Multistate Bar Examination (MBE) — Questions and Answers

Question 1: Parties form an oral contract for the sale of a $600 antique vase. The seller sends the buyer a written confirmation naming the price and quantity; the buyer, also a merchant, receives it but says nothing for 2 weeks. Under the UCC merchant exception to the Statute of Frauds:

The seller's writing is insufficient without the buyer's signature
The oral contract is enforceable only if part payment was made
The written confirmation satisfies the Statute of Frauds against the buyer who failed to object within 10 days (Correct answer)
The oral contract remains unenforceable because there is no signed writing from the buyer

Correct answer: The written confirmation satisfies the Statute of Frauds against the buyer who failed to object within 10 days

Under UCC § 2-201(2), a written merchant confirmation sent to another merchant satisfies the Statute of Frauds against the recipient unless the recipient objects within 10 days of receipt.

Question 2: A plaintiff sues in federal court and seeks to add a new defendant six months after the statute of limitations expired. Under FRCP 15(c), the amended complaint adding the new defendant 'relates back' to the original filing date if:

The plaintiff can show good cause for the late amendment
The new defendant received notice of the action within 90 days of filing, knew or should have known it would have been named, and the claim arises from the same transaction or occurrence (Correct answer)
The new defendant had actual notice of the lawsuit within the limitations period
The original defendant consents to the addition of the new party

Correct answer: The new defendant received notice of the action within 90 days of filing, knew or should have known it would have been named, and the claim arises from the same transaction or occurrence

Under FRCP 15(c)(1)(C), relation back requires that the new party received notice within the Rule 4(m) period, knew or should have known it would have been named but for a mistake, and the claim arises from the same transaction.

Question 3: A defendant charged with homicide had a long and tortured history of mental illness. He related several outrageous paranoid fantasies to the authorities and was sent to a mental hospital for evaluation of his ability to stand trial. The doctors reported that the only hope to restore the defendant to relative normalcy where he could stand trial was to administer widely-used anti-psychotic medicine. The man was also a danger to himself and others, and the medicine was in his medical best interests. The defendant asserted that the administration of drugs against his will would violate his liberty interest to substantive due process. Will the court likely order that the defendant should be involuntarily administered the anti-psychotic medications?

Yes, the administration of medications to render the defendant capable of standing trial, without serious side effects, is an important governmental interest, and even more so in a homicide case. (Correct answer)
No, the individual has an absolute constitutional right to be free from intrusion of medications into his system against his will.
Yes, the individual has no right to be protected from involuntary medical treatment when he is in custody of federal authorities.
No, the involuntary administration of medications to a criminal defendant is considered to be cruel and unusual punishment in violation of state and federal constitutional protections.

Correct answer: Yes, the administration of medications to render the defendant capable of standing trial, without serious side effects, is an important governmental interest, and even more so in a homicide case.

That it is in his medical best interest is important factor and makes it easier to decide that the secondary effect of rendering him capable of standing trial was also valid. Furthermore, at present he is a danger to himself and others, and the medication may improve also that problem. In this case, all of the factors would militate in favor of granting the order.

Question 4: A business woman rented a second-floor office suite for her consulting business. It was located above a bank on the first floor, and partly on top of the bank vault. She obtained blueprints and brought drilling tools into the office. She studied bank activities and determined when at night she might be able to drill through to the vault. She inserted microscopic binoculars through the floor to explore the layout below. Before she started drilling, however, she noticed that more security persons appeared to be in the bank at night. Growing suspicious and losing the desire to take such a great risk, she hid the tools in her garage at home and did nothing further. A few weeks later, she was arrested by police based on reports regarding her suspicious nighttime activities. Does she have a viable defense to the attempted burglary charges?

No, when she sent the lenses down to spy on the bank, she had completed an attempt that could not be abandoned, and her asserted abandonment was motivated by fear of being caught. (Correct answer)
Yes, she abandoned the crime before it occurred, and had no intent to resume the activities, making it a complete abandonment.
Yes, it doesn’t matter when the abandonment comes; it is always effective if carried out prior to consummation of the total crime.
No, the courts do not accept abandonment as a defense to criminal attempt because it cannot negate the original intent to commit the crime.

Correct answer: No, when she sent the lenses down to spy on the bank, she had completed an attempt that could not be abandoned, and her asserted abandonment was motivated by fear of being caught.

For the defense of abandonment (or renunciation) to be valid for an attempt crime, the abandonment must be complete and voluntary, not motivated by a fear of detection or a belief that the crime is impossible or more difficult. Here, the woman had already taken substantial steps (obtaining blueprints, tools, spying with binoculars) and her decision to stop was motivated by increased security, indicating fear of being caught, not a true change of heart.

Question 5: A city enacts an ordinance banning panhandling in all public parks. A homeless man challenges the ordinance. The court should evaluate this law under:

Strict scrutiny because it restricts speech in a traditional public forum (Correct answer)
Intermediate scrutiny because it discriminates against the poor
The O'Brien test because panhandling is expressive conduct
Rational basis review because it regulates economic conduct

Correct answer: Strict scrutiny because it restricts speech in a traditional public forum

Public parks are traditional public forums; content-based or overbroad restrictions on speech (including solicitation) in such forums receive strict scrutiny.

Question 6: A defendant is charged with rape under a statute requiring 'forcible compulsion.' The victim physically resisted but the defendant overpowered her. Which element of rape does this scenario clearly satisfy?

Neither, because resistance alone is insufficient
Both lack of consent and forcible compulsion (Correct answer)
Lack of consent only
Forcible compulsion only

Correct answer: Both lack of consent and forcible compulsion

Physical resistance by the victim establishes both lack of consent and, when the defendant overpowers her, forcible compulsion.

Question 7: An industrial truck sales and service center had a wide variety of rigs, trucks and tractors in its multi-acre gated main parking lot. There was a set of keys in each vehicle. The entrance gate was intentionally left open during the day for convenient ingress and egress. A gang member from a nearby gang headquarters walked into the parking lot during work hours, and drove off with a very large state-of-the-art industrial tow truck. He had difficulty managing the gear shifts and other knobs while accelerating, and was so distracted that within a few minutes he ran over and killed an elderly woman in a cross walk. The woman’s estate sued the truck center for negligence. The defendant service center filed a motion to dismiss, in which it asserted that it had no duty to third persons to protect them from truck thieves. It argued that even if it had a duty, the interceding act of the thief was a superseding cause of the accident. Will the court allow the plaintiff’s wrongful death negligence action against the truck center to go forward?

No, because the leaving of keys in a vehicle is never considered a foreseeable cause of injury or death from a vehicle thief who does not drive properly.
No, because the service center could not foresee that a gang member who didn’t know how to drive an industrial tow truck would take it and kill someone.
Yes, because the service center is strictly liable for any damages to third parties resulting from unauthorized use of one of its trucks.
Yes, because the special circumstances are that the truck was powerful and not commonly drivable by untrained persons; and, it was left unattended, unguarded and accessible to thieves who generally would likely have trouble operating a big rig or a specialized industrial truck. (Correct answer)

Correct answer: Yes, because the special circumstances are that the truck was powerful and not commonly drivable by untrained persons; and, it was left unattended, unguarded and accessible to thieves who generally would likely have trouble operating a big rig or a specialized industrial truck.

While generally a vehicle owner is not liable for a thief's negligence, 'special circumstances' can create a duty and establish foreseeability. Here, the truck center left a powerful, specialized industrial tow truck, not commonly drivable by untrained persons, unattended and accessible to thieves in an open lot. It is foreseeable that an untrained thief would struggle to operate such a vehicle, increasing the risk of an accident and harm to third parties, thus allowing the negligence action to proceed.

Question 8: In a civil action for injuries, the plaintiff contended that the highway was slippery on the bridge where the auto accident occurred. She testified that the other driver was going too fast for the slippery conditions. The defendant driver of the other auto denied that the bridge was slippery and claimed that the accident happened when he had to veer his car to escape a pothole. The plaintiff denied that there were potholes on the bridge. Defendant admitted that it had been raining at some point prior to the accident. The judge, being familiar with the bridge, took judicial notice that its surface always gets slippery when there is rain, and that there are no potholes on it. The plaintiff won the case, and the defendant appealed on the basis that it was legal error for the court to take judicial notice of disputed facts. What will the appellate court decide?

The court has wide discretion in deciding what is appropriate for judicial notice, and the judge’s decision will not be disturbed on appeal.
The court could take judicial notice of any fact that was not critical to the decision of the jury, and the condition of the bridge surface was irrelevant to issues of negligence.
It was reversible legal error for the court to take judicial notice of disputed facts on the basis of the judge’s personal beliefs regarding the issue. (Correct answer)
It is proper for the court to take judicial notice of something that it knows from personal experience to be true.

Correct answer: It was reversible legal error for the court to take judicial notice of disputed facts on the basis of the judge’s personal beliefs regarding the issue.

Judicial notice is reserved for facts that are either commonly known or readily verifiable from indisputable sources. A judge's personal knowledge or experience, especially regarding disputed facts central to the case, does not meet these criteria. Taking judicial notice of such facts usurps the jury's role as fact-finder and constitutes reversible error, as it deprives the parties of the opportunity to challenge the evidence.

Question 9: A defendant honestly and reasonably believed he was about to be attacked and killed a person who turned out to be an innocent bystander. Under the MPC, is imperfect self-defense available?

Yes, the defendant may be convicted of a lesser offense due to the honest but unreasonable belief
Yes, the honest belief is a complete defense under the MPC (Correct answer)
No, because the victim was innocent
No, because self-defense requires the threat to be real

Correct answer: Yes, the honest belief is a complete defense under the MPC

Under the MPC, an honest but mistaken belief in the need for self-defense is a complete defense if the belief was reasonable; if unreasonable, it may reduce but not eliminate liability.

Question 10: The defendant was convicted under a criminal statute of raping a child under the age of 12. The court sentenced him to death pursuant to the permissible provisions of the criminal statute. The defendant appealed the death sentence, claiming that it violates the Eighth Amendment by imposing a sentence that is cruel and unusual based on the crime committed. Based on U.S. Supreme Court Eighth Amendment jurisprudence, what will be the most likely outcome?

The death penalty can be imposed whether or not human life was taken as long as the statute includes it as a specified punishment.
The death penalty can never be imposed on someone who did not take human life despite the despicable nature of the crime.
With respect to crimes against individuals, the death penalty should not be extended to instances where human life was not taken. (Correct answer)
This was as heinous a crime as can be imagined and the penalty of death is therefore justified despite the fact that the victim survived the brutal sexual attack.

Correct answer: With respect to crimes against individuals, the death penalty should not be extended to instances where human life was not taken.

This is a crime against the individual, and not the state. In this kind of crime, the U.S. Supreme Court has held that it is unconstitutional to put a man to death when there was no taking of life.

Question 11: A grower based in one state grew and marketed corn nationwide. The U.S. Congress passed a law attempting to stabilize the price of corn by limiting the volume of corn produced by growers to a specified volume per each cubic acre, on a semi-annual basis. The Department of Agriculture fined the grower for exceeding the production volume. He only intended to use the excess for feeding his livestock and domestic purposes, but he was ordered to destroy it. The grower brought an action claiming that his substantive due process rights had been illegally interfered with. He asked for an injunction and reparations. What would be the most likely decision of the court?

The fact that he used the excess corn and did not ship it resulted in no effect on interstate commerce, and the government’s actions would be enjoined as being beyond the power authorized by the Commerce Clause.
No relief was granted because Congress has the power to regulate interstate commerce, and even though he used the excess corn internally, it reduced the feed that he had to buy, thus having an effect on interstate commerce. (Correct answer)
No relief was granted because the Supreme Court has made it clear in numerous cases that the power of Congress to regulate interstate commerce is unlimited and unrestricted.
Relief would be granted because the Commerce Clause does not authorize the regulation of indirect influences on interstate commerce, making this action illegal.

Correct answer: No relief was granted because Congress has the power to regulate interstate commerce, and even though he used the excess corn internally, it reduced the feed that he had to buy, thus having an effect on interstate commerce.

This scenario is analogous to *Wickard v. Filburn*, where the Supreme Court held that Congress's Commerce Clause power extends to regulating purely intrastate activities if, in the aggregate, they substantially affect interstate commerce. Even though the grower used the excess corn for personal livestock, this reduced his demand for purchased feed, thereby impacting the overall interstate market for corn and feed, thus falling within Congress's regulatory authority.

Question 12: When a truck rushing on the sand mowed down an elderly person sunbathing, the man was peacefully and relaxedly resting in a beach chair. Oh my God, see what that truck driver did, the man exclaimed aloud. The truck's driver was racing while traveling at a speed of roughly 100 mph. Please dial 911.When the case goes to trial, would the court allow both the guy and the lady to testify about the man's statements? " A woman, who was sitting on the beach close but looking the other direction, heard the man's outcry.

Yes, because this is not hearsay and it is not being entered for the truth of the statement by either witness so that they can both testify.
No, neither of them can testify because the man was impaired due to being too relaxed from his meditation, and the woman cannot repeat the utterances of an impaired witness.
Yes, both the woman and the man can testify because it is an excited utterance exception to the hearsay rule that goes to the material issue of the case. (Correct answer)
No, neither can testify because the utterances do not fit any of the exceptions to the hearsay rule.

Correct answer: Yes, both the woman and the man can testify because it is an excited utterance exception to the hearsay rule that goes to the material issue of the case.

Explanation: This is an example of an enthusiastic utterance, which is defined as a statement made hastily in response to an unexpected or upsetting incident or circumstance. It is an exception to the hearsay rule that enables testimony from both parties. According to US v. Boyce, 742 F.3d at 748, "" circumstances may produce an excitement condition which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication."" 2014; 3d 792, 796–97 (7th Cir.). To put it another way, the phrase couldn't have come from deliberate thought; it had to have been an immediate response to the shocking event. 272 in McCormick on Evidence, 7th edition (2013).

Question 13: A defendant, acting under a delusion that God commanded him to kill, kills his neighbor. He knew the act was killing but believed it was morally right. Under the M'Naghten test, is he legally insane?

No, because moral wrongfulness is irrelevant under M'Naghten
No, because he understood the physical nature of his act
Yes, because he did not know the act was wrong (Correct answer)
Yes, because he suffered from a mental disease

Correct answer: Yes, because he did not know the act was wrong

Under M'Naghten, a defendant is insane if, due to mental disease, he did not know that his act was wrong — believing God commanded it means he did not appreciate its wrongfulness.

Question 14: Under Crawford v. Washington, the Confrontation Clause bars admission of out-of-court statements that are testimonial unless:

The declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant (Correct answer)
The statements were made under oath or before a government official
The statements fall within a firmly rooted hearsay exception
The statements are corroborated by independent evidence of reliability

Correct answer: The declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant

Crawford v. Washington (2004) held that testimonial hearsay is inadmissible under the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine — reliability alone is not sufficient.

Question 15: A defendant answers a complaint but fails to raise the defense of insufficient service of process. Under FRCP 12(h)(1), what is the consequence?

The defense survives until trial
The defendant may raise it in a later motion
The defense is waived (Correct answer)
The court must dismiss the case sua sponte

Correct answer: The defense is waived

Under FRCP 12(h)(1), the defenses of lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process are waived if not included in the first responsive pleading or a pre-answer motion.

Question 16: A group of women employed by a state government recently sued the state under Title VII of the Civil Rights Act of 1964, on the basis of allowing the creation of a hostile work environment against them. An amendment to that act extends coverage to the states as employers. The federal district court allowed an injunction to prevent further discrimination but refused to allow money damages and legal fees against the state on the basis of 11th Amendment sovereign immunity. The plaintiffs appealed. What should the Court of Appeals decide based on the established jurisprudence regarding sovereign immunity?

There is no sovereign immunity due to the First Amendment rights of the women to protest against discrimination.
There is no sovereign immunity where the federal law provides a remedy to women in a civil rights law intended to apply the Fourteenth Amendment enforcement rights against the states. (Correct answer)
There is sovereign immunity that protects a state from any lawsuit by private citizens that the state does not authorize.
There is sovereign immunity under the Supremacy Clause and it would take a new constitutional amendment to abrogate the immunity granted to the states.

Correct answer: There is no sovereign immunity where the federal law provides a remedy to women in a civil rights law intended to apply the Fourteenth Amendment enforcement rights against the states.

The Eleventh Amendment and the state sovereignty that it embodies are limited by the provisions of the Fourteenth Amendment, which grants Congress authority to enforce "by appropriate legislation" the provisions of the Fourteenth Amendment, which themselves are significant limitations on state authority. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).

Question 17: A defendant is charged with false pretenses after inducing the victim to transfer title to property by lying about his financial status. Which element distinguishes false pretenses from larceny by trick?

Larceny by trick requires a written misrepresentation
False pretenses requires transfer of title, not mere possession (Correct answer)
The property must be real estate for false pretenses
False pretenses applies only to future promises

Correct answer: False pretenses requires transfer of title, not mere possession

False pretenses requires that the defendant's misrepresentation caused the victim to transfer title to the property; larceny by trick only involves obtaining possession, not title.

Question 18: A woman conveyed by deed her farm to her nephew, for the nephew’s life. The nephew died prior to his aunt. The deed was silent on what happens on the nephew’s death. The nephew’s heirs tried to assert control and ownership of the property. The aunt sued them to assert her claimed superior interest in the property. Will the court return the property to the aunt?

No, because the nephew’s fee simple interest passed to his heirs upon his death.
Yes, because the nephew’s death prior to the aunt created a unexpected condition subsequent.
No, because the nephew’s life estate was transferred to his heirs upon his death.
Yes, because the life estate terminated on the nephew’s death and title reverted back to the aunt. (Correct answer)

Correct answer: Yes, because the life estate terminated on the nephew’s death and title reverted back to the aunt.

A life estate is an interest in real property that lasts only for the duration of a specific person's life, in this case, the nephew's life. Upon the death of the measuring life (the nephew), the life estate automatically terminates. Since the deed was silent on a remainder interest, the property reverts back to the grantor (the aunt) or her heirs, as she retained a reversionary interest.

Question 19: A negative easement prevents a servient estate owner from doing something on their land. Which of the following is a recognized traditional negative easement?

Obstructing light and air reaching the dominant estate (Correct answer)
Blocking a neighbor's view of a scenic mountain
Parking vehicles on a shared driveway
Preventing the servient owner from playing loud music

Correct answer: Obstructing light and air reaching the dominant estate

Traditional negative easements include light, air, support, and streamflow — courts historically refused to expand this list to include view easements.

Question 20: A woman owes a co-worker $2000 on a personal debt. The woman’s first cousin promises to pay the co-worker the full debt if the woman will give the cousin’s children dance lessons. She faithfully provides dance lessons regularly over an extended period. Can the co-worker sue the cousin for not paying the debt?

No, because there is no privity of contract between the co-worker and the cousin.
Yes, because the co-worker is an intended beneficiary of the agreement between the woman and her first cousin. (Correct answer)
Yes, because the co-worker is a donee beneficiary with full rights to sue the first cousin for the debt owed.
No, because the co-worker is only an incidental beneficiary under the agreement between the woman and her first cousin.

Correct answer: Yes, because the co-worker is an intended beneficiary of the agreement between the woman and her first cousin.

The co-worker is an intended third-party beneficiary because the primary purpose of the agreement between the woman and her cousin was to benefit the co-worker by discharging the woman's debt. The cousin's promise to pay the co-worker directly in exchange for the dance lessons clearly demonstrates an intent to confer a benefit upon the co-worker. This intent gives the co-worker standing to sue the cousin for breach of that promise.

Question 21: A defendant is charged with conversion after taking the plaintiff's rare coin collection and selling it. The plaintiff seeks damages. What is the proper measure of damages for conversion?

Nominal damages only
Rental value of the chattel during dispossession
Cost of repair
Fair market value of the chattel at the time of conversion (Correct answer)

Correct answer: Fair market value of the chattel at the time of conversion

Conversion damages equal the fair market value of the chattel at the time of conversion, effectively forcing a judicial sale.

Question 22: A severely injured passenger sued the driver of the car (defendant 1) that crashed into the car she was riding in at the time of the accident. She also sued the driver of the car she rode in (defendant 2), claiming that both drivers were negligent in the accident. Defendant 2 wants his attorney to sue defendant 1 for contribution because he is insistent that the other vehicle was totally responsible and liable for all damages. Which of the following would be more appropriate for defendant 2 to file under the circumstances?

He can file a compulsory counterclaim against defendant 1.
He can file a crossclaim against the coparty defendant 1. (Correct answer)
He can file a counterclaim against defendant 1.
He can file a new complaint and action against defendant 1.

Correct answer: He can file a crossclaim against the coparty defendant 1.

Rule 13(g) is a Crossclaim Against a Coparty. It allows that a pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.

Question 23: Congress passes a law establishing a 'Department of Climate Policy' and grants its director, removable only for cause, authority to set binding emission standards. A regulated company challenges the director's for-cause removal protection. Under Seila Law LLC v. CFPB, the protection is most likely:

Constitutional because climate regulation is a longstanding area of congressional expertise
Constitutional because Congress may structure independent agencies as it sees fit
Unconstitutional because a single-director agency exercising significant executive power cannot be insulated from at-will presidential removal (Correct answer)
Unconstitutional only if the President formally objects to the removal restriction

Correct answer: Unconstitutional because a single-director agency exercising significant executive power cannot be insulated from at-will presidential removal

In Seila Law, the Court held that for-cause removal protection for the head of a single-director independent agency unconstitutionally limits the President's Article II removal power.

Question 24: An undergraduate went to a fraternity party. He caught a young woman making sexually provocative eye contact with him. He took her home, raped her without her consent, and then left. After being raped, she ran away and went straight to the police. The rape case was reported by the police. Many guys agreed to testify that the woman was promiscuous, that they had intercourse with her, and that she was quite prolific in her sexual life, according to the student-defendant, who found them willing witnesses. According to the Federal Rules of Evidence, will the trial court likely allow the witnesses to testify about the woman's sexual propensities?

No, because such "sexual predisposition" evidence is generally prohibited by the rules of evidence except under narrow exceptions. (Correct answer)
Yes, because the evidence will help the jury see that there may be two sides to the story and that the woman was thus the sexual predator instead of the man.
No, because the rules of evidence prohibit all evidence of a victim’s prior sexual history.
Yes, because the rules permit evidence of a victim’s sexual predisposition to test credibility.

Correct answer: No, because such "sexual predisposition" evidence is generally prohibited by the rules of evidence except under narrow exceptions.

Explanation: Fed.R.Evid. 412 forbids showing signs of sexual proclivity or previous sexual behavior. The exception is when information about past behaviors will directly affect the defendant's innocence. Additionally, it can be necessary to demonstrate the victim's permission in specific factual circumstances. However, testimony about the rape victim's general reputation or testimony about specific acts with other people are typically not probative of the victim's overall credibility as a witness or of her consent to having sex with the defendant. Instead, such evidence of a rape victim's chastity relates to her sex life in general. American v. Kasto, 584 F. 8th Cir. 1978), 2d 268, 271–72. Additionally, see Grant v. Demskie, 75 F. Supp. ""The [rape shield] bill] limits the introduction of such evidence and attempts to strike a reasonable balance between protection of a victim's privacy and reputation while not infringing on the defendant's right to a fair trial based on the presumption of innocence... "" Answer 1 is inappropriate because it falls under the category of questions covered by Rule 412, which forbids inquiries concerning the victim's sexual propensity.

Question 25: A plaintiff in a federal action seeks to conduct more than 10 depositions. Under FRCP 30(a)(2)(A)(i), the plaintiff may exceed the 10-deposition limit only by:

Serving written notice on all parties at least 30 days in advance
Obtaining stipulation of the parties or leave of court (Correct answer)
Filing a motion demonstrating good cause
Demonstrating that each additional deponent has unique knowledge

Correct answer: Obtaining stipulation of the parties or leave of court

Under FRCP 30(a)(2)(A)(i), a party must obtain leave of court or a stipulation of the parties to take more than 10 depositions in a case.

Question 26: A murder victim's statement to a 911 operator saying 'My husband is trying to kill me!' is sought to be admitted after the victim dies. Under Crawford v. Washington, this statement is:

Inadmissible hearsay with no applicable exception
Non-testimonial and admissible because it was made under emergency circumstances (Correct answer)
Admissible as a dying declaration regardless of its testimonial nature
Testimonial and barred by the Confrontation Clause if the defendant cannot cross-examine

Correct answer: Non-testimonial and admissible because it was made under emergency circumstances

Under Davis v. Washington, statements made to enable police to respond to an ongoing emergency are non-testimonial and not barred by the Confrontation Clause.

Question 27: A seller conveyed a real estate parcel to a buyer through a quitclaim deed for $1.00. At the time, the seller was not the owner of the property. Later on, the seller became the owner in fee simple absolute by virtue of a gift of the property in the will of the now-deceased owner. The buyer demanded that the seller provide him with a warranty deed to reflect that the buyer's title as owner was absolute. Leaving aside whether the buyer could sue the seller for fraud, what is the nature of the buyer’s interest in the property at the time that he demanded the warranty deed?

The buyer owns nothing because the seller had nothing to convey in the original quitclaim deed. (Correct answer)
The buyer is an owner in fee simple absolute as of the date of the real owner’s death.
The buyer owns a life estate because that is all that the seller could convey by quitclaim deed.
The buyer owns an undivided one-half of the property with the seller as of the date of the real owner’s death.

Correct answer: The buyer owns nothing because the seller had nothing to convey in the original quitclaim deed.

Where the “seller” had only an inheritance expectation which could have been defeated by a will or a prior conveyance, he has no vested ownership interest to convey. There are no warranties of title and no interest was conveyed. See Black's Law Dictionary 1126 (5th ed. 1979) (a quitclaim deed is a deed of conveyance intending to pass any title, interest or claim of the grantor, but not professing valid title, nor containing any warranties of title); Porter v. Wilson, 389 S.W.2d 650, 655-56 (Tex. 1965). Nor can this be changed by the later inheritance of the quitclaim seller. See Roberts v. Corbett, 265 SW 2d 127 (TX Ct of Civ. App. 1954). The quitclaim conveyance of any “right, title or interest” owned at the time of conveyance is like a release, and does not bring about an estoppel regarding after after-acquired property, whereas a warranty deed may have an estoppel result. A quitclaim deed does not work an estoppel or carry an after-acquired title. Marriage o Broderick, 257 Cal.Rptr. 397, 209 Cal.App.3d 489 (1989); (Accord, Klamath Land & Cattle v. Roemer, 12 Cal.App.3d 613, 618, 91 Cal.Rptr. 112.

Question 28: In a personal injury case, plaintiff's counsel asks the defendant on cross-examination, 'Isn't it true you offered to pay the plaintiff's medical bills?' Defendant objects. The court should:

Sustain the objection under FRE 409 barring offers to pay medical expenses (Correct answer)
Sustain the objection under the attorney-client privilege
Overrule the objection because admissions are always admissible
Overrule the objection as the defendant opened the door

Correct answer: Sustain the objection under FRE 409 barring offers to pay medical expenses

FRE 409 excludes evidence of offers to pay medical or similar expenses as proof of liability for the underlying injury.

Question 29: A tenant moved into a single-family residence. She and the landlord signed a lease-purchase agreement, which applied $200 of each month’s rent to the purchase price of $50,000. The tenant agreed to get a mortgage within 33 months and to pay the full balance due, less the payments credited, on the final settlement date, which was set for 90 days after the 33rd month. A default by the tenant caused a forfeiture of all credits and voided the agreement. The tenant made 31 consecutive payments, but stopped on month 32, when part of the roof caved in causing an uninhabitable situation in the dead of winter. She put the rental payments in an escrow account. The landlord sued for eviction and termination of the lease-purchase agreement. The tenant answered that the landlord had breached the warranty of habitability. She also counterclaimed to compel specific performance of the agreement because she was ready to tender the balance due and take full title to the property. Under the circumstances, what is the most likely ruling of the court?

The landlord breached the warranty of habitability, which released the tenant at least temporarily from further rent payments, but the purchase agreement was still valid and it would be enforced. (Correct answer)
The landlord must refund the $200 per month payments made toward the purchase; however, the agreement became void due to both parties nonperformance, and the closing would not be compelled.
The landlord breached the warranty of habitability, which had the effect of voiding the lease-agreement and making the tenant’s right unenforceable, so that closing could not be compelled.
The tenant breached the agreement by stopping the rent payments, which she had no right to do just because there was a repair that needed to be made, and closing would not be compelled.

Correct answer: The landlord breached the warranty of habitability, which released the tenant at least temporarily from further rent payments, but the purchase agreement was still valid and it would be enforced.

The agreement was substantially performed and then frustrated in its rental payments by the roof caving in, which remained the landlord’s responsibility, and was a breach of the warranty of habitability. Thus, the tenant was ultimately not at fault for not submitting the last few rental payments, and many states do now allow for placing the money in a restricted escrow account pending determination of the legal issues. The landlord’s at-fault breach does not give him the right to nonperformance of the purchase agreement. She substantially performed and is ready with the balance of the money on the closing date, so that the sale will be enforced by specific performance.

Question 30: A drywall subcontractor submitted an offer to a general contractor for proposed drywall work on a small office building being constructed. The bid was for $20,000 for all drywall supplies and labor. The contractor factored the experienced subcontractor’s bid into its final bid and was awarded the contract. A few days later the subcontractor informed the contractor that it had worked on the figures and realized that it underestimated the cost of the project. The subcontractor refused to do the job for less than $35,000. The contractor hired another subcontractor to do the work for $30,000 and sued the first subcontractor for the $10,000 difference over the original bid of $20,000. Will the court likely award the $10,000 to the contractor and against the first subcontractor?

No, because the contractor had no right to rely on an initial bid of a subcontractor in computing general contractor bid because it knew that such bids would be subject to change with time.
Yes, because the contractor had reasonably relied on the subcontractor’s offer when making its bid, and it suffered a detriment that can only be avoided by enforcement of that offer. (Correct answer)
Yes, because the contractor accepted the offer of $20,000 before it was revoked, making the subcontractor legally bound to his offer.
No, because in the law of contracts an offer can be revoked or modified at any time that substantial changes are required by circumstances and prior to the acceptance of the offer.

Correct answer: Yes, because the contractor had reasonably relied on the subcontractor’s offer when making its bid, and it suffered a detriment that can only be avoided by enforcement of that offer.

This is a classic application of promissory estoppel in construction bidding. While a subcontractor's bid is generally revocable before acceptance, a general contractor's reasonable and foreseeable reliance on that bid when submitting its own prime bid can make the subcontractor's offer irrevocable. The contractor suffered a clear detriment by having to pay more to another subcontractor due to its reliance, and enforcing the original bid is necessary to prevent injustice.

Question 31: An owner signed papers and a deed to sell a piece of property to buyer one, who held his deed and did not record it. The next month the original owner sold the same property to a second buyer. Buyer two had information that buyer one had bought the property, but he knew that buyer one had not yet recorded a deed. Buyer two recorded five days later. The next day after the deed was executed and delivered to the second buyer, the original owner conveyed a deed to the same property to a third buyer, who was a good faith purchaser for value and who recorded his deed the very same day. Which buyer has superior title under a race-notice recording statute?

Buyer two has superior title because he was defrauded by the seller and the courts will enforce his purchase to avoid injustice.
Buyer one has superior title because he is the only one who acted in good faith without knowledge of prior transactions.
The first buyer has superior title because he innocently purchased the property for value, and was not aware of any other transactions.
Buyer three has better title because he had no notice of any prior transactions and recorded first. (Correct answer)

Correct answer: Buyer three has better title because he had no notice of any prior transactions and recorded first.

Under a race-notice recording statute, a subsequent purchaser for value takes priority over a prior unrecorded interest only if they (1) take without notice of the prior interest AND (2) record their deed first. Buyer 1 did not record. Buyer 2 had notice of Buyer 1, so B2 cannot prevail against B1. Buyer 3 is a good faith purchaser for value without notice and recorded first among those without notice, thus Buyer 3 prevails.

Question 32: A married couple own a residential premises. They received a foreclosure action from the first mortgage lender in a state that has judicial foreclosure procedures. The state also statutorily extends the right of redemption both prior to the sale, and for a period of one year after the sale. The sale took place; the property was sold to the lender. The lender then filed a deficiency judgment action. The couple received a loan from family members about six months after the sale. It was sufficient to pay the balance on the mortgage plus interest and costs. The couple notified the lender and the court of their intent to exercise their right of redemption. What is the likely outcome?

A hearing must first be held to determine whether abatement has occurred.
The court will order the couple evicted because they should have acted prior to the entry of the deficiency judgment.
The court ruled that the lender did not have a right to file a deficiency judgment, and it ordered the foreclosure action null and void without the couple having to exercise the right of redemption.
The couple will exercise their right of redemption to retain ownership of their property. (Correct answer)

Correct answer: The couple will exercise their right of redemption to retain ownership of their property.

At the end of the redemption period, if the former homeowner cannot exercise the right of redemption, the new owners have the right to evict them. Here, the couple will be able to exercise the right of redemption, assuming they have sufficient funds to do so, and title will revert back to them by order of court.

Question 33: A painting was stolen collectively from an art gallery. One of them—the driver—was apprehended while committing another crime. "I didn't even get any money from the art museum," he admitted to the cops. Is the driver's statement admissible in court when the first and second guy stand trial for the theft of the art painting?

Yes, as an admission by a party opponent.
No, because it was made while in custody and therefore is unreliable.
Yes, as a statement against the interests of the other defendants.
No, because the statement was not made in the course of or in furtherance of the conspiracy and thus it is hearsay. (Correct answer)

Correct answer: No, because the statement was not made in the course of or in furtherance of the conspiracy and thus it is hearsay.

Explanation: To establish a basis for admission of evidence under the co-conspirator exception to the hearsay rule, the government must demonstrate that (1) there was a conspiracy, (2) the statement was made by a co-conspirator of a party, (3) it was made during the course of the conspiracy, and (4) it was made in furtherance of the conspiracy. The statement cannot be admitted as evidence by itself. El-Mezain v. United States, 664 F.3d 467, 502 (5th Cir. 2011). See U.S. v. Gigante, 166 F.3d 75 (2d Cir. 1999), which discusses the co-conspirator exception to the hearsay rule in more detail.

Question 34: A private organization applied annually for a parade permit to march in the Italian section of the city to celebrate Italian-American Immigration Day. A group of gay, lesbian and bisexual Italian-Americans applied for a permit to join in the parade. The state, pursuant to its public accommodations law, ordered the organization to allow the group in the parade. The organization filed suit, arguing that its right to free speech and expression would be interfered with by having a group with a message different from its own. Because the group was formed to celebrate the members’ sexual orientation, the organization objected to having that message included. What is the most likely decision of the court based on U.S. Supreme Court precedent?

A parade is a form of free speech and the state’s use of its power violates the First Amendment’s rule that the speaker has the right to choose the content of his own message. (Correct answer)
A parade is not a form of free speech and, as such, it can be regulated by government intrusion.
Because the group identified itself as Italian-Americans of certain sexual persuasions, the same ethnic identity gave them a right to participate equally in the parade.
Because the parade took place under government permission, discrimination against a group due to sexual orientation was impermissible.

Correct answer: A parade is a form of free speech and the state’s use of its power violates the First Amendment’s rule that the speaker has the right to choose the content of his own message.

A parade is a form of free speech. This use of the State's power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message. The government does not have the power to compel the speaker to alter the message by including one more acceptable to others. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. - 515 U.S. 557 (1995).

Question 35: An employer agrees to employ a worker 'for life.' The employee works for two years and is then fired without cause. Under the majority common law view, the employment agreement is:

Enforceable only if the employee gave independent consideration beyond services
Void under the Statute of Frauds as impossible to perform within one year
Terminable at will because lifetime contracts lack mutuality (Correct answer)
Enforceable as a lifetime contract with full expectation damages

Correct answer: Terminable at will because lifetime contracts lack mutuality

Under the majority view, 'employment for life' is terminable at will because it lacks mutuality — courts treat such agreements as indefinite employment absent extraordinary consideration.

Question 36: A landowner conveys a fee simple determinable. The grantor retains which interest?

A possibility of reverter (Correct answer)
An executory interest
A remainder
A right of entry (power of termination)

Correct answer: A possibility of reverter

The grantor who conveys a fee simple determinable retains a possibility of reverter, which takes effect automatically if the limiting condition occurs.

Question 37: A bill collector came to the door of an elderly widow. The collector showed her a credit card bill for $20,000 owed by her recently deceased husband. He told the widow that she could be arrested and prosecuted if the bill, which was now her responsibility, was not paid. He left her a promissory note for $20,000 with interest and urged that she sign and send it back to him. After a few days, the widow signed the note, hoping in her mind to restore and maintain her husband’s good name. Six months later, the collection company sued on the note because the widow had made no payments. The widow’s attorney filed a motion to have the note declared void due to duress. What is the most likely decision of the court based on the principles of duress?

The note was signed under fear by the widow that she would be imminently sued and maybe end up in jail, and thus it is voidable by her.
This was not duress because the threat was not imminent and did not deprive her of time to think, and to take the papers to a lawyer for help and advice, and thus the contract is enforceable. (Correct answer)
A threat of going to jail will never suffice to establish duress because it is not capable of being carried out and is not a true statement of the law, hence the contract is enforceable.
The note put the widow in a state of utter fear, and she knew that she had no time to consult an attorney or to try and get a second opinion, hence the contract was voidable by her.

Correct answer: This was not duress because the threat was not imminent and did not deprive her of time to think, and to take the papers to a lawyer for help and advice, and thus the contract is enforceable.

For a contract to be voidable due to duress, the threat must be wrongful, induce the party to enter the contract, and leave the party with no reasonable alternative. While the bill collector's threat of arrest was wrongful, the widow had 'a few days' to consider the note and consult an attorney. The threat was not so imminent or overwhelming as to deprive her of her free will or reasonable alternatives, thus failing to meet the legal standard for duress.

Question 38: During trial, the plaintiff calls an expert witness who testifies about the cause of the plaintiff's injuries. The defendant challenges the expert's methodology. Under Daubert, the trial court acts as:

A passive gatekeeper that defers to the jury on expert credibility
A gatekeeper who must assess whether the expert's testimony is based on sufficient facts, reliable methodology, and reliably applied to the facts (Correct answer)
A reviewer limited to examining the expert's qualifications only
An arbiter who must exclude any testimony not accepted by a majority of scientists in the field

Correct answer: A gatekeeper who must assess whether the expert's testimony is based on sufficient facts, reliable methodology, and reliably applied to the facts

Under Daubert v. Merrell Dow Pharmaceuticals, the trial judge serves as a gatekeeper, examining whether expert testimony rests on sufficient facts, a reliable methodology, and reliable application of that methodology to the facts.

Question 39: A business woman rented a second-floor office suite for her consulting business. It was located above a bank on the first floor, and partly on top of the bank vault. She obtained blueprints and brought drilling tools into the office. She studied bank activities and determined when at night she might be able to drill through to the vault. She inserted microscopic binoculars through the floor to explore the layout below. Before she started drilling, however, she noticed that more security persons appeared to be in the bank at night. Growing suspicious and losing the desire to take such a great risk, she hid the tools in her garage at home and did nothing further. A few weeks later, she was arrested by police based on reports regarding her suspicious nighttime activities. Does she have a viable defense to the attempted burglary charges?

No, the courts do not accept abandonment as a defense to criminal attempt because it cannot negate the original intent to commit the crime.
No, when she sent the lenses down to spy on the bank, she had completed an attempt that could not be abandoned, and her asserted abandonment was motivated by fear of being caught. (Correct answer)
Yes, it doesn’t matter when the abandonment comes; it is always effective if carried out prior to consummation of the total crime.
Yes, she abandoned the crime before it occurred, and had no intent to resume the activities, making it a complete abandonment.

Correct answer: No, when she sent the lenses down to spy on the bank, she had completed an attempt that could not be abandoned, and her asserted abandonment was motivated by fear of being caught.

Generally, when the fear of being caught or some outside influence motivates abandonment, this will not be a defense. In this case, not only did she actually commit a completed attempted burglary by intruding into the space below with microscopic lenses, but she also then was motivated by fear of getting caught when she received additional information of the increased security in the bank. Furthermore, a defendant cannot abandon a completed attempt. See United States v. Crowley, 318 F.3d 401, 410-11 (2d Cir. 2003) when a defendant has completed the crime of attempt; i.e., has the requisite intent and has taken a substantial step towards completion of the crime, the crime of attempt has already been committed. US v. Young, 613 F. 3d 735, 746 (8th Cir. 2010). In addition, abandonment does not work when the accused proceeded well into the execution and then turned away because the plans are found to have been frustrated. Boyles v. State, 46 Wis. 2d 473, 175 N.W.2d 277 (1970); see W. LaFave & A. Scott, Handbook on Criminal Law 448 (1972). See also, Model Penal Code § 5.01(4).

Question 40: A building owner hired a painter to paint 20 office units that were vacant and being refurbished. They agreed to terms in writing, and the painter started on the work. After completing only two units, he received a written message from the owner repudiating their agreement and stating that his services were no longer needed. The painter ignored the message because he believed that his contract guaranteed him the full 20 units of work. He finished all units and sent a bill to the owner, who responded with a check for the first two units only. The painter sued the building owner for the full balance due. The building owner countered that he only owed up to the point that he repudiated the contract. Which of the following most closely states the probable decision of the court?

The “avoidable consequences” doctrine is applicable to support the right of the painter to finish the job and be paid.
The painter had a right to complete performance because he had already started the work and had a right to perform his part of the valid and enforceable agreement.
The painter had a duty to stop work and thus mitigate damages when he received a written repudiation of the contract. (Correct answer)
The painter could not receive the full contract price because he would be unjustly enriched under these circumstances.

Correct answer: The painter had a duty to stop work and thus mitigate damages when he received a written repudiation of the contract.

Upon receiving an unequivocal repudiation of a contract, the non-breaching party generally has a duty to stop performance and mitigate their damages. By continuing to paint the remaining 18 units after the owner's clear repudiation, the painter failed to mitigate his damages. Therefore, he can only recover for the work completed up to the point of repudiation, plus any damages incurred in preparing for the remaining work, not the full contract price for all 20 units.

Question 41: An owner signed papers and a deed to sell a piece of property to buyer one, who held his deed and did not record it. The next month the original owner sold the same property to a second buyer. Buyer two had information that buyer one had bought the property, but he knew that buyer one had not yet recorded a deed. Buyer two recorded five days later. The next day after the deed was executed and delivered to the second buyer, the original owner conveyed a deed to the same property to a third buyer, who was a good faith purchaser for value and who recorded his deed the very same day. Which buyer has superior title under a race-notice recording statute?

Buyer three has better title because he had no notice of any prior transactions and recorded first. (Correct answer)
Buyer two has superior title because he was defrauded by the seller and the courts will enforce his purchase to avoid injustice.
The first buyer has superior title because he innocently purchased the property for value, and was not aware of any other transactions.
Buyer one has superior title because he is the only one who acted in good faith without knowledge of prior transactions.

Correct answer: Buyer three has better title because he had no notice of any prior transactions and recorded first.

Under a race-notice recording statute, a subsequent purchaser for value takes title over a prior unrecorded interest if they record first AND had no notice of the prior interest. Buyer one did not record. Buyer two had actual notice of buyer one's purchase, disqualifying him. Buyer three was a good faith purchaser for value (no notice) and recorded first among those without notice, thus acquiring superior title.

Question 42: A tenant holds a commercial lease for five years. The landlord conveys the leased property. The tenant has not recorded the lease. Under a notice recording act, the new owner:

Takes free of the lease because leases cannot be recorded
Is always bound by the lease regardless of notice
Must offer the tenant a new lease at market rate
Takes free of the lease if the new owner had no actual or constructive notice (Correct answer)

Correct answer: Takes free of the lease if the new owner had no actual or constructive notice

Under a notice recording act, a subsequent purchaser without actual or constructive notice of a prior unrecorded interest takes free of it.

Question 43: A corporation's internal audit report prepared after a workplace accident is sought in discovery. If prepared primarily in anticipation of litigation, it may be protected under:

The attorney-client privilege exclusively
The work-product doctrine under FRCP 26(b)(3) (Correct answer)
The business records exception, making it admissible
The executive privilege doctrine

Correct answer: The work-product doctrine under FRCP 26(b)(3)

Documents prepared in anticipation of litigation are protected by the work-product doctrine, providing qualified protection from discovery.

Question 44: Two employees of a large multi-state corporation sued the company for violations of the wage and hour laws of state A, where the two worked and resided. They sued in a state court in state A, and requested class certification on behalf of their co-workers who also worked and resided in State A. The company filed to remove the case to the federal district court in state B based on federal diversity jurisdiction. The plaintiffs objected to removal because they asserted that the company's principal place of business was in State A, which destroyed diversity jurisdiction under the circumstances. The company argued that its principal place of business was in State B, thus creating diversity jurisdiction in the federal court. Which of the following would be the main basis for the court’s determination of where the company had it principal place of business?

In the state where the highest volume of activity is conducted in terms of volume of sales.
In the state with the highest population and the greatest potential for the most customers.
In the state where the officers direct, control, and maintain its activities. (Correct answer)
In the state where its incorporation papers were filed and where its registered agent officially accepts all papers and service of process.

Correct answer: In the state where the officers direct, control, and maintain its activities.

The federal diversity jurisdiction statute provides that "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U.S.C. § 1332(c)(1) See The Hertz Corporation v. Friend, 130 S.Ct. 1181 (2010). The Supreme Court ruled in Hertz that the "principal place of business" for purposes of determining whether there was diversity citizenship was the place where the corporation's officers direct, control, and coordinate the corporation's activities. It is called the corporation's "nerve center." Hertz, 130 S.Ct. 1192. In practice, it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the "nerve center," and not simply an office where the corporation holds its board meetings.

Question 45: A man and a woman got in the man’s car to go visit friends. The man had a few martinis during the preceding hour. It was lightly raining but he insisted on driving. When approaching a slippery curve on a winding roadway he lost control and crashed the car into a tree. He was traveling 10 miles above the speed limit. His passenger died and he was charged with involuntary manslaughter while driving DUI. The police took his blood sample at the hospital and his blood alcohol level was .07, right below the threshold level of .08 used for determining sobriety. He had passed a field sobriety test at the scene. He was also cited for speeding and driving too fast for conditions. Which of the following will the prosecution most likely be able to prove beyond a reasonable doubt?

Voluntary manslaughter.
Involuntary manslaughter while driving DUI.
Homicide by vehicle while driving under the influence.
Involuntary manslaughter (Correct answer)

Correct answer: Involuntary manslaughter

This is the most likely outcome. He was driving too fast for conditions, and not slowly enough for the slippery roads. By going 10 miles over the limit on a winding road in a steady rain, he killed someone while committing an unlawful but not felonious act, i.e., going too fast for conditions and the violation of speeding.

Question 46: In 1970 a farmer purchased 50 acres of farm land. Several years later he built a house and lived on the property while also farming it. The property was landlocked, but there was a gravel road over the adjoining land directly to the nearest highway. Both the farmer’s land and the adjoining lot came from a larger parcel that was divided by the original owner. The farmer used the gravel road for farming and personal use. In 1991, a new owner purchased the adjoining land. She bulldozed the gravel road shut. The farmer filed an action in equity, asserting his absolute necessity to continue using the road to get to the highway. The new owner disagreed, and claimed that if an easement was granted by the court, it must be restricted to use only for crops at certain times, and that personal use should be disallowed or severely restricted because it was an unauthorized expansion of the original use. Which of the following would be the more likely decision of the equity court based on generally prevailing principles? The court will decree an express easement for the crops but the farmer’s personal use will be limited to twice daily. The court will decree that there is an easement in gross that can be used as long as the farmer pays a monthly charge to be determined by the new owner. The court will decree an implied license to use the adjoining property, which the new owner may terminate at any time. The court will decree an easement of necessity which includes the expanding reasonable use of the easement for any lawful use.

The court will decree an easement of necessity which includes the expanding reasonable use of the easement for any lawful use. (Correct answer)
The court will decree an express easement for the crops but the farmer’s personal use will be limited to twice daily.
The court will decree an implied license to use the adjoining property, which the new owner may terminate at any time.
The court will decree that there is an easement in gross that can be used as long as the farmer pays a monthly charge to be determined by the new owner.

Correct answer: The court will decree an easement of necessity which includes the expanding reasonable use of the easement for any lawful use.

An easement by necessity arises when a parcel of land is landlocked and requires access over an adjoining parcel that was once part of the same larger tract. The scope of an easement by necessity is generally not limited to the original use but expands to accommodate any reasonable and lawful use of the dominant estate, provided it does not unreasonably burden the servient estate. Therefore, the farmer's personal use, in addition to farming, would likely be permitted as a reasonable expansion of the necessary access.

Question 47: At his cattle ranch, where he has a stable of productive, fertile cows, a pet breeder raises calves for sale. The young calves require continual care and attention. When a worker accidentally leaves the fence door open one day, a newborn calf escapes and wanders over to his neighbor's property. In order to ensure the calf's safety and to make sure it wasn't hurt, the breeder went to the neighbor's property to rescue it. But after entering the property, he was taken into custody on a trespassing allegation. The breeder had good attractiveness. Will the accusation be dropped in court?

No, because the neighbor had a right to keep any living chattels that crossed onto his land.
Yes, because he had a limited privilege to enter the land to prevent harm to his chattel. (Correct answer)
No, because his status as a breeder made him unqualified for a limited license.
Yes, because the tender pet doctrine allows temporary entry to retrieve baby animals.

Correct answer: Yes, because he had a limited privilege to enter the land to prevent harm to his chattel.

Explanation: If a person enters another person's land while using a public or private privilege, there is an exception under Restatement 345. According to Restatement 198, it is permissible to enter to collect chattel that was brought onto the property against the owner's will and over which the owner has the right of immediate possession. According to Restatement 197, a person is """"authorized to enter or remain on land in the custody of another if it is or reasonably appears to be essential to avert serious injury to."" ..the performer, or his property or livestock. ..The invader would be categorized as a licensee in both cases. For more information, see Restatement 345, Walsh v. Sun Oil Co., 437 Pa. 80, 262 A.2d 128 (1970), and Carpenter v. Penn Central Transp. Co., 409 A. 1979 (Pa. Super. 2d 37).

Question 48: An elderly woman was vacationing on a cruise ship when she slipped and fell on a slippery substance negligently allowed to build up on a hallway floor. She broke her hip and had to have several operations. The ship's ticket and advertising material used the name Dreamland Cruise Ships. She turned the materials over to her counsel, who filed a lawsuit against Dreamland one month prior to the expiration of the statute of limitations. Notice was sent to the address listed by Dreamland on the ticket, and received by its agents prior to the expiration of the statute. The attorney later received a letter from a company called Power Cruises, Inc., stating that Dreamland did not exist, was a mere unregistered fictitious name, and that the owner was Power Cruises, Inc. The attorney filed an amended complaint 180 days after the expiration of the limitations period, pursuant to FRCP 15(c), listing the correct name. Power Cruises objected, claiming that the statute of limitation had expired and it did not receive notice with the two-year period. What will the court do and why?

The court will not allow the amendment because the new complaint does not arise out of the occurrences alleged in the first complaint, whose allegations were against an unrelated and nonexistent entity.
The court will allow the amended complaint to relate back because all of the conditions of Rule 15(c)(1) were met and satisfied. (Correct answer)
The court will not allow the amendment because Dreamland received notice prior to the expiration of the statute but Power Cruise did not receive such notice, as required by Rule 15(c)(1).
The court will allow the amendment to be filed under Rule 15(c), but it will, upon motion, dismiss the case due to the fact that it was not served within 120 days after the expiration of the original two-year statute of limitations.

Correct answer: The court will allow the amended complaint to relate back because all of the conditions of Rule 15(c)(1) were met and satisfied.

Federal Rule of Civil Procedure 15(c)(1)(C) allows an amendment changing a party to relate back to the date of the original pleading if certain conditions are met. Here, Power Cruises, Inc. received notice of the action through its fictitious name, Dreamland Cruise Ships, within the Rule 4(m) period for service, and knew or should have known it was the intended defendant. Since the claim arises from the same occurrence and Power Cruises was not prejudiced, all conditions for relation back are satisfied, making the amended complaint timely.

Question 49: A plaintiff in a negligence case introduces evidence that the defendant's employee had multiple prior accidents on the job. The relevance of this evidence is BEST characterized as:

Proving the employee's propensity for carelessness
Proving the employee was independently negligent
Showing the employer had notice of the employee's dangerous tendencies (Correct answer)
Establishing strict liability for the employer

Correct answer: Showing the employer had notice of the employee's dangerous tendencies

Prior incidents by an employee are relevant to show the employer had notice of the dangerous propensity, supporting a negligent retention or supervision claim.

Question 50: An officer lawfully stops a vehicle for a traffic violation and sees a bag of marijuana in plain view on the passenger seat. Under the plain view doctrine, the officer may seize the marijuana if:

The officer suspected drug activity before making the traffic stop
The driver does not affirmatively object to the seizure
The officer had a warrant specifically authorizing a drug search
The officer is lawfully present and the incriminating character of the item is immediately apparent (Correct answer)

Correct answer: The officer is lawfully present and the incriminating character of the item is immediately apparent

The plain view doctrine permits warrantless seizure when the officer is lawfully present at the location and the incriminating nature of the item is immediately apparent without further manipulation or investigation.

Question 51: A woman was hit in the right eye by a shard of glass when her car was rear-ended by an industrial truck. She was hospitalized, lost her eye, and had several operations over several years. She could not return to work as an apprentice ballet dancer due to loss of coordination, constant headaches, and severe disfigurement. She is considered totally disabled. She had been training for the ballet for many years and, at the trial against the tortfeasor, she proved that she was considered a bright and uncoming student. The defendant claimed that this was still too speculative whether she would have been successful. The trial court disagreed and allowed evidence on the lost earning capacity of a ballet dancer. The jury awarded $3 million. Will the appellate court likely reverse the verdict due to the lost earning capacity issue?

No, because some imprecision in the evidence regarding loss of earning capacity is to be expected and is not grounds for excluding the evidence. (Correct answer)
No, the jury's award is discretionary and inviolate, and it may not be disturbed with respect to personal injury damages.
Yes, the evidence did not guarantee or assure anyone that she really would have been a successful professional ballet dancer.
Yes, she can only collect for lost work that she held prior to the accident; her future lost earning capacity could be based on an apprentice ballet dancer.

Correct answer: No, because some imprecision in the evidence regarding loss of earning capacity is to be expected and is not grounds for excluding the evidence.

In personal injury cases, a plaintiff is entitled to recover for lost earning capacity, even if the exact amount is difficult to calculate due to the speculative nature of future career success. Courts generally allow evidence of potential future earnings, requiring only reasonable certainty, not absolute certainty. The jury can then use this evidence, along with other factors, to make a reasonable assessment of damages.

Question 52: Defendants agreed to lease to plaintiffs a building that they were going to build. The lease was for a period of 10 years. The lease of the building was to commence upon the “completion of the building.” The defendants were bound in the agreement to start “forthwith” and proceed to build the building “expeditiously” after receiving all permits, and to complete the project in a reasonable time. Plaintiffs put $10,000 down on the rental agreement. Plaintiffs and defendants started arguing about other terms, such as who was to pay for an expensive sprinkler system. Eventually, plaintiffs sued for rescission and for return of the down payment. One of the main contentions of the plaintiffs was that the agreement violated the rule against perpetuities in that it was impossible to tell whether it could be performed within 21 years due to the ambiguity over when the building would be completed. What is the likely decision of the court?

The court would favor enforcement of the rule, and would interpret all of the contingencies involved to be so speculative that it could not be said that the building would be completed within 21 years.
The rule against perpetuities does not apply to leases and therefore the agreement is enforceable.
The court would favor an interpretation that does not unduly interfere with commercial transactions, and here it appears that the building will easily be completed within 21 years. (Correct answer)
The rule must be applied very strictly in commercial transactions to make sure that the performance is not intentionally delayed beyond reason.

Correct answer: The court would favor an interpretation that does not unduly interfere with commercial transactions, and here it appears that the building will easily be completed within 21 years.

Generally, modern cases hold that a document should be interpreted if feasible to avoid the conclusion that it violates the rule against perpetuities. The mandates for expeditious action, to start forthwith and complete within a reasonable time all militate toward finishing within 21 years. The court will not assume that the parties will breach their promises in order to be able to apply the rule against perpetuities to invalidate the transaction. See Wong v. Di Grazia, 60 Cal. 2d 525(Cal. Supreme Court 1963).

Question 53: A regular customer left his car at an auto mechanic’s shop with instructions to: check the engine and tune it up; make sure the brakes were all in good working order; examine the tires; and, to otherwise check and repair all major systems because the customer was going on a long driving tour through other states. No discussion of price or words of agreement were spoken between the parties. When the customer picked up the car, there was a bill for $5,000 left on the seat to his attention. All of the services and parts listed pertained to the areas stated in the customer’s instructions. He refused to pay, claiming that there was no agreement and that the mechanic didn’t get advance approval for all of the repairs. Can he be held responsible for contractual service performed?

There was an implied-in-law contract between the parties that required payment by the customer.
There was an implied-in-fact contract that required the customer’s payment for the services and parts. (Correct answer)
There was no agreement between the parties due to indefiniteness and absence of detailed terms.
Despite the instructions, it was implied-in-fact that the mechanic would have to get permission to make any actual repairs or perform any significant work.

Correct answer: There was an implied-in-fact contract that required the customer’s payment for the services and parts.

An implied-in-fact contract arises from the conduct of the parties, rather than express words. When the customer provided specific instructions to 'check and repair all major systems' for a long trip, and the mechanic performed those services, it created a mutual understanding that the mechanic would be paid for the work. The customer's actions implied a promise to pay for the reasonable value of the services and parts rendered, forming a binding contract.

Question 54: A cotenant in a tenancy in common exclusively possesses the entire property and excludes the other cotenant. The excluded cotenant may bring an action for:

Quiet title
Ouster and recover a proportionate share of rental value (Correct answer)
Partition only
Ejectment only

Correct answer: Ouster and recover a proportionate share of rental value

When one cotenant ousts another by exclusive possession, the ousted cotenant may recover their proportionate share of fair rental value.

Question 55: A defendant is convicted of arson for burning down a vacant building he owns. Under the common law, is he guilty of arson?

No, because the building was vacant
No, because common law arson requires the dwelling of another (Correct answer)
Yes, because arson covers all intentional fires
Yes, because he intentionally set fire to a building

Correct answer: No, because common law arson requires the dwelling of another

Common law arson requires the malicious burning of the dwelling of another; a person cannot commit common law arson by burning his own property.

Question 56: In a products liability case, plaintiff offers expert testimony that the product was defectively designed. The expert bases his opinion solely on other experts' reports not in evidence. Under FRE 703, this is:

Admissible if experts in the field reasonably rely on such reports (Correct answer)
Inadmissible because the expert must have personal knowledge
Admissible only if the underlying reports are also entered into evidence
Inadmissible because secondary sources cannot support expert opinion

Correct answer: Admissible if experts in the field reasonably rely on such reports

FRE 703 allows experts to base opinions on facts or data that experts in the field reasonably rely upon, even if not independently admissible.

Question 57: A defendant is charged with embezzlement after converting funds entrusted to him as treasurer of a club. Which element distinguishes embezzlement from larceny?

Taking by trespass
Asportation of property
Lawful initial possession converted fraudulently (Correct answer)
Intent to permanently deprive

Correct answer: Lawful initial possession converted fraudulently

Embezzlement involves fraudulent conversion of property already lawfully in the defendant's possession, unlike larceny which requires a trespassory taking.

Question 58: A state university refuses to grant official recognition to a student religious organization because it limits membership to students who share its faith. The university's policy requiring all recognized groups to admit all students is challenged. Under Christian Legal Society v. Martinez, the policy is:

Constitutional if it is a reasonable, viewpoint-neutral condition on access to a limited public forum (Correct answer)
Unconstitutional because it discriminates against religion
Unconstitutional because student organizations have a First Amendment right to expressive association
Constitutional only if the university has a compelling interest in preventing discrimination

Correct answer: Constitutional if it is a reasonable, viewpoint-neutral condition on access to a limited public forum

In Christian Legal Society v. Martinez, the Court upheld an all-comers policy as a reasonable, viewpoint-neutral condition on access to a school-created limited public forum.

Question 59: During trial, a party attempts to impeach their own witness after the witness gives damaging testimony. Under FRE 607:

A party may impeach any witness, including their own (Correct answer)
A party may never impeach their own witness
A party may impeach their own witness only with written inconsistent statements
A party may impeach their own witness only with prior convictions

Correct answer: A party may impeach any witness, including their own

FRE 607 abolished the common law voucher rule and permits any party, including the calling party, to impeach any witness.

Question 60: A state passed Public Health Law 2122(a), which provides for exemption from immunization for school age children if they are "...members of a recognized religious organization whose beliefs are opposed to immunizations..." A couple applied to the school district for an exemption from immunizations on behalf of their child. They were not members of a recognized religious organization; instead, they requested an exemption based on their personal spiritual beliefs against immunization. Will the courts declare the existing exemption to be invalid?

The law was passed by a referendum majority vote of the people of the state and is thus constitutional and valid under state law.
The law is an appropriate measure because it merely denies preferential treatment to homosexuals and has no substantive effect on them.
The law is unconstitutional because it was not appropriately ratified by the executive and judicial branches of the government.
The law is unconstitutional because it lacks a rational relation to any legitimate government purpose and the denial of the right to seek protection is unprecedented in our jurisprudence. (Correct answer)

Correct answer: The law is unconstitutional because it lacks a rational relation to any legitimate government purpose and the denial of the right to seek protection is unprecedented in our jurisprudence.

The law is unconstitutional because it violates the Equal Protection Clause by creating an arbitrary distinction between religious beliefs. By granting exemptions only to members of 'recognized religious organizations' and excluding those with personal spiritual beliefs, the state is favoring certain religious expressions over others without a legitimate government purpose. This discriminatory classification, which lacks a rational relation to public health goals, is therefore invalid.

Question 61: A defendant, intending to frighten a plaintiff, fires a gun near her ear. The plaintiff does not see or hear the gun but suffers a heart attack from the noise. Has assault been committed?

Yes, because the defendant intended to cause apprehension.
Yes, because the defendant's act caused physical harm.
No, because the plaintiff did not have apprehension of imminent harmful contact. (Correct answer)
No, because the harm was unforeseeable.

Correct answer: No, because the plaintiff did not have apprehension of imminent harmful contact.

Assault requires that the plaintiff have apprehension of imminent harmful or offensive contact; if the plaintiff was unaware of the threatening act, no assault occurred.

Question 62: A defendant is acquitted of murder in state court. The federal government subsequently prosecutes him for federal civil rights violations arising from the same killing. Does the Double Jeopardy Clause bar the federal prosecution?

Yes, because the defendant was already acquitted for the same conduct
No, because the dual sovereignty doctrine permits separate prosecutions by independent sovereigns (Correct answer)
No, but only if the federal charges require proof of at least one different element
Yes, because federal prosecution after a state acquittal always violates double jeopardy

Correct answer: No, because the dual sovereignty doctrine permits separate prosecutions by independent sovereigns

Under the dual sovereignty doctrine, the Double Jeopardy Clause does not bar successive prosecutions by separate sovereigns — federal and state governments are independent sovereigns that may each prosecute based on the same conduct.

Question 63: A famous singer contracts to perform at a concert. She dies before the event. The promoter sues her estate. The most likely outcome is:

The promoter may recover restitution from the estate
The contract is discharged due to impossibility caused by death (Correct answer)
The estate is liable for expectation damages
The estate must provide a substitute performer of equal caliber

Correct answer: The contract is discharged due to impossibility caused by death

Death of a party whose personal performance is essential discharges the contract under the doctrine of impossibility — the duty cannot survive the person.

Question 64: A party enters a contract under duress caused by the other party's improper threat. The contract is:

Voidable at the option of the party under duress (Correct answer)
Enforceable because pressure is inherent in negotiations
Void ab initio
Voidable at the option of either party

Correct answer: Voidable at the option of the party under duress

A contract induced by duress is voidable — not void — at the election of the party who was coerced, because the agreement lacked genuine assent.

Question 65: Which of the following is NOT a required component of Miranda warnings that must be given before a custodial interrogation?

The right to remain silent
The right to a speedy trial (Correct answer)
The right to have counsel present during questioning
That statements can be used against the suspect in court

Correct answer: The right to a speedy trial

Miranda warnings must inform suspects of the right to silence, that statements may be used against them, the right to counsel during questioning, and the right to appointed counsel; the right to a speedy trial is a separate Sixth Amendment guarantee not part of Miranda.

Question 66: A man was injured in an auto accident. He sued the other driver, claiming that the driver was driving in the middle of the road coming toward him. He claimed that he had to swerve into a ditch to avoid a collision. The defendant driver countered that the plaintiff driver was the one who was speeding and driving in the middle of the road prior to losing control of his vehicle and going off the highway. To prove her contention, the defendant driver was allowed to introduce evidence, over strenuous objections, of several prior speeding convictions the plaintiff had in the past. The jury decided in favor of the defendant driver, and the plaintiff appealed due to the prejudicial admission of the speeding convictions. Will the appellate court likely hold that the convictions should have been excluded?

No, the speeding convictions proved that the plaintiff was probably speeding just prior to the accident.
No, the speeding convictions were direct evidence of the intent of the plaintiff to drive recklessly in the subject accident.
Yes, the speeding convictions were inadmissible because they were only relevant to showing recklessness, which was not an issue in the case.
Yes, there is little probative value to the speeding convictions, and it is a violation of Rule 404(a) of the Federal Rules of Evidence to admit evidence of a character trait to try to prove conformity therewith. (Correct answer)

Correct answer: Yes, there is little probative value to the speeding convictions, and it is a violation of Rule 404(a) of the Federal Rules of Evidence to admit evidence of a character trait to try to prove conformity therewith.

Federal Rule of Evidence 404(a) generally prohibits the admission of character evidence to prove that a person acted in conformity with that character on a particular occasion. The prior speeding convictions are character evidence offered to suggest the plaintiff was speeding at the time of the accident. This use is precisely what Rule 404(a) forbids, as it invites the jury to infer conduct from character rather than from direct evidence of the event.

Question 67: A regular customer left his car at an auto mechanic’s shop with instructions to: check the engine and tune it up; make sure the brakes were all in good working order; examine the tires; and, to otherwise check and repair all major systems because the customer was going on a long driving tour through other states. No discussion of price or words of agreement were spoken between the parties. When the customer picked up the car, there was a bill for $5,000 left on the seat to his attention. All of the services and parts listed pertained to the areas stated in the customer’s instructions. He refused to pay, claiming that there was no agreement and that the mechanic didn’t get advance approval for all of the repairs. Can he be held responsible for contractual service performed?

There was an implied-in-law contract between the parties that required payment by the customer.
Despite the instructions, it was implied-in-fact that the mechanic would have to get permission to make any actual repairs or perform any significant work.
There was no agreement between the parties due to indefiniteness and absence of detailed terms.
There was an implied-in-fact contract that required the customer’s payment for the services and parts. (Correct answer)

Correct answer: There was an implied-in-fact contract that required the customer’s payment for the services and parts.

An implied-in-fact contract arises from the conduct of the parties, indicating a mutual agreement and intent to contract. When the customer provided detailed instructions for extensive repairs and checks, and the mechanic performed those services, it implies an agreement that the customer would pay for the reasonable value of the work. The customer's actions, knowing such services are not gratuitous, demonstrate an intent to be bound by an agreement to pay.

Question 68: A buyer of real estate discovers after closing that the seller failed to disclose a known, latent structural defect. The buyer's strongest theory for relief is:

Mutual mistake because both parties were wrong about the property
Impossibility because the buyer cannot use the building as intended
Fraudulent misrepresentation by omission (concealment) (Correct answer)
Breach of warranty because real estate is sold 'as is'

Correct answer: Fraudulent misrepresentation by omission (concealment)

Active concealment of a known, latent material defect by the seller constitutes fraudulent misrepresentation by omission, entitling the buyer to rescission and/or damages.

Question 69: A trial court admits evidence over a proper objection. For an appellate court to reverse on evidentiary grounds, the appellant must show:

The error affected a substantial right — i.e., was not harmless error (Correct answer)
The objection was made before the evidence was introduced
Any error in admitting the evidence
The error was harmless but the court should exercise discretion

Correct answer: The error affected a substantial right — i.e., was not harmless error

Under FRE 103(a), an error in admitting or excluding evidence requires reversal only if it affects a substantial right of the party — the harmless error standard.

Question 70: A motorist was in a fierce head-on collision with another vehicle at an intersection. The other driver was negligent and caused the collision. The motorist sustained a fractured back along with a severe head injury that caused her to have brain damage and paraplegia. She was adjudicated incompetent and placed in a nursing home. A guardian was appointed who sued the other driver and the manufacturer of the motorist’s automobile. The other driver settled early for policy limits of $100,000. The case then went to trial against the auto maker. The claim was for strict liability in tort charging that the seats, dash and assist grip installed in the vehicle were defectively designed, unreasonably dangerous and caused the plaintiff enhanced injuries. The manufacturer claimed that it did not cause the accident and that it was not the cause of any enhanced injuries. It argued that the plaintiff had to prove precisely what injuries he sustained that were caused by the manufacturer. Based on the traditional Restatement rule, what is the causation standard that the court will instruct the jury to use in its decision?

The plaintiff must select which tortfeasor he wants to proceed against because it is not scientifically possible to divide the fault fairly between the two.
The plaintiff must prove that the auto maker’s defective product was a substantial factor in producing the plaintiff’s injuries. (Correct answer)
He must prove the nature and extent of the enhanced injuries and show how the defects caused each additional injury.
He must prove what additional injuries were solely caused by the alleged design defects.

Correct answer: The plaintiff must prove that the auto maker’s defective product was a substantial factor in producing the plaintiff’s injuries.

In 'crashworthiness' or 'enhanced injury' cases, where a vehicle defect exacerbates injuries from an initial collision, the plaintiff must prove that the defect was a 'substantial factor' in causing the enhanced injuries. The burden then shifts to the defendant manufacturer to apportion the damages between the initial collision and the enhanced injuries caused by the defect. The plaintiff is not required to prove precisely which injuries were solely caused by the defect.

Question 71: Seller contracts to deliver custom software by August 1 for $50,000. The contract is silent as to whether payment is due before or after delivery. Under the UCC or common law, when is payment due?

Payment is due simultaneously with delivery as concurrent conditions (Correct answer)
Payment is due before delivery because seller bears creation risk
Payment is due 30 days after delivery by industry custom
Payment is due when the buyer signs the acceptance certificate

Correct answer: Payment is due simultaneously with delivery as concurrent conditions

Under common law and the UCC, where the order of performance is not specified, duties are treated as concurrent conditions — each party must tender performance at the same time.

Question 72: Under FRCP 26(a)(1), parties must make initial disclosures without awaiting a discovery request. Which of the following is NOT required in initial disclosures?

The name of each individual likely to have discoverable information the disclosing party may use to support its claims
The names and addresses of all potential witnesses the party does not intend to call at trial (Correct answer)
A copy or description of documents the disclosing party may use to support its claims
A computation of each category of damages claimed

Correct answer: The names and addresses of all potential witnesses the party does not intend to call at trial

Initial disclosures require disclosure of witnesses and documents a party may use to support its claims or defenses, not all potential witnesses regardless of intended use.

Question 73: Seller contracts to sell 1,000 barrels of oil to Buyer for $50/barrel. Before delivery, a government embargo makes performance illegal. Under the doctrine of impossibility/impracticability, the likely result is:

The contract is discharged and neither party is liable (Correct answer)
Buyer may sue for breach because price risk was seller's
Seller must perform or pay expectation damages
The contract is reformed to reflect market price

Correct answer: The contract is discharged and neither party is liable

Supervening illegality (a government embargo) renders performance objectively impossible, discharging both parties' obligations under the doctrine of impossibility.

Question 74: A man purchased a new car with 8 miles on the odometer. In the first week after the purchase, the gas pedal got stuck when depressed, and the car accelerated uncontrollably, eventually crashing into the front of a strip mall jewelry store and killing the cashier. The cashier’s family filed an estate, and sued not only the driver for negligence, but also the automobile manufacturer in strict liability. The manufacturer tried to defend on the basis of having no privity with the cashier. The jury returned a verdict of $3.5 million against the auto manufacturer. The manufacturer appealed, stating that strict liability for a defective product could not be extended to bystanders. Based on the more generally accepted principles of modern tort law, what will the appellate court decide regarding the right of the decedent’s estate to collect from the manufacturer?

The victim’s estate must prove that the manufacturer breached an implied warranty of merchantability to the buyer of the vehicle before it can try to take advantage of that liability.
Only a consumer or user of the product is able to bring an action for injuries or death against a manufacturer or seller of a defective product that is unreasonably dangerous.
Lack of privity of contract prevents the estate from going against a defendant with whom it had no contractual or business relationship.
Strict liability in tort sounds exclusively in tort; the victim was in the realm of foreseeability for a runaway vehicle whose pedal was stuck to the floor, and the claim is allowed. (Correct answer)

Correct answer: Strict liability in tort sounds exclusively in tort; the victim was in the realm of foreseeability for a runaway vehicle whose pedal was stuck to the floor, and the claim is allowed.

Under modern tort law, strict products liability extends beyond direct purchasers and users to include foreseeable bystanders who are injured by a defective product. The rationale is that the manufacturer should bear the cost of injuries caused by its defective products, regardless of contractual privity. The cashier was a foreseeable victim of a runaway vehicle with a stuck gas pedal, making the manufacturer strictly liable for the damages.

Question 75: A publisher contracted to publish and market an author’s recent book. The publisher had the exclusive right to publish and distribute the book, including to decide the number of books published and the advertising budget. The author obtained a cash advance and royalty rights. However, the publisher’s internal post-contract review concluded that the book was polarizing and could offend some business and private interests. The publisher slashed the number of books to be printed and cut the advertising budget to the bare-bones. It simultaneously published and vigorously marketed a book written in-house which required no royalty and was directly contradictory to the factual foundations of the author’s book. The author sued the publisher for breach of contract for failing to deliver on its promise to use its “best efforts” to promote and distribute the book. Does the author have a likely right to collect breach of contract damages from the publisher?

Yes, the publisher breached the implied duty of good faith and fair dealing by failing to fully market the book and risking a conflict of interest by publishing its own competitive product. (Correct answer)
Yes, the publisher is in breach of contract whenever it publishes a conflicting or competing book.
No, the publisher had the discretion under the contract to decide both the budget and the number of books to print.
No, the contract was a standard publishing agreement – the author’s success would be mostly dependent on what the reviewers and book clubs had to say about the book.

Correct answer: Yes, the publisher breached the implied duty of good faith and fair dealing by failing to fully market the book and risking a conflict of interest by publishing its own competitive product.

In contracts granting exclusive rights, there is an implied duty of good faith and fair dealing, often requiring the party with discretion to use 'best efforts' or at least not to undermine the contract's purpose. The publisher's actions of slashing the author's marketing while promoting a directly contradictory in-house book demonstrate a clear breach of this implied duty. This conduct actively worked against the author's success and created a conflict of interest.

Question 76: A woman employed by a federally funded educational institution filed an employment discrimination and retaliation complaint under Title IX of the Education Amendments of 1972, rather than under Title VII of the Civil Rights Act. The defendant moved for dismissal under Fed. Rule 12(b)(6). The plaintiff moved to amend her complaint. The court ignored the request for amendment and dismissed the case outright. Will that decision of the district court survive appeal?

Yes, because the motion to dismiss was filed prior to the motion to amend.
No, the decision cannot survive because Title IX guarantees the right to amend under similar circumstances.
No, the right to amend is to be granted liberally and must be given in this instance. (Correct answer)
Yes, the plaintiff cannot eat up the resources of the trial court by not knowing which law to file under.

Correct answer: No, the right to amend is to be granted liberally and must be given in this instance.

The right to amend should be unimpeded in these facts. The court committted an abuse of discretion in failing to consider and grant the right to amend at an early stage in the process. See Eminence Capital, LLC v. Aspeon, Inc., 316 F. 3d 1048 (9th Cir. 2003); Foman v. Davis, 381 U.S. 178 (1962).

Question 77: A testator's holographic will states 'I leave my house to my brother.' The testator later buys a second house. The brother claims both houses. The will is silent on after-acquired property. What is the likely result?

The brother gets only the house owned when the will was executed
The second house passes by intestacy regardless of the will's language
The brother gets both houses only if the testator was aware of the second house at death
The brother gets both houses because a will speaks at death and includes after-acquired property (Correct answer)

Correct answer: The brother gets both houses because a will speaks at death and includes after-acquired property

Under the doctrine that a will speaks at the testator's death, a general devise of 'my house' can include after-acquired real property of that description unless the will clearly identifies a specific parcel.

Question 78: A retail store runs an advertisement in the local newspaper stating: “Only 3 cashmere sweaters remaining; highest quality; real Polo; one grey, one maroon and one beige; on closeout, starting 9 a.m. Saturday, $5.00 each, first-come, first-served.” A store customer was the first to arrive on Saturday morning. He located the three advertised sweaters, picked them up, handed $15.00 to the clerk, and demanded all three sweaters at $5 each. The clerk stated that the store’s price on each sweater was actually $50 each. The customer demanded the advertised price. Who has the superior legal position?

The customer, because this was a contract of adhesion favoring one party only, and as such, the store could not enforce it.
The retail store, because the terms of the advertisement were merely an invitation to make an offer, and the offer made was duly rejected by the store.
The customer, because the terms of the advertisement were definite enough to constitute an offer and the offer was duly accepted. (Correct answer)
The store, in that a contract was made at $50 each, which was the store’s actual intended price for the sweaters.

Correct answer: The customer, because the terms of the advertisement were definite enough to constitute an offer and the offer was duly accepted.

While advertisements are typically invitations to negotiate, this specific advertisement was sufficiently definite and explicit to constitute a binding offer. It clearly specified the exact items, quantity ("Only 3"), price, and terms of acceptance ("first-come, first-served"). By being the first to arrive and tendering the advertised price for the specified items, the customer accepted this unilateral offer, forming a valid contract.

Question 79: Homeowner owns a property in its natural condition with a house on it. There was no fill of any kind on the property. Neighbor, who owns the adjacent property to the East, built a driveway whose western boundary is along the border of homeowner's property. The excavator dug the driveway five feet deep. The land began to subside along the line of excavation and about three feet of homeowner's land fell off into the driveway, making that part of her property useless. Homeowner demanded that neighbor fill in the property to buttress the erosion created. That was not done and the erosion continued to occur. Homeowner sued and asked for an injunction compelling the neighbor to build and maintain a retaining wall. Will the court rule for the plaintiff/homeowner?

Yes, because every landowner has a right to the lateral support of the soil in its natural state. (Correct answer)
No, because the neighbor did not go onto the adjacent land and confined all excavation to his own land.
No, the right to lateral support is a common law right that has been abrogated by statute in virtually all states so that the right no longer exists.
Yes, because excavation is an abnormally dangerous activity and neighbor is absolutely liable for any damages caused by the violation.

Correct answer: Yes, because every landowner has a right to the lateral support of the soil in its natural state.

A landowner has a common law right to the lateral support of their land in its natural state from adjoining land. If an adjacent landowner excavates their property and causes the neighbor's land to subside, they are strictly liable for the damage to the land itself. This right exists regardless of negligence, and the neighbor has a duty to provide support, often through a retaining wall, to prevent further subsidence.

Question 80: A man signed an agreement to purchase real estate from a woman for $10,000. He put $250 down at the time of signing the contract but was bound to put up another $750 within 10 days, so as to equal a total of 10% down, as per the written contract terms. The ten days passed without the balance being deposited. The purchaser’s broker told him that the title search revealed an ancient easement over the rear of the property allowing a farmer to take his sheep across the land. Nothing more was said about it. About 30 days after the date of the agreement, the seller gave written notice that she did not intend to perform the agreement and enclosed the check for $250 to the purchaser. The purchaser did not cash that check and put the remaining $750 in the escrow. He then sued for specific performance. Will the court enforce the agreement and compel the seller to sell under the contract?

No, because the court will not compel a seller that has a cloud on title to sell to the purchaser without first showing proof that the title is cleared.
No, because the purchaser breached the agreement by not putting up the balance of the down payment in time, and he had no right to delay just because of rumors about the title search. (Correct answer)
Yes, because the buyer did not have to put the remaining down payment in the escrow account until the seller cleared title and the problem with the easement.
Yes, because the seller breached the contract without reason and the buyer has a right to compel conveyance of the specific property.

Correct answer: No, because the purchaser breached the agreement by not putting up the balance of the down payment in time, and he had no right to delay just because of rumors about the title search.

The purchaser breached the contract by failing to deposit the remaining $750 of the down payment within the stipulated 10 days, which was a material term of the written agreement. The rumor of an ancient easement, without further investigation or a formal declaration of unmarketable title, did not excuse the buyer's obligation to perform this condition precedent. Since the buyer was in breach first, the seller was justified in rescinding the agreement, and the court will not compel specific performance.

Question 81: When she was seven months pregnant, a female executive assistant employee was let go from her job. She filed a Title VII civil rights lawsuit against the company in federal court alleging gender discrimination. The proposed witness had been a vice-president of the company and a close adviser to the president; at trial, she was not permitted to testify that she heard the human relations manager say in an informal meeting that the plaintiff and her predecessor were both fired due to what the manager described as "pregnancy complications." The jury rendered a verdict in favor of the defendant employer without the benefit of such crucial testimony. The plaintiff maintained that the testimony should have been accepted and that it did not qualify as hearsay under federal regulations in the appeal. The court is likely to rule in favor of the appeal and mandate a fresh trial.

Yes, because it was admissible under the "spontaneous utterance" exception to the hearsay rules.
Yes, because that kind of testimony is reliable and not excludable as hearsay. (Correct answer)
No, because the statement is clearly hearsay with no exception to the hearsay rule being applicable.
No, because it was based on things that the co-worker heard from others, making double-hearsay that is never admissible.

Correct answer: Yes, because that kind of testimony is reliable and not excludable as hearsay.

Explanation: A statement submitted against a party and made by the party's agent or servant about an issue within the scope of the agency or employment is not considered hearsay, according to Rule 801(d)(2)(D). during the duration of the relationship. The case is Zaken v. Boerer, 964 F. (2d Cir. 1992) 2d 1319, 1322–23. These elements give the statement a high level of dependability and tend to favor its admission as a non-hearsay statement. In essence, this statement was made against the employer's interest by the employer's agent or servant while performing their duties.

Question 82: During trial, a plaintiff attempts to introduce evidence that the defendant repaired a hazardous staircase after the plaintiff fell. Under FRE 407, this evidence is:

Inadmissible to prove negligence or culpable conduct (Correct answer)
Inadmissible unless the repair was done within 30 days
Admissible to prove negligence
Admissible to prove the defendant owned the property

Correct answer: Inadmissible to prove negligence or culpable conduct

FRE 407 bars subsequent remedial measures to prove negligence, culpable conduct, or product defect, but permits such evidence for other purposes.

Question 83: A buyer has an enforceable contract to purchase land. Before closing, the seller conveys the same land to a third party who records. The buyer seeks specific performance. Under equitable conversion, the buyer:

May obtain specific performance and the third party is not a bona fide purchaser as against the buyer's equitable title (Correct answer)
Has no remedy because the third party recorded first
Must accept money damages because specific performance is unavailable against recorded deeds
May only obtain rescission and refund of the purchase price

Correct answer: May obtain specific performance and the third party is not a bona fide purchaser as against the buyer's equitable title

A buyer under contract holds equitable title; a subsequent purchaser with constructive notice of the contract does not qualify as a bona fide purchaser and takes subject to the buyer's equitable claim.

Question 84: A manufacturer of widgets sent a letter to an international widget retailer offering to sell ten truckloads of construction-quality widgets for $1,000 per truck. The retailer emailed a note back saying “Please send 10 truckloads as promised.” No shipment was sent, but four months later when the market demand for widgets skyrocketed, the retailer sued the manufacturer for breach claiming that the retailer suffered damages by not having received the shipment of ten trucks as agreed. Does the retailer have a legal right to collect damages under these facts?

Yes, the retailer is entitled to collect damages because the manufacturer violated the doctrine of avoidable consequences.
No, the parties do not set a date for delivery, which always invalidates a contract between merchants for the delivery of goods.
Yes, there is a specific and detailed enough offer, followed by an unequivocal acceptance, indicating an intent to form a contract. (Correct answer)
No, the retailer never called back and asked for the widgets, which means that the contract was not finally confirmed and legalized.

Correct answer: Yes, there is a specific and detailed enough offer, followed by an unequivocal acceptance, indicating an intent to form a contract.

Under the Uniform Commercial Code (UCC), which governs the sale of goods between merchants, a contract is formed if there is a clear offer and an unequivocal acceptance demonstrating an intent to contract. Here, the manufacturer's letter was a definite offer specifying quantity and price, and the retailer's email was a clear acceptance. The absence of a specific delivery date does not invalidate the contract, as the UCC allows for reasonable terms to be implied.

Question 85: A small business sued an insurance company in federal court for failing to pay certain claims made. After completion of discovery, the insurer filed a motion for summary judgment, requesting dismissal of the lawsuit. In the meantime, the parties went to a scheduled settlement conference with the federal magistrate judge and agreed to settle for $75,000. The district court judge had, however, granted the pending summary judgment motion and issued an order of dismissal a day earlier. The dismissal order, however, had not been docketed and no judgment was entered of record. When the district judge learned of the settlement, she rescinded the order of dismissal and instead ordered the settlement agreement to be docketed. The insurer’s attorney then moved to have the settlement rescinded on the basis of mutual mistake. What is the best and most likely decision of the United States Court of Appeals when it hears the case on appeal?

The settlement contract is void because the district court did not have the authority to rescind the summary judgment order and enter instead the settlement agreement on the docket.
There is no settlement because both parties were mutually mistaken in believing that a motion for summary judgment had not yet been decided.
The settlement contract is binding because the insurer knew it had a pending motion when it agreed on a settlement, thus it assumed the risk of these developments and cannot now complain. (Correct answer)
The contract is binding because by accepting responsibility for at least $75,000, the insurance company admitted that its claims in the summary judgment motion were false and unsupportable.

Correct answer: The settlement contract is binding because the insurer knew it had a pending motion when it agreed on a settlement, thus it assumed the risk of these developments and cannot now complain.

The settlement agreement is binding because the insurer, by agreeing to settle while a summary judgment motion was pending, assumed the risk that the motion could be decided unfavorably or favorably. The "mistake" regarding the timing of the summary judgment ruling was a known uncertainty inherent in the litigation process. A party cannot claim mutual mistake to rescind a settlement when they were aware of the uncertain nature of a material fact (the outcome of the pending motion) and proceeded to contract despite that uncertainty.

Question 86: A developer purchased two lots of ocean front property. He intended to build two single-family high-end homes like adjacent homes built in the surrounding areas. Two years later, the state passed a beachfront protection statute that prohibited the developer from building on his lots. The developer filed a claim in state court demanding compensation for a taking of his property under the Fifth and Fourteenth Amendments because the state denied all economic uses of the property. The trial court agreed that the property was now economically useless, and awarded compensation to the developer. However, on appeal the supreme court of the state reversed. The United States Supreme Court granted certiorari. Did the U.S. Supreme Court grant the developer’s plea for compensation based on an unconstitutional taking of his property by the state?

No, the valid exercise of the police powers by the state cannot result in a claim for compensation by a property owner.
No, the statute did not forbid all uses of the property; there were still social and recreational uses that remained.
Yes, any interference with a landowner’s interest in building commercial property is prohibited by the due process clause and requires compensation.
Yes, compensation is payable for a taking of property where a statute or regulation takes away all economic use of the land. (Correct answer)

Correct answer: Yes, compensation is payable for a taking of property where a statute or regulation takes away all economic use of the land.

The Takings Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, provides that private property shall not “be taken for public use, without just compensation.” Lingle v. Chevron USA Inc., 544 U.S. 528, 536-37. When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking for which reasonable compensation must be paid. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019, 1027 (1992).

Question 87: A state passes a law imposing a $0.05 tax on every copy of a newspaper sold, but exempting magazines and online publications. A newspaper publisher challenges this. The most likely result is:

Unconstitutional only if the publisher can show the tax was intended to suppress criticism of the government
Constitutional because the tax is generally applicable to all print media
Unconstitutional because singling out newspapers for taxation raises First Amendment concerns (Correct answer)
Constitutional because the tax rate is de minimis and has no chilling effect

Correct answer: Unconstitutional because singling out newspapers for taxation raises First Amendment concerns

Under Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, differential taxes targeting the press raise serious First Amendment concerns even without proof of censorial intent.

Question 88: The Equal Protection Clause requires 'strict scrutiny' when a law discriminates based on:

Race or national origin (Correct answer)
Wealth or poverty
Age or disability
Gender or sex

Correct answer: Race or national origin

Strict scrutiny applies to laws that classify based on race, national origin, or alienage (a suspect class), requiring the government to prove a compelling interest and narrow tailoring.

Question 89: A pedestrian found an elderly woman lying on the ground conscious but bruised from an attack and mugging that occurred a few minutes earlier. The woman related that the thugs who attacked her took her purse. However, she pulled out a money wallet and told him that they did not find the wallet, which had $2,000 cash in it. After calling 911 to get help for the woman, the pedestrian snatched the wallet from the woman’s hands and ran off. It happened so quickly that the woman had no time to react. The authorities caught him soon thereafter, and charged him with robbery and theft charges. What will be the most likely outcome of the robbery charge?

The robbery charge will result in a conviction because he took the property of another with the intent to deprive her permanently of it.
He will most likely be convicted of robbery because the woman was already in fear from the prior incident when he took her money.
He cannot be convicted of robbery because he did not take it from her person, but he simply snatched it out of her hands.
He cannot be convicted of robbery because he did not use violence, force or intimidation. (Correct answer)

Correct answer: He cannot be convicted of robbery because he did not use violence, force or intimidation.

The weight of authority is that a snatching does not qualify for the element of using force, violence or intimidation. When the thief snatches the property so quickly that the victim can offer no resistance this is considered to be insufficient force to support a robbery conviction. See People v. Patton, 389 N.E.2d 1174 (1979) (purse snatching; purse gone before victim realized what was happening).

Question 90: Some landowners had residential premises in a development called “The Lakes.” One owner’s property contained a small improved beach area that could be used for swimming. That owner gave oral permission to several neighbors to use the beachfront for swimming, as a friendly neighborly gesture. That owner sold her property to a new owner. The new owner erected fences and signs saying, “keep out.” The neighbors sued, claiming that they had an easement by implication through prior usage to use the beachfront. Will the court restore the use of the beachfront to the neighbors?

No, because land that abuts a lake or other body of water is not subject to the creation of an easement.
No, because the use granted was merely a license to go on a neighbor’s land to go swimming, and the users of the free license did not expect that they were obtaining an interest in the land. (Correct answer)
Yes, because the easement was created by the implied assent of the owner and her neighbors, and it became a public easement through prescription.
Yes, because the granting of a license to use one’s property to perform a certain activity usually ripens into an easement if the use is regular and continual.

Correct answer: No, because the use granted was merely a license to go on a neighbor’s land to go swimming, and the users of the free license did not expect that they were obtaining an interest in the land.

An easement by implication through prior use requires a common owner, a severance of the property, and a use that was apparent, continuous, and reasonably necessary for the enjoyment of the dominant estate at the time of severance. Here, the permission was an oral license, a revocable privilege, not an interest in land. Licenses do not ripen into easements, and there was no severance of a common parcel with a prior quasi-easement.

Question 91: An industrial manufacturing plant was producing large volumes of a new chemical combination to be marketed worldwide that was guaranteed to instantly and humanely kill death row inmates receiving their executions. The plant was blowing the exhaust fumes from the manufacturing process out into the atmosphere through massive industrial fans, apparently to help protect employees inside the complex. On days with a wind in the air, the invisible particles were traveling to adjacent neighborhoods and creating a permanent, invisible coating that was detectable by scientific testing. The highly dangerous chemical film had destroyed a number of residential homes – consulting experts advised the residents to move out of the homes and to raze the structures. These residents brought actions against the manufacturing plant for the damages they suffered, including pain, suffering and distress. What is the likely successful theory that they will assert against the manufacturer?

Environmental destruction under the Superfund Act.
The tort of physical intrusion and impairment.
Strict liability for an abnormally dangerous condition or activity. (Correct answer)
Trespass to land, property and persons.

Correct answer: Strict liability for an abnormally dangerous condition or activity.

Strict liability is imposed for abnormally dangerous activities, which involve a high risk of serious harm that cannot be eliminated even with reasonable care and are not a matter of common usage. The manufacturing plant's production of a highly dangerous chemical, whose exhaust fumes created an invisible, destructive film on adjacent homes, clearly constitutes an abnormally dangerous activity. The severe and unavoidable harm to the residents' property and health makes strict liability the most likely successful theory.

Question 92: Seller and Buyer have a written agreement for sale of 200 tables. Buyer claims seller orally agreed to also paint the tables. Under the parol evidence rule, this oral promise is:

Admissible to supplement an incomplete written agreement
Inadmissible if the written contract is fully integrated (Correct answer)
Admissible to explain an ambiguous term in the writing
Always admissible to show the true intent of the parties

Correct answer: Inadmissible if the written contract is fully integrated

The parol evidence rule bars extrinsic evidence of prior or contemporaneous agreements that would add to or contradict a fully integrated written contract.

Question 93: The President signs an executive order directing federal agencies to stop enforcing an immigration statute passed by Congress. A state challenges this order. The order is most likely:

Invalid because the President cannot refuse to enforce a valid act of Congress (Correct answer)
Valid because the President has plenary power over immigration enforcement
Valid because prosecutorial discretion is an inherent executive function
Invalid only if the Senate disapproves by a two-thirds vote

Correct answer: Invalid because the President cannot refuse to enforce a valid act of Congress

Under the Take Care Clause, the President must faithfully execute the laws; wholesale refusal to enforce a valid statute violates this constitutional duty.

Question 94: A court must determine whether a contract was formed. Witness testimony and written documents are introduced. Which standard applies to this preliminary question of fact?

Preponderance of the evidence under FRE 104(a) (Correct answer)
Clear and convincing evidence
The court defers entirely to the jury
Proof beyond a reasonable doubt

Correct answer: Preponderance of the evidence under FRE 104(a)

Under FRE 104(a), the court determines preliminary questions of fact regarding admissibility under a preponderance of the evidence standard.

Question 95: A lessor leased real estate with a gas station business on it to a lessee for two-year terms that were renewable every two years until the tenth year. The property was described as being “located at 1900 Superpower Highway, fronting on the highway 100 feet and extending in depth of equal width 150 feet, as described in Deed Vol. 22, Page 10, with the privilege of using additional adjoining grounds for the general use of the business and the parking of customer's cars.” The lessor granted an option to purchase the “demised premises” at the “current market value at the end of the final term.” The lessee exercised the option (for property at Deed Vol. 22, Page 10) as provided, but the lessor refused to perform. Lessee brought an action for specific performance, to which the lessor responded that the price was indefinite and subject to debate, and that it was unclear if the option included the “additional adjoining grounds,” making specific performance unavailable. Will the court grant the complaint for specific performance and order that the plaintiff’s exercise of the option be enforced?

No, because it is impossible to determine if the option includes the adjoining lands; furthermore, current market value is an ambiguous term subject to debate by experts.
Yes, because the land is specifically described at the deed reference, and the “market value” at a specified time is held by courts to be a sufficiently precise description of price. (Correct answer)
Yes, because specific performance applies to a right to enforce the option, and the precise terms of the option can be ironed out by the court through the taking of testimony and hearing evidence.
No, because it could not be determined whether “current market value” meant the value at the entering of the lease or the value at the end of the lease.

Correct answer: Yes, because the land is specifically described at the deed reference, and the “market value” at a specified time is held by courts to be a sufficiently precise description of price.

It’s true that specific performance will not be granted where the terms are not definite enough to perform. Here, the “demised premises” does not include the additional adjoining grounds because, for one thing, the property is specifically determined by the dimensions included at the referenced deed book and page number. The term “market value” at a certain time has been held sufficiently definite to determine a price for the property. Where a contract specifies that the price is to be measured by the "fair market value" or "reasonable value" of the property involved, courts have generally held that the price is sufficiently certain to enforce the agreement. Moreover, the law recognizes in the area of enforceability of contracts the maxim, "id certum est quod certum reddi potest" (that is certain which can be made certain). See Portnoy v. Brown, 430 Pa. 401 (Pa. Supreme Court 1968).

Question 96: A court finds that a government regulation has gone 'too far' and constitutes a regulatory taking. The landowner is entitled to:

Just compensation under the Fifth Amendment (Correct answer)
Criminal penalties against the regulating officials
Rescission of the regulation without compensation
Injunctive relief only

Correct answer: Just compensation under the Fifth Amendment

When a government regulation constitutes a taking under the Penn Central or Lucas tests, the Fifth Amendment requires payment of just compensation.

Question 97: A defendant timely removes a case from state court to federal court. The plaintiff believes removal was improper. Under 28 U.S.C. § 1447(c), the plaintiff must file a motion to remand based on a defect in removal procedure within:

60 days of removal
21 days of removal
30 days of removal (Correct answer)
14 days of removal

Correct answer: 30 days of removal

Under § 1447(c), a motion to remand based on any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal.

Question 98: A state law imposes a $500 annual fee on out-of-state trucking companies operating within the state but exempts in-state companies. The law is most likely:

Constitutional if the fee is rationally related to road wear caused by out-of-state trucks
Unconstitutional as discriminatory economic protectionism under the Dormant Commerce Clause (Correct answer)
Constitutional as a valid exercise of the state's police power to regulate roads
Unconstitutional only if Congress has expressly preempted state trucking fees

Correct answer: Unconstitutional as discriminatory economic protectionism under the Dormant Commerce Clause

Under the Dormant Commerce Clause, facially discriminatory laws that favor in-state over out-of-state economic actors are virtually per se unconstitutional unless the state proves no adequate nondiscriminatory alternative.

Question 99: A contractor agrees to build a bridge for a county. Halfway through construction, the county assigns its right to receive the completed bridge to a neighboring township. The contractor objects. The assignment is:

Invalid because it materially increases the contractor's burden
Invalid because government contracts cannot be assigned
Valid because contract rights are freely assignable (Correct answer)
Valid but the county remains secondarily liable

Correct answer: Valid because contract rights are freely assignable

The right to receive performance (the completed bridge) can be freely assigned to a third party; assignment of rights to receive a fixed performance generally does not materially burden the obligor.

Question 100: The rational basis test is the primary standard for determining whether a statute violates the equal protection guarantees of the Fifth Amendment and the Fourteenth Amendment. Under what circumstances will the courts strike down a statutory classification for equal protection violations when using the rational basis test?

When the classification results in some inequality among classes of persons, it cannot be rationally tolerated.
When there are only plausible reasons rather than compelling reasons for the classification, it can be struck down.
A classification that tries to protect and encourage a legitimate interest of the state government will be struck down if it has a side effect of causing some inequality of treatment.
If there is no conceivable set of facts that could provide a rational basis for the classification. (Correct answer)

Correct answer: If there is no conceivable set of facts that could provide a rational basis for the classification.

The rational basis test is the lowest level of scrutiny for equal protection challenges. Under this test, a classification will be upheld if it is rationally related to a legitimate government interest. The burden is on the challenger to prove that there is no conceivable set of facts that could provide a rational basis for the classification, making it very difficult to overturn a law under this standard.

Question 101: A defendant enters a store, places merchandise in his coat, and walks to the exit. Before he leaves, store security stops him. Is he guilty of larceny?

Yes, only if he intended to leave without paying
Yes, because asportation was complete when he moved the items (Correct answer)
No, because he never left the store
No, because he was caught before completing the taking

Correct answer: Yes, because asportation was complete when he moved the items

Asportation (carrying away) is satisfied by any movement of the property, however slight, with the required intent — leaving the store is not required.

Question 102: A defendant is served with a complaint. Under the Federal Rules, within how many days must the defendant serve an answer if served within the United States?

28 days
14 days
21 days (Correct answer)
30 days

Correct answer: 21 days

Under FRCP 12(a)(1)(A)(i), a defendant must serve an answer within 21 days after being served with the summons and complaint.

Question 103: An owner of a small online startup company sued a competitor for copyright infringement and interference with contract. At trial, the owner's attorney questioned a juror who stated that she had worked for the competitor for 10 years in the past and still did regular part-time work for the company when it was extra busy. However, under questioning she stated that she could hear the case fairly and without prejudice. Can the attorney prevail in a motion to strike the juror for cause?

Yes, because by having knowledge of the business practices of the defendant it makes her absolutely unqualified to serve as a juror on any cases involving the same type of business.
No, because having worked for one of the litigants is not a grounds to make any assumptions whatsoever about the potential juror's ability to be fair.
Yes, because the juror had a business relationship with the defendant that has not yet even ended, there is too much chance for bias. (Correct answer)
No, because the assertion that she could fairly decide the case erases the tendency to presume bias on her part.

Correct answer: Yes, because the juror had a business relationship with the defendant that has not yet even ended, there is too much chance for bias.

A juror can be struck for cause if there is actual or implied bias. A current or very recent employment relationship with a party creates a strong presumption of implied bias, even if the juror claims impartiality. The ongoing part-time work for the defendant competitor presents a significant risk that the juror's judgment could be influenced, justifying removal for cause.

Question 104: A young woman incurred credit card and medical debts that were overwhelming. She filed bankruptcy and discharged the debts. After receiving her final discharge, she contacted her dentist who had been listed in the bankruptcy for a debt of $10,000. That debt was now discharged and not owed. She said to the dentist, “I know I owe you $10,000 and I’m going to pay it off in the future. Can the dentist successfully sue the young woman for the $10,000 after she fails to perform on her new promise?

Yes, because a promise to pay a debt discharged in bankruptcy can support a new contract based on moral obligation. (Correct answer)
No, because there can never be a new contract based on a prior obligation that is no longer owed under the law.
No, because moral obligation in itself never rises to the level of establishing new consideration to form an enforceable contract.
Yes, because a promise to pay based on a prior debt that is now a moral obligation is always treated as new consideration sufficient to form a binding and enforceable contract.

Correct answer: Yes, because a promise to pay a debt discharged in bankruptcy can support a new contract based on moral obligation.

A promise to pay a debt that has been discharged in bankruptcy is an exception to the general rule that past consideration is not sufficient to support a new contract. The moral obligation to pay the prior debt is considered sufficient consideration to make a new, express promise to pay that debt enforceable, even without new consideration from the creditor. This principle allows the dentist to successfully sue on the new promise.

Question 105: A woman asked a male friend to hold her valuable antique jewelry in safe storage for her while she traveled in a foreign country. He owned a jewelry store and graciously offered to store the collection for free. He also volunteered to get the jewelry insured at his own expense. She relied on the promises, and turned over the collection to him without the payment of monetary consideration. He forgot to get the jewelry insured, and the collection was stolen in an armed robbery of the jewelry store. When she returned, he refused to compensate her for the stolen collection. Which one of the following legal principles would be her strongest and most accurate claim for remuneration under these facts?

The principle of promissory estoppel. (Correct answer)
The principle of natural consideration.
The principle of unilateral contract.
The principle of equitable trust.

Correct answer: The principle of promissory estoppel.

Promissory estoppel applies when a clear and unambiguous promise is made, the promisee reasonably and foreseeably relies on that promise, and suffers a detriment as a result. Here, the friend made a clear promise to insure the jewelry, the woman reasonably relied by entrusting him with the valuable collection and not seeking other insurance, and she suffered a significant loss when the jewelry was stolen uninsured. This principle allows the court to enforce the promise despite the absence of traditional consideration.

Question 106: Under Illinois v. Gates, the standard used to determine whether probable cause exists to issue a search warrant based on an informant's tip is:

The two-prong Aguilar-Spinelli test requiring veracity and basis of knowledge
Clear and convincing evidence that the informant is reliable
The totality of the circumstances test (Correct answer)
A preponderance of the evidence standard applied to each tip element

Correct answer: The totality of the circumstances test

Illinois v. Gates (1983) replaced the rigid Aguilar-Spinelli two-prong test with a flexible totality of the circumstances approach to assessing probable cause from informant tips.

Question 107: A property owner was returning home one evening. When he got into his driveway he beeped open the garage door. As he approached the garage he saw some movement inside but couldn’t tell what it was. He stopped the car, pulled his handgun from the glove compartment, and walked toward the garage. As he began to enter the garage a person jumped out from behind a pile of boxes and tried to run out of the garage, in a direction away from the owner. While heading for the outside area, the owner raised his gun and shot the individual dead. It turned out that the dead person was a 16-year-old unarmed teen from the neighborhood who apparently had been searching the garage for things to steal. Under the prevailing common law rule, will the owner be convicted of a criminal homicide charge?

He will be convicted it is never proper to use deadly force upon a person who is illegally on one’s premises.
He will not be convicted because it is always legal to use deadly force on a trespasser who is found on one’s property and who is damaging or taking property.
He will be convicted because under these circumstances the man used unreasonable and excessive force in response to the situation. (Correct answer)
He will not be convicted because he used appropriate force to repel a trespasser and thief on his property.

Correct answer: He will be convicted because under these circumstances the man used unreasonable and excessive force in response to the situation.

Under prevailing common law, deadly force is generally not justified solely to protect property, especially when the intruder is unarmed and attempting to flee. The owner's use of deadly force against an unarmed 16-year-old who was running away from the garage, and thus no longer posing an imminent threat of serious bodily harm or death, was an unreasonable and excessive response. The law typically permits deadly force only when there is a reasonable belief of imminent serious bodily injury or death, which was not present here.

Question 108: A party seeks summary judgment under FRCP 56. The moving party does not bear the burden of proof at trial. What must the moving party show to obtain summary judgment?

Affirmative evidence negating an essential element of the nonmoving party's case, or point to an absence of evidence to support the nonmoving party's case (Correct answer)
Undisputed evidence that it would prevail at trial
That the nonmoving party has produced no discovery materials whatsoever
A preponderance of evidence in its favor on all issues

Correct answer: Affirmative evidence negating an essential element of the nonmoving party's case, or point to an absence of evidence to support the nonmoving party's case

When the moving party does not bear the burden of proof at trial, it may obtain summary judgment by either producing evidence negating an element of the opponent's case or showing the absence of evidence supporting that element.

Question 109: A state recidivist statute made it a felony punishable by life imprisonment without parole to be convicted for the sixth time of any form of criminal theft involving goods or money in excess of $500. A man’s record showed five prior convictions for different forms of theft, each one for property or cash in excess of $500 but usually not in excess of $1,000. On the sixth conviction for a similar violation, he was sentenced to life without parole. He challenged the sentence based on the Eighth Amendment prohibition against cruel and unusual punishment. He appeals all the way to the U.S. Supreme Court. Is the Supreme Court likely to invalidate the sentence on these facts?

Yes, because the gravity of the sentence is disproportionate to the seriousness of the crimes, none of which involved bodily injury. (Correct answer)
Yes, because life imprisonment can never be an appropriate punishment for criminality that does not take human life.
No, because theft and theft by deception are heinous crimes causing extreme human suffering and negatively impacting the economy.
No, because it is improper for the courts to attempt to interject their value judgments into a state’s ostensibly reasonable legislative sentencing schemes.

Correct answer: Yes, because the gravity of the sentence is disproportionate to the seriousness of the crimes, none of which involved bodily injury.

One of the principles of the Eighth Amendment is that the punishment must be proportionate to the crime for which the defendant has been convicted. It is likely that the court would here follow the reasoning that it provided in Solem v. Helm, 463 U.S. 277 (1983) where the Court found similar conduct to be “relatively minor” and not deserving of the “penultimate sentence.” The harsh treatment is more than others in the state and other states have received for more serious crimes and criminal records.

Question 110: A man was under custodial interrogation as a suspect in the murder of a child. The police initially gave him a written list of his Miranda rights. They told him to read the list out loud, which he did. They then asked him if he understood the right to remain silent and to have a lawyer present and he nodded affirmatively. He refused to sign the writing but did not ask for an attorney. During the next three hours they interrogated him and got few answers; he was largely silent but did respond at times with a “no” or “yes” or a nod of the head. Then one of the detectives asked him if he was ready to ask God for forgiveness for killing the child. His eyes welled with tears and he said “yes.” This opened further questioning leading to his admission of guilt. He would not sign a written confession or a waiver of the right to remain silent. He was arrested for murder and moved to suppress the confession. Will the court suppress the confession as being involuntarily given?

No, the circumstances indicate that he understood that he could stop the questioning and get a lawyer but he did not do so. (Correct answer)
Yes, the use of religious deception to get a suspect to admit to crime renders the confession involuntary.
Yes, the confession must be suppressed because he was questioned for over three hours, making anything he said essentially involuntary.
No, whenever a written list of Miranda warnings is given to a suspect and he doesn’t ask for a lawyer, this is proof that the suspect fully understands his rights.

Correct answer: No, the circumstances indicate that he understood that he could stop the questioning and get a lawyer but he did not do so.

These circumstances indicate that he voluntarily waived his right to remain silent. There is no evidence that he did not understand the rights given to him and that he read back out loud. There is no evidence of coercion – the mere questioning for over three hours is not coercion. The response to the question about God and forgiveness indicates a course of conduct evidencing a waiver of the right to remain silent. There is no requirement that police must get a written waiver prior to beginning interrogation. See Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).

Question 111: A man was injured when his kitchen oven exploded due to a manufacturing defect. He filed a complaint against the oven manufacturer for personal injury damages. He also added a count for class certification and requested a recall of all similar ovens sold to consumers to stop the danger of physical injury. He created two putative classes: (1) everyone who purchased that model oven who lived in New York, the state where the man resided; and (2) everyone who purchased that model oven who resided in 25 other designated states where the company did business. The manufacturer filed a motion to dismiss the second putative class preliminarily under Rule 12(f) of the Federal Rules of Civil Procedure which allows for the early striking of any immaterial matter from the complaint. Will the federal district court judge likely grant the motion?

Yes, the court will grant it because the plaintiff is not a member of the second class that he set up. (Correct answer)
No, the court will not grant it because the plaintiff does not have to be a member of the exact class in order to represent that class.
No, the court will not grant it because it is too early to decide class certification issues and it can’t be done through Rule 12(f) of the FRCP.
Yes, the court will grant it because the plaintiff has not specifically listed the identity of each member of the second putative class.

Correct answer: Yes, the court will grant it because the plaintiff is not a member of the second class that he set up.

Rule 23 of the FRCP governs class actions. The class representative must be part of the class and possess the same interest and suffer the same injury. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550, 180 L. Ed. 2d 374 (2011) (quoting East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)). See also, Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 360 (3d Cir. 2013) ("It is axiomatic that the lead plaintiff must fit the class definition"). The dismissal of the second claim was upheld.

Question 112: A bank sues a homeowner in a civil foreclosure action. The homeowner does not respond and a judgment is entered in favor of the bank. Several months later, the bank files to execute on the judgment and set a date for a sheriff's sale. Due to backlogs, the sale will take place in six months, which will be well over one year from the date of entering the judgment. The homeowner hires an attorney on the same day that the request for sheriff's sale is filed by the bank. The attorney immediately files a motion for relief from the Order under Rule 60(b). The homeowner alleges as grounds for relief that the bank committed fraud and used "robo-signing" methods whereby the person allegedly signing the foreclosure papers did not actually sign them, making the judgment void. The defendant objects on the basis that the motion was not filed within a reasonable time. Will the court likely rule that the motion was filed too late?

No, because the allegation of fraud can be considered at any time by the court.
No, because the computation of time shows that the motion for relief was filed under one year from the date of entering the judgment. (Correct answer)
Yes, because the motion for relief from the order was filed over a year after judgment was entered.
Yes, because the homeowner never responded to the original complaint in foreclosure.

Correct answer: No, because the computation of time shows that the motion for relief was filed under one year from the date of entering the judgment.

Federal Rule of Civil Procedure 60(c)(1) requires a motion for relief from judgment based on fraud to be made within a reasonable time, and no more than one year after the entry of the judgment. The homeowner's motion was filed on the same day the request for sheriff's sale was filed, which was several months after judgment but still within the one-year limit. Therefore, the motion was timely.

Question 113: Police conduct a lineup in which the defendant is the only person matching the robber's height and is wearing a red jacket like the one described by the witness. The witness identifies the defendant. Under Manson v. Brathwaite, this identification is admissible unless:

The defendant had no counsel present at the post-indictment lineup
The procedure was unnecessarily suggestive and, considering the totality of circumstances, created a substantial likelihood of misidentification (Correct answer)
The lineup was conducted without a court order
The witness had previously failed to identify the defendant from a photo array

Correct answer: The procedure was unnecessarily suggestive and, considering the totality of circumstances, created a substantial likelihood of misidentification

Under Manson v. Brathwaite and Neil v. Biggers, an identification obtained through an unnecessarily suggestive procedure violates due process only if the totality of circumstances creates a substantial likelihood of irreparable misidentification, weighed against indicia of reliability.

Question 114: A state statute made it a crime to be addicted to the use of narcotic drugs. A man was arrested and charged with the crime. Two officers testified that they examined “track” marks on the defendant’s arms and wrists, and that the man admitted to using drugs. However, he testified and denied saying that to the officers; instead, he said that he was having an allergic reaction. The trial court instructed the jury that it could find the man guilty of the crime on proof that he was observed to be using drugs and appeared to be addicted to narcotics. The jury found him guilty based on the observed track marks and the man was sentenced to six months of incarceration in a state penitentiary. He appealed on the basis that this was cruel and unusual punishment prohibited by both the state and federal constitutions. Will the conviction likely be reversed?

No, because the arrest is based on the regular use of illegal narcotics and is a proper concern of the criminal law.
Yes, because the statute punishes the status of being an addict, which is an illness, and does not require proof of specific acts of drug usage – the punishment is cruel and unusual. (Correct answer)
Yes, because the statute makes it criminal to use illegal drugs, which constitutes cruel and unusual punishment.
No, because the state has the power to forbid the use of narcotics within its borders and that’s in effect what this statute does.

Correct answer: Yes, because the statute punishes the status of being an addict, which is an illness, and does not require proof of specific acts of drug usage – the punishment is cruel and unusual.

The Supreme Court, in *Robinson v. California*, held that a state cannot criminalize the *status* of being a drug addict, as addiction is considered an illness. Punishing someone for a condition or status, rather than for specific criminal acts (like possessing or using drugs), constitutes cruel and unusual punishment under the Eighth Amendment. This statute punishes the status of addiction, making it unconstitutional.

Question 115: A plaintiff sues a corporation in federal court. The plaintiff's attorney seeks to depose the corporation. Under FRCP 30(b)(6), the corporation must:

Produce written answers to deposition questions in lieu of an oral deposition
Designate one or more representatives who will testify on the organization's behalf (Correct answer)
Produce its CEO or highest-ranking officer
Allow the plaintiff to choose which employee to depose

Correct answer: Designate one or more representatives who will testify on the organization's behalf

Under FRCP 30(b)(6), a corporation must designate one or more representatives who will testify on its behalf as to matters described in the deposition notice.

Question 116: A seller conveyed a real estate parcel to a buyer through a quitclaim deed for $1.00. At the time, the seller was not the owner of the property. Later on, the seller became the owner in fee simple absolute by virtue of a gift of the property in the will of the now-deceased owner. The buyer demanded that the seller provide him with a warranty deed to reflect that the buyer's title as owner was absolute. Leaving aside whether the buyer could sue the seller for fraud, what is the nature of the buyer’s interest in the property at the time that he demanded the warranty deed?

The buyer owns nothing because the seller had nothing to convey in the original quitclaim deed. (Correct answer)
The buyer is an owner in fee simple absolute as of the date of the real owner’s death.
The buyer owns a life estate because that is all that the seller could convey by quitclaim deed.
The buyer owns an undivided one-half of the property with the seller as of the date of the real owner’s death.

Correct answer: The buyer owns nothing because the seller had nothing to convey in the original quitclaim deed.

A quitclaim deed conveys only whatever interest the grantor currently has in the property, without any warranties of title. If the grantor has no interest at the time of the conveyance, the grantee receives nothing. Unlike a warranty deed, a quitclaim deed generally does not trigger the doctrine of after-acquired title, which would automatically pass subsequently acquired title to the grantee. Therefore, when the seller later acquired title, it did not automatically transfer to the buyer under the original quitclaim deed.

Question 117: A state started conducting random vehicle stops at highway roadblocks to look for drugs. A young man was driving alone when he was pulled over with 12 other cars for a narcotics detection search. About 30 officers were involved in conducting the drug searches. After the stop, officers walked drug-sniffing dogs around the young man’s car and the other cars. An officer advised each motorist that this was a brief stop for a drug checkpoint, and asked the young man and the other drivers to produce a license and registration. The officer looked over the young man for signs of drug impairment and conducted an open -view examination of the car from the driver’s side window and the other windows. The young man was not arrested but he later filed an injunctive action in a United States District Court, demanding the police be prohibited from continuing the random drug searches. The lawsuit claimed Fourth Amendment violations based on unreasonable searches and seizures. The district court dismissed the case, but on appeal, the U.S. Circuit Court of Appeals reversed and ordered issuance of an injunction. On appeal to the U.S. Supreme Court, did the plaintiff prevail in his assertion that the procedure was unconstitutional?

No, because the dogs would indicate immediately whether there were drugs inside the car, which made the search reasonable within the Fourth Amendment.
Yes, because these roadblocks used dogs to sniff to see if there were narcotics inside the car, which is always an unreasonable search under the Fourth Amendment.
No, because this was a highway safety stop similar to drunk driving checkpoints, which were already declared constitutional by the Supreme Court.
Yes, because the stops were pursued for general crime investigation rather than highway safety, which is an unreasonable purpose not based on individualized suspicion of wrongdoing. (Correct answer)

Correct answer: Yes, because the stops were pursued for general crime investigation rather than highway safety, which is an unreasonable purpose not based on individualized suspicion of wrongdoing.

This hypothetical is modeled after Indianapolis v. Edmond, 531 US 32, 41-42 (2000). A general-purpose roadblock for detecting narcotics violates the rule that searches and seizures be reasonable under the Fourth Amendment. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. See Chandler v. Miller, 520 U. S. 305, 308 (1997). The Edmond Court held that there were only limited exceptions to the general rule that a seizure must be accompanied by some measure of reasonable suspicion or probable cause against an individual motorist. The Court said it would not credit the "general interest in crime control" as justification for a regime of suspicionless stops. Because the primary purpose of these narcotics checkpoints was to uncover evidence of ordinary criminal wrongdoing, and not to assure highway safety or for border patrol purposes, the program contravenes the Fourth Amendment. If the court did not draw the line at roadblocks designed primarily to serve the general interest in crime control, such intrusions would become a routine part of American life. 520 U.S. at 42.

Question 118: In a personal injury case for damages suffered by plaintiff, a nurse at the treating hospital testified that the plaintiff failed or refused to take his prescribed medications on seven different occasions during his hospital stay. On cross-examination, it became clear that the nurse’s testimony was not based on personal knowledge as she was not at work during several of the instances she mentioned. In these several instances, the sole basis for her testimony was what she read in the medical charts, which were not in evidence at the trial. The defense objected to the evidence and asked that it be stricken. The trial judge overruled the objection. The plaintiff appealed the issue. What was the likely holding of the court of appeals regarding the nurse’s testimony?

The testimony was not allowed because it was irrelevant and immaterial.
The testimony was based on unauthenticated medical records not entered into evidence; the testimony was inadmissible hearsay, and not based on the witness’ personal knowledge. (Correct answer)
The testimony was based on the nurse’s knowledge regarding the reliability of the medical records and, as such, she was qualified to testify on information from them.
The nurse, as a treating medical provider, was allowed to make inferences from the medical records and therefore the evidence was admissible.

Correct answer: The testimony was based on unauthenticated medical records not entered into evidence; the testimony was inadmissible hearsay, and not based on the witness’ personal knowledge.

A witness must have personal knowledge of a matter to testify about it, as required by Federal Rule of Evidence 602. The nurse's testimony regarding instances she did not personally observe, relying solely on medical charts not admitted into evidence, lacks this foundational personal knowledge. Furthermore, her recounting of the charts' contents, offered to prove the patient's non-compliance, constitutes inadmissible hearsay because the records themselves were not properly introduced under an exception.

Question 119: A deed is delivered to a third-party escrow agent with instructions to deliver it to the buyer upon payment. The seller dies before the buyer pays. The buyer later pays. Title:

Passes to the buyer because delivery to escrow was irrevocable (Correct answer)
Does not pass because the seller was dead at delivery
Fails because escrow requires both parties to be alive
Passes only if the seller's heirs consent

Correct answer: Passes to the buyer because delivery to escrow was irrevocable

Delivery to an escrow agent is irrevocable; death of the grantor after conditional delivery does not defeat the transfer when the condition is met.

Question 120: A state law requires all public school teachers to lead students in a daily moment of silent meditation 'for prayer or reflection.' A parent challenges this law. How should a court rule?

Constitutional as it only mandates silence, not prayer
Constitutional because teachers retain discretion in how they describe the moment
Unconstitutional because it endorses religion under the Establishment Clause (Correct answer)
Unconstitutional only if teachers suggest students pray

Correct answer: Unconstitutional because it endorses religion under the Establishment Clause

In Wallace v. Jaffree, the Supreme Court struck down a similar Alabama law because its legislative history revealed a religious purpose, violating the Establishment Clause.

Question 121: A domestic day worker for a family decided to steal some jewelry that she had been admiring. She came back at night and entered a door that she knew was unlocked. She took several valuable pieces of jewelry that she had seen while performing her job duties. Someone in the house saw her leave with a bag and called the police. The worker was charged with burglary. Is there sufficient evidence to convict on the charge of burglary under the common law definition?

Yes, this is a burglary under the common law because there was a breaking and entry at nighttime with the attempt to commit a misdemeanor therein.
Yes, this crime has all the necessary elements to establish the common law crime of burglary. (Correct answer)
No, common law burglary requires the intent to commit a felony inside, but stealing jewelry is usually a misdemeanor.
No, common law burglary required a breaking, and there was no breaking here.

Correct answer: Yes, this crime has all the necessary elements to establish the common law crime of burglary.

At common law, it was a burglary to break and enter the dwelling of another at nighttime with the intention of committing a felony therein. Here, all the elements were met. The breaking is accomplished by opening the closed door. Force or violence is not required to establish a breaking. The fact that she had authority during the day did not give her authority to enter at night so that it was still a breaking rather than an authorized entry. Stealing valuable jewelry would generally be a felony theft offense and thus the intent to commit a felony is proved under these facts.

Question 122: The manager of a franchise restaurant had authority to deposit the cash earnings in the bank each day. She also had the authority to sign checks under $500 without a co-signature. Over a three-year period she skimmed about $100,000 in cash from the cash deposits and from the checking account by writing cash withdrawals to herself a few times each month. A new management firm took over and audited the books, finding the irregularities. They reported the matter to the police, and after questioning the manager admitted to her skimming of the account. The police had evidence to arrest her for which of the following?

Embezzlement (Correct answer)
Larceny
Burglary
Theft by deception

Correct answer: Embezzlement

This is embezzlement, which is the fraudulent conversion of property of another by one who is already in lawful possession of it. This is distinguished from larceny in that with larceny there is trespassory taking of the property of another with the intent to deprive the owner of it. There is no trespassory taking in embezzlement because the embezzler already had lawful authority over the money when the improper conversion of the money occurred.

Question 123: A married couple own a residential premises. They received a foreclosure action from the first mortgage lender in a state that has judicial foreclosure procedures. The state also statutorily extends the right of redemption both prior to the sale, and for a period of one year after the sale. The sale took place; the property was sold to the lender. The lender then filed a deficiency judgment action. The couple received a loan from family members about six months after the sale. It was sufficient to pay the balance on the mortgage plus interest and costs. The couple notified the lender and the court of their intent to exercise their right of redemption. What is the likely outcome?

The couple will exercise their right of redemption to retain ownership of their property. (Correct answer)
The court ruled that the lender did not have a right to file a deficiency judgment, and it ordered the foreclosure action null and void without the couple having to exercise the right of redemption
The court will order the couple evicted because they should have acted prior to the entry of the deficiency judgment.
A hearing must first be held to determine whether abatement has occurred.

Correct answer: The couple will exercise their right of redemption to retain ownership of their property.

A statutory right of redemption allows a mortgagor to reclaim their property after a foreclosure sale by paying the sale price, plus interest and costs, within a specified statutory period. Since the state provides a one-year post-sale redemption period and the couple secured funds and notified their intent within six months, they are within the statutory timeframe and can successfully exercise their right to redeem the property.

Question 124: A grower based in one state grew and marketed corn nationwide. The U.S. Congress passed a law attempting to stabilize the price of corn by limiting the volume of corn produced by growers to a specified volume per each cubic acre, on a semi-annual basis. The Department of Agriculture fined the grower for exceeding the production volume. He only intended to use the excess for feeding his livestock and domestic purposes, but he was ordered to destroy it. The grower brought an action claiming that his substantive due process rights had been illegally interfered with. He asked for an injunction and reparations. What would be the most likely decision of the court?

The fact that he used the excess corn and did not ship it resulted in no effect on interstate commerce, and the government’s actions would be enjoined as being beyond the power authorized by the Commerce Clause.
No relief was granted because Congress has the power to regulate interstate commerce, and even though he used the excess corn internally, it reduced the feed that he had to buy, thus having an effect on interstate commerce. (Correct answer)
No relief was granted because the Supreme Court has made it clear in numerous cases that the power of Congress to regulate interstate commerce is unlimited and unrestricted.
Relief would be granted because the Commerce Clause does not authorize the regulation of indirect influences on interstate commerce, making this action illegal.

Under the Commerce Clause, Congress has broad power to regulate activities that, even if purely local, substantially affect interstate commerce. In *Wickard v. Filburn*, the Supreme Court held that a farmer's growing of wheat for home consumption, though seemingly local, cumulatively affected the national market price by reducing the amount the farmer would otherwise purchase. Similarly, the grower's internal use of excess corn reduces his need to buy feed, thereby impacting the interstate market for corn and feed, bringing it within Congress's regulatory power.

Question 125: Plaintiff filed a personal injury action against a trucking company whose truck rear-ended the plaintiff's vehicle while he was stopped at a stop light. The plaintiff made timely disclosure to the defendants. After 60 days, the plaintiff did not receive any disclosures from defendants. The defendants’ lawyer did not respond to phone calls and letters from plaintiff’s attorney. The plaintiff filed a motion to compel disclosure and the answers to interrogatories, and asked for monetary sanctions compelling the defendants to pay for plaintiff’s expenses and legal fees. Will the court likely grant the motions, and why or why not?

No, plaintiff must wait 90 days before filing to compel discovery.
Yes, the plaintiff did everything required under the rules, and now is entitled to a court order compelling disclosure and for the imposition of sanctions by having the defendants pay the legal fees for the motion to compel. (Correct answer)
No, the plaintiff forgot to send defendants each a formal notice of intent to enter a motion to compel discovery, and the defendants cannot combine a motion to compel with a motion for sanctions.
Yes, the court will order the disclosures and answers to interrogatories, but it is premature to enter sanctions in the form of legal fees or expenses.

Correct answer: Yes, the plaintiff did everything required under the rules, and now is entitled to a court order compelling disclosure and for the imposition of sanctions by having the defendants pay the legal fees for the motion to compel.

Federal Rule of Civil Procedure 37(a)(5)(A) mandates that if a motion to compel discovery is granted, the court must order the non-disclosing party to pay the movant's reasonable expenses, including attorney's fees, incurred in making the motion. Given the defendants' complete failure to make disclosures or respond to communications for 60 days, the plaintiff is clearly entitled to both an order compelling discovery and the imposition of sanctions for the costs of bringing the motion.

Question 126: After a party where the adults all drank alcohol, with everyone having at least six beers, they started up a game of baseball. The host supplied the bats, balls and gloves. An argument arose at home plate after a controversial call by the umpire, who was inebriated like all of the other participants. The host of the party became enraged at the umpire's decision and hit him in the face, breaking his nose. The umpire pressed charges when he became sober, and the authorities charged the host with criminal battery. At trial, the defense raised the defense of voluntary intoxication, arguing that the host lacked the mentality to form an intent to commit a criminal battery. Will the defense of voluntary intoxication be successful under these facts?

Yes, criminal battery is a specific intent crime to which voluntary intoxication may be asserted as a defense.
No, the host was grossly negligent in allowing a group of drunk men to play a dangerous game of hardball, which precluded him from the benefit of the defense.
Yes, voluntary intoxication is always at least a partial defense to any crime that requires mens rea.
No, criminal battery in this case is a general intent crime and the defense of voluntary intoxication is not available. (Correct answer)

Correct answer: No, criminal battery in this case is a general intent crime and the defense of voluntary intoxication is not available.

Voluntary intoxication is generally a defense only to specific intent crimes, where it can negate the required mental state. Criminal battery is typically a general intent crime, meaning the prosecution only needs to prove the defendant intended the act that caused the harm, not a specific result or purpose beyond that act. Therefore, voluntary intoxication cannot negate the general intent required for battery.

Question 127: An attorney-client communication is protected by privilege. Which of the following would DESTROY the privilege?

The communication is made in the presence of a third party not essential to the representation (Correct answer)
The client later uses a different attorney in the same matter
The client dies after the communication
The attorney takes notes during the consultation

Correct answer: The communication is made in the presence of a third party not essential to the representation

The presence of unnecessary third parties destroys the confidentiality requirement of the attorney-client privilege.

Question 128: A foreman in a slaughterhouse approached three female workers who were taking a proper 15-minute break and accused them of laziness, not doing their jobs, incompetency and taking an unauthorized break. He shouted profanities, various insults and accused them of “breaking the rules.” After a one-minute tirade, he left the area. One of the workers, a 69-year-old woman, became immediately ill, with complaints of chest pains, shortness of breath and anxiety. The employer transported her to a local hospital, where she remained for two days. Although all tests were negative, the doctor diagnosed severe panic attack. Despite no need for further treatment, and an apology from the foreman, she remained upset and stressed. She sued the foreman and the company for one count of intentional infliction of emotional distress, along with other claims. The defendants filed a motion to dismiss the intentional infliction count for failure to state a legal claim. Will the judge grant the motion and dismiss the intentional infliction count preliminarily?

Yes, because a one-minute tirade of obscenities in a work environment is not so extreme and outrageous as to qualify for the intentional infliction of emotional distress tort. (Correct answer)
No, the obscenities and the personal insults were so outrageous and extreme that no reasonable employee could endure the experience.
No, the foreman knew or should have known that his tirade would cause severe emotional distress, so that he acted intentionally.
Yes, because the tort requires a physical touching to accompany the insults and outrageous behavior and no physical contact occurred.

Correct answer: Yes, because a one-minute tirade of obscenities in a work environment is not so extreme and outrageous as to qualify for the intentional infliction of emotional distress tort.

See Howell v. New York Post Co., 81 NY 2d 115, 122 (NY Ct of Appeals 1993) (Liability is found only where the conduct has been so atrocious, outrageous and so extreme as to go beyond all possible bounds of decency, and must be “utterly intolerable in a civilized community”). See Murphy v. American Home Products, 58 N.Y.2d 293, 303, citing Restatement [Second] of Torts § 46, comment d (Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities). See also, Hoffmann-La Roche Inc. v. Zeltwanger, 144 SW 3d 438, 445 (TX Sup.Ct. 2004) (behavior must be so severe and outrageous that no reasonable person could be expected to endure it). The defendant must have intended to inflict emotional distress, and the plaintiff’s reaction must be very severe. The current facts just don’t qualify for that kind of outrageousness. If this type of somewhat common temper tantrum were given actionable status in the workplace, the flood-gates would be opened to an overflow of cases, which is frowned upon by the courts.

Question 129: A regional planning commission ordered a temporary cessation of all construction in a large planned residential development in order to formulate a comprehensive land-use plan, and to study the environmental impact on a large natural lake adjoining the property. After some 24 months the moratorium still existed, and real estate developers sued, alleging that the moratorium constituted a taking of their property without due compensation in violation of the Fifth and Fourteenth Amendments. A lower federal court held a hearing, heard evidence, and ruled that the delay under these facts was not unreasonable and no taking occurred. How would the federal court of appeals most likely decide the issue?

A temporary moratorium denies the developers of all economic use of their land during the cessation, and compensation was payable.
No compensation is ever due when all that is involved is a regulatory intrusion on the use of one’s property.
The temporary cessation was not the same as a total restriction on further development and didn’t ultimately deprive the owners of all economic uses of their property. (Correct answer)
The moratorium was an attempt by the government to appropriate private land for public use during an inordinate period of time, thus requiring compensation.

Correct answer: The temporary cessation was not the same as a total restriction on further development and didn’t ultimately deprive the owners of all economic uses of their property.

A temporary moratorium on development, especially one implemented to study environmental impact and formulate a comprehensive plan, is generally not considered a categorical (per se) regulatory taking requiring compensation. The Supreme Court in *Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency* held that a temporary moratorium does not deprive an owner of all economically beneficial use of their land, as the property retains its value and potential for development once the moratorium is lifted. Therefore, it is analyzed under the *Penn Central* ad hoc balancing test, and such reasonable, temporary moratoria typically do not constitute a taking.

Question 130: A single mother and her two children received welfare benefits, including cash grants, medical assistance and other programs. The state welfare agency sent a letter of notification of cessation of benefits. The letter said that the family was no longer eligible but did not say why. The mother filed an action in federal court asking for an injunction against the state agency for taking their benefits without due process of law. They argued that a pre-termination hearing at the least was necessary under procedural due process requirements. What will be the court’s likely ruling?

The interests of the government in preserving fiscal integrity and budgetary constraints overrides the interest of the recipient in a hearing prior to termination.
The gratuitous nature of welfare benefits does not invoke the necessity of procedural due process rights prior to termination.
The recipient has a right to procedural due process through a pre-termination hearing in which the termination may be contested and evidence presented in rebuttal. (Correct answer)
The recipients could have asked for a hearing after the termination which in this case would be sufficient for procedural due process purposes.

Correct answer: The recipient has a right to procedural due process through a pre-termination hearing in which the termination may be contested and evidence presented in rebuttal.

Welfare benefits are a matter of statutory entitlement, and procedural due process is applicable to their termination. The recipient’s interest in receiving assistance, which provides her with essential food, clothing, housing, and medical care, coupled with the State's interest that her payments not be erroneously terminated, clearly outweighs the State's competing fiscal concerns. The stakes are too high to allow termination of aid without first giving the recipient a chance to know the case against her, to contest it and to produce evidence in rebuttal. See Goldberg v. Kelly - 397 U.S. 254 (1970).

Question 131: A zoning ordinance prohibits all commercial uses in a residential zone, but a property owner has operated a gas station there for 20 years before the ordinance was enacted. The gas station is best described as:

A legal nonconforming use that may continue (Correct answer)
An illegal nonconforming use subject to immediate closure
A variance granted by operation of law
A conditional use permitted by the zoning board

Correct answer: A legal nonconforming use that may continue

A use that was lawful before a zoning ordinance was enacted is a legal nonconforming use and is generally permitted to continue.

Question 132: A bank sues a homeowner in a civil foreclosure action. The homeowner does not respond and a judgment is entered in favor of the bank. Several months later, the bank files to execute on the judgment and set a date for a sheriff's sale. Due to backlogs, the sale will take place in six months, which will be well over one year from the date of entering the judgment. The homeowner hires an attorney on the same day that the request for sheriff's sale is filed by the bank. The attorney immediately files a motion for relief from the Order under Rule 60(b). The homeowner alleges as grounds for relief that the bank committed fraud and used "robo-signing" methods whereby the person allegedly signing the foreclosure papers did not actually sign them, making the judgment void. The defendant objects on the basis that the motion was not filed within a reasonable time. Will the court likely rule that the motion was filed too late?

Yes, because the homeowner never responded to the original complaint in foreclosure.
No, because the allegation of fraud can be considered at any time by the court.
No, because the computation of time shows that the motion for relief was filed under one year from the date of entering the judgment. (Correct answer)
Yes, because the motion for relief from the order was filed over a year after judgment was entered.

Correct answer: No, because the computation of time shows that the motion for relief was filed under one year from the date of entering the judgment.

Federal Rule of Civil Procedure 60(b) allows a party to seek relief from a final judgment. Motions alleging fraud (Rule 60(b)(3)) must be made within a reasonable time, but no later than one year after the entry of judgment. Although the sheriff's sale was set for 'well over one year' from judgment, the homeowner's attorney filed the motion for relief on the same day the bank requested the sale, which the question implies was still within the one-year period for filing such a motion. Therefore, the motion is likely considered timely under Rule 60(b).

Question 133: A contractor was performing re-modeling work for a nursing home. The written contract called for a 30-day project in which several common social areas would be refurbished, including dry wall, insulation, carpeting, and painted, along with minor plumbing and cosmetic improvements, for $50,000. About a week after work started, the nursing home director asked the foreman on the job to put in natural wood paneling over the dry wall, and to reduce the total area to be painted. The director also told the foreman to upgrade certain bathroom fixtures. At the end of the project, the final bill was $72,000. The nursing home’s board refused to pay that amount and tendered the $50,000 contract price, claiming that a contract could not be modified without another writing. At trial, the nursing home objected to testimony from the foreman and the nursing home director on the basis of the parol evidence rule. Do you think that the court would order the nursing home to pay the additional money?

Yes, because a written contract not for the sale of goods can be modified by subsequent oral modification and the parol evidence rule does not apply to modifications made after the written contract is finalized. (Correct answer)
No, because a written contract not for the sale of goods can only be modified by another writing.
No, because oral testimony regarding changes in a written contract not for the sale of goods are in violation of the parol evidence rule.
Yes, because the nursing home director committed fraud when he told the foreman to do work over which the director had no authority.

Correct answer: Yes, because a written contract not for the sale of goods can be modified by subsequent oral modification and the parol evidence rule does not apply to modifications made after the written contract is finalized.

For contracts not involving the sale of goods, a written agreement can generally be modified by a subsequent oral agreement, even if the original contract required modifications to be in writing. The parol evidence rule applies to *prior or contemporaneous* agreements, not to modifications made *after* the written contract is finalized. Therefore, the testimony about the oral modifications made after the initial contract was formed is admissible, and the nursing home will likely be ordered to pay the additional amount for the agreed-upon changes.

Question 134: Buyer and Seller agree on a contract for 200 units, but the written contract mistakenly states 100 units due to a mutual scrivener's error. The appropriate remedy is:

Rescission of the entire contract
Specific performance for 200 units as the oral agreement stated
Reformation to reflect the true agreement of 200 units (Correct answer)
Enforcement of the written term for 100 units only

Correct answer: Reformation to reflect the true agreement of 200 units

Reformation is the proper equitable remedy when a written contract does not reflect the parties' actual agreement due to mutual mistake in drafting.

Question 135: A driver, texting while driving, runs a red light and kills a pedestrian. Which mens rea is most accurately reflected in the driver's conduct?

Purposeful
Reckless (Correct answer)
Knowing
Negligent

Correct answer: Reckless

Recklessness involves conscious disregard of a substantial and unjustifiable risk, which fits deliberate texting while driving.

Question 136: A seller and buyer enter a real estate contract. Before closing, a fire destroys the house. Under the majority rule (equitable conversion):

The loss is split equally between buyer and seller
The buyer bears the loss because equitable title passed at contract execution (Correct answer)
The seller bears the loss and must refund the deposit
The contract is void and both parties are excused

Correct answer: The buyer bears the loss because equitable title passed at contract execution

Under the majority equitable conversion rule, equitable title passes to the buyer upon contract execution, so the buyer bears the risk of loss.

Question 137: Congress passes the 'Balanced Budget Act,' requiring the President to cancel individual spending items after a bill is signed into law. The President uses this power to eliminate a tax break for particular companies. The law is most likely:

Unconstitutional only if the President exercises the power in a discriminatory manner
Constitutional because Congress can delegate authority to modify tax provisions to the President
Unconstitutional because it gives the President a line-item veto power not authorized by Article I's Presentment Clause (Correct answer)
Constitutional as a valid delegation of spending authority to the executive branch

Correct answer: Unconstitutional because it gives the President a line-item veto power not authorized by Article I's Presentment Clause

In Clinton v. City of New York, the Court struck down the Line Item Veto Act because it allowed the President to unilaterally amend or repeal acts of Congress, violating the Presentment Clause procedures.

Question 138: A patient confided to his psychologist that he was having urges to kill his former girlfriend. The psychologist notated those urges in his office notes and called the referring customer, the security department of the patient’s employer, asking them to take care of warning the potential victim and taking any other necessary action. The security department did nothing. The patient continued to repeat the urges in therapy sessions but the psychologist felt assured that his notifying the employer was sufficient protective action. About 30 days after first sharing the homicidal urges, the patient shot and killed his former girlfriend in her parents’ home. The parents sued the psychologist and the security department of the employer for negligence. The psychologist filed a motion to dismiss, alleging no legal duty to the victim and, despite having no duty to her, that he took reasonable steps to warn and protect her. Will the court likely dismiss the case as a matter of law against the psychologist?

Yes, because a therapist has no duty to a third person to take action to protect or warn the person, and she cannot reveal the secrets of the patient by breaking the doctor-patient privilege.
No, because the therapist owes a legal duty to those foreseeable third persons who may be in danger from the patient’s illness; it’s up to the jury to decide whether he took reasonable steps or not.
Yes, because he was absolved from further responsibility after he did take reasonable steps to have her warned. (Correct answer)
No, because the therapist is strictly liable to all persons in the foreseeable range of danger revealed by the patient’s expressions.

Correct answer: Yes, because he was absolved from further responsibility after he did take reasonable steps to have her warned.

Under the *Tarasoff* doctrine, a therapist has a duty to take reasonable steps to protect an identifiable victim when a patient expresses a serious threat of violence. However, this duty is generally discharged once the therapist takes reasonable protective action. In this case, notifying the patient's employer's security department, which was the referring party, could be considered a reasonable step to warn and protect the potential victim, thereby absolving the psychologist of further liability.

Question 139: Alpha Corp. contracts with Beta Corp. for Beta to build a factory by year-end for $1 million. The contract expressly states Alpha's payment obligation is 'conditioned upon Beta completing construction by December 31.' Beta completes on January 5. Alpha refuses to pay. The result is:

Alpha is excused from payment because the express condition was not satisfied (Correct answer)
Alpha must pay but may deduct for the few days' delay
The condition is waived if Alpha knew about the delay
Alpha must pay because late performance was only a minor breach

Correct answer: Alpha is excused from payment because the express condition was not satisfied

An express condition must be strictly satisfied; because Beta failed to complete by December 31, the condition precedent to Alpha's payment duty was not met and Alpha's obligation does not arise.

Question 140: An employee of a retail chain filed a class action against the company alleging wage and hour violations. The complaint alleged that the plaintiff and other salespersons had to make summary reports after they clocked out each day. They had to type up the reports and submit them to their supervisor each day. The suit claimed an average of 15 hours per week of overtime that went uncompensated. The plaintiff sought to represent about 1,000 sales employees who were required to fill out the forms and who did not get paid for the overtime. The employer filed a motion to dismiss the class action, stating that each case was different to some degree, the amount of wages claimed by each employee would differ, and that the plaintiff could not represent the class properly as required by law. Will the court dismiss the case because there are deviations in the facts of some of the cases?

Yes, a class action requires precise uniformity of facts for each member of the class.
No, because the class members can have widely divergent facts and legal issues in their cases, but if they work for the same employer these issues may all be decided at the same time.
No, because the employer's claim is general and can be taken up later; it appears that the cases are all very similar and they all deal with the same challenged policy of the employer. (Correct answer)
Yes, because it would be unmanageable for the plaintiff to represent the interests of 1,000 employees in addition to his own interests.

Correct answer: No, because the employer's claim is general and can be taken up later; it appears that the cases are all very similar and they all deal with the same challenged policy of the employer.

Fed.R.Civ.P. 23(a)(2) requires commonality, i.e., that there are questions of law or fact common to the class. Rule 23(a)(2) does not require identical claims or facts among class members. Chiang v. Veneman, 385 F.3d 256, 265 (3d Cir.2004). For purposes of Rule 23(a)(2), even a single common question will do. Wal-Mart Stores v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2556 180 L.Ed.2d 374 (2011). However, having “widely divergent facts and legal issues” would not serve the efficient administration of justice. Commonality requires the plaintiff to demonstrate that the class members have suffered essentially the same injury. Their claims must depend upon a common contention which must be capable of classwide resolution—which means that determination of its legal validity will resolve an issue that is central to the decision for all claims in one stroke. Dukes, 131 S.Ct. at 2551. Here, the individual employees may have different losses and some divergent facts, but they are all victims of the same employer policy of making them work overtime, fill in forms, and not get paid.

Question 141: A law in one state forbids the transportation or sale of tomatoes in the state that have a more than 10% “genetic engineering factor.” The U.S. Department of Agriculture does not use or mention genetic engineering factors in its standards for the sale and transportation of tomatoes. Tomato growers in a second state wish to ship tomatoes for sale into the first state but its tomatoes are in compliance only with the federal standards. The tomato growers’ association in the second state brought an injunctive action in federal court against the agricultural department of the first state to enjoin enforcement of the genetic engineering rule on the basis of federal preemption. According to U.S. Supreme Court precedent, how will the courts decide the preemption claim?

The first state’s law sets standards that interfere impermissibly with the second state’s law and therefore the first state’s law is preempted.
When it comes to fresh produce, federal laws will always preempt state laws, and the injunction will be granted for that reason.
There is no preemption because the first state’s law does not contradict the federal law and both laws could be complied with simultaneously. (Correct answer)
The injunction will be granted because tomatoes that are in compliance with federal law never have to be approved also under a state law.

Correct answer: There is no preemption because the first state’s law does not contradict the federal law and both laws could be complied with simultaneously.

Federal preemption occurs when federal law overrides state law, but it is not presumed. In this case, there is no express preemption, nor does federal law so thoroughly occupy the field of tomato standards as to imply field preemption. Crucially, the state law does not conflict with the federal standard; a grower can comply with both the state's genetic engineering factor limit and the federal standards simultaneously. Therefore, without a direct conflict or explicit federal intent to preempt, the state law is not preempted.

Question 142: A criminal defendant was convicted of robbery and sentenced to ten years in prison, starting on Jan. 1, 2000. Sec. 204 of the state penal code provided for early release for good behavior, and under that provision he would have been granted supervised release as of Jan. 1, 2007. On Feb. 1, 2006, the state legislature repealed Sec. 204 and passed Sec. 205a. It reduced the good time credits for anyone convicted from that date onward, and also for anyone in prison as of the date of the section’s passage. The new release date was calculated to be Jan. 1, 2009. The criminal defendant brought a habeas corpus action arguing that Sec. 205a was an unenforceable ex post facto law as to him. The state courts turned him down saying that good time credit was a privilege and not a vested right. The case ultimately came before the U.S. Supreme Court. Did the Supreme Court invalidate Sec. 205a as an unconstitutional ex post facto law?

Yes, because it retrospectively increased the punishment over what was in effect when the offense was committed. (Correct answer)
No, the criminal defendant did not have a vested right in the early release date.
Yes, because the legislature does not have the authority to pass a law that decreases good time credits for prisoners.
No, because good time credits were an act of grace that could be taken away at any time.

Correct answer: Yes, because it retrospectively increased the punishment over what was in effect when the offense was committed.

The Ex Post Facto Clause prohibits states from passing laws that retroactively increase the punishment for a crime after it has been committed. By repealing the good time credit provision and reducing credits for existing prisoners, Section 205a effectively increased the defendant's sentence beyond what was in effect at the time of his offense. This retrospective application of a law that disadvantages a criminal defendant by extending their incarceration constitutes an unconstitutional ex post facto law.

Question 143: An elderly married couple were shopping in a large retail super center. The husband fell on a yellow sticky substance resembling floor wax. Wife saw that there was some kind of hazardous condition ahead, but was quickly disoriented by seeing her husband on the floor in pain several yards ahead. She stepped forward onto the substance and immediately fell on her side, breaking her hip. After extensive rehabilitation and complex hip replacement surgery, the wife sued the retailer. The complaint alleged negligence in maintaining the premises. After these and other facts were pinned down in discovery, the store filed a motion for summary judgment, alleging that the wife voluntarily assumed the risk of the dangerous condition by knowing that it was there and voluntarily proceeding into it anyway. Will the store likely win the motion for summary judgment under these facts?

No, the store generally has an absolute duty to keep the floors cleaned and a breach of that duty will result in the imposition of strict liability
No, because the wife found herself in a sudden emergency and she did not have a reasonable time and opportunity to elect intelligently whether to take another step. (Correct answer)
Yes, even taking the facts in the light most favorable to the non-moving party, i.e., the wife, it is clear that there is no dispute that she voluntarily assumed the risk.
Yes, there is no material fact that is under dispute because the wife proceeded to encounter a known danger voluntarily, thereby assuming the risk of injury.

Correct answer: No, because the wife found herself in a sudden emergency and she did not have a reasonable time and opportunity to elect intelligently whether to take another step.

The defense of assumption of risk requires that the plaintiff voluntarily and knowingly encountered a known danger. Here, the wife was confronted with a sudden emergency—her husband's fall—which disoriented her and prevented a reasonable opportunity to assess the risk and make an intelligent choice. The sudden emergency doctrine often negates the voluntariness element of assumption of risk, making it unlikely the store would win summary judgment.

Question 144: A man who works and resides in State A is injured seriously while using a defective lawn mower. The mower was made in State B where the manufacturer has a large manufacturing plant. The manufacturer is incorporated in State C where it has a registered agent and receives lawsuits and service of process. The manufacturer does business in State A but is headquartered, controlled and has its “nerve center” in State D. The man sues the manufacturer in a federal court in State A on a products liability tort claim. The complaint alleges serious and permanent injuries, a permanent disability, and damages in excess of $75,000. Leaving aside any potential questions of venue, is there subject matter jurisdictional authority for the case to be filed in State A and what is the reason for or against it?

No, the plaintiff must sue in state B where the manufacturer has a physical presence.
Yes, there is federal subject matter jurisdiction in State A because the case is brought under the federal laws of products liability.
No, because the man lives in State A and the manufacturer does business there, which defeats diversity jurisdiction.
Yes, there is diversity jurisdiction because the man is domiciled in State A and the manufacturer is incorporated in State C and headquartered in State D, making them citizens of different states. (Correct answer)

Correct answer: Yes, there is diversity jurisdiction because the man is domiciled in State A and the manufacturer is incorporated in State C and headquartered in State D, making them citizens of different states.

A federal court must have at least one of three types of subject matter jurisdiction: (1) under a federal statutory grant; (2) federal question jurisdiction under 28 U.S.C. § 1331; or (3) diversity jurisdiction under 28 U.S.C. § 1332. (1) and (2) do not apply here because this is a state law tort case. Under (3), diversity jurisdiction is where (1) the amount in controversy exceeds $75,000, exclusive of interests and costs, and (2) the parties are citizens of different states. A corporation is a citizen of the state of incorporation and also of the state where it has a principal place of business. 28 U.S.C. § 1332(c)(1). The “principal place of business” is where the corporation's high level officers direct, control, and coordinate its activities, which is often called its `nerve center.' Hertz Corp. v. Friend, 559 U.S. 77, 130 S.Ct. 1181, 1189-90, 175 L.Ed.2d 1029 (2010). Here, the man is domiciled in, and a citizen of, State A where he works and resides. The manufacturer is a citizen of State D, where it has its nerve center and of State C where it is incorporated. Thus, the man and the company are citizens of different states.

Question 145: A federal statute governing food stamp fraud makes it a crime to knowingly acquire or possess food coupons in a manner not authorized by the statute or the regulations. A grocery store owner purchased discounted food stamps from an undercover agent, and was arrested for violating the statute. At trial, the store owner claimed that the government must prove that he had the specific intent to commit a crime. The government contended it only had to show that he knowingly acquired food stamps, and that this was not a specific intent crime. The trial judge adopted the government's interpretation, and the store owner was convicted. His appeal made it all the way to the U.S. Supreme Court. Will the Court likely reverse or affirm the conviction and why?

Conviction reversed, because a store owner is exempt from the statute, which applies only to consumers who use food stamps illegally.
Conviction affirmed, because the modern trend of the law is to recognize criminal liability without mens rea or specific criminal intent.
Conviction reversed, because the better interpretation is that mens rea is included, and the owner must know his conduct is in violation of the criminal laws. (Correct answer)
Conviction affirmed, because the meaning of knowingly does not connote that there must be specific knowledge by the actor that what he is doing is illegal.

Correct answer: Conviction reversed, because the better interpretation is that mens rea is included, and the owner must know his conduct is in violation of the criminal laws.

In federal criminal statutes, particularly those involving complex regulatory schemes, the term 'knowingly' often requires not just knowledge of the facts constituting the offense, but also knowledge that the conduct is unlawful. This is especially true when the statute criminalizes conduct that might otherwise appear innocent. Therefore, the government likely needed to prove the store owner knew his acquisition of discounted food stamps was unauthorized and illegal, not just that he acquired them.

Question 146: A plaintiff introduces the defendant's apology letter stating 'I'm sorry for what happened, it was my fault.' Under FRE 801(d)(2), this is:

Hearsay not subject to any exception
Admissible only for impeachment
Admissible as an opposing party's statement (admission) (Correct answer)
Inadmissible under the subsequent remedial measures rule

Correct answer: Admissible as an opposing party's statement (admission)

Under FRE 801(d)(2), a statement made by the opposing party and offered against that party is defined as non-hearsay.

Question 147: A city school board presented a bond issue to the public for $5 million to modernize some city schools. During the public debate on the proposal, a middle school teacher had published two “letters to the editor” criticizing the “duplicitous” practices of certain school board members in using “backroom politics” to try and get the vote approved. He doubted the need for new expenditures and criticized the superintendent of schools for trying to influence teachers on the issue. After the bond issue passed, the school district brought internal charges against the teacher, and after a hearing he was fired. He brought a state court action claiming an unconstitutional interference with his First Amendment free speech rights. The claim was rejected, and the highest state appellate court upheld the termination. After hearing the case on appeal, will the United States Supreme Court uphold the teacher’s firing?

No, because teachers, as informed citizens, have a constitutional right to speak out on current issues of importance. (Correct answer)
Yes, teachers are civil servants who must refrain from political issues.
No, the teacher’s remarks were void for vagueness and couldn’t be enforced against him.
Yes, because he went too far in criticizing his own employer.

Correct answer: No, because teachers, as informed citizens, have a constitutional right to speak out on current issues of importance.

The Supreme Court has held that the public interest in having free and unhindered debate on matters of public importance—the core value of the Free Speech Clause of the First Amendment—is so great that the speech is protected unless such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity, and there is no suggestion here of the comments being defamatory. See Pickering v. Board of Ed. of Township High School Dist. 205, Will County, 391 US 563 (1968). Additionally, the teacher was acting as a private citizen and not in the course of performing his duties, as distinguished by the Supreme Court's opnion in Garcetti v. Ceballos, 547 U.S. 410 (2006). Thus, the teacher's speech was duly protected by the First Amendment.

Question 148: Two men discussed how to set up a drug network over the phone. The conversation was tape-recorded inadvertently by one of them. The one who did the recording said on the tape that he had already contacted his cocaine sources to ratchet up the pace for starting up the business. The conspiracy continued from that point and became a full-fledged drug trafficking player within a few years thereafter. The two conspirators were arrested for drug dealing and charged with conspiracy about five years after the initial taped conversation. The tape recording was found in the first man’s belongings. The authorities attempted to introduce the tape at the trial of the second man, who had never possessed or seen the tape. The second man objected that the tape was hearsay and should be excluded. Will the court most likely exclude the tape?

Yes, the tape must be excluded because it violated the constitutional right to privacy of the second man.
No, the tape is admissible pursuant to Rule 801(d)(2)(E), it being a non-hearsay statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. (Correct answer)
No, the tape is admissible because it was an adoptive admission against interest.
Yes, the tape must be excluded because it is pure hearsay without any applicable exception.

Correct answer: No, the tape is admissible pursuant to Rule 801(d)(2)(E), it being a non-hearsay statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

Federal Rule of Evidence 801(d)(2)(E) defines a statement by a co-conspirator as non-hearsay if it was made by a co-conspirator of a party during the course and in furtherance of the conspiracy. The statement on the tape, made by the first man about contacting cocaine sources to start the business, clearly meets these criteria as it was made during the formation and furtherance of the drug network conspiracy.

Question 149: Two union representatives got in an argument at work. The male rep told the female rep that he was running for president of the local union in the next election. The female rep told him that she had been planning to run. He told her, while pointing a finger in her face, “I could whip you in an election any time, or I could beat you silly right here and now.” The female rep walked away, feeling very apprehensive about the male rep’s threat. The next day, they discussed union politics again, and the male rep once again stated that he could beat her “by votes or by a horse whipping, whichever you prefer.” She became very upset, and a few days later brought a civil action against him for assault. Has the man likely committed an actionable assault?

No, these were mere political arguments and the kind of heated things that might be said in a political context.
Yes, the male rep made a movement by pointing his finger, and threatening her with offensive imminent contact which she perceived with apprehension. (Correct answer)
No, any apprehension would be of something too far in the future to constitute a true assault.
Yes, the statements of the male rep violated the Fair Labor Standards Act, which allows for civil actions for damages between union members.

Correct answer: Yes, the male rep made a movement by pointing his finger, and threatening her with offensive imminent contact which she perceived with apprehension.

An actionable assault requires an act by the defendant that creates a reasonable apprehension in the plaintiff of immediate harmful or offensive contact. The male representative's actions of pointing his finger in the female representative's face and explicitly threatening to 'beat her silly right here and now' or 'horse whipping' created a reasonable apprehension of imminent offensive contact. This direct threat, coupled with a physical gesture, satisfies the elements of assault.

Question 150: A state law grants a tax exemption to 'charitable and benevolent organizations.' A church claims the exemption. A taxpayer sues, arguing this violates the Establishment Clause. Under Walz v. Tax Commission, the exemption is:

Unconstitutional because it financially benefits religious institutions
Constitutional only if the church spends funds on secular charitable activities
Unconstitutional unless the church can show the exemption is the least restrictive means
Constitutional because it extends to a broad class of nonprofit organizations (Correct answer)

Correct answer: Constitutional because it extends to a broad class of nonprofit organizations

In Walz v. Tax Commission, the Court upheld property tax exemptions for churches because they were part of a broad class of nonprofit charitable organizations, avoiding excessive government entanglement.

Question 151: After receiving Miranda warnings, a suspect under interrogation says, 'I think maybe I need a lawyer or something.' Police continue questioning and the suspect confesses. Under Davis v. United States, the confession is:

Inadmissible because the suspect expressed a desire for counsel before confessing
Admissible because the suspect impliedly waived the right by continuing to speak
Admissible because the invocation of counsel must be unambiguous and unequivocal (Correct answer)
Inadmissible because any reference to a lawyer requires cessation of questioning

Correct answer: Admissible because the invocation of counsel must be unambiguous and unequivocal

Under Davis v. United States (1994), a suspect must unambiguously invoke the right to counsel; an ambiguous or equivocal request does not require police to cease questioning.

Question 152: Plaintiff was injured in an accident on an interstate highway in his county of residence. The accident involved a truck and three cars in addition to plaintiff's car. Plaintiff brought suit in the federal district court in his district pursuant to diversity jurisdiction. He sued the truck driver and the truck owner, who were from another state. He also included a driver of one of the cars who resided in another state, and the driver of another car who resided in the same state as plaintiff. The amount in damages demanded by plaintiff was over $100,000. The truck company filed a motion to dismiss, claiming that plaintiff did not have diversity jurisdiction. Will the district court judge likely dismiss the complaint, and why or why not?

Yes, because there is no federal subject matter jurisdiction, which must also be present in diversity cases.
No, because the plaintiff and most of the defendants are from different states, thus conferring proper diversity jurisdiction.
No, diversity is perfectly proper as long as the amount in controversy is over $75,000 and the plaintiff and at least one defendant are from different states.
Yes, the plaintiff and one of the defendants are from the same state, which destroys federal diversity jurisdiction. (Correct answer)

Correct answer: Yes, the plaintiff and one of the defendants are from the same state, which destroys federal diversity jurisdiction.

Federal diversity jurisdiction requires complete diversity, meaning no plaintiff can be a citizen of the same state as any defendant. In this case, the plaintiff and one of the car drivers are both residents of the same state. This lack of complete diversity, despite the amount in controversy being met and other parties being diverse, destroys federal subject matter jurisdiction, requiring dismissal.

Question 153: A man and woman lived together unmarried for 19 years. He assured her that they would live together as husband and wife but without the restriction of an official marriage license. She relied on those promises when giving up plans for a career in business. She assisted him in many substantial ways over the years as he progressed to becoming a successful neurosurgeon. During the years they displayed all of the trappings of being a married couple. When they split up, he refused to give her anything, saying that it was a meretricious relationship. She sued in state court claiming an interest in his income, profits and property. She claimed an express contract or an implied-in-fact agreement to share the economic wealth that was accumulated. The trial court dismissed, saying there could be no claim if there was no marriage. What is the most likely decision of the appellate court?

The couple had an implied-in-fact contract, in which the woman had relied in good faith to her detriment, and she was entitled to damages. (Correct answer)
This was a meretricious relationship in which the woman had been compensated for her services quite sufficiently over the years, but she had no residual legal claims that could be asserted.
There was a right to collect damages based on the massive, lengthy fraudulent scheme that the man perpetrated to keep her within his consuming web but without any economic benefit.
The rights and benefits claimed by the woman are based on a marital union under state law and there being no official marriage, her claims fail to have legal validity.

Correct answer: The couple had an implied-in-fact contract, in which the woman had relied in good faith to her detriment, and she was entitled to damages.

Many jurisdictions recognize implied-in-fact contracts between unmarried cohabitants who pool resources and efforts with an understanding of shared economic benefit, especially when one party detrimentally relies on the other's promises. Here, the woman's long-term contributions and sacrifice of her career, based on the man's assurances, support the existence of such an agreement to share accumulated wealth. The trial court's dismissal based solely on the lack of a formal marriage is often overturned in modern jurisprudence.

Question 154: A defendant in a criminal trial does not testify. The prosecutor in closing argument comments, 'The defendant chose not to explain away the evidence.' This violates:

The Sixth Amendment Confrontation Clause
The defendant's Fifth Amendment right against self-incrimination (Correct answer)
The defendant's Eighth Amendment rights
The Fourth Amendment protection against unreasonable searches

Correct answer: The defendant's Fifth Amendment right against self-incrimination

The Fifth Amendment, along with FRE 513 and Griffin v. California, prohibits adverse comment on a criminal defendant's failure to testify.

Question 155: A law in one state forbids the transportation or sale of tomatoes in the state that have a more than 10% “genetic engineering factor.” The U.S. Department of Agriculture does not use or mention genetic engineering factors in its standards for the sale and transportation of tomatoes. Tomato growers in a second state wish to ship tomatoes for sale into the first state but its tomatoes are in compliance only with the federal standards. The tomato growers’ association in the second state brought an injunctive action in federal court against the agricultural department of the first state to enjoin enforcement of the genetic engineering rule on the basis of federal preemption. According to U.S. Supreme Court precedent, how will the courts decide the preemption claim?

There is no preemption because the first state’s law does not contradict the federal law and both laws could be complied with simultaneously. (Correct answer)
The injunction will be granted because tomatoes that are in compliance with federal law never have to be approved also under a state law.
When it comes to fresh produce, federal laws will always preempt state laws, and the injunction will be granted for that reason.
The first state’s law sets standards that interfere impermissibly with the second state’s law and therefore the first state’s law is preempted.

Correct answer: There is no preemption because the first state’s law does not contradict the federal law and both laws could be complied with simultaneously.

The Supremacy clause (Article VI, clause 2) of the United States Constitution, declares the supremacy of federal laws over state laws that contradict them. The first state’s law did not contradict or frustrate the purpose of the federal law and was not preempted by it. There was no direct conflict between the federal and state statutes because it was possible to comply with both standards simultaneously. Furthermore, the federal law did not clearly set up an exclusive framework that excluded the genetic subject matter. There is a place for state consumer protection in a federal system. See Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963).

Question 156: A man died in a hospital of a fatal, highly contagious disease. A hospital clerk neglected the set protocol of marking the body with warnings that there was a communicable disease involved. The funeral director embalmed the body without taking extra precautions, which caused him to have a great deal of contact with the corpse’s blood and fluids. When he found out about the disease, he sued the hospital for damages, including severe emotional distress. Which of the following is the most likely tort theory that the plaintiff can successfully assert against the hospital?

The hospital committed an assault against him by intentionally causing him to suffer an offensive touching from a corpse with a highly contagious disease.
The hospital committed a battery of his person by remaining silent and intentionally causing him to suffer an offensive contact from a corpse with a highly contagious disease.
The hospital was negligent and breached its duty to notify those who could suffer harm that the body was infected with a highly contagious disease. (Correct answer)
The hospital committed the tort of intentional infliction of emotional distress by recklessly releasing the corpse to an unsuspecting funeral home.

Correct answer: The hospital was negligent and breached its duty to notify those who could suffer harm that the body was infected with a highly contagious disease.

The hospital had a clear duty to exercise reasonable care by following established protocols to mark the body with warnings about the highly contagious disease. Its clerk's failure to do so constituted a breach of this duty. This breach directly caused the foreseeable harm to the funeral director, who, unaware of the risk, proceeded with embalming without precautions, leading to contact with infected fluids and subsequent emotional distress. This scenario perfectly aligns with the elements of a negligence claim.

Question 157: A defendant seeks to suppress evidence presented to a federal grand jury on the grounds that it was obtained through an illegal search. Under United States v. Calandra, this challenge will:

Succeed because the exclusionary rule applies in all proceedings
Succeed if the illegally obtained evidence was essential to the indictment
Fail only if the grand jury also had independent lawful evidence of probable cause
Fail because the exclusionary rule does not apply to grand jury proceedings (Correct answer)

Correct answer: Fail because the exclusionary rule does not apply to grand jury proceedings

United States v. Calandra (1974) held that the exclusionary rule does not apply to grand jury proceedings; a grand juror may not refuse to answer questions or a grand jury may not be precluded from using illegally obtained evidence.

Question 158: A candy manufacturer used pre-printed purchase order forms to purchase separate orders of baking sugar from a supplier. The supplier responded to each order by sending the shipment along with its own printed form confirming the shipment and the terms. According to the manufacturer, the last shipment contained spoiled sugar. The manufacturer filed a complaint in state court alleging breach of contract and damages. The supplier filed a motion to have the dispute transferred to arbitration. The manufacturer’s purchase order forms were silent as to the mode of settling disputes, but the supplier’s form contained a clause calling for “any controversy or claim” to be settled by arbitration. The manufacturer was silent as to the arbitration clause. What is the likely decision of the court?

The case must be transferred to arbitration because the additional term did not materially alter the offer and therefore became incorporated into the contract.
The case must be transferred to arbitration because a clause in the acceptance form always becomes a part of the contract if the offeror does not reject it.
The clause did not automatically become a part of the contract because it materially altered the offer, thus there is no transfer to arbitration. (Correct answer)
The clause did not become a part of the contract because the offer in this case expressly limited acceptance to the strict terms of the offer, and thus there is no transfer to arbitration.

Correct answer: The clause did not automatically become a part of the contract because it materially altered the offer, thus there is no transfer to arbitration.

Under UCC § 2-207, an additional term in an acceptance between merchants becomes part of the contract unless it materially alters the offer. An arbitration clause is generally considered a material alteration because it significantly impacts the parties' rights and remedies by changing the forum for dispute resolution. Therefore, the arbitration clause did not automatically become part of the contract without the manufacturer's express assent, and the case will not be transferred to arbitration.

Question 159: After his home theater ignited a devastating fire that destroyed the equipment and a portion of his home, the owner filed a lawsuit against the maker of video and home theater products. He filed a federal lawsuit against the manufacturer. The plaintiff's expert's report and testimony were challenged at trial by the defendants in a motion made according to Federal Rule of Evidence. 702. The defendants assert bias, a lack of scientific backing, a lack of testing, differences in expert opinions, and the fact that the expert was prepared to deal with big commercial fires. Over 500 fires had been investigated by the expert, who also published a book that was used in classrooms across the country and instructed a course in forensic fire investigations at a university. Her report ruled out every other scenario. As required by Rule 702, the court conducted a gate-keeping review and determined that the expert was highly competent and that she had followed recognized scientific procedures to form her conclusion. The verdict was appealed by the defendants. Given these circumstances, is the appellate court likely to disagree with the judgment?

Yes, because the charge of bias against an expert witness requires a "trial within a trial" and that was not done.
No, the court has absolute discretion in deciding the competency of the expert for purposes of giving expert trial testimony and evidence.
No, the court did the required gate-keeping inquiry and found that the witness was not only qualified and competent, but also used the accepted methodologies. (Correct answer)
Yes, because whenever the expert does not back up her conclusion with experimental testing, an expert's opinion will be insufficiently reliable to be allowed.

Correct answer: No, the court did the required gate-keeping inquiry and found that the witness was not only qualified and competent, but also used the accepted methodologies.

Explanation: Check out Westfield Ins. Co. v. J.C. In Penney Corp., 466 F.Supp.2d 1086, 1094 (W.D.Wis. 2006), the court rejected a challenge to the opinion testimony of the fire investigator based on the investigator's failure to conduct tests. CNH Am., LLC v. Shuck, 498 F.3d 868, 875 n. Additionally, critiques of methodology are typically best addressed during cross-examination at trial. 3 (8th Cir.2007) (clarifying that there is no rule requiring that expert opinions in fire cases always must be backed by testing). (Dist. Court, D. N.H. 2013) (Civil No. 11-cv-430-JL, Opinion No. 2013 DNH 061) See MMG Insurance Company v. Samsung Electronics America, Inc. 671 F. Meyers Builders, Inc. Supp. 2009 Dist. Ct. N.H. 2d 262).

Question 160: A landlord leases an apartment to a tenant for one year. Mid-lease, the landlord sells the building. The new owner refuses to honor the lease. What is the tenant's best claim?

The lease binds the new owner because it runs with the land (Correct answer)
The tenant must vacate but can recover a security deposit
The tenant may sue the original landlord for breach of contract only
The lease terminates automatically upon sale

Correct answer: The lease binds the new owner because it runs with the land

A lease is a conveyance of a property interest that runs with the land and binds subsequent purchasers who take with notice.

Question 161: A foreign visitor who had abducted a young child was on trial. The prosecutor claimed that the visitor personally knew the youngster, which is why the child accompanied him, and that the offender was aware that the child's parents were wealthy. A witness was produced by the prosecution to attest that the offender informed him, "I am looking forward to visiting with the boy and his parents. The suggested testimony was rejected by the defense because of the couple's gorgeously opulent home. Will the court probably uphold the protest?

Yes, the statement is irrelevant to the issue of guilt or innocence.
No, the statement can come in as impeachment if the accused takes the stand, and as a party admission to show the material facts of knowing the child and that the family had money. (Correct answer)
Yes, the prejudice of the statement will greatly outweigh its probative value.
No, the statement is admissible to impeach the accused and establish he is lying on cross, if he takes the stand.

Correct answer: No, the statement can come in as impeachment if the accused takes the stand, and as a party admission to show the material facts of knowing the child and that the family had money.

Explanation: Fed.R.Evid. An opposing party's out-of-court comment is considered non-hearsay under 801(d)(2)(A) and (B). All of the aforementioned purposes are relevant to the case and proper uses of a party admission, and impeachment is permitted for important problems of the case. Because the offender made the claim, it is not hearsay because it is a party's admission. Fed. R. Evid. Out-of-court statements are admissible according to 801(d)(2) if they are used against the person who made them. FED. R. EVID is cited. 801(d)(2)(A) (accepting remarks made by a party against the other party as admissible); see also Rodriguez v. Modern Handling Equip. 604. of NJ, Inc. Supp. 2d 612, 622 (S.D.N.Y. 2009) (statements made by the plaintiff in the complaint regarding an OSHA report are admissible under 801(d)(2)(B)).

Question 162: A man was arrested on a federal crime that prohibits a person who has a prior felony conviction from possessing a firearm. The prosecution is usually satisfied to prove the existence of a prior felony by reading the date and the offense to the jury. Despite objections from the defense, the prosecutor insisted, with the court’s approval, on putting the full details of the man’s prior conviction for sexual assault on the record by reading the indictment and other pertinent details. The man had offered to stipulate to the date and penalty of the offense, and to have the prosecution read that to the jury and nothing else. The prosecution went ahead and read to the jury all of the details of the prior sexual assault conviction. The jury convicted him of the firearm possession charge after deliberating for 30 minutes. On appeal, he objected again to the unfair prejudice that he suffered by the court’s ruling. Considering the case law interpretations of Rule 403 of the Federal Rules of Evidence, what is the most likely outcome.

A new trial will be ordered because evidence of sexual offenses is never admissible lest it taint the jury’s objectivity.
A new trial will be ordered because it was unfair to allow the prosecution to use that kind of detailed character evidence to try and inflame the jury to convict on the current charges. (Correct answer)
The appeal will be denied because in this case proving the charged crime involved the necessity of proving the details of the prior felony.
The appeal will be denied on the basis that the prosecution is always entitled to introduce the details of the man’s prior conviction.

Correct answer: A new trial will be ordered because it was unfair to allow the prosecution to use that kind of detailed character evidence to try and inflame the jury to convict on the current charges.

Under Federal Rule of Evidence 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. While the *fact* of a prior felony is an element of the felon-in-possession charge, the detailed nature of a prior sexual assault conviction is highly inflammatory and has minimal probative value beyond establishing the 'felony' element. When a defendant offers to stipulate to the fact of the prior felony, courts generally find that introducing the full, prejudicial details is unfairly prejudicial and warrants a new trial, as established in *Old Chief v. United States*. The prosecution is not always entitled to introduce such details (options A and B are wrong), and the issue is the prejudicial effect of the *details*, not a blanket inadmissibility of all sexual offense evidence (option D is wrong).

Question 163: A lessor leased real estate with a gas station business on it to a lessee for two-year terms that were renewable every two years until the tenth year. The property was described as being “located at 1900 Superpower Highway, fronting on the highway 100 feet and extending in depth of equal width 150 feet, as described in Deed Vol. 22, Page 10, with the privilege of using additional adjoining grounds for the general use of the business and the parking of customer's cars.” The lessor granted an option to purchase the “demised premises” at the “current market value at the end of the final term.” The lessee exercised the option (for property at Deed Vol. 22, Page 10) as provided, but the lessor refused to perform. Lessee brought an action for specific performance, to which the lessor responded that the price was indefinite and subject to debate, and that it was unclear if the option included the “additional adjoining grounds,” making specific performance unavailable. Will the court grant the complaint for specific performance and order that the plaintiff’s exercise of the option be enforced?

Yes, because specific performance applies to a right to enforce the option, and the precise terms of the option can be ironed out by the court through the taking of testimony and hearing evidence.
No, because it is impossible to determine if the option includes the adjoining lands; furthermore, current market value is an ambiguous term subject to debate by experts.
Yes, because the land is specifically described at the deed reference, and the “market value” at a specified time is held by courts to be a sufficiently precise description of price. (Correct answer)
No, because it could not be determined whether “current market value” meant the value at the entering of the lease or the value at the end of the lease.

For specific performance, contract terms must be sufficiently definite. Here, the property is clearly identified by a specific deed reference. Courts generally hold that 'current market value' at a specified future time is a sufficiently precise description of price, as it can be objectively determined through appraisal or expert testimony. The 'additional adjoining grounds' are described as for the general use of the business and parking, implying they are appurtenant to the demised premises and thus included in the option.

Question 164: A state’s voters approved an amendment to the state’s constitution that prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to recognize gay and lesbian individuals as a protected class. The state’s highest court ruled that the measure could not pass strict scrutiny, and was a denial of equal protection for gays and lesbians. The proponents of the act appealed to the U.S. Supreme Court. What will the Court decide with respect to the validity of the law?

The law was passed by a referendum majority vote of the people of the state and is thus constitutional and valid under state law.
The law is an appropriate measure because it merely denies preferential treatment to homosexuals and has no substantive effect on them.
The law is unconstitutional because it was not appropriately ratified by the executive and judicial branches of the government.
The law is unconstitutional because it lacks a rational relation to any legitimate government purpose and the denial of the right to seek protection is unprecedented in our jurisprudence. (Correct answer)

The Supreme Court has held that state laws singling out a group for disfavored legal status, without a legitimate governmental purpose, violate the Equal Protection Clause. This amendment, which prevents any governmental action to protect gay and lesbian individuals, is not rationally related to any legitimate state interest. It imposes a special disability upon a class of persons, which is unconstitutional.

Question 165: Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted". In a criminal trial, the prosecution wanted to prove that the defendant lived with his wife at a specified address. During a police search of the premises, the wife stated to officers that the defendant would “never come home while the police are still here.” The prosecution offered that statement into evidence at trial to prove that the defendant lived at that address. The defendant objected to admission of the statement because it was hearsay. Will the court exclude the statement under the hearsay rule?

No , the statement is not hearsay in that it was not offered in order to prove the truth of the assertion. (Correct answer)
Yes, it is excludable hearsay because it was offered to prove the truth of the assertion.
No, the court will permit it because it is an excited utterance exception to the hearsay rule.
Yes, it will be excluded because its prejudicial effect outweighs its probative value.

Correct answer: No , the statement is not hearsay in that it was not offered in order to prove the truth of the assertion.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. In this case, the wife's statement is not offered to prove that the defendant would *never come home* while police were present. Instead, it is offered as circumstantial evidence to infer that the defendant *lived* at the address, as only someone residing there would likely make such a statement about their home. Since the statement is not offered for its truth, it falls outside the definition of hearsay and is admissible.

Question 166: A husband applied for a life insurance policy for $50,000 on his life, listing his wife as the beneficiary. He paid the insurance company an initial amount of $100 at the time of submitting the application. The agent accepted the down payment, which represented two months of the premium payment. In exchange for this payment, the agent gave the husband a "conditional receipt." A few days later the husband died in an auto accident. The wife as beneficiary demanded payment despite the fact that the insurance company had not officially issued a policy and the husband had not taken a required medical examination required in the wording of the application. The company denied liability, asserting that certain conditions contained in the application and in the conditional receipt (namely the taking of the medical examination) had not been fulfilled by the applicant. The insurer claimed that the condition precedent (the medical examination) was never performed and the contract was not formed. What is the most likely decision of the court?

The conditional receipt stood as the temporary formation of a contract of insurance until the company made a final decision on whether to issue a policy. (Correct answer)
No contract of insurance exists until the insurer is satisfied as to an applicant's acceptability.
There is no such thing as a temporary insurance contract – nothing can exist until the condition precedent is performed.
A contract existed because public policy forbids the requirement of a medical examination for simple term insurance policies under the face amount of $100,000.

Correct answer: The conditional receipt stood as the temporary formation of a contract of insurance until the company made a final decision on whether to issue a policy.

A conditional receipt in life insurance often provides temporary coverage from the date of application, provided the initial premium is paid. This protects the applicant during the underwriting process, even if certain conditions like a medical examination are pending. Courts interpret these receipts to create a temporary contract of insurance, ensuring the insurer does not collect premiums without providing some form of immediate coverage, unless the applicant was clearly uninsurable at the time of application.

Question 167: A group of neighbors sued an industrial plant under the provisions of the federal Clean Water Act for discharging mercury and other poisons into a river near their properties. The group asked for an injunction and civil penalties to stop the discharges. The discharges were tested and exceeded the maximum amounts of several pollutants allowable under federal regulations. After the suit was filed, the industrial plant ceased the polluting activities and was able to get its discharges into compliance, and obtained a renewal of its permit. The company then asserted that the lawsuit was moot. What was the likely decision of the federal court?

The case was moot because there was no longer a “case or controversy” before the court.
The case was not moot because there was always the possibility that the defendant could return to its old ways without a judicial determination. (Correct answer)
The case was not moot because the propriety of granting them a new permit had to be reviewed by the court.
The case was moot because there was no activity that could be enjoined anymore.

Correct answer: The case was not moot because there was always the possibility that the defendant could return to its old ways without a judicial determination.

A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. In this case that possibility of a resumption of illegal activities still existed. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (1999).

Question 168: A plaintiff in a diversity case in federal court seeks to introduce a contract under a state's parol evidence rule to exclude prior oral negotiations. The defendant argues the federal rules of evidence control. Which rule applies?

Federal Rules of Evidence, because federal procedural rules govern in federal court
Federal Rules of Evidence, because they supersede state evidence rules in all cases
State parol evidence rule, only if both parties are from the same state
State parol evidence rule, because it is substantive under Erie and affects outcome (Correct answer)

Correct answer: State parol evidence rule, because it is substantive under Erie and affects outcome

Under the Erie doctrine, federal courts sitting in diversity apply state substantive law; the parol evidence rule is generally treated as substantive because it affects parties' rights under the contract.

Question 169: The police were at the scene of an accident, assisting injured victims and clearing traffic. One car stopped in traffic was creating a distraction by blasting rap music. A police officer told the driver to turn it down, which he did. While explaining this, the officer spotted a handgun next to the driver on the seat. State law allowed the carrying of a concealed or unconcealed weapon. The officer ordered him out of the car for safety concerns. The officer drew her gun and pointed it at him as he got out, threatening to shoot him if he was not compliant. Other officers approached with weapons drawn. The driver was put on the ground and handcuffed. Drugs were found inside the car and he was charged with drug possession. He filed a motion to suppress, claiming a Fourth Amendment violation. What is the most likely decision of the court?

The officer in effect overreacted to the initial purpose of the stop, and initiated an arrest procedure without probable cause to do so, and thus the drugs will be suppressed. (Correct answer)
The driver was acting erratically by blasting music in the middle of an auto accident investigation, and when a gun was spotted this justified a custodial interrogation and a search of the car.
The officer had a right to separate the driver from the gun, and the ensuing procedures and search were reasonably calculated to protect the officers and the other motorists.
The drugs will be suppressed because the officer had no right to order the driver out of the car simply because a legal weapon was observed on the seat.

Correct answer: The officer in effect overreacted to the initial purpose of the stop, and initiated an arrest procedure without probable cause to do so, and thus the drugs will be suppressed.

While an officer may order a driver out of a vehicle during a lawful traffic stop, the mere observation of a legally carried weapon does not, by itself, establish probable cause for arrest. The officer's immediate escalation to drawing guns, threatening to shoot, handcuffing, and placing the driver on the ground constituted an arrest. Without probable cause for an arrest at that point, the subsequent search of the car and discovery of drugs were unlawful under the Fourth Amendment, leading to suppression of the evidence.

Question 170: A bystander who witnessed a car accident immediately blurts out, 'That red car ran the light!' This statement is admissible as non-hearsay because it qualifies as:

A present sense impression under FRE 803(1) (Correct answer)
A statement of then-existing mental or emotional condition
A dying declaration
An excited utterance under FRE 803(2)

Correct answer: A present sense impression under FRE 803(1)

A present sense impression is a statement made while or immediately after perceiving an event, admissible under FRE 803(1).

Question 171: A witness on the stand testifies to facts she personally observed. On cross-examination, opposing counsel asks about a prior inconsistent statement the witness made to police. This is permissible because:

Cross-examination may attack credibility by showing inconsistency (Correct answer)
Prior statements are always admissible as substantive evidence
The statement becomes a business record exception
Witnesses waive all privileges once they testify

Correct answer: Cross-examination may attack credibility by showing inconsistency

A prior inconsistent statement is a classic tool for impeaching a witness's credibility on cross-examination under FRE 613.

Question 172: A group of women employed by a state government recently sued the state under Title VII of the Civil Rights Act of 1964, on the basis of allowing the creation of a hostile work environment against them. An amendment to that act extends coverage to the states as employers. The federal district court allowed an injunction to prevent further discrimination but refused to allow money damages and legal fees against the state on the basis of 11th Amendment sovereign immunity. The plaintiffs appealed. What should the Court of Appeals decide based on the established jurisprudence regarding sovereign immunity?

There is sovereign immunity under the Supremacy Clause and it would take a new constitutional amendment to abrogate the immunity granted to the states.
There is sovereign immunity that protects a state from any lawsuit by private citizens that the state does not authorize.
There is no sovereign immunity where the federal law provides a remedy to women in a civil rights law intended to apply the Fourteenth Amendment enforcement rights against the states. (Correct answer)
There is no sovereign immunity due to the First Amendment rights of the women to protest against discrimination.

Correct answer: There is no sovereign immunity where the federal law provides a remedy to women in a civil rights law intended to apply the Fourteenth Amendment enforcement rights against the states.

Congress can abrogate state sovereign immunity under the Eleventh Amendment when it acts pursuant to its enforcement powers under Section 5 of the Fourteenth Amendment. Title VII, as amended to apply to states, is considered valid Fourteenth Amendment legislation designed to prevent discrimination. Therefore, states can be sued for money damages under Title VII, as established by Supreme Court precedent in cases like *Fitzpatrick v. Bitzer*, overriding sovereign immunity.

Question 173: A plaintiff wins at trial and is awarded damages. The defendant files a notice of appeal. To prevent enforcement of the judgment during the appeal, what must the defendant typically do?

File an automatic stay request with the trial court
File the appeal within 14 days of the judgment
Post a supersedeas bond in the amount of the judgment (Correct answer)
Demonstrate a likelihood of success on the merits

Correct answer: Post a supersedeas bond in the amount of the judgment

Under FRCP 62(b), a party may obtain a stay of judgment enforcement pending appeal by posting a supersedeas bond, typically in the amount of the judgment plus anticipated costs.

Question 174: A state passed a statute that prevents the sale of violent video games to minors. The act prohibits video games being sold or rented to minors where the player may have a choice of killing, maiming, dismembering or sexually assaulting an image of a human being in a manner that appeals to a deviant or morbid interest of minors and offends prevailing community standards of what is suitable for minors. The Petitioners, representing various interests of the video game industry, brought an action in federal court to have the statute declared unconstitutional. The video game industry has a voluntary rating system (like the one relating to movies) to assist parents. The state did not present evidence showing a connection between violent videos and violence in children. Based on U.S. Supreme Court precedence, what is the most likely decision of the federal court?

The statute is constitutional because the restrictions are obviously going to reduce the crime rate among minors.
The statute is unconstitutional because minors have unlimited rights under the First Amendment.
The statute is unconstitutional because it is does not meet a compelling state interest that would allow for restrictions on free speech. (Correct answer)
The statute is constitutional because it meets a compelling government interest and it is drawn narrowly to fit very specific dangers.

Correct answer: The statute is unconstitutional because it is does not meet a compelling state interest that would allow for restrictions on free speech.

See Brown v. Entertainment Merchants Ass'n, 131 S. Ct. 2729 (2011), pertaining to a very similar state statute. The Court held that minors have a “significant measure” of First Amendment rights, including the right to view video games. In addition, the First Amendment’s protections don’t vary when a new and different medium for communication appears. Id. at 2733. Free speech about violence is not obscenity, and it is obscenity that the Constitution permits to be regulated. Id. at 2735. The statute here might make more sense if the state could prove a connection between violent video games and violence in minors, but it has not done so. The industry’s rating system does give protection to minors and parents. The state has not proved the compelling governmental interest and the statute does not pass strict scrutiny. Id. at 2737.

Question 175: A defendant is charged with solicitation for asking a hitman to murder his business partner. The hitman refuses. Under the majority rule, is solicitation complete?

No, because no agreement was reached
Yes, only if the defendant paid or promised payment
No, because the hitman refused
Yes, because solicitation is complete upon the asking, regardless of the response (Correct answer)

Correct answer: Yes, because solicitation is complete upon the asking, regardless of the response

Solicitation is complete as soon as the defendant requests or encourages another to commit a crime, regardless of whether the other person agrees or acts.

Question 176: A police officer testifies that he arrested defendant based on information from a reliable informant. The defendant seeks to compel disclosure of the informant's identity. The government invokes the informer's privilege. The court will:

Always require disclosure to protect the defendant's rights
Allow the jury to decide if disclosure is necessary
Balance the public interest in protecting informants against the defendant's need for disclosure (Correct answer)
Never require disclosure of a confidential informant

Correct answer: Balance the public interest in protecting informants against the defendant's need for disclosure

Courts balance the government's interest in protecting informant identities against the defendant's need to prepare a defense, sometimes allowing in camera review.

Question 177: A non-profit organization sued a newspaper publisher in a federal district court for defamation. The paper had run an investigative article claiming the group was a cult that conducted strange rituals and used mind control. The group asked for a protective order pertaining to the publisher's broad discovery requests. It requested an order preventing the newspaper from publishing highly private material about its members and outside contributors, including their financial affairs, obtained during discovery. It asserted the right of religious freedom and of association. It had tried to settle the matter with the paper but failed. In an earlier hearing, the magistrate judge had fashioned a similar protective order but deferred its activation. The paper claimed the right of First Amendment free speech. The trial court issued an order of protection prohibiting publication of the materials, but not if they were discovered later by other independent sources. Did the U.S. Court of Appeals likely uphold the trial court's order?

No, because whenever the First Amendment is involved, the information received may be published by a newspaper that has obtained the information legally.
No, because the interests of the public outweighed the danger to the members and others.
Yes, because the district court judge was bound by res judicata to adopt the finding of the magistrate judge.
Yes, because there was already a finding of potential oppression, and the Rules give the trial court wide discretion to fashion an order to protect privacy and religious freedom. (Correct answer)

Correct answer: Yes, because there was already a finding of potential oppression, and the Rules give the trial court wide discretion to fashion an order to protect privacy and religious freedom.

See Seattle Times Co. v. Rhinehart, 467 US 20 - Supreme Court 1984. Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required. There was a prior finding of potential oppression. The appellate court will affirm the protective order where, as in this case, a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.

Question 178: The police interrogated a suspect regarding a series of burglaries. The suspect had attention deficit disorder, dyslexia and an IQ of 72. Prior to beginning they read a list of Miranda rights to him on a form that the suspect had in front of him. After the reading, he initialed each paragraph indicating he understood. At the bottom of the form was an express written waiver of the Miranda rights, which he signed. He had been interrogated in the past and was familiar with the procedure. During the four hours of interrogation he was given bathroom breaks, coffee, and a sandwich. At the end of the process, he made a logical and seemingly cogent confession to all of the burglaries in a taped statement. The defendant later moved to suppress the confession, arguing that he was coming down from drugs at the time and was intellectually unable to understand and comprehend the nature of the warnings or the waiver. What is the most likely decision of the court under the totality of the circumstances?

There are too many questionable deficiencies in the suspect’s ability to understand what was going on and the confession must be suppressed.
He was too confused to understand what was going on and the confession was coerced by the persistence of the police.
The outward signs all indicate that the suspect understood the procedure and gave a voluntary confession despite his disabilities. (Correct answer)
The signing of a written waiver of Miranda rights is always proof that the suspect gave a voluntary confession.

Correct answer: The outward signs all indicate that the suspect understood the procedure and gave a voluntary confession despite his disabilities.

The court evaluates Miranda waivers and confessions based on the totality of the circumstances, considering both the suspect's individual characteristics and the conduct of the police. Despite the suspect's intellectual disabilities and claim of drug withdrawal, the facts indicate he understood his rights and voluntarily confessed. Factors like his familiarity with the process, initialing and signing the waiver, receiving breaks, and providing a "logical and seemingly cogent" confession outweigh his asserted deficiencies, suggesting the waiver was knowing and intelligent.

Question 179: A defendant charged with sexual assault seeks to introduce evidence of the victim's prior sexual conduct. Under FRE 412 (Rape Shield), this evidence is:

Generally admissible to show the victim's credibility
Admissible only if the defendant testifies first
Admissible if older than one year
Generally inadmissible, with narrow exceptions (Correct answer)

Correct answer: Generally inadmissible, with narrow exceptions

FRE 412 (the rape shield law) generally bars evidence of a victim's other sexual behavior or predisposition, with narrow exceptions.

Question 180: A woman conveyed by deed her farm to her nephew, for the nephew’s life. The nephew died prior to his aunt. The deed was silent on what happens on the nephew’s death. The nephew’s heirs tried to assert control and ownership of the property. The aunt sued them to assert her claimed superior interest in the property. Will the court return the property to the aunt?

Yes, because the life estate terminated on the nephew’s death and title reverted back to the aunt. (Correct answer)
No, because the nephew’s fee simple interest passed to his heirs upon his death.
No, because the nephew’s life estate was transferred to his heirs upon his death.
Yes, because the nephew’s death prior to the aunt created a unexpected condition subsequent.

Correct answer: Yes, because the life estate terminated on the nephew’s death and title reverted back to the aunt.

A life estate is an interest in property that lasts for the duration of a named person's life. Upon the death of the measuring life, the life estate automatically terminates. Since the deed was silent on what happens next, the property reverts to the original grantor (the aunt), as she retained a reversionary interest in the property.

Question 181: A plaintiff sues for private nuisance after her neighbor operates a pig farm causing foul odors. The neighbor argues the farm was there before the plaintiff moved in. Which defense is this?

Assumption of the risk
Consent
Contributory negligence
Coming to the nuisance (Correct answer)

Correct answer: Coming to the nuisance

The 'coming to the nuisance' defense asserts that plaintiff moved near a pre-existing condition; most courts treat it as a factor, not a complete defense.

Question 182: Several casinos located in a state where gambling was legal placed advertisements about hotel prices and casino activities in newspapers in neighboring states that did not allow casino gambling. One of those states had a statute that prohibited advertising of casino gambling in any form or manner. A casino sued the state claiming an abridgement of First Amendment rights to free speech. The state responded that the rights of commercial speech were highly restricted and could not be used to advertise something that is illegal in the state. What would be the likely decision of the federal court regarding the statute’s constitutionality?

It is constitutional to prohibit advertising of a business’ products in a state where such products are illegal.
It is constitutional because there is no right to free commercial speech.
It is unconstitutional to bar the advertising of information about an activity that is legal in the originating state. (Correct answer)
It is unconstitutional to regulate any commercial speech as such would deny the business its substantive due process rights.

Correct answer: It is unconstitutional to bar the advertising of information about an activity that is legal in the originating state.

Commercial advertising enjoys a degree of First Amendment protection. The ads conveyed information of potential interest and value to a diverse audience -- not only to readers interested in the services offered, but also to those with a general curiosity about, or genuine interest in, the subject matter or the law of another State, and to readers seeking change of the law in the state where the ad was published. Bigelow v. Virginia - 421 U.S. 809 (1975).

Question 183: A manufacturer of widgets sent a letter to an international widget retailer offering to sell ten truckloads of construction-quality widgets for $1,000 per truck. The retailer emailed a note back saying “Please send 10 truckloads as promised.” No shipment was sent, but four months later when the market demand for widgets skyrocketed, the retailer sued the manufacturer for breach claiming that the retailer suffered damages by not having received the shipment of ten trucks as agreed. Does the retailer have a legal right to collect damages under these facts?

No, the parties do not set a date for delivery, which always invalidates a contract between merchants for the delivery of goods.
No, the retailer never called back and asked for the widgets, which means that the contract was not finally confirmed and legalized.
Yes, there is a specific and detailed enough offer, followed by an unequivocal acceptance, indicating an intent to form a contract. (Correct answer)
Yes, the retailer is entitled to collect damages because the manufacturer violated the doctrine of avoidable consequences.

Correct answer: Yes, there is a specific and detailed enough offer, followed by an unequivocal acceptance, indicating an intent to form a contract.

Under the UCC, a contract for the sale of goods can be formed if the parties intended to make a contract and there is a reasonably certain basis for giving a remedy, even if some terms are left open. Here, the manufacturer's letter was a clear and definite offer for 'ten truckloads of construction-quality widgets for $1,000 per truck.' The retailer's email 'Please send 10 truckloads as promised' was an unequivocal acceptance of these terms, indicating mutual assent and forming a binding contract.

Question 184: A motorist is making a left turn at a traffic light. When the light turns yellow he waits a second and decides to try and rush through the left turn. He is hit broadside by a car traveling through the intersection with the right of way. The investigating police officer points out the sign above the light that informs motorists to make a “left turn on signal only,” meaning that there was a left turn arrow that he was supposed to wait for prior to negotiating the turn. The officer gives him a ticket for “improper left turn.” The motorist pays the ticket. The other driver was severely injured and sues the motorist for negligence. The injured driver asserts in the complaint that the violation of the traffic ordinance is proof of “negligence per se.” Will the court instruct the jury that there was negligence per se?

No, because the violation of the ordinance under these facts did not support the claim that the motorist caused the accident.
Yes, because the ordinance that was violated was intended to avoid the precise harm that occurred. (Correct answer)
No, because a violation of a traffic ordinance never can be used as proof of negligence.
Yes, because the violation of a traffic ordinance is always proof that the defendant caused the accident.

Correct answer: Yes, because the ordinance that was violated was intended to avoid the precise harm that occurred.

Negligence per se applies when a defendant violates a statute or ordinance, and the plaintiff is a member of the class of persons the statute was designed to protect, and the injury is of the type the statute was designed to prevent. Here, the "left turn on signal only" ordinance is specifically intended to prevent collisions at intersections by regulating turns, which is precisely the harm that occurred when the motorist rushed the turn. Therefore, violating this ordinance is strong evidence of negligence.

Question 185: A state law permits employers to fire workers who test positive for marijuana use, even if the use occurred off-duty and in compliance with state law. An employee challenges this under the right to privacy. The most likely outcome is:

The law is unconstitutional under the federal constitutional right to privacy
The law violates substantive due process because privacy extends to all lawful off-duty conduct
The constitutional right to privacy does not protect recreational drug use, so no federal constitutional violation exists (Correct answer)
The law is preempted by federal marijuana law regardless of the privacy claim

Correct answer: The constitutional right to privacy does not protect recreational drug use, so no federal constitutional violation exists

The constitutional right to privacy protects fundamental intimate decisions; recreational drug use has not been recognized as a fundamental right, so there is no federal substantive due process violation.

Question 186: Alpha contracts with Beta to build a garage. Beta assigns the contract to Gamma, who does poor work. Alpha sues. Against whom can Alpha recover?

Gamma only, because Beta delegated all liability to Gamma
Beta only, because an assignment transfers liability back to the original party
Neither, because the assignment extinguished the original contract
Both Beta and Gamma, because Beta remains liable after delegation (Correct answer)

Correct answer: Both Beta and Gamma, because Beta remains liable after delegation

Delegation of duties does not relieve the delegating party (Beta) of liability — Beta remains secondarily liable, and Gamma is primarily liable as the party who actually performed.

Question 187: A drug to combat high cholesterol was approved by the FDA and marketed by its manufacturer. Reports of the drug being tied to cases of premature dementia surfaced, and a number of lawsuits were filed by injured consumers, alleging strict liability for a defective product. At trial, the manufacturer proved that thorough testing was done but that new scientific discoveries, not then available, now show a vulnerability in certain people to the drug. Is the company strictly liable to the victims even though the medical knowledge was not available when the product was developed and put on the market?

Yes, the manufacturer must assume the cost of compensating those innocent victims who took the defective drug.
No, when the medical or scientific information regarding a defect has not yet been discovered, the company will not be held strictly liable for putting that product on the market. (Correct answer)
No, the company has no duty to conduct research to determine a product's safety.
Yes, strict liability applies to pharmaceutical companies and questions of knowledge of defects is irrelevant.

Correct answer: No, when the medical or scientific information regarding a defect has not yet been discovered, the company will not be held strictly liable for putting that product on the market.

In strict products liability, particularly for design defects, many jurisdictions recognize a 'state of the art' defense. This defense shields manufacturers from liability if, at the time the product was manufactured and distributed, the defect was unknowable given the then-existing scientific and medical knowledge. Pharmaceutical companies are often afforded this protection, as they cannot be held strictly liable for risks that were scientifically undiscoverable at the time of marketing.

Question 188: An owner and a buyer signed an agreement of sale for the owner’s residential premises. Time was of the essence. The closing date was set for 90 days from the date of the agreement. The buyer turned over a significant down payment, which was held in escrow by the real estate broker. The settlement was contingent on the buyer obtaining a conventional mortgage at prevailing rates within 45 days of the date of the agreement. The buyer promised to make a good faith effort to apply for a mortgage. The only mortgage that the buyer was able to obtain was a variable rate mortgage that was then set at 5 points above the prime rate. It contained a balloon payment in 5 years with a large balance that the buyer could ill-afford if he was unable to obtain new financing. The buyer advised the seller that he could not get a mortgage and demanded his down payment back. The seller disputed that the buyer could not get a mortgage and refused the refund. Will the court enforce the refund?

No, because this was a conventional mortgage at prevailing rates.
Yes, because the loan was usurious in any event.
Yes, because this was not a conventional mortgage at prevailing rates. (Correct answer)
No, because the mortgage would be easily re-financed in five years.

Correct answer: Yes, because this was not a conventional mortgage at prevailing rates.

A mortgage contingency clause requires the buyer to obtain a specific type of financing, and if they cannot, they are typically entitled to a refund of their down payment. A variable rate mortgage at 5 points above prime with a balloon payment is generally not considered a 'conventional mortgage at prevailing rates' as contemplated by such a clause. Since the buyer made a good faith effort and the available loan did not meet the specified terms, the contingency was not satisfied, entitling the buyer to a refund.

Question 189: A former regional manager of a life insurance company sued the parent company for terminating him without cause. He asked the attorney to make sure that he got a jury trial. If a proper demand is not made, the trial will be presided over by the judge without a jury. At the last pretrial conference, well after discovery had closed, the attorney filed for a jury trial. Did the attorney properly preserve the right to jury trial and why or why not? Yes, the plaintiff does not have to ask for a jury trial until the discovery is completed and the last pretrial conference is held.

No, the plaintiff must notify the defendant of a jury trial demand in the summons that is served with the complaint. Otherwise, the court will set the matter as a non-jury trial.
Yes, the plaintiff does not have to ask for a jury trial until the discovery is completed and the last pretrial conference is held.
No, the plaintiff can best assure a jury trial by including the demand in the complaint under Rule 38(b)(1). The right can also be assured at later times under the Rule but not as late as after the completion of discovery. (Correct answer)
Yes, the plaintiff may make a jury trial demand up until the last pretrial conference before trial is scheduled.

Correct answer: No, the plaintiff can best assure a jury trial by including the demand in the complaint under Rule 38(b)(1). The right can also be assured at later times under the Rule but not as late as after the completion of discovery.

A party may demand a jury trial by serving the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served. See FRCP 38(b)(1).

Question 190: The police were called to a domestic dispute. The wife told police that her husband was abusive and that he was a heavy cocaine user. The husband was present and denied the allegation. Police asked for permission to search the premises for drugs, which was consented to by the wife. The husband, however, refused to consent to the search. The police went ahead anyway and found drugs in the husband’s belongings. After being arrested on drug charges, the husband filed a motion for suppression of the evidence based on lack of consent. What should be the likely decision of the trial court?

The search was invalid and the evidence must be suppressed because the co-occupant of the premises was present and specifically refused to give consent to the search. (Correct answer)
The search was valid because the cases say that one occupant’s consent to the search overrules the other occupant’s refusal to consent.
The search was invalid because, even though consent was given, the police must first attempt to get a search warrant to enter a home.
The search was valid because the wife’s statement established probable cause that a crime was being committed – this created exigent circumstances for the search.

Correct answer: The search was invalid and the evidence must be suppressed because the co-occupant of the premises was present and specifically refused to give consent to the search.

The Supreme Court has ruled that when both occupants are present and one of them consents but the other refuses consent, the refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him. See Georgia v. Randolph, 547 U.S. 103 (2006).

Question 191: An owner conveyed residential real estate to a friend for life. The friend conveyed his interest in the same real estate to his brother. When the owner discovered the conveyance to the brother, he brought an eviction action against the brother. The brother refused to vacate the premises and appealed. What is the likely decision of the court regarding the requested eviction of the brother?

The court will rule that the friend’s original interest was extinguished when he conveyed his interest to his brother, and the brother can be evicted.
The court will rule that the brother has a right to live on the premises until the death of his brother who conveyed the property to him. (Correct answer)
The court will rule that the brother has a right to live on the premises until the death of the owner.
The court order immediate reversion of fee simple ownership back to owner and will immediately evict the brother.

Correct answer: The court will rule that the brother has a right to live on the premises until the death of his brother who conveyed the property to him.

A life estate, while limited in duration, is generally alienable (transferable). When the friend conveyed his life estate to his brother, the brother received an estate *pur autre vie* (for the life of another), meaning his interest is measured by the original grantee's (the friend's) life. The brother's right to possess the property will therefore terminate upon the death of the friend, not the original owner or the brother himself.

Question 192: There is a newcomer who joins a small town in the middle of nowhere, where she gets a job as a city employee. The city manual requires that newcomers pay a higher contribution to the city's employee betterment fund for the first three years of employment. Newcomer refuses to pay a higher contribution than other employees, whereupon she is terminated. Can she make a successful equal protection argument to fight for her job?

Yes, she can claim membership in a group of newcomers who are coming and are being treated differently than everyone else, even if she is the only newcomer she knows of at this time.
No, she is not a member of a suspect class as there cannot be a "class-of-one" in the employment law context. (Correct answer)
Yes, she can claim a class of one who is being discriminated against.
No, the request for the contribution was not unreasonable and cannot support an equal protection argument.

Correct answer: No, she is not a member of a suspect class as there cannot be a "class-of-one" in the employment law context.

While the Supreme Court has recognized 'class of one' equal protection claims in some contexts, it has generally been reluctant to extend this doctrine to public employment decisions. In the employment context, courts typically require a showing that the individual is part of a larger, identifiable class that is being treated differently, or that the government action was motivated by animus or a fundamental right. A single newcomer does not typically constitute a protected class for equal protection purposes in employment.

Question 193: A female driver approached an intersection and went through just as the yellow light appeared. She accelerated to make sure she made it through in time. She collided into a car driven by a male motorist coming from the intersecting street who was getting a jump on his red light that was in the process of turning green. The two cars collided, and the male motorist was seriously injured. He sued the other motorist for negligence. A jury assessed the man’s damages award at $100,000. It found that female driver was 40 percent at fault whereas the male driver was 60 percent at fault. What, if anything, can he collect from this verdict in a pure comparative negligence state?

He cannot collect because he is more than 50 percent at fault.
He can collect $40,000, representing the percentage of fault of the other driver. (Correct answer)
He can collect his full damages because the other driver was substantially at fault.
He can collect his full damages because the other driver was substantially at fault.

Correct answer: He can collect $40,000, representing the percentage of fault of the other driver.

In a pure comparative negligence state, a plaintiff can recover damages even if they are more at fault than the defendant. The plaintiff's recovery is simply reduced by their percentage of fault. Here, the male driver was 60% at fault, so his $100,000 damages award will be reduced by 60%, allowing him to collect the remaining 40% from the female driver, which is $40,000.

Question 194: A defendant wants to implead a third party who may be liable to the defendant if the defendant is found liable to the plaintiff. Under FRCP 14, the defendant may implead a third party:

Only if the third party is jointly liable with the defendant to the plaintiff
As of right within 14 days of serving the answer; thereafter, with leave of court (Correct answer)
At any time before trial without restriction
Only with leave of court, regardless of when the motion is filed

Correct answer: As of right within 14 days of serving the answer; thereafter, with leave of court

Under FRCP 14(a)(1), a defending party may serve a third-party complaint as of right within 14 days of serving its original answer; after that, leave of court is required.

Question 195: A criminal defendant was convicted of robbery and sentenced to ten years in prison, starting on Jan. 1, 2000. Sec. 204 of the state penal code provided for early release for good behavior, and under that provision he would have been granted supervised release as of Jan. 1, 2007. On Feb. 1, 2006, the state legislature repealed Sec. 204 and passed Sec. 205a. It reduced the good time credits for anyone convicted from that date onward, and also for anyone in prison as of the date of the section’s passage. The new release date was calculated to be Jan. 1, 2009. The criminal defendant brought a habeas corpus action arguing that Sec. 205a was an unenforceable ex post facto law as to him. The state courts turned him down saying that good time credit was a privilege and not a vested right. The case ultimately came before the U.S. Supreme Court. Did the Supreme Court invalidate Sec. 205a as an unconstitutional ex post facto law?

No, the criminal defendant did not have a vested right in the early release date.
Yes, because it retrospectively increased the punishment over what was in effect when the offense was committed. (Correct answer)
Yes, because the legislature does not have the authority to pass a law that decreases good time credits for prisoners.
No, because good time credits were an act of grace that could be taken away at any time.

Correct answer: Yes, because it retrospectively increased the punishment over what was in effect when the offense was committed.

The constitutional prohibition against ex post facto laws forbids punishment more severe than what was applicable when the criminal act occurred. Here it was retrospective and it made the criminal defendant’s punishment more onerous. The issue of being “vested” in good time right is irrelevant in an ex post facto analysis. See Weaver v. Graham, 450 US 24 (1981).

Question 196: Owen grants Blackacre 'to Anna and her heirs, but if the land is ever used for commercial purposes, then to Ben.' What interest does Ben hold?

A reversion
A right of entry
A remainder
An executory interest (Correct answer)

Correct answer: An executory interest

Ben holds a shifting executory interest because his future interest cuts short a fee simple rather than following the natural expiration of a prior estate.

Question 197: A retail salesperson was driving her car at lunch when a man driving an SUV drove through a red light and struck her. The salesperson resided in State A and the accident occurred in State A. The driver of the SUV was employed by a company that was located in State B. The company allowed the employee to take its SUV, which was used most of the time for business purposes, to go home to State A every night and return to work in State B in the morning. The injured retail salesperson sued both the company and the driver in a State A court. The company filed a motion to dismiss claiming that the State A court did not have personal jurisdiction over the company, despite having over its employee. The trial court dismissed the case against the company for lack of personal jurisdiction. Will that decision likely survive on appeal and why or why not?

Yes, because the company was not doing busines in State A and therefore it had no contact with the state.
No, the company benefited from having its employee commute from State A to State B and it is responsible for the acts of its agent. (Correct answer)
Yes, because the company did not benefit from giving the employee a car to commute with, thus it had no minimum contacts with the forum state.
No, the mere act of the company's car being in State A was enough to establish personal jurisdiction over the company.

Correct answer: No, the company benefited from having its employee commute from State A to State B and it is responsible for the acts of its agent.

Personal jurisdiction over an out-of-state company requires sufficient minimum contacts with the forum state such that exercising jurisdiction comports with due process. Here, the company benefited from its employee commuting daily from State A in a company-owned SUV, which was primarily used for business. The accident occurred in State A while the employee was driving this company vehicle, establishing a direct connection between the company's purposeful availment of the forum state and the plaintiff's injury. Therefore, State A has specific personal jurisdiction over the company.

Question 198: A man died in a hospital of a fatal, highly contagious disease. A hospital clerk neglected the set protocol of marking the body with warnings that there was a communicable disease involved. The funeral director embalmed the body without taking extra precautions, which caused him to have a great deal of contact with the corpse’s blood and fluids. When he found out about the disease, he sued the hospital for damages, including severe emotional distress. Which of the following is the most likely tort theory that the plaintiff can successfully assert against the hospital?

The hospital was negligent and breached its duty to notify those who could suffer harm that the body was infected with a highly contagious disease. (Correct answer)
The hospital committed the tort of intentional infliction of emotional distress by recklessly releasing the corpse to an unsuspecting funeral home.
The hospital committed a battery of his person by remaining silent and intentionally causing him to suffer an offensive contact from a corpse with a highly contagious disease.
The hospital committed an assault against him by intentionally causing him to suffer an offensive touching from a corpse with a highly contagious disease.

Correct answer: The hospital was negligent and breached its duty to notify those who could suffer harm that the body was infected with a highly contagious disease.

The hospital had a duty to exercise reasonable care to prevent the spread of contagious diseases, which includes following established protocols to warn those who might come into contact with an infected body. By neglecting to mark the body with warnings, the hospital breached this duty, directly leading to the funeral director's exposure and subsequent emotional distress. This constitutes a classic case of negligence due to a failure to warn of a known danger.

Question 199: A law student and two friends were at a mall peacefully handing out fliers protesting the country’s military involvement in a Middle Eastern country. The mall owner called the police, who warned them to stop or they would be arrested. They returned the next day and continued to leaflet. The police came again and issued another warning. The law student left to avoid arrest, but his friends stayed and were arrested for criminal trespass and loitering. The law student, in an attempt to get an advance ruling on the constitutionality of the criminal ordinances and propriety of police actions, filed an action in federal court asking for declaratory relief. Based on Supreme Court precedent, how should the federal district court rule?

The declaratory relief would be premature because the law student’s fears of a future arrest are entirely speculative on his part.
There is no pending prosecution, which means that there is no actual case or controversy to which the declaratory relief could apply.
With no pending prosecution, a federal plaintiff may seek a declaratory judgment that a state statute would be unconstitutionally applied against him in a threatened future prosecution. (Correct answer)
The declaratory relief would interfere with existing state prosecutions and would therefore be disallowed for reasons of equity and comity

Correct answer: With no pending prosecution, a federal plaintiff may seek a declaratory judgment that a state statute would be unconstitutionally applied against him in a threatened future prosecution.

Federal declaratory relief may be allowed when no state prosecution is pending and a federal plaintiff shows a genuine threat of enforcement of a disputed state criminal statute. See Steffel v. Thompson, 415 U.S. 452 (1974). This is an actual controversy under Art. III of the Constitution; this is not imaginary or speculative, and petitioner need not expose himself to actual arrest or prosecution to make his constitutional challenge.

Question 200: A farmer contracted to sell 100 tons of his home-grown cucumbers to a wholesaler. An invasion of cucumber-eating insects attacked the crop and made it a poor season. The farmer delivered only 60 tons. The wholesaler claimed a breach of contract due to his being shorted 40 tons. The farmer sued the wholesaler for payment on the 60 tons, and the wholesaler counterclaimed for damages caused by the loss of the additional 40 tons. What is the most likely decision of the court?

The farmer breached the contract but he’s entitled to be paid for the 60 tons, less the amount of damages suffered by the wholesaler in not getting the full value of the bargain.
There is an industry-wide implied condition that natural causes could limit the amount of an agricultural product -- the wholesaler must pay for the 60 tons and gets no credit on the rest. (Correct answer)
The farmer is entitled to collect on the 60 tons and will be reimbursed for the 40 unproduced tons by the federal government.
The farmer could have used insecticide to kill the insects; he breached the contract, and gets nothing.

Correct answer: There is an industry-wide implied condition that natural causes could limit the amount of an agricultural product -- the wholesaler must pay for the 60 tons and gets no credit on the rest.

Under the Uniform Commercial Code, a seller may be excused from full performance if an unforeseen contingency, like a severe insect invasion destroying a crop, makes performance commercially impracticable. The insect invasion was a natural disaster that fundamentally altered the basic assumption of the contract regarding the availability of the full cucumber yield. Therefore, the farmer is excused from delivering the remaining 40 tons and is entitled to payment for the 60 tons delivered, as the contract was partially discharged due to impracticability.

Multistate Bar Examination (MBE)

The MBE is a 200-question, multiple-choice examination administered over six hours on one day of the bar examination. It covers fundamental legal principles.

200

Questions

360 min

Time Limit

67%

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