Saturday, August 1, 2009

What Happened Thursday (redux)?

Good question, that.

As a disclaimer, it's possible I may misstate some of the following stuff. If so, feel free to re-educate me.

As another disclaimer, when I re-posted this I took the liberty of editing the original text here and there to reflect more of what I actually remember seeing and writing. It's still not a 100% complete reflection of my answers because I can't recall everything I wrote under the stress and strain of the situation. And even if I thought it was, I've always been surprised when I see my actual answers when the Bar sends them back to me.

Essay One was Constitutional Law. It started out smelling like a Commerce Clause essay that quickly became one about delegation powers. Congress recognized some sort of danger to public health inherent in the national transportation system so they delegated power to the Secretary of Transportation to make laws that were either necessary and proper, or for the general welfare, of the country; I forget the actual language.

The delegation language looked funny so I thought about it and decided to write something about how Congress can properly delegate legislative functions to the Executive branch, but also that the delegated powers must come with some sort of minimal guidelines. This delegation was wide open so I said it was invalid. Then I went on to answer the question.

I wrote about individual and association standing for the first two groups. Now that I think about it, they probably wanted third-party standing too. Then I wrote about Substantive Due Process. I didn't have time to include Procedural DP, or Equal Protection but I thought they were less applicable. And Privileges and Immunities didn't apply. As for the State Highway Department, I think I talked about how the 10th Amendment prohibits the feds from making the states act as an arm of the federal government, but I also mentioned Kansas v. Dole and said it was proper for the feds to withhold funding to get a state to implement some important federal interest. Or something to that effect.

Essay Two was a Torts Remedies/Civil Procedure/Professional Responsibility crossover. I wrote down "riparian rights" when I saw the stream then erased it when I saw they told us not to talk about riparian or property rights (whew!)

The one lady owned a large property and dammed up the stream to create a pond so she could have disadvantaged kids up for summer programs. The downstream property owners sued for an injunction in a California state court based on "nuisance" for the deprivation of water for irrigation and wells. When the court dismissed it for failure to state a claim (I think), one of the parties refiled in Federal court and she asserted Res Judicata as a defense. The disgruntled federal filer then made a threat to his lawyer that he was going to make the lady landowner pay and that he was going to blow up the dam. The lawyer called 911 and tipped off the authorities and the question was whether she was subject to discipline under either the ABA or California Rules of Professional Conduct.

I went through the private nuisance analysis and injunction analysis, then spent one line on why public nuisance wouldn't work. On exams past I would have gone into more detail about why a public nuisance claim would fail, but I kept it short and sweet this time. One line and out. I also added some about defenses, Laches and Unclean Hands. I talked a bit more about Laches because of the six month delay but the Unclean Hands analysis was another one-liner.

EDIT: I now recall that the question asked about a 'takings' issue and how I spent a few lines on why it wasn't a taking because there wasn't state action. And I also recall that despite the fact that the question said not to talk about property rights, I wrote about nuisance and takings. So, given that those were the only things to talk about (unless I completely brain-farted) what else was there?

I think I did a good Res Judicata analysis, and I resisted the urge to talk about Collateral Estoppel. I concluded that RJ wouldn't work because the first suit wasn't prosecuted to a full final judgment on the merits. On the PR issue, I said that under ABA rules, she was good, but under CA rules, she was bad. Unless, of course, he included facts about blowing up the kids too, but again, that last was a one-liner.

Essay Three was Criminal Procedure. The guy's speeding and weaving through traffic so the cop pulls him over. There's probable cause for the stop, but not reasonable suspicion for the illegal search and seizure of the cocaine under the front seat. The guys are arrested, taken to the station, and charged with some variety of illegal possession. The guys are properly Mirandized, the driver asserts his right to silence and the passenger waives his right and says a bunch of stuff that may be incriminating to the driver. They're charged and each hires a private attorney. Their going to be tried together and the driver wants to either suppress the passenger's statements or get a separate trial. Then, a week before trial, the driver wants to fire his attorney and thinks maybe that he might want to get another attorney. Again, this is one week before trial.

Anyway, the stop was legal but the search was not because the passenger's action was not sufficient for probable cause. Especially because the cop hadn't yet run the driver's license or registration. I wrote about a couple of exceptions, Search Incident to a Lawful Arrest and Vehicle Search, but I didn't go into Inevitable Discovery because I didn't have time and it wasn't clear that they would inevitably discovered the drugs because the search and arrest were illegal.

The confession was proper because the guy waived his rights. The requested substitution of attorney was iffy because of the proximity of the the trial and because he didn't have a replacement ready. The driver couldn't suppress the passenger's statement because he can't assert the Constitutional rights of another, besides, the statement could be used against the driver if his information was redacted, regardless of whether they got joint or separate trials. Then I wrote that he was going to have a hard time getting a separate trial unless he could show prejudice or a conflict.

I was stuck right there for a few minutes but I felt there must be something I was missing. Then, when the proctor called "5 Minutes!" it hit me, Exclusionary Rule, fruit of the poisonous tree! So I quickly added that because the seizure was illegal, and no exceptions applied, the cocaine was inadmissible, the arrests were improper, the confession-thing was inadmissible, there would be no trial, and the whole thing was moot. Or something to that effect.

And that, for now, is that.

Oh, and Lamar Odom re-signed with the Lakers. Woo Hoo!


Anonymous said...

Im relieved that you and I seemed to get most of the same answers...

but on that second question. The original claim was dismissed because it was on the merits, not for a failure to state a claim.

It was tricky too, because you are supposed to apply the law of the original forum state which, in this case, was a hypothetical state whose issue preculusion rules we didn't know. I just discussed it under both the federal rule and the california primary rights rules.

The Grand Poobah said...

Hmmm ... I believe you're correct. I'll have to remember that for when they bring it up on the February 2010 exam, which I'll likely be taking.

Anonymous said...

GP you are not taking the bar this February.
YOu have completed it for the last time!

Anonymous said...

Don't panic...Back in Feb 09 a friend of mine was convinced he failed the Civ Pro essay because he left out a discussion of the minimum contacts test (for domicile) in his venue analysis, but he still passed. One blown issue (assuming you did in fact miss it)does not a failed essay make....

Anonymous said...

Surely, you poor man, after all the torture you've been through, you can at least consider maybe taking a year off from this crap. I think you are getting tired. I think your soul is worn out from this. We all hope you passed, but if not this time, why not do the intelligent thing and reconnoiter for a year your strength and hunt out other solutions? It seems like you are trying to do to much at once- strategize how to get over the Great Wall and climb at the same time. Perhaps you need to research, rest, and train a year from now- recharged and ready to go for the kill at last.

Frankly, Im waiting on repeat results myself- in Florida as a first time taker there (I said to hell with CA for now) and I have to tell you if I didnt do it this time I will be taking at least a year off from this crap to recover strength of soul, purpose, and live my life. I hope you consider that too.

People saying 'give up forever' are full of crap. But God Forbid if not pass, why not rest, reconnoiter? Think of the great generals of history. If you cant take Paris this year, go back and gather your resources and attack later. Dont just keep attacking with depleted firepower.

Anonymous said...

Anon 4:53 - You can do what ever with your time but let the man decide his future.

Anonymous said...

Question: Didn't you find the con law essay asked you to explain what arguments the agency, the bus company and the state would argue against the legislation? Everyone blogging just seems to have answered it as a standing question and asked themselves whether or not the agencies could bring the claims. But I moved from delegation powers and standing quickly into asking whether or not the legislation was going to be upheld based on a few challenges (the ones I thought were available) from the plaintiffs. Was I wrong?

You can't strike down a statute based on standing. I'm not saying anyone did that, just not getting the read from people that they answered as I did, which alarms me.

I wish you all the best


The Grand Poobah said...

TX Lawyer: Yep, I did that too. After the delegation and standing issues, I tried to argue as many other issues as I could as to why the new regulations would be overturned.

But, as usual, I was limited by time.

Anonymous said...

I'm not certain re-hashing the essays is particularly constructive. Maybe I'm mis-reading the comments, are the examinees just venting or trying to figure out how they did on the exam (in hindsight)? Vent for a few days, then ignore the blogosphere. I hope you all structured the con law question with standing, then moved onto delegation authority, then next issue...IRAC, IRAC, IRAC.

Anonymous said...

Sorry Re-hash,

I know some people don't like it, but I think we are free to discuss the essays if we wish. I've only taken one bar exam before this and I find discussing the topics tested is useful, for me anyway. I think it is good to learn from other people and to try and figure out if you hit or missed something important. That said, I expect to probably be taking the CA bar exam again in February. I just wanted to see what other people did.

Or didn't do...

--TX Lawyer

Anonymous said...

I think discussing/venting about the essays is fine - for a few days. I am just hopeful it's part of the "letting go" aspect of the exam.


Anonymous said...

I saw your response to one comment that you were "limited by time." Bad sign - if you see the issues, plan accordingly, and follow your plan, time should not be an issue. If it is, it means (a) you didn't spot the issues; (b) you spotted too many issues and didn't triage; and/or (c) you are blathering on in addressing the issues.

James said...

being limited on time is the norm, not the exception and i don't see it necessarily as a "bad sign."
fyi, when i passed two years ago, i was more limited on time than previous failed attempts.

Anonymous said...

People, it's a free country, so feel free to discuss the essays to your heart's content.

BUT - there's is nothing in the world you can do about them at this point. We have absolutely no idea which issues will be credited or how the MBE will be scaled. It is my honest belief that post-morteming the essays will just result in raising everyone's blood pressure a couple of notches.

If memory serves, results won't be available until November anyway, so maybe this would be a good time to put the whole thing out of your minds?

Anonymous said...

Although you may right that we should just forget this exam because results aren't out until November, I think the reason why everyone comes here and reads this and has the urge to share is that we simply can't just forget.

It's eating away at us.

We spent hours and hours studying for this f-ing exam. Why can't we now co-miserate with others over it?

I don't feel so alone when I come to this site and read GP's comments and others. It really truly helps me get to bed at night.

Now you must think I'm a sick puppy, but all of us have so much at stake on this exam.

I don't know whether I should start studying for the next exam or just cruise and relax. But if I wait until Nov, I will have to re-learn everything. What am I supposed to do now?

I don't think GP is that gullible.
No need to protect him from comments from others. He is a big boy that sounds intelligent enough to make the right decision for "him". We don't know his personal situation and therefore nobody should tell him to rest or retake the test.

I think GP is the only person in this world who is the position to decide that, given his unique personal situation.

But with my fingers crossed, I hope that he won't even have to worry about retaking the exam because this time he will pass.

Anonymous said...

Hey to the post-er immediately above. I know all too well the anxiety that comes with taking (and re-taking the CBX). For what it's worth - take at least a few weeks to cruise and attempt to relax. The study schedule is unnatural and it takes time to re-program your body and mind to calm down.

And, if you feel really apprehensive about whether or not you passed - then give yourself a realistic start date to adequately prep for February. Like the first or middle of October. I seriously doubt that you really need to re-learn everything. You know far more than you realize - it always feels like you may not have known enough for the exam.

Best of luck, but more importantly best of luck letting go.

Anonymous said...

There are those who prefer to leave the exam behind in the exam room and those who want to remember every detail of the exam and disect every aspect of their performance. To each his own.

Why do the former feel the need to tell the rest of us what we should or shouldn't do with our time? I find it helps me to talk about the exam and to learn what others considered important issues or what mistakes other exam takers made or issues missed on the exam.
Of course we'll find out in Nov/Dec what the offical answers are, but until then there's spirited debate. Willing participants need only partake.