Words Unsaid

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.

In the following constitutional law question, the key was to spot the words or phrases left unsaid and force test takers to fill in those blanks.

Congress enacted a law requiring all civil service employees to retire at age 75, except when such employees are employed by the armed services. Civil service employees of the armed services are required to retire at age 65. An employee of the armed services just turned 65 years old. He files suit in the federal district court seeking a declaratory judgment that would prevent his employers from requiring him to retire before age 75.

The employee’s strongest argument in support that the statute’s provisions regarding civil service employees of the armed services are invalid is that this provision:

A.   Denies him the privileges and immunities of natural citizenship.

B.   Denies him a property right without just compensation.

C.   Is invidious discrimination on the basis of age in violation of the Fifth Amendment.

D.   Is not within the enumerated powers of Congress under Article I, Section 8.

Granted this is pretty much a no-brainer through process of elimination of A, B, and D.

What’s interesting is the language in the correct response C: “invidious discrimination.”

The 800-pound gorilla not mentioned by name in the fact pattern is “Due Process” and the derivative incorporated concept of “Equal Protection,” both applicable to the federal government through the Fifth Amendment’s Due Process clause.

I reckon that because the question was so easily disposed of by process of elimination, there was no reason to beat test takers over the head by using either of those phrases in the fact pattern or in explaining the basis of the employee’s suit.

On the positive side --- and making a pleasant change from the constant criticism of questions usually found in this blog --- the phrase “invidious discrimination” is so colorful that it’s bound to have resided prominently in students’ memory, even though there is only a case or two from the constitutional classroom that actually uses it.

My thanks to drafters here for throwing an occasional bone.

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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.

How Is It Reasonable, Exactly? 
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.

The slipperiest term of legal language throughout the law, including law school and the MBE, is “reasonable.”

And yet it is the most common, oftenest-used benchmark in almost all areas of the law: “Reasonable person,” “reasonable care,” “unreasonable risk.”

Law students are told from Day 1 that “reasonable people can disagree” on this point or that, and so go to court to help resolve that through the help of a finder of fact and law. And it is that mystical ideal of the “reasonable person” that provides the basis for the standard of care one person owes to another in order to avoid negligence.

Yet, the term is subjective and meanings for “reasonable” are as numerous as there are people and their individual languages: What’s reasonable to CD is unreasonable to MB, and downright senseless (and hateful!) to WJB.

So where is the reason that so many MBE questions require a common understanding of that term “reasonable”?

Perhaps it’s the not-so-subtle psychological component: MBE takers must understand the benchmark of what is “commonly” accepted as “reasonable” either because they are, themselves, “reasonable” within what can be a rather small spectrum of meaning, or at least they have encountered it often enough in society at large to have an understanding of just how the mythical ideal “Reasonable Person” behaves.

But that is a supposition that has no basis in fact, and one that itself may be unreasonable. Consider this fact pattern:

A salesman was employed by a florist, who owned a retail shop adjacent to a large wholesale nursery. The owner of the nursery liked to use a brand-name artificial fertilizer for her plants, although other effective fertilizers were available at comparable prices. She stored a large quantity of the fertilizer in a heap on the nursery’s property, as did many other nursery owners without incident. The fertilizer gave off fumes that caused the salesman to suffer lung irritation. Occasionally, the salesman had to take off from work and seek medical attention. After losing a few hundred dollars in wages and amassing a few hundred dollars in medical expenses, the salesman sued the nursery owner for damages.

My first thought: If he only racked up a few hundred dollars in medical expenses, I sure would like to know the name of his doctor! My second was, what exactly are “ . . . nursery owners without incident?” (Ok, so that’s just a copy-editing “gotcha.”)

But seriously, this example has some issues. I call them problems, but the writers probably don’t.

What exactly is a “large quantity?” A pound or kilogram? 10 pounds? 100 pounds? 1 ton? 10 tons?

That kind of sloppy, vague language in the facts sets MBE takers for a fall right there, requiring a supposition, which they can only solve if their idea of “large quantity” happens to be the same as, or close to, that the of writer’s. Maybe it depends on how a “reasonable” person would define “large quantity.”

The pile of chemical fertilizers (“artificial” = “chemical”) gave off fumes. We are told the fertilizer gave off fumes that caused salesman’s lung condition, so therefore the fertilizer is toxic to humans.

Are we ready? The call of the question for the above fact pattern and answer choices are:

The court is likely to rule in favor of:

A. The salesman, because the nursery owner had equally effective fertilizers available at comparable prices to the fertilizer used.

B. The salesman, because the nursery owner is strictly liable for injuries caused by emissions from her property.

C. The nursery owner, because the selection of the fertilizer was reasonable and it was stored in a reasonable manner.

D. The nursery owner, because the salesman is merely an employee of the florist and does not own the property on which the shop is located.

Throw out A immediately as not being relevant to anything. D is fairly insidious by raising the intangible specter of nuisance. But that would not be the only basis for an action against nursery owner who plays with toxic chemicals in his neighbor’s backyard, so we can throw that one out, too.

So here’s where it gets unreasonable.

In law school, I learned there is strict liability for engaging in ultra-hazardous activities, such as transporting nuclear waste, explosive demolition work, and, yes, storing hazardous chemicals, especially in a residential or commercial area near lots of “foreseeable” victims. Ultra-hazardous “strict liability” activities are those that can’t really be made completely safe no matter what reasonable precautions are taken.

So I liked answer choice B.

Will it surprise to know the correct answer choice for this practice question was C?

“. . . the selection of the fertilizer was reasonable and it was stored in a reasonable manner.”

Excuse me?

Pray, where exactly is the “reasonableness” of storing a “large quantity” of fuming noxious chemicals “in a heap” on property located in a commercial zone crowded with employees and customers alike?

Call me timid, call me overly cautious, call me unreasonable, because that doesn’t really seem very reasonable to me. I think the “reasonable man,” who is the progenitor of the “ordinarily prudent person” that sets the standard for negligent behavior, should find storing a large quantity of fuming noxious chemicals openly in a heap on his commercial property in close proximity to others is inherently unreasonable.

Of course, readers are given the additional fact that other nursery owners also stored large quantities of fuming noxious chemicals openly on their commercial property and they never caused an injury. Lucky them!

Surely, this question did not intend to communicate that because a host of other people do something the same way, that makes it “reasonable.” 
(Go read “Extraordinary Popular Delusions and the Madness of Crowds” by Charles Mackay [http://books.google.com/books/about/Extraordinary_Popular_Delusions_and_the.html?id=tDn1nAEACAAJ])

OK, so what everyone else is doing might be a factor in what regular folks consider reasonable, but only a factor. Human beings and ordinarily prudent people are expected to be somewhat more thoughtful in their behavior than lemmings, even if all too often they are not.

I could go on, but I think the point has been made: I guess I just reasonably disagree with the writers on this one.

And if you do, too, it brings up something else to keep in mind in while completing your practice questions and during the MBE itself: There are going to be “correct” answers with which you have plenty of basis to reasonably disagree. So you are going to get those wrong, and you need to learn to live with that, as frustrating as it is. But don’t worry, because they won’t outnumber the ones you get right!

Another exam tip I’d like to point out is the repetition of the term “reasonable” in the correct answer choice. Be advised this is not a smoking gun or giveaway clue! In fact, it should send up a red flag for the test taker to reread the answer choice carefully in light of the fact pattern. The terms “reasonable” and “unreasonable” get thrown around a lot in MBE questions, and they are often inappropriately paired with other words and concepts to camouflage and distract. One unreasonably misplaced use of the term “reasonable” can often be very tempting, so be careful how you reason.

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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.

3 Felonies & a Misdemeanor

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.

This entry diverges from the standard Nit format of pointing out language tips and traps common on the MBE. This entry focuses on substantive issues and come from one of the major bar review courses from 2009.

Evidence: 3 Felonies & a Misdemeanor

The defendant is on trial for embezzlement. He does not take the stand. Which of the defendant’s previous convictions is most likely to be admitted into evidence against him?
A. A 7-year-old conviction for arson, a felony.
B. A 12-year-old conviction for embezzlement.
C. A 6-month-old conviction for disorderly conduct.
D. A 2-year-old conviction for felonious sexual assault.

It’s short, but it’s a killer: Keep in mind this is a notorious “most likely” question.

Convictions are usually used to impeach, but a defendant who doesn't take the stand is not open to impeachment. Test takers have to spot that critical point.

Once spotted, throw out all those impeachment-by-conviction-related rules covered in the FRE at 609, including the 10-year time limit, felony vs. misdemeanor, et al.

That leaves the introduction of crimes under relevancy, and specifically character evidence, covered in the FRE at 404. And as we all know, character evidence generally is not admissible for the purposes of proving action in conformity with that previous behavior.

FRE 404(b) prohibits evidence of other crimes to prove character and action in conformity with earlier criminal behavior. But — and of course there's a “but” — evidence of other crimes can be used for other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.” (FRE 404(b))

So, who can think of a way that arson, sexual assault or disorderly conduct could substantiate motive, opportunity, intent, etc. with respect to the present embezzlement charge? Any postulation would likely present a pretty thin stretch.

That leaves answer choice B: A 12-year-old conviction for embezzlement. And that was the correct answer choice.

Remember on this question it’s the answer that’s “most likely.”
Let’s hope in a real world court room, a timely objection would be made to exclude under the rule that any relevant evidence may be excluded where its probative value is substantially outweighed by the risk of unfair prejudice. (FRE 403)

Admitting the 12-year-old conviction for embezzlement in a current trial for embezzlement would be tantamount to adopting the doctrine of “once a thief, always a thief,” and therefore constitutes blatant prejudice.

There’s already plenty of that kind of prejudice going around in society at large, but let’s hope legal officers keep it out of the courtroom.
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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.

Malapropisms Everywhere

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.

“I think we agree, the past is over.”

“Justice ought to be fair.”

Two very memorable quotes from former President Georgia W. Bush on different occasions. These are examples of some of his more innocuous ones, in the course of a presidency notorious for his malapropisms.

Then there’s Sarah Palin, Joe Biden and Dan Quayle; and the list goes on.

Of course everyone makes the occasional language gaffe, or uses a term out of context from that to which the listeners are accustomed. In earlier postings, I’ve pointed out the fact that language really is as individual as each of us, and it’s a constant challenge to ensure there’s enough overlap among our languages that we can effectively communicate.

I was working in a newspaper newsroom in 2008-9 when the Tea Party movement burst into the headlines. Mostly, the editors noticed that movement’s eruption because they initially called themselves “Teabaggers.” 

They had apparently always intended to leverage reference to the Boston Tea Party to characterize their populist revolt against tax and spending, one of their signature issues, but alternative possible meanings seemed to have escaped their notice.

But to many segments of society, the term “teabagger” referenced an entirely different activity, that had nothing to do with a tax protest.

It was a prime example of how even “common language” can differ in meaning among different groups and in different contexts.

These days, it is even difficult to find a reference to that time, unless one happens to have been a member of the movement, or like myself, in the news media watching it unfold. After awareness of that gaffe surfaced: then zap! Rewind, revise and reinvent! I give the organizers credit, because in short order they had orchestrated one of the most effective media blitzes that all but eradicated that early gaffe.

I ran across an MBE practice question that reminded me of the “teabagger” affair. It even brought to mind one of Dan Quayle’s more memorable occasions: “Republicans understand the importance of bondage between a mother and child.” Ahem. (Well, I have lived in San Francisco!)

Here it is:

During a gang shootout in a city, a gangbanger looked for a rival among the combatants because he wanted to kill him. Believing a bystander to be the rival, the gangbanger shot at the bystander and missed. The bullet passed through a window and killed a homeowner who was asleep on her sofa.

[I hope everyone sees the “gangbanger” is guilty of attempted murder and murder.]

Maybe it’s my sordid past, and my sordid past  in journalism as well, or maybe I’ve just seen too many Jodie Foster movies, but I just immediately thought the crime of rape was also going to be on the . . . er . . . pinball machine, so to speak.

But nope.

I consulted a long-time police officer friend of mine: he said “gangbanger” is commonly accepted in law enforcement circles as being synonymous with “gang member.” (I was a bit nonplused that after a decades-long career in news media, that I had somehow missed that.)

Urban Dictionary

[http://www.urbandictionary.com/define.php?term=gangbanger]

and even Merrium Webster online

[http://www.merriam-webster.com/dictionary/gangbanger]

both concur with that.

Still, I think the editors here should have heard alarm bells go off and could have been a bit more thoughtful: I wasted 1.8 seconds looking for rape.

Substituting the less inflammatory, and less prurient, term “gang member” would not have affected the fact pattern and may have been just a tad more sensitive.

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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.

License or Profit?

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.

I agree with Mr. Emerson that “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”

But when it comes to identifying and referring to legal principles, surely law students everywhere can agree that consistency of terms is not only not foolish, but vital to communicating accurately and effectively, not to mention success on the bar exam and the MBE.

A farmer asked his adjoining neighbor if he could build an irrigation ditch from the neighbor’s natural fresh-water spring to his property to provide water for his cattle. Because the spring supplied more than enough water to meet the neighbor’s needs, she agreed, provided that the farmer construct the ditch in such a manner that it would need the least maintenance possible, so that he did not need to continually enter her land. The farmer constructed a concrete irrigation ditch from the spring to the land at a cost of $25,000. The only maintenance required on the ditch was a semiannual cleaning. Three years later, the neighbor informed the farmer that her water needs had increased, and he could no longer take water from the spring. In addition, the neighbor did not allow the farmer onto her land to do the semiannual cleaning, resulting in the blocking of the ditch. The farmer wishes to keep water flowing through the irrigation ditch to his land.

Which of the following would be the farmer’s strongest argument?

A. The farmer owns a valid easement appurtenant to the neighbor’s property.

B. Because the neighbor has allowed the farmer to construct the irrigation ditch, the neighbor would be estopped from preventing the farmer from coming onto her land.

C. The farmer, although a licensee, has expended such a substantial sum of money in constructing the irrigation ditch that the neighbor may not terminate the farmer’s license now.

D. The farmer, although a licensee, may continue to enter the neighbor’s property to clean and maintain the ditch until he is able to acquire another source of water.

Note the italics that have been added to highlight the term “licensee” in choices C and D.

Use of that term seems to be confusing because there’s a permissive entry by farmer onto the land of neighbor for the purpose of taking something off. If left to that simple formulation, that sounds like the definition of a profit a prendre, or more simply called a profit.

Stoebuck and Whitman in their real property hornbook, the Third Edition of The Law of Property, state: “Profits allow some substance to be severed and removed.”

They further note that the removal of water not owned by the landowner is deemed an easement. That would fit into answer choice A.

Here, the water removed from a spring on the neighbor’s property is likely to be the neighbor’s property. So that seems to put it back into the category of a profit.

Except . . .

Except, one distinction between profit and license is that a profit, as an interest in land, is subject to the Statute of Frauds, while a license, as a mere privilege, isn’t. There are no facts as to that, and full performance removes the Statute of Frauds issue anyway. 

Another distinction is that a profit, as an interest in land is perpetual, terminated expressly by conditions in the writing, or by release from the profit holder; licenses are freely revocable (with some exceptions, of course).

It is said that the MBE is all about testing the fine-line distinctions and nuances in the law. But there are many areas of the law — this being one — where there just aren’t clear distinctions, either fine-line or bright-line.

Stoebuck and Whitman in their hornbook acknowledge the muddle in this area even as they incorporate a discussion of licenses made irrevocable by the licensee expending significant money or labor to make use of the license, and where the landowner should reasonably anticipate that expenditure by the licensee.

Basically, the authors seem to indicate that once a license is made irrevocable, it ceases to be a license and becomes something more: an actual interest in land in the form of a profit or an easement.

Therefore, the use of the term licensee is at best confusing and at worst misleading.

The answer key identifies C as the correct answer, apparently because of the farmer’s expenditure, duly anticipated (neighbor’s dictation of condition as to ditch construction) by the neighbor, to transform this into an irrevocable license. But that concept itself turns on a principle of estoppel.

So it seems that answer choice B is just as reasonable. It could be argued it might even be a more reasonable choice because it doesn’t attempt to name the interest as profit or license, which even as experts in this field acknowledge, is not so clear cut as to be easily testable on the MBE through a simplistic multiple choice question.

So the quandary is trying to find consistency of terms in a conceptual area so nebulous: consistency requires definitiveness, and definitiveness requires distinction. Where A could possibly equal C or B, or even A, consistency, Aristotle would have agreed, is simply not possible.

Given the amorphous nature of these concepts in the current law, acknowledged even by textbook authors, this topic needed to be saved for an essay.

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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.

Individuals Separated by a Common Language

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.

I’ll classify this real property question under “Tricky Diction,” but it could fit just as easily under “Confusion.”

A homeowner, just before going on an overseas trip, gave his brother a power of attorney to sell his house, which stated: “My brother is specifically empowered to sell and convey all or any part of the real property owned by me as of this date.” Several weeks later, the brother sold the homeowner’s house to a buyer and conveyed to her a customary deed containing convenants of title. A year later, when the homeowner returned from his trip, he was served with a complaint by the buyer, who was suing him for breach of covenant because it turned out that the homeowner’s ex-wife owns one-half interest of the house that the brother had sold on his behalf.

In this suit, the buyer should:

I added the italics, and before reviewing the answer choices, let me rant: What the heck is a “customary deed”?

I don’t know about other law school real property courses, but I was taught there are three types of deeds:

1. General Warranty Deed that includes all present and future covenants;
2. Special Warranty Deed that includes only present covenants;
3. Quitclaim Deed that is limited to whatever interest, if any, the grantor may have.

I did not ever learn about something called a “customary deed,” nor did I encounter that term in any of the cases that accompanied my real property course or bar review.

In the cosmic scheme of things, this illustrates an important aspect of the human condition: our vulnerability to the limitations of language as understood by each of us, and the fact that each of us really speaks our own individual language. Hopefully, that language is based on a common root language, and for the most part meanings among individual languages will overlap enough that so that we won’t blow ourselves up as a result of translation confusion — though wars, fisticuffs and verbal offence are common enough from simple language differences and misunderstandings.

Law, of course, depends on language, and understanding the inherent dangers of language limitations is one reason legal documents are so tediously detailed: they attempt to define all the terms so everyone understands the words to have one specific meaning in that specific context.

However, with respect to the MBE and test preparation, the translation confusion such as is presented in the above question is merely a means to muddle the test takers. Is this a serious, legitimate method of testing or is it just that somewhere, in some room, some formulator was having a bad day or is just normally sadistic and thought: “Let’s just rattle their cages by using nonstandard language in this subject area; some will panic and get it wrong.”

And yes, it gets more irritating, because here is the correct answer:

Not prevail, unless the power to “sell and convey” is construed to include the power to execute a usual form of deed used to convey real property.

Here we go again: intentional attempts to muddle our minds with meaningless doubletalk.

Each of the three type of deeds mentioned above ARE, as far as I know, a “usual form of deed,” depending on the circumstances and exactly what the grantor wants to convey. And by definition — assuming we all have the same or closely similar understanding of these words — “customary deed” is perforce a “usual form of deed.”

Also, prospective MBE takers are well acquainted with the negative form of answer, but it is still the most common device used to confuse. If your mind doesn’t automatically translate, and nagging doubts remain, then take the extra few seconds to rephrase into a positive, in this case: “Prevail because the power of the brother to sell and convey homeowner’s real property is valid.”

Too Simple

As long as we’re on real property, try this, though not really a nit:

A landowner gratuitously conveyed his interest in land to a friend by quitclaim deed. The friend promptly and properly recorded her deed. Six months later, the landowner conveyed his interest in the same land to an investor for $50,000 by warranty deed, which was promptly and properly recorded.

As between the friend and the investor, who has the superior right of title to the land?

A.   The friend, regardless of the type of recording statute.

B.   The friend, because she recorded prior to the investor recording.

C.   The investor, regardless of the type of recording statute.

D.   The investor, because it took by warranty deed rather than quitclaim deed.

If everyone is really “promptly and properly” with their quitclaim and warranty, respectively, who wins?

Correct choice: A. It harks back to a basic common law principle still often good law that first in time is first in right. But this is one of those answers where test takers might be tempted to think, “That’s so simple it must be wrong.” One had to remember that a properly recorded conveyance cannot be snatched away through use of recording statutes, and it makes no difference if the grantee was a donee or buyer. Recording provides notice and prevents anyone — in this case, the investor — from later becoming a bona fide purchaser for value or BFP.

One major clue here was that the fact pattern did not mention what type of recording statute, which by deduction indicates that was of no importance.

If the editor in me really wanted to pick nits: some sloppy construction that uses extraneous and unnecessary words, a strange use of a neuter pronoun, and an incorrect pronoun antecedent. But who’s keeping score?

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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.