Themis Bar Review Hangout - July 2015 Exam Forum

[HND]

So: random question re Milestone exam 1 from a little while back. I've been doing decently on torts, consistently over 70%, until the milestone exam. I only got 5/14 right. I don't even know how to begin to address this. Bad luck? Did anyone else have that experience with torts on the milestone exam?

Do you think it had to do with focus? I know that even when we are doing the practice problems if I have more than one set a day ..the last set is always terrible because I just cannot focus.

[team ramrob]

hey everyone... first time CA taker.... is it too early to panic?

[MrMustache]

hey everyone... first time CA taker.... is it too early to panic?

I was going to say no, but then I realized that the bar is only a little over a month away, I haven't even covered all of the MBE subjects yet, and I don't have any rules memorized verbatim for the essay portion of the bar exam. So...

[team ramrob]

hey everyone... first time CA taker.... is it too early to panic?

I was going to say no, but then I realized that the bar is only a little over a month away, I haven't even covered all of the MBE subjects yet, and I don't have any rules memorized verbatim for the essay portion of the bar exam. So...

i just started crim. still haunted by the contracts MBE questions (stupid caterpillar)... and i do not have any rules memorized verbatim as well... i am a flashcard person, so I have a bunch of the ones I created on line from 1L, do you think these would be helpful? i havent really referred back to them because I created them to write essays for the professor, and not a bar examiner, do you think there might be a lot of deviation in the language that would even make a difference?

[sdphill]

hey everyone... first time CA taker.... is it too early to panic?

I was going to say no, but then I realized that the bar is only a little over a month away, I haven't even covered all of the MBE subjects yet, and I don't have any rules memorized verbatim for the essay portion of the bar exam. So...

i just started crim. still haunted by the contracts MBE questions (stupid caterpillar)... and i do not have any rules memorized verbatim as well... i am a flashcard person, so I have a bunch of the ones I created on line from 1L, do you think these would be helpful? i havent really referred back to them because I created them to write essays for the professor, and not a bar examiner, do you think there might be a lot of deviation in the language that would even make a difference?

I think it doesn't matter about the actual language you use as long as you have the necessary content. Remember, people are taking different bar courses and (I'm assuming) each bar course will write the law a little differently. From that rationale, I think you will be ok. (But please don't take my advice as law.)

[MrMustache]

hey everyone... first time CA taker.... is it too early to panic?

I was going to say no, but then I realized that the bar is only a little over a month away, I haven't even covered all of the MBE subjects yet, and I don't have any rules memorized verbatim for the essay portion of the bar exam. So...

i just started crim. still haunted by the contracts MBE questions (stupid caterpillar)... and i do not have any rules memorized verbatim as well... i am a flashcard person, so I have a bunch of the ones I created on line from 1L, do you think these would be helpful? i havent really referred back to them because I created them to write essays for the professor, and not a bar examiner, do you think there might be a lot of deviation in the language that would even make a difference?

I was overexaggerating about memorizing the rules, from what I've heard the month of July will be dedicated to that. I am not sure how helpful your 1L flashcards would be though. That said, at the end of the day, you know what works best for you.

[team ramrob]

ah i c. thanks guys.... happy friday...

[eloise16]

I just really need to commiserate with another MD bar taker about how terrible our MD distinctions lecturer is. I actually wince throughout his lectures. I don't think I've ever been as annoyed by a person. The amount of times he says "and you know that ___" is going to drive me insane.... no we actually DON'T know that. That is why we are listening to you. And how he just reads straight through verbatim off the outline without any breaks or commentary.



I think the bar is making me a really bitter person

[Pleasye]

So I got a message saying I should be at 50% this weekend...the HALF WAY MARK! ...


lmfao yeah right. Let me just give up on life and jump off a bridge.

Lol yeah. Not even close.

[sd5289]

NY takers:

This Civ Pro guy (and the Themis handout) keeps referencing Civ Pro "essay questions" we'll get. I'm confused. I thought it was just added to our MBE? We only have to worry about it on the MBE, yes?

[kgus22]

NY takers:

This Civ Pro guy (and the Themis handout) keeps referencing Civ Pro "essay questions" we'll get. I'm confused. I thought it was just added to our MBE? We only have to worry about it on the MBE, yes?

Fed civ pro is on the MBE now. NY civ pro (or CLPR whatever its called) can come up on the NY essays. maybe its possible fed civ pro can also come up on the essays?

[Confused7]

NY takers:

This Civ Pro guy (and the Themis handout) keeps referencing Civ Pro "essay questions" we'll get. I'm confused. I thought it was just added to our MBE? We only have to worry about it on the MBE, yes?

Fed civ pro is on the MBE now. NY civ pro (or CLPR whatever its called) can come up on the NY essays. maybe its possible fed civ pro can also come up on the essays?

Speaking of which, NY civ pro is a freaking nightmare. This is one topic that's got me worried about memorization.

[sd5289]

NY takers:

This Civ Pro guy (and the Themis handout) keeps referencing Civ Pro "essay questions" we'll get. I'm confused. I thought it was just added to our MBE? We only have to worry about it on the MBE, yes?

Fed civ pro is on the MBE now. NY civ pro (or CLPR whatever its called) can come up on the NY essays. maybe its possible fed civ pro can also come up on the essays?

Right, that's NY Practice, right? I haven't gotten to that nightmare yet.

[zot1]

This does not make sense!

Crim Pro Essay:

[+] Spoiler

The question is regarding a student making statements to police officers regarding a robbery; he's a suspect. Defense moves to suppress on three grounds: 4th A, Miranda violations, and involuntary confession. Under the 4th A analysis, the model answer finds that student was not free to leave, but because the questioning was under reasonable suspicion of criminal activity, 4th A not violated. But then it goes into the Miranda violations and finds that student was not in custody because he was free to leave. WHAT?

How can he be free to leave for Miranda purposes and not 4th A? That makes no sense!

[zot1]

This does not make sense!

Crim Pro Essay:

[+] Spoiler

The question is regarding a student making statements to police officers regarding a robbery; he's a suspect. Defense moves to suppress on three grounds: 4th A, Miranda violations, and involuntary confession. Under the 4th A analysis, the model answer finds that student was not free to leave, but because the questioning was under reasonable suspicion of criminal activity, 4th A not violated. But then it goes into the Miranda violations and finds that student was not in custody because he was free to leave. WHAT?

How can he be free to leave for Miranda purposes and not 4th A? That makes no sense!

I just noticed someone else asked this. No answer yet. However, good to know I'm not the only one tripping.

[sdphill]

I'm really irritated with how the graded essays are dealt with. It takes me at least 10-15 minutes to think of the law and formulate it and then I only have 15 minutes to apply the law (in my state, we only get 30 mins/essay).

Sorry.. I had to vent after not being able to finish another essay. (Let alone find all of the issues that the sample essay has.)

[always_raining]

This does not make sense!

Crim Pro Essay:

[+] Spoiler

The question is regarding a student making statements to police officers regarding a robbery; he's a suspect. Defense moves to suppress on three grounds: 4th A, Miranda violations, and involuntary confession. Under the 4th A analysis, the model answer finds that student was not free to leave, but because the questioning was under reasonable suspicion of criminal activity, 4th A not violated. But then it goes into the Miranda violations and finds that student was not in custody because he was free to leave. WHAT?

How can he be free to leave for Miranda purposes and not 4th A? That makes no sense!

I just noticed someone else asked this. No answer yet. However, good to know I'm not the only one tripping.

Yes, I wish someone had the answer to this. I have looked into it quite a bit, and from what I can glean (though I am not confident in my understanding, so if anyone knows more or finds something wrong with what I'm saying, please correct!):
— A 4th amendment arrest is not the same as a 5th amendment arrest
—Arrest must be a "formal arrest" or functional equivalent (which, as far as I can tell, means that it is more severe than a seizure arrest under the 4th amendment, such as telling someone explicitly not to move and place their hands on a hood of a car, or when in a police station)
—I actually read part of this law review article because I was so confused about the matter: http://scholarship.law.wm.edu/cgi/viewc ... xt=facpubs
— That article basically says that a 4th amendment arrest and 5th amendment arrest used to be the same (i.e., if you were considered arrested under the 4th amendment then you had to be given Miranda), but it's gotten very attenuated and now arrests are not analyzed the same way when dealing with Miranda (though use basically the same words to describe an arrest).
—For Miranda, think of an arrest as something more significant than what is needed under the 4th amendment. Custody does not mean "arrested because I don't feel free to leave;" it must be more formal. Basically, you have to really, really, know you are under arrest for Miranda to apply.
— None of this was in the outline or in Themis.They do a terrible job of explaining how the concept of "arrest" and "custody" are different.

[zot1]

This does not make sense!

Crim Pro Essay:

[+] Spoiler

The question is regarding a student making statements to police officers regarding a robbery; he's a suspect. Defense moves to suppress on three grounds: 4th A, Miranda violations, and involuntary confession. Under the 4th A analysis, the model answer finds that student was not free to leave, but because the questioning was under reasonable suspicion of criminal activity, 4th A not violated. But then it goes into the Miranda violations and finds that student was not in custody because he was free to leave. WHAT?

How can he be free to leave for Miranda purposes and not 4th A? That makes no sense!

I just noticed someone else asked this. No answer yet. However, good to know I'm not the only one tripping.

Yes, I wish someone had the answer to this. I have looked into it quite a bit, and from what I can glean (though I am not confident in my understanding, so if anyone knows more or finds something wrong with what I'm saying, please correct!):
— A 4th amendment arrest is not the same as a 5th amendment arrest
—Arrest must be a "formal arrest" or functional equivalent (which, as far as I can tell, means that it is more severe than a seizure arrest under the 4th amendment, such as telling someone explicitly not to move and place their hands on a hood of a car, or when in a police station)
—I actually read part of this law review article because I was so confused about the matter: http://scholarship.law.wm.edu/cgi/viewc ... xt=facpubs
— That article basically says that a 4th amendment arrest and 5th amendment arrest used to be the same (i.e., if you were considered arrested under the 4th amendment then you had to be given Miranda), but it's gotten very attenuated and now arrests are not analyzed the same way when dealing with Miranda (though use basically the same words to describe an arrest).
—For Miranda, think of an arrest as something more significant than what is needed under the 4th amendment. Custody does not mean "arrested because I don't feel free to leave;" it must be more formal. Basically, you have to really, really, know you are under arrest for Miranda to apply.
— None of this was in the outline or in Themis.They do a terrible job of explaining how the concept of "arrest" and "custody" are different.

Thanks for sharing this. My problem with the analysis is that you don't have to be under arrest for Miranda rights to attach. It's only if you're under "custody." Or at least, that's how I understand it.

[kgus22]

This does not make sense!

Crim Pro Essay:

[+] Spoiler

The question is regarding a student making statements to police officers regarding a robbery; he's a suspect. Defense moves to suppress on three grounds: 4th A, Miranda violations, and involuntary confession. Under the 4th A analysis, the model answer finds that student was not free to leave, but because the questioning was under reasonable suspicion of criminal activity, 4th A not violated. But then it goes into the Miranda violations and finds that student was not in custody because he was free to leave. WHAT?

How can he be free to leave for Miranda purposes and not 4th A? That makes no sense!

I just noticed someone else asked this. No answer yet. However, good to know I'm not the only one tripping.

Yes, I wish someone had the answer to this. I have looked into it quite a bit, and from what I can glean (though I am not confident in my understanding, so if anyone knows more or finds something wrong with what I'm saying, please correct!):
— A 4th amendment arrest is not the same as a 5th amendment arrest
—Arrest must be a "formal arrest" or functional equivalent (which, as far as I can tell, means that it is more severe than a seizure arrest under the 4th amendment, such as telling someone explicitly not to move and place their hands on a hood of a car, or when in a police station)
—I actually read part of this law review article because I was so confused about the matter: http://scholarship.law.wm.edu/cgi/viewc ... xt=facpubs
— That article basically says that a 4th amendment arrest and 5th amendment arrest used to be the same (i.e., if you were considered arrested under the 4th amendment then you had to be given Miranda), but it's gotten very attenuated and now arrests are not analyzed the same way when dealing with Miranda (though use basically the same words to describe an arrest).
—For Miranda, think of an arrest as something more significant than what is needed under the 4th amendment. Custody does not mean "arrested because I don't feel free to leave;" it must be more formal. Basically, you have to really, really, know you are under arrest for Miranda to apply.
— None of this was in the outline or in Themis.They do a terrible job of explaining how the concept of "arrest" and "custody" are different.

woohoo, shoutout to a publication form my school!

I still don't get this distinction either. I haven't had this essay, but I just took crim pro last semester. 4A seizure seems like a pretty low standard, whereas 5A custody is higher. But based on how the hypo was described, it still seems like this would rise to the level of 5A custody (small room, cops with weapons somewhat but not directly blocking the door...) I would not feel free to leave. sigh.

Have any NY takers done the crim essay with arson and felony murder that also requires you to know the affirmative defenses to all of those as well?

[+] Spoiler

They kind of generalized the arson affirmative defenses into one, whereas each degree has a slightly different affirmative defense. sigh. I also like how the conspiracy answer already assumes the arson is unlawful even though we haven't analyzed that yet.

[annapach]

So: random question re Milestone exam 1 from a little while back. I've been doing decently on torts, consistently over 70%, until the milestone exam. I only got 5/14 right. I don't even know how to begin to address this. Bad luck? Did anyone else have that experience with torts on the milestone exam?

Do you think it had to do with focus? I know that even when we are doing the practice problems if I have more than one set a day ..the last set is always terrible because I just cannot focus.

Yeah, maybe. That kind of variation on score was just really jolting for me. Makes me think that this is all about frame of mind. Sometimes if I take the MBE questions as just a human being, not a lawyer, I end up doing better.

[milesdavisjd]

Contracts & Sales question here, regarding the rights of assignees. The outline says:

"The rights of the assignee are subject to set-off if the transaction giving rise to the set-off occurred prior to the time the obligor was given notice of the assignment. In addition, the rights of the assignee are subject to a set-off that arises out of the same transaction."

While I understand that the assignee takes all of the rights of assignor at the time of the assignment, I don't understand this.

What is a set-off? How does this work?

[always_raining]

Thanks for sharing this. My problem with the analysis is that you don't have to be under arrest for Miranda rights to attach. It's only if you're under "custody." Or at least, that's how I understand it.

Actually, that's the problem with the Themis outline. You DO have to be under arrest, and the arrest required is more formal than what is considered a 4th amendment arrest. So custody = formal arrest, but seizure can be a less formal arrest.

[gr8scOtt!]

Thanks for sharing this. My problem with the analysis is that you don't have to be under arrest for Miranda rights to attach. It's only if you're under "custody." Or at least, that's how I understand it.

Actually, that's the problem with the Themis outline. You DO have to be under arrest, and the arrest required is more formal than what is considered a 4th amendment arrest. So custody = formal arrest, but seizure can be a less formal arrest.

Custody does not have to be formal arrest. I think the analysis is just wrong. Was this the bar-examiners analysis or one of the provided applicant model answers? Because those can have errors in them.

[always_raining]

Thanks for sharing this. My problem with the analysis is that you don't have to be under arrest for Miranda rights to attach. It's only if you're under "custody." Or at least, that's how I understand it.

Actually, that's the problem with the Themis outline. You DO have to be under arrest, and the arrest required is more formal than what is considered a 4th amendment arrest. So custody = formal arrest, but seizure can be a less formal arrest.

Custody does not have to be formal arrest. I think the analysis is just wrong. Was this the bar-examiners analysis or one of the provided applicant model answers? Because those can have errors in them.

Ok, so what I meant is that custody must be what is considered a "formal arrest," not necessarily in handcuffs but more than what is considered an arrest under the 4th amendment. It's more formal than a seizure (but again, not necessarily in handcuffs). The outline says it is a "substantial seizure" defined as either a "formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest." I don't think Themis makes it very clear here but the point is that you can have an seizure that constitutes an arrest under the 4th amendment that does not meet the "substantial seizure" requirement for a finding of being in custody for Miranda to apply.

[Pleasye]

Thanks for sharing this. My problem with the analysis is that you don't have to be under arrest for Miranda rights to attach. It's only if you're under "custody." Or at least, that's how I understand it.

Actually, that's the problem with the Themis outline. You DO have to be under arrest, and the arrest required is more formal than what is considered a 4th amendment arrest. So custody = formal arrest, but seizure can be a less formal arrest.

You definitely do not need to be under arrest in order for the 5th amendment to apply. However, an arrest does = custody.

The test for 4th amendment seizure and the 5th amendment are different so you can be seized for 4th amendment purposes and not in custody for 5th amendment purposes (the RAS example in the crim pro essay above). If there is RAS for a terry stop then when the person is stopped/questioned/frisked they ARE seized for 4th amendment purposes, but that is a lesser standard than the one required for custody under the 5th amendment.

I know the tests sound like pretty much the same thing, but there are two different analyses that need to be done.

For 4th: whether a RP would feel free to disregard the officer and go on their way

For 5th: whether the D's freedom of movement was so restrained that a RP in the D's situation would not believe he was free to leave

I try not to use "free to leave" for both tests even though both can use that language so as to differentiate between the two.