MBE Question Thread Forum

[uceoledinbdnrn]

what about accessory to running from the cops?

I think just everything gets rolled up in accessory after the fact unless the person you're helping goes and commits another independent crime with your help, which seems like a bridge too far for the MBE.

[pancakes3]

gotcha

[SowhatsNU]

This was an emmanuels q, and I'm paraphrasing, but this seemed wacky to me:

D is at a store, finds a purse she likes, takes it, puts it under her coat, and starts to walk toward the exit (still in the store). She then realizes that the purse has a sensor, so she decides its better to not risk it, and puts the purse back.

Answer is she's still guilty of larceny- my issue here is how is this a trespassory taking/ how does she not have consent of the owner? In theory she's allowed to carry/move the merchandise as a prospective customer testing out the item no?

[PourMeTea]

This was an emmanuels q, and I'm paraphrasing, but this seemed wacky to me:

D is at a store, finds a purse she likes, takes it, puts it under her coat, and starts to walk toward the exit (still in the store). She then realizes that the purse has a sensor, so she decides its better to not risk it, and puts the purse back.

Answer is she's still guilty of larceny- my issue here is how is this a trespassory taking/ how does she not have consent of the owner? In theory she's allowed to carry/move the merchandise as a prospective customer testing out the item no?

taking the purse and concealing it with the intent to deprive is sufficient--even just barely moving it is enough, and it would probably still meet the technical elements of larceny even if she hadn't concealed it. i think it's difficult to conceptualize because in theory, this would probably never be prosecuted/would be difficult to prove, because it's just the intent in the person's mind at the moment they pick up someone else's property that matters.

[SowhatsNU]

Ah, okay

Thanks!!

[yost]

This was an emmanuels q, and I'm paraphrasing, but this seemed wacky to me:

D is at a store, finds a purse she likes, takes it, puts it under her coat, and starts to walk toward the exit (still in the store). She then realizes that the purse has a sensor, so she decides its better to not risk it, and puts the purse back.

Answer is she's still guilty of larceny- my issue here is how is this a trespassory taking/ how does she not have consent of the owner? In theory she's allowed to carry/move the merchandise as a prospective customer testing out the item no?

So she did have consent, but she exceeded the scope of that consent. A customer has permission to look at and try on items, but not to conceal them and begin to walk out with them.

[EzraFitz]

This was an emmanuels q, and I'm paraphrasing, but this seemed wacky to me:

D is at a store, finds a purse she likes, takes it, puts it under her coat, and starts to walk toward the exit (still in the store). She then realizes that the purse has a sensor, so she decides its better to not risk it, and puts the purse back.

Answer is she's still guilty of larceny- my issue here is how is this a trespassory taking/ how does she not have consent of the owner? In theory she's allowed to carry/move the merchandise as a prospective customer testing out the item no?

So she did have consent, but she exceeded the scope of that consent. A customer has permission to look at and try on items, but not to conceal them and begin to walk out with them.

Exactly, the way she did it made it trespassory. Just like if you climb a fence into the close bar of the hotel you're staying at, you're no longer an invitee.

[ConfusedL1]

Can someone explain how Congress can't confer standing but can create a private right of action that essentially does just that?

[uceoledinbdnrn]

Can someone explain how Congress can't confer standing but can create a private right of action that essentially does just that?

It's nitpicky and there's definitely a lot of grey area at the margins (see Spokeo) but standing is constitutional in nature and goes to separation of powers. Congress can't pass legislation that says courts have to hear a certain type of case. What they can do is pass legislation that then has the effect of creating standing because it gives an individual certain rights that can be injured.

Like Congress can't pass a law that says, in substance, when (condition x) occurs courts will apply a presumption of injury for standing analysis. But they can pass a law that prohibits condition x from occurring that then creates a new cause of action if a plaintiff can show injury, causation, and redressability. This obviously gets a little dicey with the citizens AG laws but I don't think we'll see that on the bar.

IDK, I'm sure someone else can do a better job explaining it.

[EzraFitz]

Can someone explain how Congress can't confer standing but can create a private right of action that essentially does just that?

It's nitpicky and there's definitely a lot of grey area at the margins (see Spokeo) but standing is constitutional in nature and goes to separation of powers. Congress can't pass legislation that says courts have to hear a certain type of case. What they can do is pass legislation that then has the effect of creating standing because it gives an individual certain rights that can be injured.

Like Congress can't pass a law that says, in substance, when (condition x) occurs courts will apply a presumption of injury for standing analysis. But they can pass a law that prohibits condition x from occurring that then creates a new cause of action if a plaintiff can show injury, causation, and redressability. This obviously gets a little dicey with the citizens AG laws but I don't think we'll see that on the bar.

IDK, I'm sure someone else can do a better job explaining it.

Yeah it's an odd distinction. It basically boils down to this:

Congress can create a right, so when it is violated, you can sue.
Congress cannot create standing for someone who does not have a violated right.

So Congress could not pass a law saying that campers can sue federal parks for any violations of federal park legislation. The campers themselves need to have an injury still.

[ConfusedL1]

Thanks all. New one:

When do modifications have to be written aside from the SOL issues. Under the UCC does any modification have to be written? What about common law? Assume no consideration issues.

[uceoledinbdnrn]

Thanks all. New one:

When do modifications have to be written aside from the SOL issues. Under the UCC does any modification have to be written? What about common law? Assume no consideration issues.

For the UCC:

§ 2-209. Modification, Rescission and Waiver.
(1) An agreement modifying a contract within this Article needs no consideration to be binding.

(2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchantmust be separately signed by the other party.

(3) The requirements of the statute of frauds section of this Article (Section 2-201) must be satisfied if the contract as modified is within its provisions.

(4)Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver.

(5) A party who has made a waiver affecting an executory portion of the contractmay retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.

So if you have a written contract to buy $550 worth of widgets and you modify it so that you only pay $450, no writing is required. On the other hand, if you have an oral contract to buy $450 worth of widgets, you would need the modification to be in writing if the price gets bumped to $550.

[ConfusedL1]

Thanks all. New one:

When do modifications have to be written aside from the SOL issues. Under the UCC does any modification have to be written? What about common law? Assume no consideration issues.

For the UCC:

§ 2-209. Modification, Rescission and Waiver.
(1) An agreement modifying a contract within this Article needs no consideration to be binding.

(2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchantmust be separately signed by the other party.

(3) The requirements of the statute of frauds section of this Article (Section 2-201) must be satisfied if the contract as modified is within its provisions.

(4)Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver.

(5) A party who has made a waiver affecting an executory portion of the contractmay retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.

So if you have a written contract to buy $550 worth of widgets and you modify it so that you only pay $450, no writing is required. On the other hand, if you have an oral contract to buy $450 worth of widgets, you would need the modification to be in writing if the price gets bumped to $550.

Thanks that's helpful. What about if the contract is for $100k and you change it to $150k. It needs to be in writing right?

[TheWalrus]

Thanks all. New one:

When do modifications have to be written aside from the SOL issues. Under the UCC does any modification have to be written? What about common law? Assume no consideration issues.

For the UCC:

§ 2-209. Modification, Rescission and Waiver.
(1) An agreement modifying a contract within this Article needs no consideration to be binding.

(2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchantmust be separately signed by the other party.

(3) The requirements of the statute of frauds section of this Article (Section 2-201) must be satisfied if the contract as modified is within its provisions.

(4)Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver.

(5) A party who has made a waiver affecting an executory portion of the contractmay retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.

So if you have a written contract to buy $550 worth of widgets and you modify it so that you only pay $450, no writing is required. On the other hand, if you have an oral contract to buy $450 worth of widgets, you would need the modification to be in writing if the price gets bumped to $550.

Thanks that's helpful. What about if the contract is for $100k and you change it to $150k. It needs to be in writing right?

Yep, any modification over 500.

[runthetrap1990]

If a mortgage is taken out on a life estate, is only the life estate responsible for payment? And to follow up, in what situations would future interest holders be liable for taking on a mortgage on the estate. Would it only be where the original grantor granted the land with the mortgage assigned? I remember there being a distinction on who pays interest and who pays the principal, but I can't remember for the life of me.

[Toubro]

If a mortgage is taken out on a life estate, is only the life estate responsible for payment? And to follow up, in what situations would future interest holders be liable for taking on a mortgage on the estate. Would it only be where the original grantor granted the land with the mortgage assigned? I remember there being a distinction on who pays interest and who pays the principal, but I can't remember for the life of me.

If the entire fee is encumbered, then the life tenant pays the interest and the remaindermen pay the principal. This would be the case if the life tenant and remaindermen join in the conveyance of the mortgage interest to the mortgagee. But if just the life tenant takes out a mortgage, in a lien theory state the mortgagee would only have a lien on the life tenant's interest, and in a title theory state I guess the mortgagee would have a life estate pur autre vie.

[law9898]

Probably a stupid question but here goes. I know the legal impossibility for attempt is rare and unlikely to be tested but I'm having a hard time coming up with examples of it in my head. Is this an example of it applying:

D thinks Xamine is an illegal controlled substance. In fact, Xamine is not an illegal controlled substance and totally legal. If D attempts to buy Xamine from an undercover cop and is charged with attempted possession of a controlled substance (just a random crime for this example, go with it), D cannot be convicted because of the legal impossibility defense. Even if he completed the act he intended, it would not have been illegal. Convicting D would just be convicting someone for a guilty mind.

[ConfusedL1]

Probably a stupid question but here goes. I know the legal impossibility for attempt is rare and unlikely to be tested but I'm having a hard time coming up with examples of it in my head. Is this an example of it applying:

D thinks Xamine is an illegal controlled substance. In fact, Xamine is not an illegal controlled substance and totally legal. If D attempts to buy Xamine from an undercover cop and is charged with attempted possession of a controlled substance (just a random crime for this example, go with it), D cannot be convicted because of the legal impossibility defense. Even if he completed the act he intended, it would not have been illegal. Convicting D would just be convicting someone for a guilty mind.

I think you're right in that he can't be convicted of possession of a controlled substance (because it wasn't), but he CAN be guilty of attempt. He attempted to do something illegal, so he has the necessary specific intent AND the act (very minimal for attempt with substantial step or proximity).

[champloo]

is there a reason i'm missing questions in groups? is it designed that way (i.e. harder questions bunched together) or am i getting tilted after a hard question and it's affecting my performance for the next few questions? if it's the latter, anyone know of a way to get over this? anyone else having similar experiences?

[law9898]

Probably a stupid question but here goes. I know the legal impossibility for attempt is rare and unlikely to be tested but I'm having a hard time coming up with examples of it in my head. Is this an example of it applying:

D thinks Xamine is an illegal controlled substance. In fact, Xamine is not an illegal controlled substance and totally legal. If D attempts to buy Xamine from an undercover cop and is charged with attempted possession of a controlled substance (just a random crime for this example, go with it), D cannot be convicted because of the legal impossibility defense. Even if he completed the act he intended, it would not have been illegal. Convicting D would just be convicting someone for a guilty mind.

I think you're right in that he can't be convicted of possession of a controlled substance (because it wasn't), but he CAN be guilty of attempt. He attempted to do something illegal, so he has the necessary specific intent AND the act (very minimal for attempt with substantial step or proximity).

Well the whole point in him not being convicted of attempt was that he attempted something that was NOT illegal, even if completed. That's why I made up a random drug that's totally legal to possess but for some reason the defendant thought was illegal. So even if the defendant was sold Xamine, he couldn't have been convicted of possession or attempt because it's not illegal to possess that drug, even if the Defendant was 100% ok with committing what he thought was a crime. I may be totally wrong but I think we're thinking of different things.

I know where you're answer comes from though because most of the questions anywhere close to my hypo from Barbri are where it's factual impossibilities, like the defendant wanted to buy drugs and was sold sugar. At least I think that's what you were thinking.

I'm not trying to be argumentative or anything, I just really don't understand the real world application of legal impossibility and can't get it out of my head now.

[ConfusedL1]

Probably a stupid question but here goes. I know the legal impossibility for attempt is rare and unlikely to be tested but I'm having a hard time coming up with examples of it in my head. Is this an example of it applying:

D thinks Xamine is an illegal controlled substance. In fact, Xamine is not an illegal controlled substance and totally legal. If D attempts to buy Xamine from an undercover cop and is charged with attempted possession of a controlled substance (just a random crime for this example, go with it), D cannot be convicted because of the legal impossibility defense. Even if he completed the act he intended, it would not have been illegal. Convicting D would just be convicting someone for a guilty mind.

I think you're right in that he can't be convicted of possession of a controlled substance (because it wasn't), but he CAN be guilty of attempt. He attempted to do something illegal, so he has the necessary specific intent AND the act (very minimal for attempt with substantial step or proximity).

Well the whole point in him not being convicted of attempt was that he attempted something that was NOT illegal, even if completed. That's why I made up a random drug that's totally legal to possess but for some reason the defendant thought was illegal. So even if the defendant was sold Xamine, he couldn't have been convicted of possession or attempt because it's not illegal to possess that drug, even if the Defendant was 100% ok with committing what he thought was a crime. I may be totally wrong but I think we're thinking of different things.

I know where you're answer comes from though because most of the questions anywhere close to my hypo from Barbri are where it's factual impossibilities, like the defendant wanted to buy drugs and was sold sugar. At least I think that's what you were thinking.

I'm not trying to be argumentative or anything, I just really don't understand the real world application of legal impossibility and can't get it out of my head now.

No you're totally right. Sorry, I misread. Yes, if a guy thinks something is a crime but it's actually NOT a crime (the crime was repealed, never existed, etc.), he's totally off the hook. There's no crime. Legal impossibility is a legitimate defense to an attempt charge.

[foundingfather]

Can someone explain how Congress can't confer standing but can create a private right of action that essentially does just that?

It's nitpicky and there's definitely a lot of grey area at the margins (see Spokeo) but standing is constitutional in nature and goes to separation of powers. Congress can't pass legislation that says courts have to hear a certain type of case. What they can do is pass legislation that then has the effect of creating standing because it gives an individual certain rights that can be injured.

Like Congress can't pass a law that says, in substance, when (condition x) occurs courts will apply a presumption of injury for standing analysis. But they can pass a law that prohibits condition x from occurring that then creates a new cause of action if a plaintiff can show injury, causation, and redressability. This obviously gets a little dicey with the citizens AG laws but I don't think we'll see that on the bar.

IDK, I'm sure someone else can do a better job explaining it.

When Congress creates a private right of action, plaintiffs still need to show that they have constitutional (Article III) standing (injury in fact, causation, redressability) to sue under that private right of action. Then, the plaintiff needs show show that they are within that cause of action's "zone of interests" so that they are the type of plaintiff that Congress had in mind when they created that cause of action, but that's outside of the scope of your question.

For example, the ADEA prohibits age discrimination against people who are age 40 or older. The Constitution doesn't protect this right, but Congress's law / cause of action does. For a plaintiff to sue under the ADEA, they have to first allege constitutional standing by showing that they suffered (i) an injury in fact (i.e., a concrete and particularized harm that is actual and imminent) that is (ii) fairly traceable to the defendant and (iii) redressable by the court. This language comes from Lujan v. Defenders of Wildlife.). The harm alleged under the ADEA could be money damages suffered by the plaintiff, like you were fired from a job because you were over 40 and now you won't make money from that job.

In other words, Congress can't pass a statute that confers standing on a plaintiff without that plaintiff alleging the minimum constitutional standing - whether that statutory violation caused a concrete and particularized harm to that plaintiff that is actual and imminent. An example of a statute that wouldn't meet this requirement is a statute that creates a private cause of action, enforceable by anyone, every time someone posts on TLS. How would that violation - someone post on TLS - harm someone? It probably wouldn't, so a violation of that statute wouldn't confer standing by itself. However, if someone defamed a poster using TLS, then maybe the statute would confer standing.

I hope this makes sense.

[ConfusedL1]

Still trying to grasp hearsay within hearsay in a business record. Do business records simply not have to meet the standard?

Let's say there's a hospital document with a notation made by Doctor1 about a patient's broken rib. It's made in the regular course, but Dcotr1 had no personal knowledge because Doctor2 told him to write it down.

Two hearsay levels, right? What the doctor said AND what was written down. If offered for its truth, shouldn't it be excluded because Doctor2 is the one with personal knowledge? Is there ever a time in a business record is barred because of double hearsay?

[uceoledinbdnrn]

Still trying to grasp hearsay within hearsay in a business record. Do business records simply not have to meet the standard?

Let's say there's a hospital document with a notation made by Doctor1 about a patient's broken rib. It's made in the regular course, but Dcotr1 had no personal knowledge because Doctor2 told him to write it down.

Two hearsay levels, right? What the doctor said AND what was written down. If offered for its truth, shouldn't it be excluded because Doctor2 is the one with personal knowledge? Is there ever a time in a business record is barred because of double hearsay?

As long as it's in the usual course of business I don't think that counts as double hearsay because both doctors are presumably agents of the same hospital/clinic/each other/whatever.

Something that would get excluded for double hearsay in a business record would be like if some company had a policy of keeping logs of every conversation they had and a non-party came in and told them that jim had just murdered fred or something. They would write it down as part of their course of business but it would still be excluded because the statement itself was hearsay without an exception.

[pancakes3]

to enforce a real covenant, does the covenant itself count as horizontal privity?