MBE questions - majority / minority view Forum

[RavenAgain]

Please feel free to add your MBE majority / minority questions ...

My question is on assault.

Courts are split whether apprehension of contact must be reasonable / objective or genuine / subjective.
However what is the majority view please? Thx!

[cnk1220]

Please feel free to add your MBE majority / minority questions ...

My question is on assault.

Courts are split whether apprehension of contact must be reasonable / objective or genuine / subjective.
However what is the majority view please? Thx!

Majority view is reasonable apprehension of immediate harmful/offensive contact to P.

[RavenAgain]

Please feel free to add your MBE majority / minority questions ...

My question is on assault.

Courts are split whether apprehension of contact must be reasonable / objective or genuine / subjective.
However what is the majority view please? Thx!

Majority view is reasonable apprehension of immediate harmful/offensive contact to P.

Is the contact standard being objective or subjective perceived?

[cnk1220]

Please feel free to add your MBE majority / minority questions ...

My question is on assault.

Courts are split whether apprehension of contact must be reasonable / objective or genuine / subjective.
However what is the majority view please? Thx!

Majority view is reasonable apprehension of immediate harmful/offensive contact to P.

Is the contact standard being objective or subjective perceived?

objective.

[Halp]

Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).

[RavenAgain]

Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).

I am inclined to disagree that both is applicable.
Objective sounds right, but I am not 100% certain. cnk1220 are you sure? Anyone?


Another question is re criminal law/ insanity - what is the difference between nature and quality?

Is "nature" the action of what the murderer does and "quality" the understanding what the result of the action is - i.e. death?

Thanks from Europe

[WestWingWatcher]

Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).

I think you're right.

[RavenAgain]

Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).

I think you're right.

If that would be true then a hyper sensitive person might perceive a daily apprehension as assault but it would not be assault because the reasonable person would not feel the same way. So the reasonable test would "overrule" the subjective perception and it would not be assault here...

[cnk1220]

Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).

I think you're right.

If that would be true then a hyper sensitive person might perceive a daily apprehension as assault but it would not be assault because the reasonable person would not feel the same way. So the reasonable test would "overrule" the subjective perception and it would not be assault here...

The apprehension is that of a reasonable, objective person ("reasonable person standard"), not subjective.

Assault is defined as " an intentional act that causes the plaintiff to experience reasonable apprehension of an immediate harmful or offensive contact."

If it were subjective then anything/everything could be perceived to the P as harmful or objective...something as simple/non-offensive/non-harmful as a shoulder tap...this doesn't make sense.

[WestWingWatcher]

Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).

I think you're right.

If that would be true then a hyper sensitive person might perceive a daily apprehension as assault but it would not be assault because the reasonable person would not feel the same way. So the reasonable test would "overrule" the subjective perception and it would not be assault here...

I think that is the correct result from my understanding? In tort, at least, a person can't say they were assaulted merely because of their hyper sensitivity (Unless the defendant knew about the sensitivity) if a reasonable person would not have been put in apprehension by D's action.

By contrast, even if D was acting in a way that would put a reasonable person in apprehension of harmful contact, if it did not put this specific P in apprehension, then it is not assault.

I think the same rules apply to criminal assault, but can't actually find anything in my materials that directly states that right now.

[RavenAgain]

Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).

I think you're right.

If that would be true then a hyper sensitive person might perceive a daily apprehension as assault but it would not be assault because the reasonable person would not feel the same way. So the reasonable test would "overrule" the subjective perception and it would not be assault here...

The apprehension is that of a reasonable, objective person ("reasonable person standard"), not subjective.

Assault is defined as " an intentional act that causes the plaintiff to experience reasonable apprehension of an immediate harmful or offensive contact."

If it were subjective then anything/everything could be perceived to the P as harmful or objective...something as simple/non-offensive/non-harmful as a shoulder tap...this doesn't make sense.

I agree. Objective standard. Still if known by D that P is hypersensitive, D should be liable, but I can not find the rule for hypersensitives for intentional torts, which is probably the same across the board...

[Harvard_Naw]

Wait...I'm almost positive it is both (apprehension must be reasonable AND subjectively felt).

I think you're right.

If that would be true then a hyper sensitive person might perceive a daily apprehension as assault but it would not be assault because the reasonable person would not feel the same way. So the reasonable test would "overrule" the subjective perception and it would not be assault here...

The apprehension is that of a reasonable, objective person ("reasonable person standard"), not subjective.

Assault is defined as " an intentional act that causes the plaintiff to experience reasonable apprehension of an immediate harmful or offensive contact."

If it were subjective then anything/everything could be perceived to the P as harmful or objective...something as simple/non-offensive/non-harmful as a shoulder tap...this doesn't make sense.

I agree. Objective standard. Still if known by D that P is hypersensitive, D should be liable, but I can not find the rule for hypersensitives for intentional torts, which is probably the same across the board...

Hypersensitivities come into play with Intentional Infliction of Emotional Distress. IIED requires extreme and outrageous conduct by D. If D knows P has a supersensitivity, and D directs certain conduct toward P that enflames that sensitivity but would not otherwise be extreme or outrageous, such conduct would constitute extreme or outrageous conduct w/r/t IIED.

[Halp]

The apprehension for assault must be reasonable, but must be subjectively experienced, i.e., just because it would be reasonable to apprehend a battery is not enough; if the victim, for example, just found it funny and laughed it off. That's what I meant by it has to be both. It must be both, not either alone.

EDIT: Whoops, bad example - if the victim did not SEE the additional thing besides mere words (was looking away), thrn no assault. But it would still be an assault even if victim was not scared, as long as they "apprehended" an immediatr contact.

[RavenAgain]

The apprehension for assault must be reasonable, but must be subjectively experienced, i.e., just because it would be reasonable to apprehend a battery is not enough; if the victim, for example, just found it funny and laughed it off. That's what I meant by it has to be both. It must be both, not either alone.

EDIT: Whoops, bad example - if the victim did not SEE the additional thing besides mere words (was looking away), thrn no assault. But it would still be an assault even if victim was not scared, as long as they "apprehended" an immediatr contact.

Many thanks!

I have two more MBE questions:

2. Criminal law/ insanity - what is the difference between nature and quality?
Is "nature" the action of what the murderer does and "quality" the understanding what the result of the action is - i.e. death?

3. Civil Pro/ Joinder - What if an indispensable party is from the same state as the Plaintiff in a diversity case in Federal court, and there would be prejudice not to include the indispensable party? The court would have to continue without the indispensable party?

[lady_gaga]

I'm not sure if this is because I'm a foreign-trained bar taker but I cannot figure out why my study materials refer to minority and majority views with regard to crim law.

Can anyone please just give me the quick lowdown on what these mean and when they are applicable?

I've spent way too much time online and on the forum trying to find the answer, thanks in advance!

[kc128]

I'm not sure if this is because I'm a foreign-trained bar taker but I cannot figure out why my study materials refer to minority and majority views with regard to crim law.

Can anyone please just give me the quick lowdown on what these mean and when they are applicable?

I've spent way too much time online and on the forum trying to find the answer, thanks in advance!

Majority is what the multi-state (MBE follows) so minority rules typically refer to the exception.

Dumb example, but majority is that a burglary need not occur "at nighttime". Compare to the minority rule that holds "nighttime" is still a required element of burglary.

[pancakes3]

I'm not sure if this is because I'm a foreign-trained bar taker but I cannot figure out why my study materials refer to minority and majority views with regard to crim law.

Can anyone please just give me the quick lowdown on what these mean and when they are applicable?

I've spent way too much time online and on the forum trying to find the answer, thanks in advance!

Majority is what the multi-state (MBE follows) so minority rules typically refer to the exception.

Dumb example, but majority is that a burglary need not occur "at nighttime". Compare to the minority rule that holds "nighttime" is still a required element of burglary.

the thing that first came to mind wrt to MBE where minority rules came up a lot was for the standard for insanity where they would say: "Under McNaughton" or whatever, what's the standard.

[caiti]

I'm not sure if this is because I'm a foreign-trained bar taker but I cannot figure out why my study materials refer to minority and majority views with regard to crim law.

Can anyone please just give me the quick lowdown on what these mean and when they are applicable?

I've spent way too much time online and on the forum trying to find the answer, thanks in advance!

This is because in the USA, every state (and there are 50 of them) sets their own criminal law. The majority/minority refers to what the law is in a majority (or minority) of states. There is no requirement that every state does the same thing, so the law can be different in each state. The majority view is the one adopted by the majority of the 50 states. The minority has a smaller amount of states with that kind of law.

Your materials will tell you when it is relevant to know the majority and minority views. Assault and conspiracy are two I remember off the top of my head, there might be a few others.

[lady_gaga]

I'm not sure if this is because I'm a foreign-trained bar taker but I cannot figure out why my study materials refer to minority and majority views with regard to crim law.

Can anyone please just give me the quick lowdown on what these mean and when they are applicable?

I've spent way too much time online and on the forum trying to find the answer, thanks in advance!

This is because in the USA, every state (and there are 50 of them) sets their own criminal law. The majority/minority refers to what the law is in a majority (or minority) of states. There is no requirement that every state does the same thing, so the law can be different in each state. The majority view is the one adopted by the majority of the 50 states. The minority has a smaller amount of states with that kind of law.

Your materials will tell you when it is relevant to know the majority and minority views. Assault and conspiracy are two I remember off the top of my head, there might be a few others.

Thank you so much- this makes perfect sense now, cheers!

[FinallyPassedTheBar]

It has to be both objective and subjective.

Objective in that a reasonable person would feel the threat.

And subjective in that the person actually did feel the threat.

Meaning that if the apprehension of contact was reasonable, but the the person did not actually feel apprehension, then there is no assault.