Alliteration Overdose

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

Alliteration Overdose

Obviously, I’m working my way through practice materials from 2009, and this one got under my skin. Maybe it’s just me.

A state’s commercial code provides, in part, that “the minimum price of cheese sold in this state shall be $2.50 per pound.”

As to which of the following persons would the state statute be most likely constitutionally applied?

a.     A resident of the state selling cheese in that state to a manufacturer of snack foods whose plant is located in a neighboring state.

b.    A resident of Canada selling cheese made in Canada to the citizens of the state.

c.     A resident of the state selling cheese to the Commissary at the United States Air Force Base in the state.

d.    A resident of the state selling cheese to the state Department of Education for its use in its school lunch program.

Now, I don’t know about you, but this question really discombobulated me. From the inarticulate call of the question — “… likely constitutionally…” — to the annoying alliteration overdose of “s,” this question just downright irritated me.

Of course, that made me want to get it right even more, but in a timed setting, such emotional responses run the risk of inducing test takers to spend too much time, overanalyzing and second-guessing themselves.

First, the call. Fortunately, this pattern is so short, it’s the exception to the rule and it’s really unnecessary to read the call first, because you’ll only be re-reading it in 15 seconds.

I struggled with the form: “most likely be constitutionally applied.” Maybe that's because students are taught — at least I was — to analyze from the opposite point of view: determine why it’s unconstitutional? So the reversal confused me. There goes a few precious seconds! 

“Which situations are unconstitutional?” is the question I asked myself to check off those circumstances and by process of elimination leave me with the sole remaining constitutional choice.

Remember, states cannot regulate interstate commerce, except where Congress has authorized them to do so, OR where Congress has not expressed an intention dominating a particular area of regulation AND where the state regulation in that area does not discriminate or unduly burden interstate commerce.

Let’s look at the answers and spot the tipoffs.

A.   State resident selling into a neighboring state. Tipoff: interstate commerce where a fixed price would be burdensome if higher than market price, even though the regulation, in applying to all cheese transactions, is nondiscriminatory.

B.   Foreigner selling cheese into the state. Tipoff: international commerce and that power exclusively belongs to Congress.

C.   State resident selling to the federal government. Tipoff: Nothing to do with interstate commerce — states simply cannot regulate the federal government.

And the winner is:

D.   State resident selling to state agency. Tipoff: intrastate and no apparent undue burden on interstate commerce.

Time to move on!

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

Confusion Challenges Confidence                                                                                                               

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

Confusion Challenges Confidence

Here are a couple of types of MBEs I lump under the “Confusion and/or Supposition” category. Both come from a bar prep course of 2009.

One fact pattern concerns a contract for the sale of a fur coat. 

Upon delivery, a missing button prompts the buyer to reject the coat. The seller offers to have the button replaced at the earliest opportunity, the next regular work day. 

The call of the question asks for the buyer’s legal position. 

The salient point is that no matter how slight, this is an imperfect tender — a tender of nonconforming goods. So the test taker must resolve the perfect tender rule with the legal options available. 

The perfect tender rule allows a buyer to reject any nonconforming tender, even if, as here, the imperfection is not a material breach in the value of the contract goods. 

Complications to the perfect tender rule provide for allowing a seller to cure not just by time due for contract performance, but beyond that time, so long as the extension of time is within a reasonable time. What is a reasonable time extension is a contextual matter of the type and value of goods, among other factors.

The correct answer choice in this case states: “The customer may reject the coat, but she must give the salon owner an opportunity to cure.”

But the structure of this answer is inherently illogical, and therefore naturally confusing.

The concluding clause “she [buyer] must give the salon owner an opportunity to cure” logically implies that the buyer, in fact, has no immediate option to reject; rather she must provide the seller an opportunity to cure, and not just by the contractual time performance is due, but she must give seller a reasonable time beyond.

Law students have seen this often, where the rules of linguistic logic seem to muddle the principle: If the buyer must give the seller reasonable time to cure, then logically there is no immediate right for the buyer to reject the goods.

I, for one, would like to see the writers pay closer attention to their diction in both fact patterns and answer choices. Perhaps a better phrasing would have been to incorporate a qualifier, like “the customer may initially reject the goods . . . but also must give the seller time to cure.”

Try this example, also from the same bar prep course, and also another contracts fact pattern:

Farmer sent an “offer to sell to the bakery 100 bushels of wheat at $30 each.”

That was the “meat of the coconut” so to speak, and seems perfectly straightforward.

Yet, each of the answer choices introduces a novel aspect that somehow that offer was ambiguous. The reasoning in each of the answer choices presents new suppositions. In one answer choice, the farmer failed to state it was a single lot only. In another choice, “attempted formation is flawed by ambiguity so that the minds of the parties never met.” Yet another answer choice suggested that parol evidence is admissible on the question whether the offer contemplated sale of the wheat as a single lot or piecemeal.

This is not an uncommon ploy: The fact pattern is perfectly straightforward, yet new suppositions are insinuated into the answer choices, which, upon reading causes the test taker to doubt what he read to begin with.

We ask ourselves: “What did I miss?”

Basically, this style of question-answer format causes the test taker to question his own understanding of the fundamental principles involved.

This is an insidious format. It would be one thing if the language in the fact pattern had introduced some measure of ambiguity, such as “… offered to sell as many as 100 bushels” or “offered up to 100 bushels.” 

But to read a seemingly straightforward offer and then to have doubt thrust onto the test taker by the introduction of new suppositions in the answer choices is particularly confusing.

It’s a challenge not to let these types of questions chip away at one’s self-confidence. And that effect is cumulative. But self-confidence is a vital component of getting through the MBE: Be confident after having completed all the course work, and also, hopefully, either a third-party or comprehensive home-grown bar review course.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

Smoke & Mirrors

Smoke & Mirrors

Let’s try this sample questions from one of the bar review course practice exam material from 2009: the dreaded subject of real property:

Thirty years ago, a power company constructed a power dam on a river. At the time the dam was constructed, the power company solicited easements from all of the landowners in the river valley, including a farmer. The power company paid fair value for the easements, which would allow the company to release water from the dam at certain times of the year, resulting in flooding of the land in the river valley.

In the 30 years since the dam was constructed, the farmer’s property has never been flooded, and the farmer has been using his land in the same way as he did 30 years ago. Now, however, the power company wants to substantially increase power production from the dam. All landowners in the valley were notified by the company that henceforth all 200,000 acres (including the farmer’s 200 acres) would be flooded in accordance with the company’s easement. The farmer reviewed the easement for his property and discovered that it lacked the requisite grantor’s acknowledgment and thus was improperly recorded. The state’s adverse possession statute requires hostile occupation for a period of 20 years.

May the power company properly flood the farmer’s land under the terms of the easements?

This is a prime example of many different principles of MBE preparation. First, note the multitude of issues raised by the language of this fact pattern:

— “solicited easements”; raising the issue of easements in general.

— “paid fair value”; raising the notorious bonafide-purchaser-for-value (BFP) specter.

— “farmer . . . using his land in the same way as he did 30 years ago” and coupled with the later phrase “state’s adverse possession statute”; raising the issue of termination of easement by prescription.

— “Now . . . power company wants to substantially increase power production”; raising the issue of surcharging the easement.

— “farmer reviewed the easement . . . discovered that it lacked the requisite grantor’s acknowledgment and thus was improperly recorded”; raising both a possible conveyancing signature issue and the statutory recordation issue.

And those issues with corresponding language are used in the answer choices.

This question illustrates why MBE takers should always read the call of the question first, as advised by review courses for both MBE and essay questions. By reading the question first, takers are alerted to the specific issue(s) involved and better able to focus. 

Failing to read the call first, an astute reader gradually becomes overloaded as he registers each of those distinct issues that could possibly be involved in the correct answer. If the test taker reads the call first, that narrows the correct answer choice as he reads to involving the validity of the easement. So armed, after reading first that there exists easements, the taker moves beyond issue No. 1, and quickly sees issue No. 2 of BFP as simply a gratuitous distractor. The taker does have to consider issues Nos. 3 and 4: whether the farmer terminated the easement sufficiently by prescription. But those issues only need to be considered if issue No. 5 is resolved positively; that is, if the easement was validly created in the first place.

So issues 1 through 5 are “smoke.” The “mirrors” come in on issues No. 1 and No. 5: and they're not simple mirrors, but ones more likely comparable to those in carnival funhouse, where appearance is distorted. And here, there’s not much fun in the distortion.

The only issue that matters, as indicated by the call of the question, is issue No. 5: the legal validity of the easement. The facts specifically state that Power Company “solicited easements” and “paid fair value,” so presumably, straightforward express easements in gross were created. Easements are an interest in land, so express easements must comply with the statute of frauds and be in writing and signed by the person to be charged — in the case of easement, the holder of the servient estate. So, to be valid, the easement granted to Power Company by the Farmer would have had to be signed by the Farmer.

But it’s important to note the fact that the indication that each landowner signed their respective grant of easement is perforce a supposition. The facts don’t indicate it specifically, which they might have done simply with language like “the easements were all properly executed” or similar. Such language would have definitively indicated that each landowner had signed the easement conveyance. So readers in this case don’t know definitively, but are left to suppose that the easements were validly executed by including the signatures of the grantors. 

This is a common tactic in MBE practice questions: readers are required to “fill in the blanks” through supposition. Make the wrong supposition, or fail to make any supposition, and the reader will quite understandably be led astray into choosing the wrong answer.

So, in this case, here comes that “funhouse” mirror distoring the appearance of the circumstances, and placed just before the question call: “The farmer reviewed the easement for his property and discovered that it lacked the requisite grantor’s acknowledgment and thus was improperly recorded.”

Where does that come from? What does “requisite grantor’s acknowledgment” mean? My Real Property course didn’t include any lectures on that requirement of a “grantor’s acknowledgment,” and I don’t remember any cases from the course work using that language. Could it be that “grantor’s acknowledgment” is a synonym for “signature”? As a matter of logic, common use and tradition, a person’s signature in a transaction is of course an acknowledgment that an agreement was made; an acknowledgment of the meeting of the minds, so to speak.

Ack! Confused? That, I regret, is the point.

The distortion is meant to confuse meanings, make test takers second-guess themselves and wonder what the words really mean, if anything.

The only clue here is that end phrase “improperly recorded.” Is there a recordation issue here such that the easement grant might be invalidated? Conveyances of interests in land do not have to be recorded to be legally valid. Recordation becomes an issue only when a party seeks the protection of the recordation statutes to prevail in ownership. Because the recordation issue is raised as part of this inexplicable “acknowledgment” issue, and there is no recordation issue, I surmise that this is a convoluted distractor, which is presented as an alluring answer choice.

Leveraging the recordation non-issue to eliminate that as a distractor, leaves the reader with the determination that the “solicited easements” were in fact validly executed, with the all necessary signatures. Therefore, the easement granted by Farmer is legally valid (mere nonuse insufficient to terminate), and the Power Company has the right to use the easement according its terms. It’s the simplest answer, and in this case was the first presented. 

But all that smoke, let alone the mirrors, made this a rather challenging example.

Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

The Human Condition

The Human Condition

The professions, including law, by their very nature, set themselves up as being elite. And of course that’s the point.

But professionals are human beings, and therefore they are also fallible, despite the image they try to project. Even the professionals preparing the various bar review courses and the MBE itself are human, and fallible. 

As an outsider, I don’t know the levels of editorial review provided by the MBE and the various companies preparing the review courses, practice exams and question banks, but I am sure that it is professional. Before completing law school and passing the California Bar Exam, I had a significant career in journalism and publishing, including 10 years as a staff editor at The New York Times Co. Even at The Times, mistakes still occur at the highest levels, and even after several levels of professional editorial review.

As at The Times, mistakes in copy are extremely rare in bar review materials, but they do occur, simply because of the human condition. No one is 100 percent, 100 percent of the time, and it’s unreasonable to expect anyone to be.

But for MBE review course takers, those rare errors can be the source of extreme frustrations during the review process: As students, our first impulse is to question ourselves: “What is it I missed?” Then reread and scour the text for what we missed. Then question ourselves again. And possibly again.

But sometimes we didn’t miss anything: there may simply have been a mistake in the text of the question.

Just recently, I was reading a set of practice questions from one of the top bar review courses and I encountered just such a rare error. The fact pattern described a construction contract problem, and the call of the question asked how much the plaintiff contractor would be entitled to recover from the client defendant. Three of the four answer choices cited various numerical values based on various contract damage formulas and a set contract price.

.

However, the fact pattern never stated the contract price.

Did I miss it? I read the fact pattern again. I still did not see a contract price. There were no Arabic numerals — was it spelled out? I read it again. Still nothing.

I read that fact pattern more than six times to before convincing myself that the contract price had simply been inadvertently omitted. How is that possible? The human condition.

The previous question had also described a construction contract fact pattern. The contract price in that question was $3 million. Coincidentally, the answer choices in the contract question I just mentioned were all based on a contract price of $3 million.

I can’t remember such a thing happening when I took the MBE, but I do remember getting thrown off and having to circle back and reread. That rereading takes precious time. During the MBE, read briskly but confidently, and do not get bogged down and be so self-distrusting that you end up circling back and re-circling so that valuable time is wasted. 

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.

MBE Tricky Diction

MBE Tricky Diction

Tricky diction in answer choices.

Because the MBE is a speed-reading test as much as a test of substantive legal principles, the pressure to rush is incredible. That’s why practice beforehand is so important — so test takers know their pacing and are comfortable proceeding at a brisk, but careful, pace. 

Short fact patterns are tempting to speed through. 

But watch out for probably equally brief answer choices, and don’t be tempted into a “quick fix.” Be especially wary of “Best of” question calls, because the test is adept at providing at least two alluringly plausible answers and the taker must distinguish the best. Therefore, read all the answer choices on the dangerous “Best of” call.

Look at this example, brief and potentially deadly (italics were added for reasons that will become obvious):

A general contractor about to bid on a construction job with an owner invited a carpenter to bid on the carpentry work along with several others. The carpenter agreed to bid if the contractor would agree to give the carpenter the job provided that the carpenter’s bid was lowest and the contractor was awarded the main contract.
The contractor so agreed. The carpenter, expending time and money in preparing his bid, submitted the lowest carpentry bid of $100,000. The contractor used the carpenter’s bid in calculating his own bid, which was successful.Which of the following best supports the carpenter’s position that the contractor is obligated to award the carpentry subcontract to the carpenter?

(A) The carpenter incurred an economic detriment in preparing his bid.

(B) The carpenter gave consideration for the contractor’s conditional promise to award the carpentry subcontract to him.

(C) The contractor has an obligation to the owner to subcontract with the carpenter because the carpenter’s bid was used in calculating the contractor’s bid, and the carpenter is a third-party intended beneficiary of that obligation.

(D) The contractor has an implied duty to deal fairly and in good faith with all bidders whose bids the contractor used in calculating his main bid.

This question is a relatively simple contracts question requesting the slippery “best of” answer.

Answer choice A sounds so good right off the bat that many will choose it and move on; after all, more of those column-length fact patterns probably loom ahead.

Obviously, the phrase “economic detriment” sounds deceptively similar to “legal detriment.” 

Yes, reasonable people agree that an argument can be made that “economic detriment” and “legal detriment” mean essentially the same, but the MBE is not the time to argue the point. Stick to the pedantry of your MBE review, course outlines and other material, all of which should use the term “legal detriment.”  

This is a common “Tricky Diction” device used on the MBE. 

In this case, the trick is set up by the phrase “expending time and money in preparing his bid," which tempts the taker into immediately classifying this as a legal detriment issue. That's why reading the other answer choices is so important: doing so may jog the memory as to other potential issues, so takers are at least put on notice to consider other issues. 

And if takers go on to answer B, they may have their memory jogged as to another issue.

So don’t be lured into a premature finish by snapping up answer choice A: don't be lured into skipping the other answers because there may be a better choice.

Note the italicized language in the fact pattern: “agreed to” . . . “if” . . . “provided that” present classic conditional language. That sort of language is included in fact patterns for a reason and should set off alarm bells. Answer B specifically addresses the aspect of the conditional promise raised in the fact pattern.

That's a good general tip to keep in mind for the MBE: Always select the answer that uses the most specific language addressing specific points raised in the fact pattern.

Choice’s C and D are quickly eliminated because requesting bids generally in no way obligates the requesting party, unless some sort of contract already exists. 

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.