Practice Test Flashcards

At a no-reserve auction, the auctioneer put up a painting that was unsigned and apparently quite old. A woman made the highest bid, which was $100, and the auctioneer slammed the gavel down, completing the transaction. Before the day's auction ended, an art historian told the auctioneer in private during a break that the piece was an original by Claude Monet, worth about $1 million. The auctioneer quickly told the successful bidder that the amount was rejected by the seller and that the piece would be withdrawn from the sale that day. The woman sued the auctioneer, claiming that there was a binding contract and requesting specific performance. Based strictly on the rules of offer and acceptance, is the auctioneer in danger of losing the painting to the successful bidder and, if so, why?

Answer: Yes, in a no-reserve auction there is a binding contract based on the highest amount offered by the winning bidder.

In a no-reserve auction, like this one, the auctioneer is considered the offeror and the highest bidder is the offeree. The offeree’s bid, being the highest, is the acceptance and constitutes the formation of a binding contract. In a reserve auction, the highest bid may ultimately be rejected by the auctioneer or seller because it is only an offer. The seller does not have to accept the offer made. See, for example, Pitchfork Ranch Co. v. Bar Tl, 615 P. 2d 541, 548-550 (WY Supreme Ct. 1980).

A large man with menacing tattoos all over his face and bald head followed closely behind a businessman who was lost in a long dark alley. The large man followed the businessman for several blocks of unending, unlit alleys. The businessman was in great fear. The large man was just a few feet behind, singing songs about how he was going to have a "big meal tonight" and it looked like he "had struck it rich," and other words indicating possible violence and robbery. Finally, the businessman threw his wallet in one direction and ran the other way, as he yelled, "You can have my money, just leave me my life!" The large man picked up the wallet and ran in the opposite direction, but when he came to the end of the alley he was arrested and charged with robbery. He appealed his conviction, arguing that he had no intent to steal and was trying to return the wallet to the victim. Will the appellate court likely affirm the robbery conviction?

Answer: Yes, because the large man followed too closely for too long, he sang menacing songs that placed the businessman in fear, and then he took the wallet and ran in the other direction.

The common law definition is the felonious taking of money or goods of value from the person of another or in his immediate presence, accomplished by means of force or fear. See Black's Law Dictionary. A thing is in the immediate presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it. See People v. Hayes, 52 Cal.3d 577, 626-27, 802 P. 2d 376 (CA Supreme Ct. 1990). Here, the wallet was given up under a set of circumstances that shows that the large man was intending to and did place the businessman in a state of fear. The wallet was under the control and in the presence of the businessman and would have remained under his control if he had not been overcome with fear generated by the large man's actions.

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?

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.

A campaign worker for a City Council candidate distributed a flier saying that the candidate was offering transportation to the polls on election day. The flier stated that recipients should come to a nearby storefront on election day, where there would be free food and drink, and other “prizes” for those who voted. Two police undercover agents went to the party, where they agreed to be taken to vote in return for $50 each. The campaign worker drove the men to their alleged poll location, where the agents arrested him on charges of conspiracy to violate the election bribery laws. The defense filed a motion to dismiss on the basis that it was legally impossible to commit the crime because the agents were not registered to vote in that district and they never intended to allow a crime to be permitted. Is the trial court likely to grant the motion to dismiss?

Answer: No, because the basis of the conspiracy charge is the agreement to commit the act, along with an affirmative step in that direction.

Conspiracy focuses on the agreement to commit an unlawful act and an overt act in furtherance of that agreement. The fact that the undercover agents never intended to commit the crime (making it factually impossible for them to vote) does not negate the campaign worker's intent or the existence of the agreement from his perspective. Legal impossibility, which would apply if the agreed-upon act was not a crime even if completed, is not present here, as election bribery is a crime.

A man entered a half-opened window to a neighbor's trailer and waited in the dark bedroom inside. After a while, he got in bed and had sexual relations with the woman while she slept. At trial, he claimed that he believed that the woman had consented because he had dated her many times and had consensual sexual relations with her many times in the past. He hadn’t seen her in about one week but assumed her consent. He denied specific intent to rape and claimed a desire to surprise her with a “romantic” variation of their usual activities. The woman admitted to prior consensual relations but denied consent on this occasion. Has he stated a viable defense to rape?

Answer: No, his belief that she consented in advance was unreasonable and impermissible.

For a mistake of fact regarding consent to be a viable defense to rape, the defendant's belief that the victim consented must be both honest and reasonable. Having sexual relations with a sleeping person, even with a history of consensual encounters, is inherently unreasonable to assume consent. A person cannot consent while unconscious, and prior consent does not equate to present consent.

A man was arrested under a criminal statute that prohibited public intoxication. A magistrate fined him $100 and sentenced him to a weekend in jail. On appeal, he had a de novo trial before a county trial court. He presented medical testimony diagnosing the disease of alcoholism, which was marked by a nearly uncontrollable urge to drink. The defense claimed that a person could not be convicted for suffering from a disease process. The state simply argued that the man had no defense to what he did. The U.S. Supreme Court accepted the man's appeal after his conviction. Will the Court likely reverse the conviction?

Answer: No, because he was convicted not for being a chronic alcoholic but for the actions of being in public while drunk.

The Eighth Amendment prohibits punishing an individual for the 'status' of being an alcoholic or drug addict. However, it does not prohibit punishing an individual for conduct, even if that conduct is a manifestation of their addiction, such as being drunk in public. The man was convicted for the act of public intoxication, not merely for his status as an alcoholic.

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?

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.

A man wants to sell his bungalow for $10,000. His neighbor wants to buy it so he can make his yard bigger and use the structure as a storage space, so he agrees to buy the bungalow in a written agreement. The sale is to be complete on October 14. On October 10, the neighbor realizes he cannot pay $10,000, and offers to pay $8,000 instead. The man agrees, and the exchange takes place on October 14. The man then sues for the remaining $2000. Would he likely prevail in getting the additional $2,000 that is part of the signed contract?

Answer: Yes, there was a lack of additional consideration under the pre-existing duty rule so that the modification was invalid and the original price was still valid.

Under the common law pre-existing duty rule, a promise to perform a duty already owed under an existing contract is not sufficient consideration for a new promise. Here, the neighbor was already contractually obligated to pay $10,000. His offer to pay $8,000, without providing any new consideration, means the man's agreement to accept less was not supported by consideration and thus the modification is invalid. The original contract price of $10,000 remains enforceable.

An owner of a solar heated residence filed a lawsuit that tried to enjoin her neighbor from building a house that would totally interfere with her access to daily sunlight. The neighbor's plan conformed to all local building ordinances and land use regulations. The owner had been in the house for 10 years and the neighbor recently bought the adjoining lot. The owner showed that a different placement of the house would not interfere with her use and enjoyment of her residence. The trial judge ruled in favor of the defendant on the basis that the defendant had a right to build his house anywhere as long as he followed the building/zoning laws. The owner appealed. Will the appellate court likely reverse the trial court's decision?

Answer: Yes, because the proposed use is a private nuisance that unreasonably interferes with the owner's use and enjoyment of her property.

While there is no absolute right to sunlight, a proposed construction that substantially and unreasonably interferes with a neighbor's long-standing use and enjoyment of their property can constitute a private nuisance. The court would balance the utility of the neighbor's conduct against the gravity of the harm to the owner, especially when an alternative placement exists that would avoid the interference. Conforming to zoning laws is not always a complete defense to a nuisance claim.

A businessman was the owner of an idyllic lake and wooded area. In 1980, the businessman conveyed the land to the state “on the condition that” it be used as recreational property only. Two years later, the state decided that they wanted a small industrial park attached to the corner of the land. The state went ahead and developed a small portion of the land as industrial space, making it part of a larger industrial park that was adjacent to the land. The businessman notified the state that he was the owner of the property because the state violated the conditions of the conveyance, and that he was taking possession of the property back. What was the interest that was created by the conveyance and can the businessman get the property back?

Answer: The interest created is a fee simple subject to a condition subsequent, and the original owner can get the property back only by taking affirmative steps to exercise his right of entry.

The language 'on the condition that' typically creates a fee simple subject to a condition subsequent, which does not automatically terminate upon breach of the condition. Instead, the grantor retains a 'right of entry' or 'power of termination,' which must be affirmatively exercised to regain possession. In contrast, a fee simple determinable, usually indicated by 'so long as' or 'until,' would cause automatic reversion.

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?

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.

A teenage girl was babysitting a two-year-old baby. She took the baby in a stroller to the public park, as she often did. On this day, she negligently "nodded off" for just a few seconds on a park bench with the stroller next to her. She felt some movement and snapped awake to see a man taking the baby from the stroller. The man was large and menacing-looking. The babysitter, who is thin and petite, froze and did not put up a struggle as the man stated, "I will kill you if you move." The babysitter did scream and call for help as the kidnapper fled with the child. Within a few yards he tripped and dropped the baby on its head. The baby died at the hospital of massive head injuries. Is it probable that the prosecutor will charge the babysitter with a crime, and if so, what will be the charge?

Answer: No, the babysitter did not commit a criminal act under the circumstances — her negligence was not gross enough to rise to the level of criminality and she had no criminal intent.

While the babysitter was negligent in dozing off, criminal negligence requires a gross deviation from the standard of care, often involving a high degree of risk and a conscious disregard for that risk. Her brief dozing off, while negligent, likely does not meet the high threshold for criminal negligence or the specific intent required for more serious crimes. Furthermore, she was under duress when the kidnapper threatened her life, which could negate criminal liability for failing to resist.

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?

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.

A man is at home in his apartment, alone, late at night. Someone repeatedly buzzes his apartment ringer outside the building, but he doesn't answer it because he is very tired and wants to sleep. Later he hears the door to his apartment being kicked in and he is immediately accosted by a man with a gun, who waves the gun at him and says, "You are getting me your cash or else." The man opens his safe and turns over the money. The perpetrator absconds with the money but is picked up by the police a few minutes later. What common law crimes has the perpetrator probably committed?

Answer: Robbery and burglary.

Burglary at common law is the breaking and entering of the dwelling of another at night with the intent to commit a felony therein. Here, the perpetrator kicked in the door (breaking and entering), it was late at night (at night), and he intended to commit robbery (a felony). Robbery is the taking of personal property of another from their person or presence, by force or intimidation, with the intent to permanently deprive. The perpetrator waved a gun and demanded money, fulfilling the elements of robbery.

A man, his brother and his friend all discuss murdering the man's neighbor because the neighbor took some shots at the man's dog but he missed. They agree on a plan. They decided on strychnine poisoning, which the friend told them how to get and they went and got it. When they asked the friend to go forward in poisoning the victim, he refused, saying, "I'm was only here for planning and advice, but I never intended to commit murder." The man and his brother took the poison to a meeting with the neighbor, but he wouldn't drink. They were caught and arrested. The statute requires an overt act for criminal conspiracy. Which of the following most accurately states the criminal responsibility of each of the three men?

Answer: The man and his brother are guilty of conspiracy and attempted murder, and the friend is guilty of criminal conspiracy.

All three men agreed to the plan and an overt act (obtaining the poison) was taken in furtherance of the conspiracy, making all three guilty of conspiracy. The man and his brother then took a substantial step towards committing murder by bringing the poison to the neighbor with the intent to kill, thus committing attempted murder. The friend's refusal to go forward after the overt act does not negate his prior participation in the conspiracy, nor does it constitute an effective withdrawal unless he communicated it to all co-conspirators and thwarted the crime.

A small town in the Northeast developed the biggest ice sculpture in the world due to a massive snow, a deep freeze, and viral coverage on the social media. Hundreds of tourists poured into the area to work on the large block of ice. They made a gigantic ice palace for a variety of Disney princesses. To handle the needs of a great number of tourists, food vendors came from all over and set up their carts. To solve the problem of congestion, safety, and insufficient security, the town passed an ordinance restricting all street vendors to a specified parking lot area. The food vendors and others were losing money under the regulation. Would a commerce clause challenge to the parking lot requirement be successful by the food stand owners?

Answer: No, because there is a legitimate state or local interest here which is promoted by an even-handed procedure to control the flow of traffic for public safety, and the impact on commerce is incidental.

A state or local regulation that does not discriminate against interstate commerce will be upheld under the Dormant Commerce Clause if it serves a legitimate local purpose and its burden on interstate commerce is not excessive in relation to the local benefits. Here, the ordinance addresses legitimate concerns of congestion, safety, and security, and applies equally to all vendors, making its impact on interstate commerce incidental rather than discriminatory.

A distributor agrees to sell 100 tubes of growth hormone to a medical treatment center in exchange for $30,000. The contract has many clauses, including one that prohibits generally the assignment of the contract or any of its terms. The distributor assigns its right to receive the funds anyway. Will a court enforce the bar against assignment under these circumstances?

Answer: No, a bar of assignment does not apply to the right to receive the funds unless specifically stated.

Contractual provisions prohibiting assignment are generally construed narrowly. A clause that generally prohibits 'assignment of the contract or any of its terms' is typically interpreted as prohibiting the delegation of duties, but not the assignment of the right to receive payments (money). To prohibit the assignment of the right to receive funds, the clause must specifically and clearly state that such assignments are barred.

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?

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.

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?

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.

Defendant was waiting in line for post-Thanksgiving day sales. The door opened at 6 a.m. and hundreds of people rushed the entrance for a chance at a hugely discounted holiday gift. When defendant saw that there was a signed copy of his mother's author's favorite book, he jumped towards it, only to be blocked by a little old lady with a baseball bat. She was using the bat as a blocking tool, but he was determined to get the book, so he deliberately stuck his leg out in front of her and tripped her. She fell hard and in the process ended up with a blood clot in her leg, which traveled to her heart over a period of weeks, and ultimately caused her death. What crime can the defendant likely be convicted of?

Answer: Involuntary manslaughter

Involuntary manslaughter occurs when a person causes the death of another through criminal negligence or during the commission of an unlawful act not amounting to a felony (misdemeanor manslaughter). Tripping the old lady was an unlawful act (battery) or at least grossly negligent. While the defendant intended to trip her, he likely did not intend to cause her death or grievous bodily harm, making the resulting death a foreseeable but unintended consequence of his reckless or unlawful act.