OA Bar Prep with Heather! T3BE27

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:47 Thomas: And welcome to Opening Arguments. This is T3BE27 or OA Bar Prep with Heather. It's been so much fun working with Heather, learning way more and getting some real instruction. I feel like a real law student and hope you all do as well. I hope you enjoy this as much as I do. In a moment, we're going to get to the answer from last week's question. Then, of course, we'll have a new question for this week. With winners and the patron shout outs, a couple announcements.

Law'd Awful Movies, number two of the new era, is out. Is published as we speak. Reminder, Law'd Awful Movies is available at that second tier of Patreon and above. This one broke our brains. It's a show called For the People. It's like a Shonda Rhimes type, like executive produced type show. It was horrible. It is the worst thing I've ever watched. It's so bad. It's the perfect combination of taking itself incredibly seriously and getting every single part of the law wrong at every moment. It's amazing.

I hope you'll listen to it. 90 minutes of pure horror after it was edited. By the way, it's two hours of pure terror. Horror in real time. Cut it down to 90 minutes of pure horror, basically. So hope you'll enjoy that on patreon.com/law. Speaking of, if you'd like to avoid this break, jump on patreon.com/law, avoid all the commercials, all the ads, all of everything and get the bonus stuff. So after this break let's get on over to the answer for last week's question.

0:02:11 Thomas: Right, Heather, it's time to go over the first possibly real property slash contract question. I don't know, this one was fiendishly hard, it seemed to me. And uh, why don't you remind everyone what we were talking about here, and oh, I gotta find out if I was even close on this one. Uh,

0:02:26 Heather: So we were talking about an a manufacturer for a number of years, and then there were some transfers in between there. And then what we're trying to do at this point is to find out what's the best reason that the owner has to accept the distributor as a tenant.

0:02:43 Thomas: I like those, those questions where it's the best argument rather than you, the person going to win? I kind of like that wording. It's interesting. It feels more realistic or something.

0:02:51 Heather: It forces you, it tells you right away that they're in that landlord-tenant relationship, and so you know that this distributor automatically is a tenant, and you're just trying to figure out what's the legal reasoning that that's the case. I heard you say that you thought this might have been a real property question. Can you explain why you thought that?

0:03:02 Thomas: Yeah. I mean, we're talking about leases and buildings and blah, blah, and it seemed like it was going that direction. Guess I don't know what the... It's been actually a while since I've had a real property question for some reason. We haven't done them in the new iteration. So I guess I'm not entirely solid on what the borders and boundaries of that, what the fence line of those questions are and

0:03:29 Heather: You're right. It is a real property question. Part of the reason that tells you it's a real property question is because it's landlord-tenant situation. Yeah, so a really big topic within in property is landlord tenant. It gets tested all the time. And I think that might be a little bit obvious why if you start thinking about it, because what do most of us do during the course of our lives, right? We do a lot of renting, right.

0:03:35 Thomas: Right, right, right. Yeah.

0:03:51 Heather: Most of us tend to not be on the landlord side. And so that tends to be why a landlord tenant comes up quite a bit.

0:03:57 Thomas: It's going to be the most probably common application of real property for the average person, I gues, huh? Cool.

0:04:02 Heather: Yeah. And it tends to make sense in that way. That's sometimes why when we're seeing, I always tell my students, when you see a landlord tenant, it's the first thing you want to think of is property. So you were definitely spot on to be thinking that.

0:04:15 Thomas: Unless the next sentence is like, and then the landlord slapped the tenant and then it just kind of messes with you. Could do that. I Surprise tort.

0:04:22 Heather: Absolutely. Well, listen, there's torts. Yeah, exactly.

0:04:27 Thomas: Committed the tort of surprise question.

0:04:30 Heather: I really liked about what you did with this question is how you approached it was that you went from transfer to transfer. I don't know if you remember that, but as you were analyzing the question, you were kind of working transfer to transfer. And what I would suggest to do, if you didn't, I don't know if you were doing this, I can't see you. But if you take a piece of paper, I always encourage my students in study to do this, is to like get physical with it and just kind of draw it out if you can. It can be really helpful to draw out real property questions to make them make sense, right? Because at any point, I'm, I didn't want to presume anything, but at any point did this question feel a little bit cumbersome, or I dare say boring, or a little bit hard to get through.

0:04:47 Thomas: Oh, interesting.

0:05:11 Thomas: A little bit. I would say that I have now, not that this is guaranteed success or anything, but I have at least learned a few things to mind anyway, that I know are kind of going to be important as like, okay, what were the actual terms? And then how did these transfers happen? Because like, it already clued me in that, like, the provision was that you can't assign rights. So that's going to be the, the question. So I've got some ability to filter out the extraneous stuff, at least more than when I started. And I don't do any writing out or anything. I think that's a great idea. I will say I do want to do my best to make sure a podcast listener can follow. So I may refrain from doing that just in case it kind of makes it harder for the listener if I'm like referring to something that they can't see.

0:05:53 Heather: Well, that makes sense. I think you also do a good job, to like you were saying, as being able to kind kind of pick up those key points, because part of the really important thing that lawyers do that you get taught in law school is to be able to identify what those relevant facts are. So like, as you are identifying the key transfers, and even as you were starting to say, talk about the lease provision.

Those are really important key facts in the fact pattern that you have to identify. And then we are going to talk about and explain how we can use to answer this question. So I'm really glad that you brought that up as you start to talk about your processes working through the question.

So the reason that I was saying to draw it out is because a lot of times too, when students and studiers have, when they're on the exam, it can be good just to your point earlier too about the questions being kind of long. Can be kind of hard to follow through. So I always encourage them to draw out, even if it's just following the course of the transfer. So for who transfers what and when, because a lot of real property really is about tracking ownership over time, or even if it's not ownership, just tracking transfer or who is in control of what property over time.

0:06:35 Thomas: Ooh, I think I have a good practical question for you. It's been a while. I'm sure I've known this at some point, but it's been awhile. Is the actual process of taking this test? And I ask because there are some questions in times past where the minute I've seen it, it's like, well, that's so long. I would probably just skip it. Like I would, like if we're in a test taking scenario, it's like the SAT, where I could skip stuff and come back to stuff. I would probably just skip one that's like eight paragraphs right off the bat and see if I could come back to it. Or I do remember, I think I took the the MBE or something, I took, to whatever that is, the business version of this graduate something, I can't remember, and that I seem to remember was was like digital test. Took it on a computer, and it was like one question at a time. And I don't remember if you could skip back. So I feel like those things actually might kind of matter in the strategy of how I would approach something like this.

0:06:56 Heather: Yeah.

0:07:41 Heather: This is a good question. Typically speaking, the bar exam is two days. And the day of multiple choice questions is usually the second day. They take 200 multiple choice questions. I laugh because it's so long. It's A lot. It's six hours. So, uh, it'll be, a pen and if I recall correctly, it'll be pen and paper. And so, um, National Conference of Bar Examiners, or the NCBE, as in Nancy, NCBE, um, they're the ones who develop, uh, administer the test, and they sell it to jurisdictions like California, um, who then administer it in California. And so you're like sitting at a table, and you're like filling in little bubbles as you're, as you're writing out these kinds of questions. Does that answer the question that you asked earlier?

0:07:49 Thomas: Yeah, it's a lot.

0:08:19 Thomas: So I guess just the key part is, so it sounds like you can skip and go back if you want to. So is that anything you recommend? I mean, does time usually end up being, I have no concept of six hours, 200 questions. I have no idea. Like, is that a lot? Is that a little? Do people tend to feel like they can't finish?

0:08:23 Heather: Absolutely.

0:08:36 Heather: This is such a good question about timing. Part of what makes the exam really challenging is the timing aspect, because you have basically three hours to do 100 questions. So typically the timing that you're given is you are trying to get through about 17 questions in about a half an hour, or about 34 questions in an hour. So your pacing is that you're at about 1.8 minutes a question. So you're clipping along pretty good through the questions. And So typically, what we recommend is that you don't skip any, and that you do your best to answer the question and you mark an answer down.

0:09:01 Thomas: Yeah. Hmm. Okay.

0:09:10 Heather: Then if you need to come back that you can, and there's a couple of reasons for that. And one is that let's say, God forbid, you are like, I'm going to skip for now. I'm going to come back later. A couple of things can go wrong. One, you might not ever come back, but worse, you mess up the numbering for the questions.

0:09:23 Thomas: Yeah.

0:09:27 Heather: Yeah. You're on question 25.

0:09:29 Thomas: It's kind of an old-fashioned thought. I didn't even think of it. Yeah.

0:09:31 Heather: You're on question 25, you skip, and then all of a sudden, every question from like 25 to a hundred.

0:09:36 Thomas: Oh God. And then you're like, ah, I got to fix this. That's impossible. And then he panic. And then, okay, I guess I'm not going to be a lawyer. Nevermind. Bye everyone. This sucks. Very interesting.

0:09:41 Heather: Yeah. No, no, no. It's just, it's always, I always Tell students, like, just do your best on that one question and then answer it to the best of your ability, fill in the bubble and then like make a note on your test sheet and then come back to it later if you have time. A topic that comes up within landlord tenant and you kind of mentioned it too. You were saying you were talking about assignment, right?

0:09:57 Thomas: Yeah, yeah, that makes sense, all I didn't have the word for it, but yeah, I think so, yeah.

0:10:09 Heather: And assignment and subleasing tends to come up all the time. And I don't think that's surprising. They

0:10:14 Thomas: Said sublease a few times, but Is, is That different than assignment, or is that just a different word for, okay.

0:10:16 Heather: You did. No, this is such a great question. They're two different topics, but they're very similar, which is why they get tested together all the time. An assignment is a complete transfer of a tenant's remaining lease term. Another way, let's say that is transferring all of a remaining lease terms. So let's say I'm doing a lease for 10 years for my house. Then I decide I want to go, let's say, live in Europe. Let's say, yeah, listen, sounds really good right now. So that's where the election is coming up. So let's say I decide I want to, an assignment would be if I leased to you all remaining years on my lease. So, let's see, I'm two years in, I've got eight years left, and I lease to you all of those eight years. That's an assignment, right?

0:10:25 Thomas: Sure.

0:10:45 Thomas: Idea Okay. Gotcha.

0:11:05 Heather: So any transfer for less than that amount is a sublease, right? So any transfer for some, this is how I think about it, any transfer that's some and not all is a sublease.

0:11:17 Thomas: Okay, yeah, now is it some and not all in terms of time, or could it be some and on all in terms of, like, rights?

0:11:25 Heather: It mostly refers to the time. And that's usually how it's treated. And the way that I think about it is that helps too. The reason that I was also harping on the A with the assignment is just to keep that in your memory as well, right. Remember too, when we're trying to memorize so much information and you're like, how am I going to memorize all of this stuff? I'm always like, listen, this is going to help you remember. And I'm that kind of person where using like mnemonic devices and that kind of thing really helps me. So I always go A, assignment all, S, sublease some. And that's how I remember all of that.

0:11:26 Thomas: Okay. Yeah.

0:11:57 Thomas: Okay, I like it. My approach has just been to never try to remember anything and just do it fresh every time and then maybe misremember stuff. And I'll tell you, I don't think I'm doing it the best way. So I'm glad to hear perhaps some better advice.

0:11:59 Heather: Yeah.

0:12:11 Heather: Listen. I'm just trying to help here. Well, why don't we go, let's see if this is going to be helpful. Why don't we go transfer to transfer and see if we can't work this out. Let's take a peek at the first transfer. We have the first transfer here, which is the owner to the manufacturer for 10 years, right? What's that second transfer?

0:12:18 Thomas: Okay? All right.

0:12:30 Thomas: The second transfer, so, okay, and that one has that provision, um, then the second transfer is to the retailer, and it is for the remaining seven years, so I think I did at least identify like, oh, okay, it does seem more like they're taking it over rather than just like the manufacturer is still involved in like any of this, uh,

0:12:48 Heather: Exactly. Just for everyone's ears. So for the remaining, is it all or is it some?

0:12:54 Thomas: Said, said, remaining seven years. I figured, yeah, it's a three years later. Yeah. Isn't that all? Are we dealing with all? Okay. I thought you were trying to trick me or something. You just want to make sure we actually say it. Okay.

0:12:59 Heather: Yes, that's all. Exactly. I'm not trying to I'm joking. I

0:13:04 Thomas: All assignment. Got it.

0:13:04 Heather: Do. That's exactly it. Great job. Yeah. So from the manufacturer to the retailer, we have an assignment, but we have one more transfer that we've got to work through before we get through the end of our question. So let's talk about this last transfer here.

0:13:20 Thomas: Then we've got a, so five years remaining.

0:13:24 Thomas: Retailer entered into an agreement with a distributor and that one is only some. So that's for two years and you got five years remaining. So, that's not an assignment apparently.

0:13:35 Heather: Yes. That is a what?

0:13:36 Thomas: It is a, I guess a sublease.

0:13:38 Heather: That is exactly it? Yes. So now we have got to compare the sublease to the provision in the lease. And you did such a good job earlier too of, like you were saying, you've done these questions before, you know, that certain things you've got to pay attention to, which are provisions, like anytime there's a question like this, where there's, we don't have them here. But quotation marks is usually a tip off. Or provision here, right? That's usually the questions way of telling you pay attention to me, I'm really important. But I think this is really a testament to how this, I don't want to, the sameness or like how you can really get the feel for these questions by doing so many of them. Do you know what I mean? Like they, I always tell my students,

0:14:11 Thomas: Yeah, I really think that's true. Like, yeah. I mean, I mean it has been, And no joke, I mean, I've been doing this since, gosh, I guess 2016. Like, it's sure I've only done one a week. So it's a little bit of a slow way of practicing the bar. And then I, you know, missed a year. Yeah, I have developed some amount of like, kind of, okay, I remember that this is important and this is important. And I feel like if I were a real student and did that, like, instead of one a week, did like, I don't know, two a week, no, I'm just kidding, did a lot per week that I'm sure would get even sharper.

0:14:42 Heather: And I mean, I was told folks who are feeling really intimidated. The good news is that these questions can be what I like to joke around as boring, because like, they test the same way all the time. To Point about, you've been doing them and you can kind of see the patterns in them. If you're feeling, so if anyone out there is being a little bit intimidated, I say that to say this, which is that like, once you get them, the feel for them under your belt, you can start to see that they test the same stuff the same way a lot, which I like to think for someone like me who struggles a lot with testing, for me, that's very comforting. That's why I say that. Us what the provision says.

0:14:52 Thomas: Right, yeah. Hmm. Yeah. Prohibits anyone from assigning any rights under the lease without the express written consent of the owner.

0:15:22 Heather: Yeah. And so how think that... Well, I'll ask this question. What does that say about the sublease?

0:15:29 Thomas: So the final one, the sublease that, I mean, you would think that it applies cause it's anyone assigning any rights unto the lease. Um, that's about as far as I can get there.

0:15:38 Heather: Does it say anything explicitly about a sublease?

0:15:40 Thomas: No, not that I know of. It doesn't seem to.

0:15:43 Heather: Right. And we know that assignments and subleases are different, right?

0:15:46 Thomas: Sure, we do now. Yes, we, the royal we, does know that now.

0:15:51 Heather: I mean that in a good way.

0:15:54 Thomas: But that, but what, and I actually said this when I was answering it, I was just having to go with the assumption that assigning rights would, like either an assignment or a sublease would hit that. But now that you say it, assignment and assigning rights, maybe there's something there. But I just didn't make sense to me that you would subleASE, but that's not assigning any rights. But maybe that's where it got me.

0:16:15 Heather: Well, the thing about these kind of questions is that they're really precise around the language, right? If we know that assignment and sublease are different subtopics, this right, is the question's

0:16:24 Thomas: As we do now, as the royal we does definitely know now. Yeah, okay.

0:16:31 Heather: Way of trying to broadcast something specific. Make sense what trying trying to talk about assignment specifically, because it's only saying assignment, right?

0:16:46 Thomas: I I know it's a sublease, but is that I guess I think the problem there is I interpreted that as a layperson. Oh, I'm assigning you these rights it's in like a way of like, oh, I'm just giving you the right to something to, you know, to live here or to do something. Is there a different term for what it technically is when you're subleasing?

0:17:03 Heather: No, if I'm understanding you correctly, no, other than just it's a sublease or it's an assignment.

0:17:08 Thomas: Okay. Gotcha. So I have an inkling. What happened here? Is great.

0:17:13 Heather: But that's part of why these questions are really challenging, I think, is because of that. And if you don't know, or especially too, if you're struggling with a law, it can be really tough because also too, it's written in a way in which it's supposed to be challenging. So if you feel like it is, that's okay because it is. It doesn't necessarily mean anything bad, right?

0:17:16 Thomas: Yeah. Oh, Don't you worry. Oh, this is for other people. Yeah, don't worry. I don't feel bad. I've gotten so many of these wrong. I am immune from, and it's, it's fun because I can have a certain distance to being like, oh yes, I've now recognized the part of the question that I had to guess on. And that sometimes works, but sometimes it leads me to exactly the wrong, eliminating possibly the right answer.

0:17:55 Heather: When I also really like listening to you work through the answer, and I also Really Like Listening to You explain why you're choosing and eliminating answer choices. Because I think too, the thing that's really important is being able to explain your reasoning. Always, always, right. Because a really critical thing that lawyers do and that's really tough when you're in law school to learn how to do is to be able to explain your thinking. Because what happens to us is that what serves us really well in life is being able to jump to conclusions, right?

0:18:11 Thomas: Jump

0:18:25 Heather: This is how old I am.

0:18:25 Thomas: To conclusion, Matt. Yeah.

0:18:27 Heather: Yo, thank you so much for, you just took the words right out of my mouth. I appreciate you so much at this moment. But like what really has to happen is you always have to be really thinking and explaining why, lie, right? I want you to tell me too, you had said right away that got it down to between B and D, right.

0:18:28 Thomas: Yeah, it was fantastic.

0:18:44 Heather: We were looking at B, the owner waived his rights to object under the lease by accepting the retailer as a tenant. You want to remind me about, because I think that's the one that you ended up choosing, is it?

0:18:44 Thomas: I did choose B, yeah.

0:18:55 Heather: Yeah, do you want going to explain that a little bit more? Do you mind?

0:18:57 Thomas: So I think, well, yeah, yeah, it's hard because now I feel like I think I have a good understanding of where I went wrong here. But I think that in and not understanding the difference that we very much understand, stand now, between assigning and subleasing, I feel like it was plausible that since the owner didn't really object to that first one, and the first one actually, not for nothing, definitely was an assignment now that we look at it again. So that was the owner, I like there is a good argument that if you, you don't, kind of just don't, if you got to wave that, that right in one instance there, I feel like I've heard of this before that that may waive your right to it kind ongoing basis. And so that seemed like the most likely answer just because not knowing the difference between assignment and subleasing led me to eliminate an answer that I'm now thinking is probably the right answer. And so from there, it was kind of a combination of like process of elimination and the fact that that sounded plausible to me, right?

0:19:51 Heather: And you're right. Especially in the bar. So when a landlord consents to an assignment or waives the right to object, they can't then object to a subsequent assignment. So yeah, exactly.

0:20:00 Thomas: Okay. Well, There you go, at Least we had small, small victories, because That did seem right, okay, I got that part of it right. It's

0:20:02 Heather: Yeah. Yes. Yeah, it felt right for a reason, right? Things that are true with these types of questions doesn't always make it the best answer.

0:20:15 Thomas: Not Enough. Yeah. It's, that doesn't mean it's right, yeah.

0:20:16 Heather: Yeah? Things that are truth aren't always right only only in this world where things are backwards.

0:20:21 Thomas: Well, But at least the bar, usually to real life, the right thing is also true, so that's good, because If If it was real life, it would be a fake answer that if enough people tell you that it's like, say it really loudly, that it doesn't matter. It just ends up being right, cause that's how our stupid system works. So at the very least, the bar is slightly, slightly better than that, you know?

0:20:28 Heather: Yes. It's not completely.

0:20:42 Heather: Yeah, it makes a little bit of sense. Were also looking at D, right? That the owner does not have a commercially reasonable objection to the distributor as a tenant in the building. Do you want to talk about that a little bit too?

0:20:44 Thomas: Yeah. Yeah. I remembered. So this was kind of, again, I'm also doing a thing of like eliminating and going based on, you know, probability wise, what seems like the best answers I have left. And that one, I at least know that there's something about, you know, if someone tries to get out of a lease, I feel like if they find a reasonable substitute, which is sort of kind of what's happening here a little bit, which is that retailer is like, ah, I don't have any money.

Oh, no, wait. Oh, that was the first person. Yeah. OK, well, whatever. So the retailer is like, oh, I found someone to basically sublease this. And I feel like there is something in real property that's like, yeah, if they find a reasonable person to take over. I think the owner is allowed to be like, nah, I would rather squeeze money from you that you don't have, 'cause you don't want to, you know, be in the lease then accept this perfectly reasonable alternative.

And I at least recognize that that's something that happens. I don't know that it applies here, but that was why I picked that as like my second favorite answer.

0:21:50 Heather: Yeah, exactly. Because it's uncommon, right. Because we also don't want a property to be empty. We don't wanna

0:21:55 Thomas: That is a thing sometimes.

0:21:56 Heather: Yeah. Yeah. But here, the issue that we're trying to get at here tends to be, and you were talking about a little bit earlier, was went to this really great sublease example like you were just talking about. And you also had said initially that this answer really wasn't the best answer because it doesn't matter based on the provision that's in the fact pattern.

0:22:16 Heather: Do you remember saying that? And that's part of the reason why this is wrong is because it still isn't getting us to really hitting the nail on the head for the call of the question, which is really trying to get us to talk about that assignment provision and really talk more specifically about subleasing. And since you really nailed it right almost initially where you were like, I feel like this is irrelevant. And you're right, because this answer choice really is, because it's not getting at the thing that we need to be talking about.

0:21:57 Thomas: Okay. Yeah, Yeah, yeah, yeah. Right, yeah makes D is out the window for sure.

0:22:43 Heather: Yeah. Yeah, sorry, D, you're out. We also talked about C, the non-assignment provision constitutes an unreasonable restraint on alienation. So, you were having a little bit of trouble with the language of alienation, can you explain that a little bit more?

0:22:56 Thomas: No, because I don't understand what it would mean in that context. I also didn't. So C was the one I thought was like one of the worst answers. And I just think that like also the non-assignment provision, it feels like it felt to me like if this were the key, again, based on the old way I was looking at the question, question, it feels like the waving the the right to object was going to matter before that anyway, like I feel like you would, you would argue like, well, you already waved it, rather than like, well, no, this original thing you had was actually unreasonable. Um, so, so it was like a combination of reasons, but I also just didn't, I don't know what the word alienation meant in this context, and I, it wasn't one of those things where I felt like I could even puzzle it out, I

0:23:35 Heather: There's not a ton of context clues that are really trying to tell us what it's trying to get at, and It's one of those words that, like, this is what I always sort of talk to my students about, um, is, uh, law does this thing where, uh, it's very specific about its vocabulary, and even things that you might have heard before might even take on a different connotation. And so I always encourage them, I'm like, listen, there's a whole dictionary that's just dedicated to like lawyer stuff, like bust that out. I always tell them to go to Black Slot Dictionary. I was like, don't just Google, because sometimes Google will get you in the wrong direction. Alienation in this context, what it's really talking about here is restraints on alienation, or restrictions on transferring property. Generally speaking, restraints on alienation are generally void as a matter of public policy, because we, well, more like the law, we.

0:23:40 Thomas: Yeah. Yeah, not you and I. Yeah, this is somebody else.

0:24:23 Heather: Yeah, this is like the, this

0:24:26 Thomas: Might literally be the royal we from back in the day.

0:24:26 Heather: Is what it actually is. They don't like property being tied up and taken out of commerce.

0:24:30 Thomas: Yeah. Yeah. So, okay, it would be maybe helpful if you could tell me the actual definition of alienation. But I should have almost hazarded this guess because I was leaning toward alienation being like, oh, getting out of the contract, like alienating from it or something like, and it does, I guess with that context, it could have been plausible that the non-assignment provision, well, okay. I still don't think it's the right answer. I don't think it would have been, but it would have at least been a true thing similar to like B where it's like, well yeah, a non-assignment provision may constitute an unreasonable restraint on being able to like get out of a contract and not have it be, or whatever, get out of a lease and not having to be sitting there and all that kind of thing.

0:25:13 Heather: I pulled up the, um, course I pulled out my Black's Law Dictionary because why not? And it's saying here, I'll just read it. It says here the conveyance or transfer of property to another, alienation of one's estate. So it's just about the transfer of property.

0:25:24 Thomas: Hmm. Hmm. Oh, wow. That is an unnecessarily weird word for that. I'm going to go ahead and say if I may. If I may offer some criticism, black. That's a word that has too much weirdness for what that is. That just sounds like transferring something. Well, how is it different from just transferring? Yeah. Okay. All right.

0:25:29 Heather: It really is.

0:25:39 Heather: Yeah. Can't we just say the thing that we're trying to say.

0:25:44 Thomas: Yeah. Yeah, no kidding.

0:25:47 Heather: And the thing here too is that, so because we usually get these rules and then we usually have some exceptions where the rule usually changes. So generally speaking, we don't like restraints on alienation, but a non-assignment provision like this is considered a reasonable restraint on alienation. Here a lot of times is that but it's It's a partial restraint, right?

0:26:03 Thomas: Okay, sure, sure. Sure.

0:26:08 Heather: In the sense of you can just ask. And a lot of times, because it's just saying here, you all have to do is really just ask and just have the landlord's written permission.

0:26:13 Thomas: Ah, so if the term had been never for any reason, could anyone assign any rights to the lease at all beyond this? That might be an unassignment provision that would be an unreasonable restraint. Is that what you're saying? Okay. So C is a not true thing, but it's close. Okay. All right. Well, at least it was a good elimination, luckily.

0:26:22 Heather: Yeah. Correct. Yeah, Yeah well, I think it's good to because sometimes restraints and alienations get tested on the bar exam. Sometimes they'll also get tested in other ways. Maybe sometime down the road, we can talk about things like the Fair Housing Act and that sort of thing. Yeah. So what we can do now is we can look at the difference between A and B, right? And C, which one we think is the best answer choice.

0:26:50 Thomas: Interesting. Oh, and which one was my choice, yeah I agree, no I was joking, which one was the good answer and which one was the one I chose? Yeah, we can do that. I'm dying in suspense here. We can see which of those will be. No, no, it's good. I like it. It's still, it still, there's, you never know. There's always a dramatic tension because sometimes it's leaning toward one way. And then like, there's some weird technical reason why I actually accidentally got something right that I didn't think I got right. So there's always, there'S always suspense here. Let's see. Okay. We're between A and B. I'M in suspense. LetS hear it.

0:26:59 Heather: Yeah, your choice was B, right? Sorry. Well, Remember, I like to say, remember that we're looking for the best-answer choice, which has to be correct based on the call of the question, and it has to also be correct based on facts, right. We know that the call of the question is asking us about the difference between assignment and subleases. So we've got one about waiving rights, and then the other one talks about the lease provision. We have to determine which one that we like better. What do we think?

0:27:50 Thomas: Yeah, I did latch on to this right away in your explanation, because once assignment is a different thing from subleasing, well, then that clause doesn't really talk about subleasing at all, and I really didn't. I blended those together, so that was crucial information. So, knowing that, I would definitely think that A would be the right answer, just because the lease provision says, the lease provision does not require the owner's approval of the agreement between the retailer and the distributor. So that makes perfect sense now that I have separated, that you have separated those two concepts for me. So I would go ahead and say, I think A is the right answer.

0:28:24 Heather: Be correct.

0:28:24 Thomas: All right. I'm correct in being incorrect. So this was a total whiff because my real answer and my second chance answer were wrong. So that's real property for you.

0:28:25 Heather: A is the best answer. It's a toughie. They're usually a doozy and real property covers so much stuff. It's got a lot that it falls under And so these questions are often tough and really difficult to navigate. It's all about having an approach that works each and every time that you work through your questions.

0:28:50 Thomas: Yeah. An approach like knowing every single piece of information in the law. That'd probably be the best one. No, I get it. If I'm able to somehow remember that difference, I would hope that I would get a similar question right next time. But, you know, we'll see. All right. Well, I failed that one. Yeah, But I learned a lot in the process. That makes sense. I totally see it now.

0:28:56 Heather: Well, good.

0:29:12 Heather: That's part of the goal, right?

0:29:14 Thomas: Right, well I did not get that one right, but here's the thing. I also don't see anyone, now it's a little disjointed now because it's kind of everywhere, but I don't see anybody online who got this one right either. That makes me feel a little better. Reddit had the most participation. Reddit's got a real cool thing going. By the way, go to reddit.com/r/openargs. And Reddit's got like an ongoing, uh, score of different users.

Got, seriously, if you want to play T3B, actually, I'm starting to think maybe Reddit is the place to be now that I look at this. And I think a lot of it, due apologies to Apprentice57, fantastic Reddit OA fan. Since nobody got it right, I'm also going to go ahead and award this week's fame and fortune to Apprentice57. And Apprentice, as much as I love you, it's not because of the soundness of your answer. It's because it's favoritism. It's just plain favoritism is what it is.

Apprentice says, this has already been a hard string of questions and I'm not pleased to see more real property. Yeah, neither am I. I'm guessing D is the answer. While it's reasonable for the owner to want to have veto power over subleasing the property to other people, it's also reasonable that they would need to have real business-based reasons to reject the new tenant. They say some additional stuff, but also I do like this Apprentice said even more. I think A is just false.

I also don't think B is correct because the owner implicitly showed approval by having knowledge of and accepting payment from the retailer. C has me kind of lost, but I don't think anything is unreasonable about the non-assignment provision. It's reasonable for a landlord to object on meritorious grounds. So, yeah, no, most people guessed D on this one, actually. That was my second choice.

However, we were pretty much all wrong because, of course, the answer was A, but I just wanted the chance to shout out Apprentice57 for being super cool and organizing and arranging a bunch of this stuff. Seriously, go to the subreddit if you'd like to play T3B. I think that might be the place to do it. They've got a really cool thing going there. reddit.com/r/openargs and a big thanks to Apprentice57 for being our big winner this week. Right, and now it's time for a new question. So after this break, we're going to get Heather to give us next week's failure. I mean, question.

0:31:31 Thomas: Right, Heather, how I am eager for another question. Last one didn't go so well, I completely failed that last one. So I'm looking for a little redemption. Let's see.

0:31:40 Heather: Okay. Well, we've got one on deck for you. You ready?

0:31:43 Thomas: Nope. Go ahead.

0:31:44 Heather: Okay, Congress passes a law regulating the wholesale and retail prices of every purchase of an automobile in the United States. The strongest argument in support of the constitutionality of such a statute is that A, as a whole, the domestic purchases and sales of such products affect interstate commerce.

0:32:06 Thomas: Oh. Interstate commerce, huh? Okay, okay.

0:32:09 Heather: B, the United States Constitution expressly authorizes Congress to pass laws for the general welfare. C, Congress has the authority to regulate the prices of products purchased and sold because commerce includes buying and selling. D, Congress has the right to regulate interstate transportation and the importation of products from abroad. Those are your options.

0:32:31 Thomas: Yeah. So, okay, so let's see here. First off, I think I'm trying to do that thing you said where I'm identifying the, like, the category of the question. So, this seems like constitutional law to me, because, you know, it's about the Constitution, man. And so we're trying to reevaluate why Congress can do this.

And this is, we've talked about it before, probably in the conversation you're referencing, but it's mind blowing to me, and to probably, I would imagine, a lot of people who haven't studied this crap, that like Congress can't just pass laws about whatever it wants.

Like, I totally thought that was how it worked, but they have to have like specific reasons or whatever, like enumerated power, there's all this stuff, but they have to have some sort of basis for it, that's not the right word, but something like that, and interstate commerce, my memory, is one of a clause in the Constitution and it's been kind to justify a whole lot of stuff, maybe too much, I don't know, but also from my, my view, I don't care because I think Congress should just be able to pass laws to make things better, but that's just me.

Congress passes a law regulating the wholesale and retail prices, quote, every purchase of an automobile in the United States. Strongest argument in support. Okay. So we're doing one of those things. So, so, A seems to be the no -nonsense, A taken as a whole, the domestic purchases and sales of such products affect interstate commerce, okay? It seems to be the no nonsense interstate commerce answer, regulating a price of a good in the United States. That interstate commerce?

And I'm thinking about it's like, I guess you could say, yeah, because person A from California, when they go to Texas to buy a car, they'll have to buy it for that price. But like, maybe this is stupid, but I don't know. I almost think like, is that interstate commerce? Because that doesn't kind of just like everybody would of unify it around. Yeah, I don't know.

It, like, anything can can be justified as interstate commerce by logic of, it affects commerce and we are the United States. But I'm holding out a little bit of an idea that maybe this isn't, because it is just setting a price, which isn't so much about like transacting business between states, but maybe it is, I don't know. Okay. So A is definitely still very plausible, but I'm not 100%. B, the United, United States Constitution expressly authorizes Congress to pass laws for the general welfare.

What's weird, that sounds familiar to me, but I thought they like couldn't do that. Cause if, cause if that were true, there would never have been a challenge to to Obamacare. I, I shouldn't say never, I mean the court is very, um, and wanted to its grimy political hands on that, but it would seem like it would be tough to not argue that every single law that Congress passes is for the general welfare. I, like yeah, I don't think you can do that.

I mean, because certainly Obamacer, it's like, yeah, that's for the general, like, obviously health care welfare, that would have been an easy case, and I know that that wasn't the justification for it, even regardless of how you think they should have ruled, they were explicitly arguing around interstate commerce, I'm pretty sure. So I think not B, like I'm pretty sure that's just not right. C, Congress has the authority to regulate the prices of products purchased and sold because commerce includes buying and selling. Interesting.

Commerce includes buying and selling. One wonders what else commerce even could be other than buying and selling, like, focusing on not the interstate part, but it's like, OK, is commerce, is that word the problem? Well, no, it's not, because commerce is buying and selling. However, we always have the outside chance that, like, that's the answer that sounds super weird, but essentially just means, yes, it's interstate commerce, pretty much. A was, taken as a whole, the domestic purchases and sales of such products interstate. Now, that's interesting.

So, do you need to look at the whole thing and say this activity affects interstate commerce, or is it just that you can regulate any prices because purchasing and selling stuff is commerce, buying and selling stuff as commerce, and, mean, that doesn't say much about the interstate stuff. Is it assumed that people do that between states? Wow, all right, I'm making, maybe I'm not making this too hard, but this is feeling more complicated than I initially thought.

Or D, Congress has the right to regulate interstate transportation and the importation of products from abroad. That, I think, is not a good answer because it just seems dumb. I don't think that transportation is the key there, because if it's regulating interstate transportation, the prices of vehicles is not really that. I feel like that would be other things, like rules of the road and regulations on what, what cars have to do, or have to, safety, whatever. Like, I don't think the price is really that.

And import, is nothing about imports here, regulating I wholesale and resale prices of every purchase of an automobile in the United States. But that's not really about import, they could, assume I, you could import it from elsewhere for a different price. But I don't know, I think D seems dumb and I think B seems dumb. I think we're solidly between A and C, because B and D, I think, missed the point there, I think.

And now, I mean, A seems more obvious, because taken as a whole. So is it a question of, taken as whole thing is maybe worrying me a little bit, because remembering a different question where it was like, oh, this is like 10 cents difference on a minimum wage for, what was it, it was like dry cleaning or something, is something like, well, that's a tiny amount, it makes no difference to those individual people. Or maybe it wasn't even about the amount.

Yes, that dry cleaning spot business might only transact business within the state, and you could say, yeah, but the logic was, yes, but the law was about all of it, everywhere, everywhere, as a whole, that's definitely interstate commerce because there's going to be tons of instances of dry cleaning and people being employed by, you cleaners in different states or, you know, all kinds of stuff. So that was what the taken as whole part was there.

I'm a little nervous about this because I don't see why you need to take this as a whole, but maybe, that's just me trying to find a problem with answer A. it A, taken as a whole, domestic purchases and sales of such products affect interstate commerce, or C, Congress has the authority to regulate the pricing of products purchased and sold because commerce includes buying and selling. Let, think the interstate part is kind of unanswered there, is what worries I me.

Like, like, I don't, if someone came up with a counter, because this is, what's the strongest argument in support, if someone came out with a counter argument, but not interstate, that's just the commerce part, you kind of ignored the interstate part. Previous state of affairs might have been, well, the prices are wildly unequal in state A versus state B, and just the act of like equalizing them out and saying everybody has, regulating the prices for everybody the same. Guess that that then would affect interstate commerce.

If you've changed, if how it was to could be the case, whereas before you might have wanted to travel to another state to buy a car for some reason, and now you never would need to do that because it's basically... Okay, and so that makes sense. Now, am I supposed to assume that's obvious, or am I suppose to discount C because it doesn't tell me that?

I, I think I'm going to go with A, because I think that if we're looking at the strongest argument in support of the constitutionality, mean, I feel nervous because it just seems pretty obvious.

It's like the no -nonsense obvious answer of taken as a whole, those you purchases know, and sales affect interstate commerce, but it's true, I mean, it is true, um, need, now we know from previous Heather questions, it needs to be true, and the best answer can't just be true, um, actually now that I look at it, I don't even think C is true. Congress has the authority to regulate prices of products purchased and sold because commerce includes buying and selling.

Yeah, I have the authority to just regulate any prices they want because commerce includes buy and selling, so now they look at it, C seems terrible. I don't even, no, I'm totally lost, but one thing I know for sure is I'm going with answer A. I can't wait to find out. Have I made a very easy question seem more confusing, or have I not been confused enough by this question? We'll see, we'll find out next time, answer A is my final answer. Uh, right.

If you'd like to play along, you can do so on any social media, use that hashtag T3BE. But as I said earlier, I think the place to do this is Reddit. So hop on over to the subreddit, just based on, look, just based upon the Facebook group as well. But the organization and the ongoing score on the subredtit is really cool, so that may be the place to go.

No offense to any other places playing, but I'll still look around everywhere, but that's the place to be. And of course, patreon.com/law, you can comment your answer on this post, and that is a good chance. This week though, nobody got that right there, so that's why I didn't read anybody, butthat's another good place to play. I always check Patreon first, so make sure to play there.

0:41:29 Clip: Thank you for being, say we started from the bottom, now we're here, girl.

0:41:38 Thomas: Now there's only two things left to do. Is A, to catch up on new patrons, and B, to thank our Hall of Fame patrons. First to catch up on new patrons. And we are still in February, but you know, that's when most people came back. So that's when the bulk of the new patrons are. It is so much fun to catch up. And thank you, new patrons, you're the best. So I will start with Andrew O. Thank you, Tom Barta, Katie Lehman, Derek, Kay Fitzsimmons, Brett Spunner, Littlest Lass, Max Vallee, John Weinberg, Sean Wally, Alan S. Rout, Lipstick Lumberjack, Aidan Metcalf, Bethany Sell, Emmanuel Eppinger, Viceroy, Aaron Danforth, Luke Alonzo, Jesse Drury, Patrick Olivieri, Aaron Halpin, Charles Bassner, Aaron H., Daniel N. Robin, Julie P., Mike Torrance, TJK, and Floyd, and Peter Ribbons. Thank you so much, new patrons from, you know, now four months ago that I'm catching up on, but you're the best.

Specifically, these new patrons, from this time, are the reason that I am here today, for real, all of you. Thank you so much. And now, of course, it's time to thank the top patrons, the Hall of Famers, the all -time greats on patreon.com/law. These are folks in that top tier, maybe it's the top two, can't remember, and you have to pledge at that level for at least a month. Welcoming some new members this month, that is so incredible.

I love that we're building back this Hall of Fame group, and I love the shout outs and the changing game. So here we go. We're on the first quartile. This is a quartile month, it's a four t3b month, so here's one of four. Thank you. "Too not every aborted fetus is unwanted." Wanted. Ah, that is true and sad. Misbehavior. Carl Otterson. Is the word, is the word that you heard. Ward Law in Roseville, Judy Hanrahan. John. Ian Goldfinch. Rona. Gagged me. Hadari. Ah, so good. Logomancer.

I can't weight to to hear all the details. Oh, on that note, quickly becoming clear that that's going be difficult to get to. So I'm going to need to find some way to do that. I don't know if it'll be like taking episodes off in order to actually publish the details of Smith v. Torres, because that's like being maxed out with a regular podcast.

I'm finding it difficult to figure that out, but I'm, I'm gonna have to do something different, I think, to get that to work. I think, I think I'm going to have to, like, force myself to take podcasts off somehow and just make it happen. But I'm doing what I can. It will happen. Trust me. But sorry that it hasn't happened yet. Okay, then. Take that, next patron. "As, like, not really accepting my apology." Okay, that's fine. It hasn't happen yet.

"Sex and gender are different things, and people should stop using them interchangeably." Yeah. Apprentice of Adventure. Kieran S. Jesse D. Myers. Thank you so much, Hall of Famers. Is the first quartile. Thank you to everyone for listening. See you on Rapid Response Friday.

0:44:37 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.