE are a lot easier as you are saying. The brain is the weirdest thing.

[THE_U]

I've maybe put in 3-4 hours each day this week (and that's a pretty generous estimation)

I should probably be worried about my lack of effort this week, but I'm reaching that point where no fucks are given. I've essentially been studying this shit since the summer when I failed. So tired of it, on top of feeling physically ill this week.

[jackbauer10]

Anyone so burnt out that they can't mange to put together more than 6 hours a day at this point. I feel as if my subconscious is like chill we got this, I don't want to work anymore. But my brain won't listen to that little voice that is always right.

YES

I'm forcing myself to put together 5-6 hours today by grinding MBEs because its easier to chunk them out and take micro brakes at regular intervals. Tried doing two essays and spectacularly misread the issues. Tried just reading an outline and could not make it through one page. May just crash early tonight and try to get out essays tomorrow and Sunday.

Yea I honestly feel exactly like that. I was expecting to go through outlines the last three days and just refresh everything but anytime I sit down w an outline I want to fling the book across the room. MBE are a lot easier as you are saying. The brain is the weirdest thing.

Same. Read through an outline and loosely outlined two essays, but missed major parts and couldn't focus long enough to really sort through the rules and IRAC. Going to try to get some of my chill back tonight so that I can finish strong tomorrow and Sunday. My body is tired and ready to quit.

[fadedsunrise]

I've maybe put in 3-4 hours each day this week (and that's a pretty generous estimation)

I should probably be worried about my lack of effort this week, but I'm reaching that point where no fucks are given. I've essentially been studying this shit since the summer when I failed. So tired of it, on top of feeling physically ill this week.

That's a good way to think about it...

Last week when I told someone I thought I could pass the test this round they basically said the same thing "you've studied for this thing full time twice in a row, I'm not surprised."

[THE_U]

I have faith that all of us in this thread are gonna kill the damn thing next week, regardless of how this week has gone.

[barprepblues]

does anyone know if we're allowed to bring a laptop carrier bag into the exam?

[tealeaf23]

I have faith that all of us in this thread are gonna kill the damn thing next week, regardless of how this week has gone.

I hope so. I didn't start studying full time until early January and I've been putting in about 7-9 hours a day, 5-6 days a week since then. Logically, I know that's plenty of time to have learned things but for some reason, the self-doubt continues.

[rinkrat19]

does anyone know if we're allowed to bring a laptop carrier bag into the exam?

I carried mine in a giant 2.5 gallon ziplock bag. No way was I going to risk dropping it in the parking lot, but I don't think laptop bags are allowed.

[atcushman]

Just out of curiosity where are you guys at on Barbris progress thing--I find it hard to believe the national average is only around 40%

[atcushman]

does anyone know if we're allowed to bring a laptop carrier bag into the exam?

I carried mine in a giant 2.5 gallon ziplock bag. No way was I going to risk dropping it in the parking lot, but I don't think laptop bags are allowed.

WA explicitly put laptop bags on the list of prohibited items.

[bball700]

I've maybe put in 3-4 hours each day this week (and that's a pretty generous estimation)

I should probably be worried about my lack of effort this week, but I'm reaching that point where no fucks are given. I've essentially been studying this shit since the summer when I failed. So tired of it, on top of feeling physically ill this week.

That's a good way to think about it...

Last week when I told someone I thought I could pass the test this round they basically said the same thing "you've studied for this thing full time twice in a row, I'm not surprised."

If you don't mind me asking- how did you manage to fail the first time? I always hear the mantra - put in the work and you'll pass.

[fadedsunrise]

does anyone know if we're allowed to bring a laptop carrier bag into the exam?

I carried mine in a giant 2.5 gallon ziplock bag. No way was I going to risk dropping it in the parking lot, but I don't think laptop bags are allowed.

I'm going to Ontario this time and was at Century City for CA in July, so I can only speak for Century City (which I don't think is a testing center this round?) First day I carried the bare minimum-I think just the ziplock bag and my laptop sans any carrier. However, Century was pretty relaxed. Most people brought their food/laptop bags/outlines/whatever have you, and they just let us leave it in the hallways outside the actual testing ballrooms. They sealed off the entire bottom floor of the hotel for us testers and had people watching the doors and such, so everybody's stuff was pretty damn safe.

[Sue]

does anyone know if we're allowed to bring a laptop carrier bag into the exam?

Usually, no. Check your SBA account for exam day rules and announcements. WA says no laptop cases in the exam room. But you can bring a bag and leave it outside the exam room at your own risk.

[fadedsunrise]

I've maybe put in 3-4 hours each day this week (and that's a pretty generous estimation)

I should probably be worried about my lack of effort this week, but I'm reaching that point where no fucks are given. I've essentially been studying this shit since the summer when I failed. So tired of it, on top of feeling physically ill this week.

That's a good way to think about it...

Last week when I told someone I thought I could pass the test this round they basically said the same thing "you've studied for this thing full time twice in a row, I'm not surprised."

If you don't mind me asking- how did you manage to fail the first time? I always hear the mantra - put in the work and you'll pass.

Honestly, I had misguided ideas about what it took, was perhaps a little lazier than I should have been, and was pessimistic. It may have been one of those, it may have been all of those together. I failed by ~17 points, so it was close enough. (1346/1440)

My current thoughts on my mistakes:
1. I could afford Barbri but went for Kaplan as my July 2015 prep company. I thought Barbri was hype and not better for the price. Kaplan wasn't terrible, but the way they taught black letter law did not agree with me. After I listened to the first 3 lectures in Barbri this time, I realized the organization just made a whole lot more sense. And some of the lecturers were even funny!

2. Minor, but I should have sprung for headphones. I bought a pair of Sony noise cancellation headphones for this round of studying and it's been the BEST THING EVER. I used some crappy free headphones last time when studying outside the house and not only did they break halfway, they hurt my ears and had bad sound quality. With these new headphones I can listen to lectures wherever at a reasonable sound level or (except for this week) zone the hell out and study to my itunes playlist (although studying to music is definitely not for everyone).

3. OUTLINES. I tried to deny the fact I was a kinesthetic learner and tried to go with the bar prep company's suggestions to just "prep" for lectures by reading their outlines,and or to just "review" the lecture handouts. Come test day I'm still frantically flipping outlines over and over because I didn't get my brain's fix of having my hands type out the material and ingraining it in my memory. I'm still one outline short (remedies), but I've made law school style outlines for every other subject.

4. Balance of essay/MBE. I tried too hard to get good at the MBEs by doing a ton but not reviewing them in detail. I burnt out on MBEs, didn't get very good (average was not over 60% at the end, I think), and crammed too many essays into the end without retaining enough of them.

5. Studying hours slightly increased.I started last week of May last time and studied 35-4...2? hours a week, 5 days only. I started Jan. 1 this time and studied 40-47(?) (5-7 days) a week. Surprisingly, I've also gone out more this time. I got more involved in my club sport and have been going out practically a day a week. Beach day Jan 30th, potluck for Lunar New Years, dinner last week.

I'm rambling, but hindsight is so 20/20.

[Gamecubesupreme]

I have a quick Double Jeopardy question.

I know generally, constitutional protection against double jeopardy does not apply to civil sanctions imposed on conduct for which a person has previously been subject to criminal punishment.

But I swear I remember there is an exception to the rule, but cannot figure out what it is. Am I misremembering things? Is there no fact scenario that would bar a person from being prosecuted at a criminal trial and then later tried again under the same facts in a civil action?

[jackbauer10]

Just out of curiosity where are you guys at on Barbris progress thing--I find it hard to believe the national average is only around 40%

I'm at 84%. I imagine that's probably accurate for me, all things considered. There were probably 3-4 of the approach videos that I didn't finish completely and 7-8 of the analysis videos that I either skimmed or completely discarded, choosing instead to just read through the sample answers and compare on my own. I checked off a handful of the "review your lecture notes" as well. Everything else I've been pretty religious about. Also added 3-4 essays in every subject (though many of them were just reading through and re-typing the rule statements) and about 500 extra MBE questions from Emanuel. Hopefully it all pays off. TBH I was pretty scared sh**less after hearing so many people say they did 70%+ of Barbri and still failed.

[BrokenMouse]

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