FREE Bar Exam MBE (Constitutional Law I) Questions and Answers
II
In one state, the state constitution guaranteed the right to marriage to both same-sex and opposite-sex couples. A political group got a proposition on the ballot, and a majority of voters decided to take away the right to marry for same-sex couples. The proposal had no bearing on any other rights that same-sex couples might have derived from state law.People impacted sued the state government for taking away their rights in an unconstitutional and illegitimate manner, in violation of the Fourteenth Amendment's due process requirement. Will the court approve the lawsuit's requests, declaring the proposition void and restoring the ability to marry for same-sex couples?
A vested constitutional right cannot be taken away by a majority vote of a state’s voters. The 14th Amendment of the United States Constitution guarantees due process of law before the government can deprive an individual of life, liberty or property and it prevents a state from ''enforcing, facilitating, encouraging or authorizing such private discrimination." It also guarantees equal protection of the law, which was denied by this referendum by the act of singling out a disfavored group for unequal treatment and stripping them, without a legitimate justification, of a right as important as the right to marry. The foregoing reasoning and the full recognition of the constitutional right of same-sex couples to marry was mandated in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), where the Court held that, “[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry . No longer may this liberty be denied to them.
In federal court, a waitress sued her former employer, a restaurant, under Title VII. She alleged that the business owner had sexually harassed her and then fired her without cause. A jury awarded the former employee $100,000 in damages. The employer filed a petition to dismiss under Fed. Rule 12(b)(6) two weeks after the court delivered judgment on the verdict, arguing that it did not have at least 15 employees as needed under the civil rights statute's definition of "employer." As a result, the employer claimed there was no federal subject-matter jurisdiction. The lower court concurred, dismissing the case and declaring the decision null and void. Will the appellate court likely affirm the lower court's ruling if the case is appealed to the United States Circuit Court of Appeals?
Subject matter jurisdiction in federal-question cases is sometimes erroneously conflated with a plaintiff's need to prove the defendant liable under the statute, the latter being a merits-related determination that does not concern the court’s subject matter jurisdiction to hear the case. The Court in Arbaugh stated the issue was whether the numerical qualification contained in Title VII's definition of "employer" affects federal-court subject-matter jurisdiction or, instead, delineates only a substantive ingredient of a Title VII claim for relief. Id. U.S. at 503. The Supreme Court in an 8-0 opinion answered that the definition of “employer” did not go to subject matter jurisdiction but instead was an element of a Title VII claim for relief. Id at 516. Arbaugh held that when Congress does not state in the statute that the definitional requirement is a jurisdictional prerequisite, courts should treat it as nonjurisdictional. Id. Arbaugh appears to be on “all fours” with our hypothetical in that the lower court in Arbaugh had already entered judgment in favor of Arbaugh.
When a truck racing on the sand mowed over a sunbathing elderly person, a man was sitting comfortably and in a relaxed meditative condition on a beach chair. “Oh God, see what that truck driver did,” the man exclaimed aloud. That truck's driver was speeding at almost 100 miles per hour! "Please dial 911!!" The man's scream was heard by a woman who was sitting on the beach close but facing the wrong way. Will the court allow both the guy and the woman to testify about the man's utterances if the case goes to trial?
This falls under the category of an agitated utterance, which is one that is made in response to a stunning or alarming incident or circumstance. It's an exception to the hearsay rule that allows both parties to testify. "Circumstances may induce a state of agitation which temporarily stills the capacity of contemplation and produces words free of conscious invention," according to the excited speech exception. 742 F. 3d 792, 796-97 (US v. Boyce) (7th Cir. 2014). To put it another way, the statement had to have been a spontaneous reaction to the unexpected incident rather than the consequence of deliberate thought. 2 McCormick on Evidence, 7th ed., p. 272.
In a new town, a pet store owner opened a business. She had no idea that the municipal council had just approved an ordinance restricting the sale of cats and dogs from retail pet stores. A provision in the statute permitted a pet store to lend space to a non-profit humane society for the adoption of animals from the business. The owner filed a federal lawsuit against the city, alleging a breach of the Fourteenth Amendment's due process and equal protection clauses. The logical basis test was used by the court to determine whether the statute served a genuine state purpose and was enforceable. The ruling was overturned on appeal by the pet business owner. Will the appellate court most likely uphold the lower court's decision?
In general, social and economic regulation is subject to rational basis evaluation and so has a presumption of legality. Legislation requires simply some reasonably plausible collection of facts to establish a logical relationship between the challenged laws and the government's legitimate goals under rational basis scrutiny. The government's interest in preventing the evils connected with "puppy mills," such as harsh animal treatment and overcrowding, are acceptable government goals.
After drinking for several hours, an extremely drunk man approached another man in a convenience shop and demanded $5. The drunk man knocked the customer down and began bashing his head on the floor when he refused. The drunk man awoke in jail hours later, with no recall of what had happened. He was charged with serious assault, which required specific intent proof. The drunk man requested an additional jury charge of simple assault, which did not require specific intent, during his trial. The drunk man was convicted of serious assault when the trial court refused to let him go. Will the appeals court likely overturn the conviction and order a fresh trial with a charge of simple assault added?
Answer 2 is the correct selection. Voluntary intoxication like this would be a defense if it rendered him incapable of forming the required specific intent that is an element of the crime charged. For the meaning of lesser included offense see, generally, State v. Campos, 122 N.M. 148, 155 (N.M. 1996) (“"A lesser included offense is one that includes some, but not all, of the elements of a greater offense and that does not have any element not included in the greater offense, so that it is impossible to commit the greater offense without necessarily committing the lesser offense.").”) The purposes for the rule are set forth, for example, in Harrison v. State, 198 Md. App. 236, 251 (Md. Ct. Spec. App. 2011) (“The doctrine is a valuable tool for defendant, prosecutor, and society.
Some homeless persons began to live on a strip of land beneath a bridge. A local chemical plant owned the land. The squatters did not seek permission, and the corporation did not consider the situation to be urgent. The squatters bathed and drank water from a small lake on the site. Two squatters died within days from what was later discovered to be highly toxic water from the company's waste discharges. The corporation was well aware that it had a trash disposal issue. The two decedents' estates filed a lawsuit against the corporation. Despite the company's contention that the decedents were trespassers, are they likely to win their tort claim?
Negligence, according to common law, necessitates the breach of a duty. In general, a trespasser has no responsibility to anyone except to refrain from acting in a reckless and willful manner. When the owner is aware of the trespassers and the hazardous condition, the owner must take reasonable steps to alert trespassers and others of the danger. 144 NJ. 479, 677 A. 2d 705 (lL Supreme Court 1992); Lee v. Chicago Transit Authority, 605 NE 2d 493, 498-99 (lL Supreme Court 1992).
A married couple signed a contract to sell their home, stating that they were unaware of any structural flaws in the property. The purchasers spotted peeling paint and plaster degradation in a corner of a ceiling near the fireplace prior to closing. They also found water marks on the basement's inside walls. The sellers indicated that these were previous issues that had been resolved, but they had not yet completed the aesthetic repairs and painting.The parties went to closing to complete the transaction. The buyers discovered a virtual flood plain in their basement during their first week in the house, with water streaming in at the corner sections around the fireplace. They engaged a contractor who advised them that major structural repairs were required. They sued the sellers for fraud, misrepresentation, and implied guarantees of habitability, as well as money to repair the property. Do they have a legal basis for suing the sellers?
Relief for fraudulent misrepresentation may be granted if there is: (1) a false statement concerning a material fact; (2) the representor‘s knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and, (4) consequent injury by the party acting in justifiable reliance on the representation.
A writer gave a Hollywood producer a four-page summary of a new television series proposal. He sent it in answer to an advertisement in an industry newsletter looking for innovative ideas. In a phone conversation with the producer's assistant, he indicated his expectation of pay. "Of course, we always pay for a writer's work," she replied. She stated that she would discuss it with her employer to see whether he approved. After a few months, the writer came upon a casting call for a new show. His synopsis outlined a plot and characters that were remarkably identical to those described in his book. He filed a lawsuit against the production for breach of contract. The producer defended himself by claiming that no contract existed.What is the court's most likely decision?
This is a fact contract that has been suggested. The provisions of an express contract are expressed in express words. Conduct and interpretation of the surrounding circumstances reveal an implied contract and its contents. A voluntary acceptance of a transaction's benefit entails consent to all of the transaction's liabilities. Reading diverse cases in case law and comprehending the variations highlighted by the courts might help us better understand and identify implied contracts.
A businessperson dispatched an administrative assistant to attend a conference where business agreements are frequently arranged. The assistant was given all of the resources needed to put up a table with the principal's cards, brochures, promotional materials, pricing lists, and even some purchase forms with the businessperson's symbol on them by the principal. In addition, the assistant misrepresented herself to third parties as to the principal's official representative and that she was allowed to sign contracts on his part. The assistant arranged an agreement with a third party for the businessperson, which the businessperson refused to respect because he did not like the terms. Will the third party have a good chance of getting the contract enforced against the businessperson?
When a reasonable person would believe that the assistant had permission to act, this is known as seeming authority. Giving the assistant the supplies to set up an official table at the convention is sufficient in this case, barring any extraordinary qualifying facts, to lead a reasonable person to conclude there is actual authority. As a result, the principal is bound by the agent's acts. This is true even if there is no formal authority. When the principal has bestowed what reasonably looks to be the authority to the apparent agent, it is said that the principal is estopped from denying the agent's authority.
A homeowner buys a new leaf blower and is so taken aback by its power that he gets carried away and blows a substantial portion of his work onto the yard of his next-door neighbor. He blew significant volumes of pest-infested plant debris into the neighbor's yard in addition to leaves. The trash has piled up into enormous, unattractive heaps, causing damage to the neighbor's thriving plants. He has to hire people to remove the debris, and he has to pay to replace infected perennials.The neighbor files a trespass lawsuit. Because the neighbor cannot prove that the homeowner acted with the intent to trespass or cause harm, the homeowner files a petition to dismiss. Will the move to dismiss be granted by the court?
Despite the fact that trespass is an intentional tort, it does not need proof of intent to trespass or hurt. All that is required is proof of intent to commit the act that leads to the trespass. Trespass is defined as causing something to enter the land without the defendant's personal involvement. Thus, all that is required here is the intention to blow the leaves. Trespassing is an intentional tort because it entails the purpose to conduct an act that violates a property right, or would be virtually certain to do so, even if the actor is unaware that the act he intends to commit violates that right.
A dance student put in a lot of effort to develop her legs, which included doing things like leaping and bounding up numerous flights of stairs in her apartment complex. One of the janitors in the building advised her that if she kept doing her workouts, “she was going to get wounded since there are problems with the floor.”She sued the building owner after breaking her leg after falling due to a loose floorboard. "I warned her that jogging so fast is unsafe and she was likely to be wounded," the janitor told me," the building owner wants to testify." Is it likely that the building owner's statement would be accepted as evidence?
This is a statement made outside of court that quotes another statement made outside of court. To be admissible in these circumstances, each statement must meet an exception to the hearsay rule. Allowing it also removes the janitor's right to cross-examine him. If each portion of the combined utterances meets an exception to the hearsay rule, hearsay within hearsay is admissible. Furthermore, as the amount of hearsay increases, the credibility of the information decreases. Every level of hearsay adds to the potential that the facts were misreported by the declarant, either intentionally or inadvertently, or that the person to whom the statement was made misinterpreted the facts.
The “American Morality Leadership Act” was approved by the US Congress and signed by the President, limiting the amount of cosmetics that women and men can wear in public and prohibiting the wearing of short dresses. Except when exercising or working physically, men over 65 must wear only brown or grey clothing, while those under 65 must wear button down dress shirts with neckties. Other limits and requirements for men and women's attire and grooming are included in the Act. On the basis of a constitutional issue, a class action lawsuit was brought to attack the Act. Which of the following arguments most closely resembles the constitutional argument that is most likely to win in court?
This is an example of egregious, irrational government regulation of dress and grooming of the public at large. See, generally, Williams v. Pryor, 229 F.3d 1331 (11th Cir. 2000). Governmental actions that infringe a fundamental right will generally receive strict scrutiny; other claims receive rational basis review. Seal v. Morgan, 229 F.3d 567, 574 (6th Cir.2000). Rational basis requires proof that the law is "rationally related to a legitimate state interest." Id. at 575. In this case, the right to dress individually and with distinct appearance are basic to the right of expression under the First Amendment. Furthermore, it is today settled that the right of a person to have a certain look or way of dress elicits concepts of fundamental liberty.
On July 3, a man was involved in an accident while driving his car. The other driver served him with an injury notification and requested compensation. When the man called his insurance company, he was advised that his policy had expired on July 2. He had previously received a renewal letter along with a bill with a June 28 due date and a July 2 policy expiration date. The notification stated that payment by mail was encouraged, but did not state that renewal was contingent on physical receipt of the check. On June 28, he mailed the check and the form to the insurer, but it was not received until July 5. According to the firm, the insurance company reinstated the policy on July 5, creating a coverage gap between July 2 and July 5. Will the courts likely rule that the coverage was still valid on the day of the accident, July 3?
The "mail box rule" governs the case. In these circumstances, prompt mailing of the renewal premium represented acceptance of the insurer's renewal offer. The notice of renewal does not specify that money must be received before acceptance became effective. The offeree/insured accepts the renewal notice by paying premium payments. When an insurer accepts mail-in premiums, it appoints the postal service as its agent, and payment to that agent signifies acceptance of coverage.
A psychopathic personality that has a long history of criminal violence frequently relishes the act of brutally brutalizing old people through cruel and shocking physical torture. For no apparent reason, he chooses to torture the victim's father. Following the assault, the father was taken to the hospital and placed in intensive care. The victim was not present, but learned about it through the authorities and read about it in the press. The victim was in excruciating emotional pain and needs medical attention. Is it possible for a victim to sue a perpetrator for intentional infliction of mental distress?
The plaintiff suffered severe or extreme emotional distress; (2) the defendant's conduct is the legal cause of the plaintiff's
emotional distress; and (3) the defendant's conduct is the legal cause of the plaintiff's emotional distress. When the outrageous
conduct are directed at someone other than the plaintiff, such as a family member or a third party, most jurisdictions need the
plaintiff to be "present" for tortious intent to transit from the real subject of torture to the spectator. Only present third parties
may recover for an IIED claim, according to the Restatement (Second) of Torts 46(2).
However, new case law may change the concept slightly. A federal court, for example, has ruled that if a terrorist attack on
servicemen occurs, the plaintiff's family member does not need to be present. 515 F. Supp. 2d 25 (DC, District of Columbia, 2007);
Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25 (DC, District of Columbia, 2007). However, because the hypothetical test
question does not include a terrorist assault, the regular rule applies.
For $1,000,000.00, the buyer ordered a manufacturer to build 100,000 widgets. The buyer wanted to sell them through mail order. The buyer's branding had to be imprinted on the widgets. The factory placed an order for raw materials and created a new widget mold with the buyer's logo. The buyer required immediate delivery of at least 10,000 units. The purchase was hurried, and 10,000 conforming widgets arrived two days later. The buyer paid for the widgets but refused delivery of the other 90,000.The manufacturer filed a lawsuit, alleging breach of contract and seeking damages. Defendant buyer filed a request to dismiss the complaint, claiming that the statute of frauds had been broken because the contract was for more than $500 and was therefore invalid under state law. Is the move to dismiss likely to be granted?
The rule does have a few exceptions. The defendant will be accountable for the remainder if there is complete performance. Another exemption is when the things were custom-made for the purchaser. Another situation is when the commodities are unable to be sold to others on the market. It's also significant that the company had already begun the production process, using an unique mold created for the purpose.
A creditor filed a garnishment action against a lady who owed the creditor money that was past due. This was the creditor's first action, and he didn't have a judgment. The garnishee, the woman's employer, was issued with the garnishment notice. The employer complied with the notice by putting all of the woman's wages into escrow pending the creditor's litigation and the entry of a final judgment against her. Pre-judgment garnishment was allowed in the state where defendant resided and worked, as long as the money was retained and not released until a judgment was made.If a judgment was not issued within the next 120 days, the money would be paid to the woman. The woman filed a lawsuit against her employer and a creditor, seeking that her wages be released. Will the garnishee be ordered to release the funds to the woman by the court?
The salary freeze in the interim without a hearing is a violation of procedural due process. A pre-judgment garnishment proceeding like this might bankrupt a wage-earning family, and it is a breach of fundamental due process norms.The procedure is unconstitutional without prior notice and a hearing.