CO Bar Multistate Bar 3 — Questions and Answers
Question 1: A contractor offers to build a deck for $10,000, stating the offer will remain open for 10 days. On day 5, before the homeowner accepts, the contractor calls and revokes. The homeowner accepts on day 6. Is there a contract?
- No, because an offer without consideration for irrevocability may be revoked before acceptance (Correct answer)
- Yes, because the contractor promised to hold the offer open for 10 days
- Yes, because the offer was a firm offer under the UCC
- No, because acceptances of service contracts must be in writing
Correct answer: No, because an offer without consideration for irrevocability may be revoked before acceptance
An offer is freely revocable before acceptance unless supported by consideration (option) or covered by the UCC firm offer rule, which applies only to merchants selling goods.
Question 2: Police arrest a suspect at home without a warrant based on probable cause that he committed a felony, entering after he opened the door and they pushed inside. The suspect confesses at the station after Miranda warnings. Under Payton and Harris, the confession is:
- Admissible, because the stationhouse statement was not the fruit of the warrantless home entry given probable cause existed (Correct answer)
- Inadmissible, because the arrest violated Payton v. New York
- Inadmissible, as fruit of the poisonous tree
- Admissible, only if exigent circumstances justified the entry
Correct answer: Admissible, because the stationhouse statement was not the fruit of the warrantless home entry given probable cause existed
Under New York v. Harris, a station-house statement made after a Payton violation is admissible if police had probable cause to arrest, because the statement is not a product of the illegal entry.
Question 3: Congress passes a statute stripping federal courts of jurisdiction to hear challenges to a specific federal immigration policy while leaving state courts available. The strongest argument for the statute's constitutionality is:
- Congress has broad power under Article III to define and limit the jurisdiction of lower federal courts (Correct answer)
- The political question doctrine bars all immigration challenges
- Sovereign immunity protects the policy from any suit
- The Eleventh Amendment bars such suits
Correct answer: Congress has broad power under Article III to define and limit the jurisdiction of lower federal courts
Because Congress created the lower federal courts, it has broad authority to define and restrict their jurisdiction, provided some forum remains for constitutional claims.
Question 4: In a civil fraud trial, the plaintiff offers evidence that the defendant committed a similar fraudulent scheme against another victim two years earlier. This evidence is most likely:
- Admissible to show a common plan or scheme, not to show character (Correct answer)
- Inadmissible character evidence in all circumstances
- Admissible as habit evidence
- Admissible only if the defendant was convicted of the prior fraud
Correct answer: Admissible to show a common plan or scheme, not to show character
Prior bad acts are admissible under FRE 404(b) for non-character purposes such as showing a common plan, scheme, motive, or intent.
Question 5: A tenant with a five-year lease vacates after two years and stops paying rent. The landlord immediately relets the premises to a new tenant at a lower rent. The landlord may recover from the original tenant:
- The difference between the original rent and the rent received from the new tenant for the remainder of the term (Correct answer)
- Nothing, because reletting constituted acceptance of surrender
- The full original rent for the remaining three years
- Only the costs of finding a new tenant
Correct answer: The difference between the original rent and the rent received from the new tenant for the remainder of the term
A landlord who relets on the tenant's account mitigates damages and may recover the rent deficiency for the remainder of the lease term.
Question 6: A surgeon operates on a patient's left knee when the consent form authorized surgery only on the right knee. The surgery is performed flawlessly. The patient's best claim against the surgeon is:
- Battery, because the operation exceeded the scope of consent (Correct answer)
- Negligence, because a reasonable surgeon would check the consent form
- No claim, because the surgery was performed competently
- Intentional infliction of emotional distress
Correct answer: Battery, because the operation exceeded the scope of consent
Operating on a body part without consent is an unpermitted intentional touching constituting battery regardless of the quality of the surgery.
Question 7: A federal jury returns a verdict for the plaintiff. The defendant, who moved for judgment as a matter of law at the close of all evidence, renews the motion 20 days after entry of judgment. The renewed motion is:
- Timely, because a renewed JMOL motion may be filed within 28 days after entry of judgment (Correct answer)
- Untimely, because it must be filed within 10 days of the verdict
- Untimely, because it must be filed before the jury deliberates
- Timely only if the court extends the deadline for good cause
Correct answer: Timely, because a renewed JMOL motion may be filed within 28 days after entry of judgment
Under Rule 50(b), a renewed motion for judgment as a matter of law must be filed no later than 28 days after entry of judgment.
CO Bar Multistate Bar 3
A contractor offers to build a deck for $10,000, stating the offer will remain open for 10 days.
On day 5, before the homeowner accepts, the contractor calls and revokes.
The homeowner accepts on day 6.
Is there a contract?