What's Infuriating About Bar Review?
The comments have recently aimed their ire at professors at Boalt who did not cover certain topics on the bar. That may not be so bad.
i was just doing some drill Con Law questions, when a state advisory opinion question comes along. The state Supreme Court decides the advisory question and one side wants to appeal. What should the Supreme Court do?
I got excited. I remember this day of Federal Courts. i reread the fact pattern looking at the decision and decided "B - Accept the case and reverse." I literally bellowed when checking my answers. BarBri suggests "A - refuse to hear the case because there is no case or controversy."
I was shocked. Did I forget what I learned in my favorite class so quickly?
No. See ASARCO Inc. v. Kadish, 490 U.S. 605 (1989). You can also read Hart & Wechsler, pp. 138-40.
Going over my other con law answers, I've been annoyed at times when I feel that they don't quite line up with my understanding of constitutional law. But I finally did the digging to prove that at least one was straight up wrong. But mostly what upsets me is - how can you test with multiple choice in an area with so little case law that calling a position "black letter" is dubious at best? ASARCO has a stinging dissent, and who knows what would happen if it were heard again. I can understand multiple choice testing the restatement, but this point of Article III federal courts practice is a) arcane and b) uncertain.
Grr. But for those asking about good classes to take, Fletcher's Federal Courts is excellent, even at 8:30.
i was just doing some drill Con Law questions, when a state advisory opinion question comes along. The state Supreme Court decides the advisory question and one side wants to appeal. What should the Supreme Court do?
I got excited. I remember this day of Federal Courts. i reread the fact pattern looking at the decision and decided "B - Accept the case and reverse." I literally bellowed when checking my answers. BarBri suggests "A - refuse to hear the case because there is no case or controversy."
I was shocked. Did I forget what I learned in my favorite class so quickly?
No. See ASARCO Inc. v. Kadish, 490 U.S. 605 (1989). You can also read Hart & Wechsler, pp. 138-40.
Going over my other con law answers, I've been annoyed at times when I feel that they don't quite line up with my understanding of constitutional law. But I finally did the digging to prove that at least one was straight up wrong. But mostly what upsets me is - how can you test with multiple choice in an area with so little case law that calling a position "black letter" is dubious at best? ASARCO has a stinging dissent, and who knows what would happen if it were heard again. I can understand multiple choice testing the restatement, but this point of Article III federal courts practice is a) arcane and b) uncertain.
Grr. But for those asking about good classes to take, Fletcher's Federal Courts is excellent, even at 8:30.
Labels: 0L/1L Advice, Bar Exams
posted by Tom Fletcher at 4:47 PM
8 Comments:
Tom, I concur. For what it's worth, I've found the PMBR materials to be even more frustrating, e.g., in a negligence question, their answer key will base their answer on the fact that they think a warning was "clearly inadequate" where I thought the warning was fine. That's black letter law analysis? It's frustrating to know the law, and have a reasonable application of it in mind, and get zero points.
Or my favorite, from the PMBR simulated MBE yesterday, had this to say in the answer key for a question on warranties: "If you think you are able to answer this question correctly just by reading a torts outline, good luck."
Uh, thanks, PMBR. Sound analysis of the issues. That's the kind of encouragement I need a week before the exam. The answer key for this question also suggests that reading outlines is "mindless" and that it is a better use of your time (I am not making this up) to "familiarize yourself with the 2000 PMBR practice questions."
I don't think I have time to do 2000 questions in one week, let alone familiarize myself with them. Good advice for the next time I take the bar though.
Tom, I don't know the question, but it's in very limited circumstances that the SCOTUS can take it up on appeal. Like if the State court grounds its ruling on a misinterpretation of the Con, then the losing party in that proceeding is suffering a cognizable harm. But if I remember, this is really limited. I don't think I would have guessed cert and reverse.
Armen, I think that was the hypo. State passed law, banning one company's business. They sued, state supreme court upheld the law as "constitutional." I suppose the ruling itself doesn't do any harm until the sheriff locks the gate on the factory, but I thought it met the circumstances you describe.
Oh well, one of 200 if it happened in real life.
Worst Bar practice question ever:
MDR Mixed Questions, the one about the Halloween costume. I won't say more, so as not to ruin it for those who haven't done it yet. But I just about lost my shit when I saw the answer to that one. Will someone else who has done it let me know that it really was the stupidest question ever, and I haven't simply lost my mind?
Max, TERRIBLE question, but you want to know what's really crazy? The same question was on the PMBR test on Monday, with the kid dressing up like a robber and even using the same words "your money or your life... trick or treat" with the woman slamming the door before "trick or treat" and the answer on that one... was assault. I remembered it from the Bar/Bri MDR and I picked the answer of no tort, only to be totally shocked and angered later by PMBR's differing result.
The only explanation - well, there are two, now that I look at them side by side - is that this question was used on a real MBE and intended to be answered one way - say, no tort, but then everybody answered it the other way so the examiners decided they were wrong, then they changed the answer. And PMBR puts it out one way, and Bar/Bri puts it out the other way.
So who knows what the real answer is. This kind of inconsistency really bugs me. Not that I'm so worried about one question, but just that PMBR prides themselves on giving you the hardest, most obscure questions so you can spot and identify them easily if they pop up on the real test... and then it turns out they may not even be giving you the right answer.
By the way, the only other explanation is that on the PMBR question - and I mean the facts are otherwise identical- is that the kid was "big for his age." I guess that's the nuance that should tip us off. So on the real bar, any tricker treaters big for their age are tortfeasors. Normal twelve-year-olds: not liable.
As Prof Gordley would say: The wisdom of the common law.
alright, this may be going a bit overboard, but hey it's a week until the mbe. so what the hell...
so there was this contracts question (you know it's going to be bad whan its a K question) that says in the hypo that one guy agrees in advance in a written contract to buy a painting from a gallery owner. when he shows up to buy it, he says "i want it in that $250 frame" and the gallery owner says "sure, you can have the $250 frame, but i'm going to charge an extra $250 for that frame." already, i'm thinking what the fuck? it's listed at 250, you got a guy in the shop ready to drop $7+ gs (it says) on a painting, you're gonna stiff him on a frame by charging him twice the listed price??? so i take a step back, and remember, ok this is the bar exam world, so anything goes.
so understandably the buyer is a lil miffed, and yadda yadda yadda, he brings suit seeking to admit oral evidence that the gallery owner promised him the $250 frame at that price (shocking). so i know its a parol evidence rule and i remember that barbri says that parol evidence can't be used to contradict a written contract, but it can be used to supplement it, which is when the written terms are final but not complete. so i say yeah he can bring it in cause the contract just covers the painting and he's not contradicting it, he's just filling in some terms.
so i look at my answer. it's wrong. the explanation: the oral evidence "did not contradict any of the terms of the writing. however it does supplement those terms."
yes , go on.
" as noted above, such supplementation is permited "
i agree
"unless"
fuck you
" there is a finding that the writing was intended by B and S as a complete and exclusive statement of the terms fo their agreement."
now, in my opinion, this starts to get to be bullshit. there is to be some imaginary finding, and whether my answer correct depends on whether i agree with the results of an arbitrary finding.
" it is likely that a court would find that parties situated as were B and S would normally and naturally include in their written agreement for the sale and purchase of a painting at a specificied price the additional provision that the purchaser could have a specifically priced frame at no extra cost."
uh, i disagree. i think that is "likely" that a guy selling picture frames with a fucking price attached would sell the frame at that fucking price. i also think that it is "likely" that if the parties intended the contract to be the final word, they would have thrown in a clause at the end to that effect. (they didn't). way to infer beyond the four corners of the contract asshole.
" SUCH A FINDING would lead to the conclusion...constitutes a complete [agreement]. GIVEN THIS FINDING, evidence of the alleged agreement regarding the frame will not be admissible even for the purpose of supplementing the terms of the writing."
this finding is pretty important eh? what if i found the opposite? answer: i'd be fucked.
****
so yeah, thanks for bearing with me through all of that. for the record, it was an "advanced" question, so i can only expect to see a couple of ones like it on the real test. good luck to everyone. i'm going to do my daily crying now.
9:30, I'm 100% with you on that question, and I remember having the same progression of logic (and I love the "I agree"...unless..."fuck you" train of thought - perfect).
This is what I'm talking about. The fact that the question is advanced does mean there won't be many like this, but the fact that it's advanced doesn't excuse fact that the conclusion is based on agreeing with the test writer believes to be likely.
In short, these types of questions are even more worthless for gauging success as a lawyer than the rest of the "easy" questions are. Not because they are more difficult, but because they are arbitrary.
The entire bar exam is an outdated dinosaur. It tests incredibly broadly, but without a scintilla of depth.
It was designed for that time ages ago when lawyers like family doctors and dinosaurs were generalists and needed to know a little bit about CP and Estates, and Criminal Law.
However in today's world it is downright malpractice to hold yourself out as a practitioner of all of the areas we are required to know something about (Unless of course you live in bum fuck nowheres town, or in an emergency (thank you model rules))
Why then do we need to study it all? To keep people with poor test taking skills out of the profession...
RICOCKULOUS
Post a Comment
<< Home