Themis Bar Review Hangout - July 2017 Forum

[uceoledinbdnrn]

Not that this is relevant right now but how can state statutes supersede a Constitutional limitation?

Example?

this:

The Themis outline says: "The underlying felony will generally 'merge' into the crime of felony murder for the purposes of Double Jeopardy... For example, in the majority of jurisdictions, a D who kills the proprietor of a store while committing a robbery can be convicted only of felony murder; the robbery conviction would 'merge' into the felony-murder conviction. A minority of jurisdictions have enacted statutes explicitly allowing cumulative punishcment for both the felony and underlying felony;... for purpose of the bar exam, you should assume that cumulative punishment violates Double Jeopardy."

[Bass]

Quick question about felony murder merging.

I usually copy and paste law from questions I got wrong on practice sets into my outline and for the merger doctrine I have "arson will merge into felony murder if they are the result of the same act."

I was working through Emmanuel's today and question 33 presented the same fact pattern and the answer was the D should be convicted of both murder and arson.

Anyone have any advice on if the underlying BARRK felonies for felony murder merge into the murder itself or not? Or how this would tie into the double jeopardy issue and the Blockburger test? Thanks.

I was confused about this too. I got to the right answer by process of elimination, but was stuck on this for awhile because I thought arson merged into felony murder.

The Themis outline says: "The underlying felony will generally 'merge' into the crime of felony murder for the purposes of Double Jeopardy... For example, in the majority of jurisdictions, a D who kills the proprietor of a store while committing a robbery can be convicted only of felony murder; the robbery conviction would 'merge' into the felony-murder conviction. A minority of jurisdictions have enacted statutes explicitly allowing cumulative punishcment for both the felony and underlying felony;... for purpose of the bar exam, you should assume that cumulative punishment violates Double Jeopardy."

For anyone interested, here's the question:

A businessman lived on the second floor of a small convenience store/gas station that he owned. One night he refused to sell a customer a six-pack of beer after hours, saying he could not violate the state laws. The customer became enraged and deliberately drove his car into one of the gasoline pumps, severing it from its base. There was an ensuing explosion causing a ball of fire to go from the underground gasoline tank into the building. As a result, the building burned to the ground and the businessman was killed.

In a common-law jurisdiction, if the customer is charged with murder and arson, he should be

A. convicted of both offenses.
B. convicted of involuntary manslaughter and acquitted of arson.
C. convicted of arson and involuntary manslaughter.
D. acquitted of both offenses

The correct answer is A.

Would it be because "murder" in the question actually refers to "intent to kill" or "intent to cause serious bodily injury" murder instead of felony murder? In that case there will be no merger.

[uceoledinbdnrn]

^^^ oh yeah, this is a good call.

Arson that results in a death under the common law is depraved heart murder. It's also still arson because you've got the structural damage on top of the dead person.

[gatorfan163287]

That was kind of what I was thinking as well as to the explanation, and got the right answer only by elimination. I just got confused because the answer explanation provided in the book said basically he was guilty of arson because he acted with a reckless disregard for an obvious risk of burning which satisfied intent (only part of arson really in question there) and that it was felony murder. Nowhere in the answer is another form/reason for murder mentioned other than in the context of felony murder due to the arson.

It says, "Since as described above the customer is guilty of arson, and since the death of the businessman occurred during and as the direct result of arson, the customer is also guilty of felony murder."

I sent a message to Themis about it as a substantive law question so I'll post what they say back. Thanks for the replies everyone sorry to ask such a minute/unrelated to Themis question.

[TXBar2017]

Question 4998

As permitted by State A law, a decedent’s only heir personally filed a wrongful death action against a defendant. The decedent was domiciled in State A at the time of his death, which occurred in State A. The decedent’s heir (the plaintiff) is domiciled in State B. The action was filed in the State A federal court for the district in which the defendant is domiciled. The complaint seeks damages of $250,000, excluding interest and court costs, and alleges that, “Jurisdiction is founded upon diversity, the plaintiff being a resident of State B, and the defendant a resident of State A.”

On these facts, is there any basis on which the defendant could properly challenge the plaintiff’s complaint?


Correct Answer: Yes, the complaint fails to properly allege the subject matter jurisdiction of the court.
You Selected: Yes, the personal representative of a decedent’s estate is deemed a citizen of the same state as the decedent.
No, the plaintiff and the defendant are domiciled in different states and the jurisdictional threshold has been met.
No, the complaint satisfies the Federal Rules of Civil Procedure requirements of notice pleading.

Fuck off, Themis. Glad I'm getting absolutely shit on a week before the test.

[champloo]

Question 4998

As permitted by State A law, a decedent’s only heir personally filed a wrongful death action against a defendant. The decedent was domiciled in State A at the time of his death, which occurred in State A. The decedent’s heir (the plaintiff) is domiciled in State B. The action was filed in the State A federal court for the district in which the defendant is domiciled. The complaint seeks damages of $250,000, excluding interest and court costs, and alleges that, “Jurisdiction is founded upon diversity, the plaintiff being a resident of State B, and the defendant a resident of State A.”

On these facts, is there any basis on which the defendant could properly challenge the plaintiff’s complaint?


Correct Answer: Yes, the complaint fails to properly allege the subject matter jurisdiction of the court.
You Selected: Yes, the personal representative of a decedent’s estate is deemed a citizen of the same state as the decedent.
No, the plaintiff and the defendant are domiciled in different states and the jurisdictional threshold has been met.
No, the complaint satisfies the Federal Rules of Civil Procedure requirements of notice pleading.

Fuck off, Themis. Glad I'm getting absolutely shit on a week before the test.

lol i remember this question. i literally threw whatever pieces of paper i had in front of me in the air.

[MelaPela]

Question 4998

As permitted by State A law, a decedent’s only heir personally filed a wrongful death action against a defendant. The decedent was domiciled in State A at the time of his death, which occurred in State A. The decedent’s heir (the plaintiff) is domiciled in State B. The action was filed in the State A federal court for the district in which the defendant is domiciled. The complaint seeks damages of $250,000, excluding interest and court costs, and alleges that, “Jurisdiction is founded upon diversity, the plaintiff being a resident of State B, and the defendant a resident of State A.”

On these facts, is there any basis on which the defendant could properly challenge the plaintiff’s complaint?


Correct Answer: Yes, the complaint fails to properly allege the subject matter jurisdiction of the court.
You Selected: Yes, the personal representative of a decedent’s estate is deemed a citizen of the same state as the decedent.
No, the plaintiff and the defendant are domiciled in different states and the jurisdictional threshold has been met.
No, the complaint satisfies the Federal Rules of Civil Procedure requirements of notice pleading.

Fuck off, Themis. Glad I'm getting absolutely shit on a week before the test.

lol i remember this question. i literally threw whatever pieces of paper i had in front of me in the air.

LOL! I remember this one too. At least we were all on the same page.

[nichsull]

Does anyone else think that having more graded essays at the end of course and close to the bar would be more beneficial? My grader was not very helpful to begin with but when I wrote my first few essays back in May, I had no idea what I was writing about so the essays were kind of useless for practice purposes.

Now, I have studied and am getting pretty close to the correct answers but missing a nuisance of a rule here and there. I would like to know where my essays stand now that the exam is so close. I just feel like a lot is left up to "self grading" which helps understand a rule but doesn't give me any feedback on what type of score I would receive come exam day.

[gatorfan163287]

I think their graded essays are worthless in general and anything anyone gets on them should be taken with a grain of salt. I asked them to switch graders for me after getting a 2/6 on the first one because her comments on it were as if she didn't even read my essay. She said to do headers (which I had) and that I missed talking about a major issue when I had a subheading for it and wrote multiple paragraphs on it. Maybe mine was isolated but since then I've gotten 5/6 doing nothing different than the first week.

So wouldn't take much they say to heart.

[the_pakalypse]

Why is BJR (presumption of acting in best interest of corporations) part of the duty of care (to act reasonably), and not the duty of loyalty (to act in the best interests of corporation)?

[futago]

I think their graded essays are worthless in general and anything anyone gets on them should be taken with a grain of salt. I asked them to switch graders for me after getting a 2/6 on the first one because her comments on it were as if she didn't even read my essay. She said to do headers (which I had) and that I missed talking about a major issue when I had a subheading for it and wrote multiple paragraphs on it. Maybe mine was isolated but since then I've gotten 5/6 doing nothing different than the first week.

So wouldn't take much they say to heart.

Same experience here, my grader obviously did not even read some of my essays.

Also, @nichsull, I'm pretty sure the deadline to submit graded essays was the 18th.

[Bass]

Please enlighten me on this wills question:

[+] Spoiler

Question ID: 2840

Twenty years ago, John and Mary were married. One month before their wedding, John and Mary signed a valid prenuptial agreement in which each of them waived “any property rights in the estate or property of the other to which he or she might otherwise be legally entitled upon the termination of their marriage by death or divorce.”

Seventeen years ago, John executed a valid will, which provided as follows:

I, John, leave my entire estate to my wife, Mary. However, if I should hereafter have children, then I leave three-fourths of my estate to my wife, Mary, and one-fourth of my estate to my children who survive me, in equal shares.

Fifteen years ago, John had an extramarital affair with Beth, who gave birth to their child, Son. Both Beth and John consented to Son’s adoption by Aunt. At the time of the adoption, Beth, John, and Aunt agreed that Son would not be told that he was the biological child of Beth and John.

Three years ago, Aunt died, and Son moved into John and Mary’s home. At that time, John admitted to Mary that he had had an extramarital affair with Beth which had resulted in Son’s birth.

Three months ago, Mary filed for divorce. Nonetheless, she and John continued to live together.

One month ago, before John and Mary’s divorce decree was entered, John was killed in a car accident. John’s will, executed 17 years ago, has been offered for probate. John’s will did not designate anyone to act as the personal representative of his estate.

John was survived by Mary, Son, and John’s mother.

1. To whom should John’s estate be distributed? Explain.

2. Who should be appointed as the personal representative of John’s estate? Explain.

On the part in bold above in spoilers, model answer had this to say:

[+] Spoiler

b. Prenuptial agreement (25%)

The prenuptial agreement signed by Mary acted as a waiver of all rights to John’s estate upon the termination of their marriage by divorce or death. The facts indicate that the prenuptial agreement was valid, and therefore Mary would be precluded from any share of John’s estate. However, the waiver in the prenuptial agreement does not apply to subsequent gifts or bequests made voluntarily by John. Therefore, Mary is entitled to take the share of John’s estate delineated in the will as the will was voluntarily executed after they entered into the prenuptial agreement.

What rule is this? I cannot locate this in the outlines...

[uceoledinbdnrn]

Please enlighten me on this wills question:

[+] Spoiler

Question ID: 2840

Twenty years ago, John and Mary were married. One month before their wedding, John and Mary signed a valid prenuptial agreement in which each of them waived “any property rights in the estate or property of the other to which he or she might otherwise be legally entitled upon the termination of their marriage by death or divorce.”

Seventeen years ago, John executed a valid will, which provided as follows:

I, John, leave my entire estate to my wife, Mary. However, if I should hereafter have children, then I leave three-fourths of my estate to my wife, Mary, and one-fourth of my estate to my children who survive me, in equal shares.

Fifteen years ago, John had an extramarital affair with Beth, who gave birth to their child, Son. Both Beth and John consented to Son’s adoption by Aunt. At the time of the adoption, Beth, John, and Aunt agreed that Son would not be told that he was the biological child of Beth and John.

Three years ago, Aunt died, and Son moved into John and Mary’s home. At that time, John admitted to Mary that he had had an extramarital affair with Beth which had resulted in Son’s birth.

Three months ago, Mary filed for divorce. Nonetheless, she and John continued to live together.

One month ago, before John and Mary’s divorce decree was entered, John was killed in a car accident. John’s will, executed 17 years ago, has been offered for probate. John’s will did not designate anyone to act as the personal representative of his estate.

John was survived by Mary, Son, and John’s mother.

1. To whom should John’s estate be distributed? Explain.

2. Who should be appointed as the personal representative of John’s estate? Explain.

On the part in bold above in spoilers, model answer had this to say:

[+] Spoiler

b. Prenuptial agreement (25%)

The prenuptial agreement signed by Mary acted as a waiver of all rights to John’s estate upon the termination of their marriage by divorce or death. The facts indicate that the prenuptial agreement was valid, and therefore Mary would be precluded from any share of John’s estate. However, the waiver in the prenuptial agreement does not apply to subsequent gifts or bequests made voluntarily by John. Therefore, Mary is entitled to take the share of John’s estate delineated in the will as the will was voluntarily executed after they entered into the prenuptial agreement.

What rule is this? I cannot locate this in the outlines...

Everything you need is in the prenup and the will. I don't think there's anything here for an outline to cover. The prenup might be relevant if he had died intestate or if he'd given her less than than the spouse's elective share and she'd tried to assert her rights.

She's waiving her claim to his property- he still has the option to give it to her if he wants. And because the will is the last statement of what he wants, it controls regardless of the language of the prenup.

Like say we make an agreement not to sue each other. Later, I give you twenty dollars. The agreement not to sue each other won't preclude me from giving that gift.

e. now as for the second part of that question.... I have no idea how you'd figure that out.

[gotsomequestions]

Bizarre Eleventh Amendment Question

[+] Spoiler

An appropriate representative of a resident in a state mental health facility sued an official of the facility in federal court. The resident, who remained a citizen of another state, sought an injunction to compel the official to comply with state law regarding the use of the least restrictive environment approach for the care of the mentally ill.

The official moved to dismiss the action as unconstitutional under the Eleventh Amendment. Should the court grant the official’s motion?

Answers:

You Selected: No, because an injunction, not damages, was sought as a remedy.
No, because the action was brought against a state official rather than the state.
Yes, because a fundamental right is not involved.
Correct Answer: Yes, because the action sought the enforcement of state law rather than federal law.

Answer choice D is correct. The Eleventh Amendment prohibits an action in federal court by a citizen of one state against another state when the basis for the action is the violation of state law. Answer choice A is incorrect because, although the plaintiff seeks an injunction rather than damages, the Eleventh Amendment prohibits the action nonetheless, as it is based on state law. Similarly, answer choice B is incorrect because, although the action is brought against the state official rather than the state, the Eleventh Amendment prohibits an action based on state law. Answer choice C is incorrect because, although a plaintiff can pursue an action despite the Eleventh Amendment in order to prevent the enforcement of an unconstitutional state statute, the plaintiff is not advancing such an argument here. Since the plaintiff is not challenging the constitutionality of the state statute under the Due Process Clause of the Fourteenth Amendment, the issue of whether the plaintiff is asserting a fundamental right is irrelevant.

The first page of my lecture outline literally says you can sue a state officer for injunctive relief...?

[uceoledinbdnrn]

Why is BJR (presumption of acting in best interest of corporations) part of the duty of care (to act reasonably), and not the duty of loyalty (to act in the best interests of corporation)?

I think this is the wrong way to think about this. I don't know what themis is telling you but the BJR isn't part of either duty.

The BJR serves as a constraint on courts- they won't second guess the legitimate business decisions of management/directors.

The duties of care and loyalty serve as constraint on the managers- as long as they live up to the duties of care and loyalty the BJR will protect them from liability for their decisions.

Violating either the duty of care (through gross negligence) or the duty of loyalty (through self dealing) is going to cause them to lose the protection of the BJR unless they can find a safe harbor for their actions like shareholder approval or -for the duty of care only- the legislature has given corporations the power to disclaim the duty of care in their articles of incorporation.

[Bass]

Bizarre Eleventh Amendment Question

[+] Spoiler

An appropriate representative of a resident in a state mental health facility sued an official of the facility in federal court. The resident, who remained a citizen of another state, sought an injunction to compel the official to comply with state law regarding the use of the least restrictive environment approach for the care of the mentally ill.

The official moved to dismiss the action as unconstitutional under the Eleventh Amendment. Should the court grant the official’s motion?

Answers:

You Selected: No, because an injunction, not damages, was sought as a remedy.
No, because the action was brought against a state official rather than the state.
Yes, because a fundamental right is not involved.
Correct Answer: Yes, because the action sought the enforcement of state law rather than federal law.

Answer choice D is correct. The Eleventh Amendment prohibits an action in federal court by a citizen of one state against another state when the basis for the action is the violation of state law. Answer choice A is incorrect because, although the plaintiff seeks an injunction rather than damages, the Eleventh Amendment prohibits the action nonetheless, as it is based on state law. Similarly, answer choice B is incorrect because, although the action is brought against the state official rather than the state, the Eleventh Amendment prohibits an action based on state law. Answer choice C is incorrect because, although a plaintiff can pursue an action despite the Eleventh Amendment in order to prevent the enforcement of an unconstitutional state statute, the plaintiff is not advancing such an argument here. Since the plaintiff is not challenging the constitutionality of the state statute under the Due Process Clause of the Fourteenth Amendment, the issue of whether the plaintiff is asserting a fundamental right is irrelevant.

The first page of my lecture outline literally says you can sue a state officer for injunctive relief...?

Page 2 of the Constitutional outline says Eleventh Amendment does not bar action for injunctive relief against state official for enforcing state law in violation of federal law...

[Bass]

Please enlighten me on this wills question:

[+] Spoiler

Question ID: 2840

Twenty years ago, John and Mary were married. One month before their wedding, John and Mary signed a valid prenuptial agreement in which each of them waived “any property rights in the estate or property of the other to which he or she might otherwise be legally entitled upon the termination of their marriage by death or divorce.”

Seventeen years ago, John executed a valid will, which provided as follows:

I, John, leave my entire estate to my wife, Mary. However, if I should hereafter have children, then I leave three-fourths of my estate to my wife, Mary, and one-fourth of my estate to my children who survive me, in equal shares.

Fifteen years ago, John had an extramarital affair with Beth, who gave birth to their child, Son. Both Beth and John consented to Son’s adoption by Aunt. At the time of the adoption, Beth, John, and Aunt agreed that Son would not be told that he was the biological child of Beth and John.

Three years ago, Aunt died, and Son moved into John and Mary’s home. At that time, John admitted to Mary that he had had an extramarital affair with Beth which had resulted in Son’s birth.

Three months ago, Mary filed for divorce. Nonetheless, she and John continued to live together.

One month ago, before John and Mary’s divorce decree was entered, John was killed in a car accident. John’s will, executed 17 years ago, has been offered for probate. John’s will did not designate anyone to act as the personal representative of his estate.

John was survived by Mary, Son, and John’s mother.

1. To whom should John’s estate be distributed? Explain.

2. Who should be appointed as the personal representative of John’s estate? Explain.

On the part in bold above in spoilers, model answer had this to say:

[+] Spoiler

b. Prenuptial agreement (25%)

The prenuptial agreement signed by Mary acted as a waiver of all rights to John’s estate upon the termination of their marriage by divorce or death. The facts indicate that the prenuptial agreement was valid, and therefore Mary would be precluded from any share of John’s estate. However, the waiver in the prenuptial agreement does not apply to subsequent gifts or bequests made voluntarily by John. Therefore, Mary is entitled to take the share of John’s estate delineated in the will as the will was voluntarily executed after they entered into the prenuptial agreement.

What rule is this? I cannot locate this in the outlines...

Everything you need is in the prenup and the will. I don't think there's anything here for an outline to cover. The prenup might be relevant if he had died intestate or if he'd given her less than than the spouse's elective share and she'd tried to assert her rights.

She's waiving her claim to his property- he still has the option to give it to her if he wants. And because the will is the last statement of what he wants, it controls regardless of the language of the prenup.

Like say we make an agreement not to sue each other. Later, I give you twenty dollars. The agreement not to sue each other won't preclude me from giving that gift.

e. now as for the second part of that question.... I have no idea how you'd figure that out.

Ah that makes sense...thanks!

Second question is based on the priority rules under the UPC...see page 38 of the wills outline...

[nichsull]

I think their graded essays are worthless in general and anything anyone gets on them should be taken with a grain of salt. I asked them to switch graders for me after getting a 2/6 on the first one because her comments on it were as if she didn't even read my essay. She said to do headers (which I had) and that I missed talking about a major issue when I had a subheading for it and wrote multiple paragraphs on it. Maybe mine was isolated but since then I've gotten 5/6 doing nothing different than the first week.

So wouldn't take much they say to heart.

Yeah I agree the actual commentary to the essays is useless. I was more thinking that they give a % grade for each graded essay. I was just thinking the grading could be helpful for actual scoring of the essay based on how close you are to the sample answer with your own answer. I mean I compare my answer on my own but sometimes another set of eyes and a % score with it can help, they can keep the commentary to themselves.

[bmmccb223]

So I finished all the Themis bar assignments (100% across all categories) but Themis lists me at 91% completion. What is the remaining 9%?

[IronCobra]

I thought I was doing pretty well on corporations until I just took this last practice essay, ID #3406. Good god.

[bmmccb223]

Not that this is relevant right now but how can state statutes supersede a Constitutional limitation?

Example?

this:

The Themis outline says: "The underlying felony will generally 'merge' into the crime of felony murder for the purposes of Double Jeopardy... For example, in the majority of jurisdictions, a D who kills the proprietor of a store while committing a robbery can be convicted only of felony murder; the robbery conviction would 'merge' into the felony-murder conviction. A minority of jurisdictions have enacted statutes explicitly allowing cumulative punishcment for both the felony and underlying felony;... for purpose of the bar exam, you should assume that cumulative punishment violates Double Jeopardy."

Blockberger is not controlling when Congress or a state legislature explicitly authorizes cumulative punishment for offenses that would otherwise merge. The decision basically created a two-step test. First, you determine whether there is authorization for cumulative punishment. Second, if there is no authorization, then the Double Jeopardy clause prohibits conviction for two offenses when one of the offenses is a lesser included offense of the other.

[SeewhathappensLarry]

I think their graded essays are worthless in general and anything anyone gets on them should be taken with a grain of salt. I asked them to switch graders for me after getting a 2/6 on the first one because her comments on it were as if she didn't even read my essay. She said to do headers (which I had) and that I missed talking about a major issue when I had a subheading for it and wrote multiple paragraphs on it. Maybe mine was isolated but since then I've gotten 5/6 doing nothing different than the first week.

So wouldn't take much they say to heart.

Yeah I agree the actual commentary to the essays is useless. I was more thinking that they give a % grade for each graded essay. I was just thinking the grading could be helpful for actual scoring of the essay based on how close you are to the sample answer with your own answer. I mean I compare my answer on my own but sometimes another set of eyes and a % score with it can help, they can keep the commentary to themselves.

The grades are worthless too. My grader has given me the exact same score for each part of the rubric, going up a few points each time. Really helpful Themis

[robin600]

So apparently Themis thinks we don't have a reasonable expectation of privacy in our bank statements? Anyone else thinks that's crazy?

[uceoledinbdnrn]

So apparently Themis thinks we don't have a reasonable expectation of privacy in our bank statements? Anyone else thinks that's crazy?

https://www.theatlantic.com/technology/ ... ne/282721/

third party doctrine goes hard. #neverforget #SnowdenWasWrong

[foundingfather]

Bizarre Eleventh Amendment Question

[+] Spoiler

An appropriate representative of a resident in a state mental health facility sued an official of the facility in federal court. The resident, who remained a citizen of another state, sought an injunction to compel the official to comply with state law regarding the use of the least restrictive environment approach for the care of the mentally ill.

The official moved to dismiss the action as unconstitutional under the Eleventh Amendment. Should the court grant the official’s motion?

Answers:

You Selected: No, because an injunction, not damages, was sought as a remedy.
No, because the action was brought against a state official rather than the state.
Yes, because a fundamental right is not involved.
Correct Answer: Yes, because the action sought the enforcement of state law rather than federal law.

Answer choice D is correct. The Eleventh Amendment prohibits an action in federal court by a citizen of one state against another state when the basis for the action is the violation of state law. Answer choice A is incorrect because, although the plaintiff seeks an injunction rather than damages, the Eleventh Amendment prohibits the action nonetheless, as it is based on state law. Similarly, answer choice B is incorrect because, although the action is brought against the state official rather than the state, the Eleventh Amendment prohibits an action based on state law. Answer choice C is incorrect because, although a plaintiff can pursue an action despite the Eleventh Amendment in order to prevent the enforcement of an unconstitutional state statute, the plaintiff is not advancing such an argument here. Since the plaintiff is not challenging the constitutionality of the state statute under the Due Process Clause of the Fourteenth Amendment, the issue of whether the plaintiff is asserting a fundamental right is irrelevant.

The first page of my lecture outline literally says you can sue a state officer for injunctive relief...?

Page 2 of the Constitutional outline says Eleventh Amendment does not bar action for injunctive relief against state official for enforcing state law in violation of federal law...

The Ex Parte Young fiction doesn't apply when suing to enjoin a state official from enforcing state law, unless that state law violates the federal constitution. These are the facts of Pennhurst State School & Hospital v. Halderman.