Predictions: Epilogue
I usually don't talk about tests after I take them, but since I made predictions about the Bar, I probably should revisit them. As it turns out, I have no business making predictions about the Bar. Hell, nobody does, because it is clear that they pick their questions in a completely haphazard way. All 6 MBE subjects?! WTF?! A murder-1st Amendment cross-over??? Yeah, that makes a ton of sense.
I can only imagine that they do it irrationally on purpose, just to keep Barbri (and snotty, know-it-all law students like me) guessing. Then again, I'm probably wrong about that too.
Regardless, congrats to all for being done. Now let us never speak of this again.
Update: I originally had "Prologue" in the title. My brain is fried.
I can only imagine that they do it irrationally on purpose, just to keep Barbri (and snotty, know-it-all law students like me) guessing. Then again, I'm probably wrong about that too.
Regardless, congrats to all for being done. Now let us never speak of this again.
Update: I originally had "Prologue" in the title. My brain is fried.
Labels: Bar Exams
posted by Max Power at 10:59 AM
21 Comments:
I think the bar examiners decide what topics to test in the essays by using the same dolphins Family Guy uses to come up with its shorts.
I never post-mortem exams as well, but with the bar I don't think you can help it.
All I have to say is that yesterday the consensus among my fellow bar-takers was that yesterday was a big fuck-you from the California Bar Examiners to Bar/Bri.
I still remember Sakai's "non-prediction" that Con Law was unlikely, but that if it was it most certainly going to NOT be 1st Amendment...
One could argue the NCBE felt the same way about PMBR from the draconian warnings in the MBE instructions about disclosing information about the questions (hmmm...are the MBE warnings copyrighted too...oh wait, what's that noise? Oh it's NCBE attorneys knocking at my door...)
What struck me was the failed explanation for the basis of the protection. The exam is definitely protected by copyright law, but who cares? Copyright law protects _copying_, not speaking about the questions. Since the best anyone could do is paraphrase a question that was asked, copyright is out of place.
The much better explanation is trade secret law. Trade secret law can prevent disclosure of an idea if reasonable efforts are taken to protect its secrey (check) and the secret has value (mmm... less sure on this point). Maybe the last point is where they falter.
Anyway, without those, it's just a contract, open to all the problems of contract protection. Like definiteness? Is EVERYTHING about the MBE covered by the veil of secrecy? Like how many questions there were? Oops, or that the MBE is composed of questions? What are the bounds of the contract?
To close, I was surprised how the MBE did not correspond to some of the BarBri materials. Like the questions on wills for example. Oops. They better not find me.
The "wills" question in the MBE was actually talked about ever so briefly in our property materials = ademption & lapse in the real property context. Not that I remembered what was said about it on Wednesday.
1st amendment tested 3 times in a row. Must be a first. Also 6 MBE subjects in 1 testing, that is definitely a first, particularly since 4 of the subjects were stand alone essays.
How about the CP curve ball with splitting the discussion on the J.D.
Done with my post mortem now. Never again I say
How much were we supposed to go into the partnership rules in that CM question with regard to the value of the law firm?
[disclaimer about how i hate talking about tests afterwards but happen to have a really good excuse right now] I think there was a typo on the MBE. Wanted to check with you fine folks. Don't be afraid to tell me i'm totally off the mark. I can take it. I don't want to write the thing out for fear of being tracked down by the NCBE police who are clearly hard asses with no humanity. It involved a Defendant asserting self defense and a fake-out answer choice talking about the victim's state of mind....but then no correct answer choice. I remember it pretty well 'cause it woke me up, so let me know if you need more hints.
PS, i heard the founder of PMBR (allrighteeeee gaaaaaang - you know you miss it) got into some trouble for stealing questions right out of the test booklet and walking out.
It wasn't worth it, he didn't come close. And i have to hand it to the examiners for their evil genius. The only cal law required was the subject we didn't have a chance at after the superb lesson we received from "Professor" what's her name.
So if anyone wants to organize a class action for those of us that fail because we spent the three weeks before the test on things like cal law and not at all on property or 1st amendment, give a shout out. I still remember the elements, i tatooed them on my brain 'cause i was promised some civ pro.
Congratulations everyone, celebrate, we deserve it.
-Not at all bitter about single-handedly funding Mr. Conviser's tahiti summer vacation.
8:51 - I'm starting to wonder if the partnership issue in the CM question wasn't a distractor much like the agency in the contracts question. It's like the examiners were shamelessly teasing us for our stupidity in using barbri.
There are discreet ways of calculating goodwill, check out the 'grocery list' - I mean don't 'cause forget about it (seriously), but it's there. But once we were told the amount he got and the fact that it wasn't his correct share, no more calculation even necessary. The question was about whether the community would be held to the partnership's evaluation or whether W could force them to use a more market-based valuation.
I think people that used partnership to get to the conclusion are fine 'cause that's clearly valid and relevant. But i also think it could've been answered adequately by just answering the question of whether the community was entitled to more without extraneous discussion about partnership property.
That's my 2c, feel free to dissent people.
Mostly a distractor I agree, but I inserted a discussion of Partnership liability for debts of partners. Thus the CP business goodwill earned by H can be satisfied out of the partnerships assets.
On torts, I didn't state the prima facie negligence elements.
On the evidence, I used Cal. and Fed. law.
On the contract, I ignored agency issues.
On c.p., I made up wrong law, not knowing anything about the subject.
On conlaw, I forgot to cite the flag-burning case.
Think I passed?
11:35--I hope you passed, because if you didn't, then neither did I. To respond to each of your points...
1) prima facie negligence elements.
So what? You don't have to state the elements, you just have to talk about negligence in some comprehensible way.
2) Cal. and Fed. evidence law.
So what? You won't get docked points for using CA...you'll probably get points for it. Hell, they probably expect you to use it, even though they tell you not to.
3) ignored agency issues.
So what? It wasn't even an issue, really, and didn't require more than a sentence or two, at most.
4) On c.p., I made up wrong law, not knowing anything about the subject.
So what? Anyone who had "Professor" Dutta was screwed here, and had to make up the law. Oh, and as for the supposed partnership issue discussed above, A+ to those who saw it, but I'm pretty sure that was totally unnecessary (at least that's what I'm telling myself).
5) forgot to cite the flag-burning case.
So what? Why would you cite any case on the Bar? And why would you have to talk about flag burning on that question? Sure it was relevant as a comparison, but the analysis is important, not the analogy.
I think (Max & 11:35 in particular) we all need to keep in mind what a small portion of the score the essays really are. I think we tend to obsess over what we did wrong on the essays because this is the only component of the exam that we actually have some idea of how we did. You don't hear anyone stressing about how they organized a performance test or whether they caught all the issues. But these are just as important (or just as unimportant) as the essays. There aren't any posts or comments stressing about MBE (though i'm still wondering about that 'typo,' see comment above).
Barbri has brainwashed us to believe that less than perfection on an essay = fail the exam and fail in life, love, and hapiness. To quote a favorite prof of mine (10 points for guessing who) "I don't see how that can be true."
So let's all just "savor the moment of completion." No points for guessing that one.
re: Max Power's comment about the evidence question where "they tell you not to" discuss CA distinctions.
Maybe it's just me, but I don't remember it saying not to discuss CA law. I just thought it didn't really tell us which way to go and left it open.
"all you need to know about kidnapping is that there's going to be a kid, and some napping."
On the second performance essay, were we supposed to discuss the codicil invalidity prior to the 1995 will ademption? That would have made more sense, but I just followed the order in the problem (1995 will, codicil, marriage) rather than the better order (codicil, will, marriage).
11:42,
The general instructions say something along the lines of "Please discuss general rules of applicable law unless specifically instructed to do otherwise"
Personally I would be pissed if they gave points for the Cal stuff when the instructions explicitly told us not to discuss it.
8:04, I disagree with your interpretation. Yes, the instructions said we should discuss "general rules of applicable law." As to evidence, those general rules inhere in the common law, predating both the Federal and the California Rules of Evidence. Therefore, discussion of the laws of a particular jurisdiction, insofar as those rules shed light on the common law or general principles of applicable law, should be allowed. Whether that jurisdiction happens to be the federal rules or the California rules is not germane to their relevance to general principles of law.
Thus, the essay questions should be distinguished from the MBE. On the MBE, *only* the federal rules of evidence was to be used. That requirement was expressly required. On the essays, by contrast, general principles - not the federal rules, the california rules, or other rules - were to be used.
Because to articulate and understand the general principles requires contrasting different statutory expressions among jurisdictions, an answer that compared the federal and the california rules would be superior to one that only discussed federal rules, because the former answer gave more insight into the general principles that the examiners were seeking. (Of course, to cite California law only to show that such and such a result would obtain in California as such, would be pointless. The examiners did not care about California *as such*, but they did to the extent that the law exposed general principles of law.)
I agree with 8:04, though 4:25 makes good points.
Regardless, my point was just that the California stuff shouldn't be worth more than a couple points (if any at all), so I wouldn't worry about failing if you totally ignored California law. That's all.
4:25,
You make a convincing sounding argument, but the flaw I think is that common law evidence rules are no longer rules of general applicability.
The FRE expressly repudiates the common law evidence rules. Additionally many if not most states have adopted the FRE almost without alteration. I am pretty sure that not a single state in the country abides by the common law rules of evidence.
Thus, the ONLY rules of general applicability with regards to evidence are the FRE
More important than the above however is that in the past, when when the California State Bar Examiners wished for the bar applicants to discuss California law in a subject they have explicitly said to discuss California law in the call of the question.
I believe that we can assume that as creatures of habit the bar examiners would have held to precedent and asked for Cal law if they wanted to see it discussed.
The instructions on the outside of the packet stated not to discuss California law unless the question called for it. So you're not going to get any extra points for discussing the California evidence distinctions.
in december when you see you all passed, you should look again at these comments and laugh hilariously. it would actually be a good blog post.
hopefully by then you will have had lots of alcohol and foreign travel between you and the bar.
Q about corps (for NY bar takers):
I have here in my notes that an officer of the corporation is an agent of the corp and thus has the ability to bind the corporation if acting with actual OR apparent authority.
What if the officer acts ultra vires? If the corp refuses to ratify a K with a bizperson made by the corp's president acting outside scope of actual or apparent authority, the corp. is not bound?
What remedy does the bizperson have? Seems unfair to only let him/her go after President. Isn't the Board liable for ultra vires acts?
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