MBE Question Thread Forum

[slimjims27]

When the transferee "assumes" the mortgage and becomes primarily and personally liable for the mortgage, the original borrower (transferor) becomes secondarily liable. Does this mean that the mortgagee must go after the transferee first, and the original borrower is only liable when transferee can't pay? Or can the mortgagee pick and choose who to sue?

I'm not sure about the sequence but it's more likely that the examiners will ask about a situation in which the transferee not only assumes the mortgage but modifies it. In which case, the original mortgagee gets off scot-free. Please feel free to correct me if I'm wrong. Kinda loopy from my last practice essay

[slimjims27]

I sometimes confuse crim law principles with tort.

In tort actions, "mistake of ownership is no defense." So if you accidentally take someone else's chess board and it gets stolen, you are liable for conversion. But in crim law, a reasonable mistake of fact (such as who owns the chessboard) is a defense to specific intent crimes. Am I getting that right?

[slimjims27]

Confirming: attempted murder does not merge into battery.

If I intend to kill someone with a bat but only bruise them, I have possibly committed assault, attempted murder, and battery. But since assault merges into attempted murder, I can only be charged for attempted murder and battery. Is that right?

[Toubro]

When the transferee "assumes" the mortgage and becomes primarily and personally liable for the mortgage, the original borrower (transferor) becomes secondarily liable. Does this mean that the mortgagee must go after the transferee first, and the original borrower is only liable when transferee can't pay? Or can the mortgagee pick and choose who to sue?

I'm not sure about the sequence but it's more likely that the examiners will ask about a situation in which the transferee not only assumes the mortgage but modifies it. In which case, the original mortgagee gets off scot-free. Please feel free to correct me if I'm wrong. Kinda loopy from my last practice essay

Hmm - interesting. I'm sure you're right, but I don't think this is something they're more likely to test you on.

[RavenAgain]

Property law - Covenant against Encumbrances & Seisin - still enforceable after closing of contract?

1. Encumbrances: If Buyer notices for example a right of way after closing, can he still sue for breach of present covenants?

2. Seisin: And can someone explain to me please what the title deeds are? Is that the document showing you own the property, thus seisin? So if the title deeds are not in the documents handed over, you can't sue.

It is confusing. Any input appreciated!

[ConfusedL1]

When is a balancing test necessary for a private nuisance?

Just did a question where the utility balancing seemed to favor a factory and got it wrong because apparently it favored a homeowner.

[ConfusedL1]

Property law - Covenant against Encumbrances & Seisin - still enforceable after closing of contract?

1. Encumbrances: If Buyer notices for example a right of way after closing, can he still sue for breach of present covenants?

2. Seisin: And can someone explain to me please what the title deeds are? Is that the document showing you own the property, thus seisin? So if the title deeds are not in the documents handed over, you can't sue.

It is confusing. Any input appreciated!

Here's my understanding. Some one correct if wrong. There are two general types of warranties:

1. Present (seisin, right to convey, against encumbrances) which are only breached, if ever, at the time deed is delivered. Basically, you waive a bunch of potential challenges to marketability in exchange for these when you get a deed.

2. Future (quiet enjoyment, warranty, further assurances) are breached only when the grantee is disturbed in possession.

[BulletTooth]

When is a balancing test necessary for a private nuisance?

Just did a question where the utility balancing seemed to favor a factory and got it wrong because apparently it favored a homeowner.

I think you always want to do a balancing test with private nuisance. Private nuisance is a substantial and unreasonable interference with a property owner's use an enjoyment of land. An interference is unreasonable if the gravity of the plaintiff's harm outweighs the utility of the defendant's conduct. So, you'll always want to do a balancing test to show that the harm is unreasonable. For most essays, I don't think there will be a right or wrong answer as to whether the interference is unreasonable--it will be a discussable issue. For MBE, I would look for where the defendant is providing a valuable public service resulting in interference with the plaintiff's property--something like a water treatment plant that emits odor. In those cases, it's likely that a court would find that the utility of the defendant's conduct outweighs the harm to the plaintiff, and thus the interference is not unreasonable.

[InterAlia1961]

If the utility of the defendant's conduct outweighs the interference with the plaintiff's use and enjoyment, then the plaintiff loses. The utility/harm balancing test is also used in strict products liability cases where the issue is defective design. If the design is defective, but the utility of the produce outweighs the risk or harm, then no liability. Think: public defibrillator boxes. Yes, they can shock and even kill you, but their utility, saving the life of someone in cardiac arrest, is far outweighed by the possibility that some half-wit will hurt themselves.

[ConfusedL1]

If the utility of the defendant's conduct outweighs the interference with the plaintiff's use and enjoyment, then the plaintiff loses. The utility/harm balancing test is also used in strict products liability cases where the issue is defective design. If the design is defective, but the utility of the produce outweighs the risk or harm, then no liability. Think: public defibrillator boxes. Yes, they can shock and even kill you, but their utility, saving the life of someone in cardiac arrest, is far outweighed by the possibility that some half-wit will hurt themselves.

Thanks y'all. I think this was a case of me reading into facts that weren't there. The factory DID produce something and had an annoying byproduct that goes on the neighbor's land, but I should have realized that's a clear unreasonable interference and all I had was "producing" some random material which shouldn't have been enough to itself outweigh it.

[Toubro]

Property question.

So I know you can't waive your equitable right to redeem for a mortgage prior to the foreclosure sale in the mortgage itself because that would be clogging. But can you waive your statutory right to redeem?

[Toubro]

When is a balancing test necessary for a private nuisance?

Just did a question where the utility balancing seemed to favor a factory and got it wrong because apparently it favored a homeowner.

I think you always want to do a balancing test with private nuisance. Private nuisance is a substantial and unreasonable interference with a property owner's use an enjoyment of land. An interference is unreasonable if the gravity of the plaintiff's harm outweighs the utility of the defendant's conduct. So, you'll always want to do a balancing test to show that the harm is unreasonable. For most essays, I don't think there will be a right or wrong answer as to whether the interference is unreasonable--it will be a discussable issue. For MBE, I would look for where the defendant is providing a valuable public service resulting in interference with the plaintiff's property--something like a water treatment plant that emits odor. In those cases, it's likely that a court would find that the utility of the defendant's conduct outweighs the harm to the plaintiff, and thus the interference is not unreasonable.

Yes, and also one of the lecturers for Barbri said that the correct answer choice will usually include a stipulation about reasonableness so that we don't have to balance it ourselves.

[omar.comin]

I sometimes confuse crim law principles with tort.

In tort actions, "mistake of ownership is no defense." So if you accidentally take someone else's chess board and it gets stolen, you are liable for conversion. But in crim law, a reasonable mistake of fact (such as who owns the chessboard) is a defense to specific intent crimes. Am I getting that right?

Yes, except unreasonable mistake of fact is also a defense for specific intent crimes

[TheWalrus]

Does anyone understand coming to the nuisance? I thought it was never the correct answer, but I was reading this barbri outline and am now all confused.

[ConfusedL1]

Does anyone understand coming to the nuisance? I thought it was never the correct answer, but I was reading this barbri outline and am now all confused.

I think it's ONLY helpful as a last ditch equitable defense if P KNEW of the nuisance before getting there, but I still think it'd be hard to offset a balancing that goes in favor of P.

I haven't ever seen it successfully plead in an answer, but I could see it showing up as a kind of "most promising" argument type question.

[TheWalrus]

Under Double Jeopardy and Blockburger, if you are acquitted of burglary, can you be subsequently tried for armed burglary? They have a different element, the armed part, and I'm kind of confused to how that works.

Thanks.

[pancakes3]

Under Double Jeopardy and Blockburger, if you are acquitted of burglary, can you be subsequently tried for armed burglary? They have a different element, the armed part, and I'm kind of confused to how that works.

Thanks.

each crime needs a distinctively different element from the other. all of burglary's elements can be found in armed burglary, so it fails blockburger.

[TheWalrus]

Under Double Jeopardy and Blockburger, if you are acquitted of burglary, can you be subsequently tried for armed burglary? They have a different element, the armed part, and I'm kind of confused to how that works.

Thanks.

each crime needs a distinctively different element from the other. all of burglary's elements can be found in armed burglary, so it fails blockburger.

Oh, that makes sense. Thanks.

[ConfusedL1]

Under Double Jeopardy and Blockburger, if you are acquitted of burglary, can you be subsequently tried for armed burglary? They have a different element, the armed part, and I'm kind of confused to how that works.

Thanks.

each crime needs a distinctively different element from the other. all of burglary's elements can be found in armed burglary, so it fails blockburger.

This works both ways right? I.e. if you were charged for armed burglary and acquitted you can't be charged for burglary.

My understanding is that you can't go up OR down the chain if the elements match up.

[Puffman1234]

Can someone explain this to me? Con law substantive due process/equal protection question.

This was a question on the Themis simulated MBE:

Concerned about problems caused by overpopulation, a state legislature enacted a statute imposing
criminal penalties on any person who is the biological parent of more than two children. The stated
purpose of the statute was to preserve the state’s natural resources and improve the quality of life for the
state’s residents. After the statute took effect, a married couple who already had two children conceived a
third. After the wife gave birth to this child, the couple was arrested and convicted under the statute.
Which of the following is the strongest argument for voiding their convictions?

Two answers were clearly wrong. The remaining two were

(1) The statute places an unconstitutional burden on the fundamental privacy and procreative rights of married persons.
(2) The statute denies the couple their Equal Protection Rights.

The answer was #1, which I picked. I thought about picking #2, though. In the Themis answer explanation they say that the EP answer is not correct because the class is not suspect so all that needs to be satisfied is the rational basis test. I was thinking about this as I went to sleep last night.

In the Themis outline, it states that non-suspect-class-based discrimination is still subject to strict scrutiny where the use of the classification burdens fundamental rights. So, for this question, strict scrutiny seems like it should apply to the equal protection claim. While "people with 2 children" is not a suspect or quasi-suspect class, the classification is being used to burden this non-suspect-class' fundamental rights.

Also, the outline suggests that where a problem suggests that all person's fundamental rights are being burdened, we should go for substantive due process, but that when only some person's fundamental rights are being burdened, we should go for equal protection. Isn't the latter exactly what's happening in this question? Anyways, don't these two claims just overlap? I don't think you have to show that a law would universally deny a fundamental right to everyone else to show that it's violating YOUR substantive due process rights, do you? If you went to court on these facts you'd just allege both claims, and both would be viable, if somewhat redundant?

So in this question, both substantive due process and a equal-protection-burdening-of-fundamental-rights should be avenues for a claim, shouldn't they, and actually, EP is a better fit if you're supposed to go for EP when non-suspect-classifications burden fundamental rights?

[ConfusedL1]

Can someone explain this to me? Con law substantive due process/equal protection question.

This was a question on the Themis simulated MBE:

Concerned about problems caused by overpopulation, a state legislature enacted a statute imposing
criminal penalties on any person who is the biological parent of more than two children. The stated
purpose of the statute was to preserve the state’s natural resources and improve the quality of life for the
state’s residents. After the statute took effect, a married couple who already had two children conceived a
third. After the wife gave birth to this child, the couple was arrested and convicted under the statute.
Which of the following is the strongest argument for voiding their convictions?

Two answers were clearly wrong. The remaining two were

(1) The statute places an unconstitutional burden on the fundamental privacy and procreative rights of married persons.
(2) The statute denies the couple their Equal Protection Rights.

The answer was #1, which I picked. I thought about picking #2, though. In the Themis answer explanation they say that the EP answer is not correct because the class is not suspect so all that needs to be satisfied is the rational basis test. I was thinking about this as I went to sleep last night.

In the Themis outline, it states that non-suspect-class-based discrimination is still subject to strict scrutiny where the use of the classification burdens fundamental rights. So, for this question, strict scrutiny seems like it should apply to the equal protection claim. While "people with 2 children" is not a suspect or quasi-suspect class, the classification is being used to burden this non-suspect-class' fundamental rights.

Also, the outline suggests that where a problem suggests that all person's fundamental rights are being burdened, we should go for substantive due process, but that when only some person's fundamental rights are being burdened, we should go for equal protection. Isn't the latter exactly what's happening in this question? Anyways, don't these two claims just overlap? I don't think you have to show that a law would universally deny a fundamental right to everyone else to show that it's violating YOUR substantive due process rights, do you? If you went to court on these facts you'd just allege both claims, and both would be viable, if somewhat redundant?

So in this question, both substantive due process and a equal-protection-burdening-of-fundamental-rights should be avenues for a claim, shouldn't they, and actually, EP is a better fit if you're supposed to go for EP when non-suspect-classifications burden fundamental rights?

honestly, I think this is one of those "best answer" categories. The fact they you need to take an extra step in tying the suspect class to a fundamental right is one stop away from the clear fundamental right (marriage/procreation).

[pancakes3]

Under Double Jeopardy and Blockburger, if you are acquitted of burglary, can you be subsequently tried for armed burglary? They have a different element, the armed part, and I'm kind of confused to how that works.

Thanks.

each crime needs a distinctively different element from the other. all of burglary's elements can be found in armed burglary, so it fails blockburger.

This works both ways right? I.e. if you were charged for armed burglary and acquitted you can't be charged for burglary.

My understanding is that you can't go up OR down the chain if the elements match up.

yes.

Can someone explain this to me? Con law substantive due process/equal protection question.

This was a question on the Themis simulated MBE:

Concerned about problems caused by overpopulation, a state legislature enacted a statute imposing
criminal penalties on any person who is the biological parent of more than two children. The stated
purpose of the statute was to preserve the state’s natural resources and improve the quality of life for the
state’s residents. After the statute took effect, a married couple who already had two children conceived a
third. After the wife gave birth to this child, the couple was arrested and convicted under the statute.
Which of the following is the strongest argument for voiding their convictions?

Two answers were clearly wrong. The remaining two were

(1) The statute places an unconstitutional burden on the fundamental privacy and procreative rights of married persons.
(2) The statute denies the couple their Equal Protection Rights.

The answer was #1, which I picked. I thought about picking #2, though. In the Themis answer explanation they say that the EP answer is not correct because the class is not suspect so all that needs to be satisfied is the rational basis test. I was thinking about this as I went to sleep last night.

In the Themis outline, it states that non-suspect-class-based discrimination is still subject to strict scrutiny where the use of the classification burdens fundamental rights. So, for this question, strict scrutiny seems like it should apply to the equal protection claim. While "people with 2 children" is not a suspect or quasi-suspect class, the classification is being used to burden this non-suspect-class' fundamental rights.

Also, the outline suggests that where a problem suggests that all person's fundamental rights are being burdened, we should go for substantive due process, but that when only some person's fundamental rights are being burdened, we should go for equal protection. Isn't the latter exactly what's happening in this question? Anyways, don't these two claims just overlap? I don't think you have to show that a law would universally deny a fundamental right to everyone else to show that it's violating YOUR substantive due process rights, do you? If you went to court on these facts you'd just allege both claims, and both would be viable, if somewhat redundant?

So in this question, both substantive due process and a equal-protection-burdening-of-fundamental-rights should be avenues for a claim, shouldn't they, and actually, EP is a better fit if you're supposed to go for EP when non-suspect-classifications burden fundamental rights?

1) you can't really pin the suspect class on "people with more than 2 children" since that's the consequence of the law rather than the class being discriminated against. everyone's being affected by this law. a law that says "you can't eat broccoli" doesn't create a suspect class of broccoli-eaters.

2) SDP is used heavily to justify marriage/privacy/right to procreate stuff so alarm bells should be going off for SDP.

[Puffman1234]

Under Double Jeopardy and Blockburger, if you are acquitted of burglary, can you be subsequently tried for armed burglary? They have a different element, the armed part, and I'm kind of confused to how that works.

Thanks.

each crime needs a distinctively different element from the other. all of burglary's elements can be found in armed burglary, so it fails blockburger.

This works both ways right? I.e. if you were charged for armed burglary and acquitted you can't be charged for burglary.

My understanding is that you can't go up OR down the chain if the elements match up.

yes.

Can someone explain this to me? Con law substantive due process/equal protection question.

This was a question on the Themis simulated MBE:

Concerned about problems caused by overpopulation, a state legislature enacted a statute imposing
criminal penalties on any person who is the biological parent of more than two children. The stated
purpose of the statute was to preserve the state’s natural resources and improve the quality of life for the
state’s residents. After the statute took effect, a married couple who already had two children conceived a
third. After the wife gave birth to this child, the couple was arrested and convicted under the statute.
Which of the following is the strongest argument for voiding their convictions?

Two answers were clearly wrong. The remaining two were

(1) The statute places an unconstitutional burden on the fundamental privacy and procreative rights of married persons.
(2) The statute denies the couple their Equal Protection Rights.

The answer was #1, which I picked. I thought about picking #2, though. In the Themis answer explanation they say that the EP answer is not correct because the class is not suspect so all that needs to be satisfied is the rational basis test. I was thinking about this as I went to sleep last night.

In the Themis outline, it states that non-suspect-class-based discrimination is still subject to strict scrutiny where the use of the classification burdens fundamental rights. So, for this question, strict scrutiny seems like it should apply to the equal protection claim. While "people with 2 children" is not a suspect or quasi-suspect class, the classification is being used to burden this non-suspect-class' fundamental rights.

Also, the outline suggests that where a problem suggests that all person's fundamental rights are being burdened, we should go for substantive due process, but that when only some person's fundamental rights are being burdened, we should go for equal protection. Isn't the latter exactly what's happening in this question? Anyways, don't these two claims just overlap? I don't think you have to show that a law would universally deny a fundamental right to everyone else to show that it's violating YOUR substantive due process rights, do you? If you went to court on these facts you'd just allege both claims, and both would be viable, if somewhat redundant?

So in this question, both substantive due process and a equal-protection-burdening-of-fundamental-rights should be avenues for a claim, shouldn't they, and actually, EP is a better fit if you're supposed to go for EP when non-suspect-classifications burden fundamental rights?

1) you can't really pin the suspect class on "people with more than 2 children" since that's the consequence of the law rather than the class being discriminated against. everyone's being affected by this law. a law that says "you can't eat broccoli" doesn't create a suspect class of broccoli-eaters.

2) SDP is used heavily to justify marriage/privacy/right to procreate stuff so alarm bells should be going off for SDP.

I agree that there has to be an extra layer of classification over "people whose fundamental rights are burdened," but in this case the class is "people who have more than two biological children." A person with one or no biological children wouldn't be affected so there's a classification beyond those whose rights are burdened. The Themis answer seems to acknowledge this, because it states that "people with more than 2 biological children" is a non-suspect class for EP purposes and that therefore the only EP test to apply is rational basis. I don't think that's right.

In your example, if eating broccoli were a fundamental right and the law said "people with more than 2 biological children cannot eat broccoli" but it didn't forbid anyone with one or no biological children, or any number of non-biological children, from eating broccoli, that wouldn't mean there wasn't a classification. It'd just be a non-suspect classification, which also burdened that non-suspect classification's exercise of fundamental rights while not burdening any other people's fundamental rights.

As far as I can see the only time a law will ever truly burden fundamental rights without any reference to some form of classification, be it suspect or not, is if it bars EVERYONE from something. If a state passed a law that said "NOBODY can have kids" that's 100% pure substantive due process. But if it made ANY non-suspect classification on who that law would apply to, then a member of that class (assuming standing) would have an as-applied substantive due process claim and an EP burdening-the-fundamental-rights-of-a-suspect-class claim.

That's just my take on it. If I'm totally wrong then I'd like to know why. If I'm not totally wrong then I hope the MBE questions are better written.

[bballbb02]

What constitutes sufficient burning/damage to a building to get an arson conviction?? I couldve sworn it was damge/burning to structure of the building now I have seen that charring of a bathroom wall is enough or burning of a bed is enough..just need clarification

[pancakes3]

I agree that there has to be an extra layer of classification over "people whose fundamental rights are burdened," but in this case the class is "people who have more than two biological children." A person with one or no biological children wouldn't be affected so there's a classification beyond those whose rights are burdened. The Themis answer seems to acknowledge this, because it states that "people with more than 2 biological children" is a non-suspect class for EP purposes and that therefore the only EP test to apply is rational basis. I don't think that's right.

In your example, if eating broccoli were a fundamental right and the law said "people with more than 2 biological children cannot eat broccoli" but it didn't forbid anyone with one or no biological children, or any number of non-biological children, from eating broccoli, that wouldn't mean there wasn't a classification. It'd just be a non-suspect classification, which also burdened that non-suspect classification's exercise of fundamental rights while not burdening any other people's fundamental rights.

As far as I can see the only time a law will ever truly burden fundamental rights without any reference to some form of classification, be it suspect or not, is if it bars EVERYONE from something. If a state passed a law that said "NOBODY can have kids" that's 100% pure substantive due process. But if it made ANY non-suspect classification on who that law would apply to, then a member of that class (assuming standing) would have an as-applied substantive due process claim and an EP burdening-the-fundamental-rights-of-a-suspect-class claim.

That's just my take on it. If I'm totally wrong then I'd like to know why. If I'm not totally wrong then I hope the MBE questions are better written.

I would argue that:

a law that says "women have more than 2 kids" affects women and only women so women are the suspect class.
a law that says "no one can have more than 2 kids" affects people with no kids also, so it's tough to argue that there's a suspect class at all.
a law that says "people with more than 2 kids can't eat broccoli" would make "people with more than 2 kids" a suspect class but a law that says "no one can eat broccoli" is more of a deprivation of the life property liberty to eat broccoli.

of course there's no reason to say that it can't be both SDP and infringing on the equal protection of the law, but that's just how I issue-spotted your question.