MBE Practice Test 4 — Questions and Answers

Question 1: 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auctioneer quickly told the successful bidder that the amount was rejected by the seller and that the piece would be withdrawn from the sale that day.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?

No, the auctioneer can always reject an offer made by a bidder at a public auction sale.
No, the auctioneer is the offeree at a no-reserve auction and, as such, the offeree has the absolute power to reject the offer if it is not accepted by the owner.
Yes, in a no-reserve auction there is a binding contract based on the highest amount offered by the winning bidder. (Correct answer)
Yes, in a no-reserve auction there is a binding contract as soon as the bidding starts, with each bid being a new binding contract.

Correct 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).

Question 2: 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?

No, the large man's songs could have been coincidental or unthinking, he made no threats, and later could have been trying to return the wallet.
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. (Correct answer)
Yes, because one should never pick up someone else's wallet laying on the ground for any reason.
No, because the wallet was not in the immediate presence of the victim when the large man picked it up.

Correct 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.

Question 3: 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.
Yes, voluntary intoxication is always at least a partial defense to any crime that requires mens rea.
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.
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 4: 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?

Yes, because legal impossibility is a defense to the crime of conspiracy.
Yes, because he could not be guilty of conspiring with two law enforcement agents who never intended to commit the crime.
No, because the basis of the conspiracy charge is the agreement to commit the act, along with an affirmative step in that direction. (Correct answer)
No, because when the worker drove the agents to the voting place, he committed the complete crime of bribery and the conspiracy was an element contained within it.

Correct 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.

Question 5: 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?

No, his belief that she consented in advance was unreasonable and impermissible. (Correct answer)
Yes, rape is a specific intent crime and there’s no evidence that he intended a criminal result.
Yes, his belief that she consented was reasonable based on prior experience.
No, rape of an unconscious woman is a strict liability crime that does not permit a defense.

Correct 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.

Question 6: 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?

Yes, because it is unconstitutional to punish someone for the status of being an alcoholic or a drug addict.
Yes, because when a person acts under a compulsion that is part of a medical disease, this negates criminal intent.
No, because the man was sane and knew the difference between right and wrong when he was sober.
No, because he was convicted not for being a chronic alcoholic but for the actions of being in public while drunk. (Correct answer)

Correct 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.

Question 7: 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 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.
Conviction affirmed, because the modern trend of the law is to recognize criminal liability without mens rea or specific criminal intent.

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 8: 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?

No, the modification of the sales price was accepted and therefore both parties are bound to the $8000 price.
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. (Correct answer)
No the original contract was a unilateral contract that could not be modified and had to be performed at the original price
No, there was full performance of the contract.

Correct 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.

Question 9: 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?

Yes, because blocking a neighbor's sunlight is a constitutional deprivation of substantive due process.
Yes, because the proposed use is a private nuisance that unreasonably interferes with the owner's use and enjoyment of her property. (Correct answer)
No, because the trial court was correct in ruling that there had to be some violation of building regulations before the construction could be enjoined.
No, because a comparative evaluation of the benefits and detriments of each position favor the neighbor's position.

Correct 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.

Question 10: 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?

The interest created is a reverter, and the property instantly reverts back to the grantor upon the occurrence of the specified violation.
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. (Correct answer)
The interest is a fee simple subject to an executory limitation, and if the condition occurs the property reverts in fee simple to a pre-designated third party.
The interest created is an indefeasible estate, and the owner cannot do anything to enforce a condition that is against public policy and never enforceable in the first place.

Correct 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.

Question 11: 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 excavation is an abnormally dangerous activity and neighbor is absolutely liable for any damages caused by the violation.
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.

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 12: 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?

Yes, this is felony murder in that the babysitter's unacceptable behavior was committed during a the commission of the kidnapping felony.
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. (Correct answer)
No, because she did not do anything wrong in dozing off and she had no duty to protect the baby at the expense of her own life.
Yes, she would be charged with negligent homicide because it was foreseeable that if she fell asleep for even just a few seconds, the baby would likely be kidnapped and killed.

Correct 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.

Question 13: 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?

If there is no conceivable set of facts that could provide a rational basis for the classification. (Correct answer)
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.
When the classification results in some inequality among classes of persons, it cannot be rationally tolerated.

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 14: 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?

Burglary and attempted murder.
Robbery and attempted murder.
Robbery, burglary and attempted murder.
Robbery and burglary. (Correct answer)

Correct 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.

Question 15: 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?

The man and his brother have committed criminal conspiracy and attempted murder.
The man and his brother are guilty of conspiracy but not attempted murder.
The man and his brother are guilty of conspiracy and attempted murder, but the friend is guilty of nothing.
The man and his brother are guilty of conspiracy and attempted murder, and the friend is guilty of criminal conspiracy. (Correct answer)

Correct 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.

Question 16: 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?

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. (Correct answer)
No, because the food stands do not have a significant commerce clause claim in that they are still able to sell food, and what they do does not affect interstate commerce.
Yes, because the state is interfering with the food cart owners' legitimate business operations, which impact heavily on interstate commerce.
Yes, because the local interest is favored in a discriminatory manner against all of the food cart owners from other states.

Correct 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.

Question 17: 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?

No, a bar of assignment does not apply to the right to receive the funds unless specifically stated. (Correct answer)
No, a bar of assignment is an unconstitutional deprivation of due process.
Yes, a contractual provision prohibiting assignments is enforceable in all respects.
Yes, a bar against the right to receive proceeds is a favored restriction unless otherwise stated.

Correct 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.

Question 18: 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?

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)
No, the request for the contribution was not unreasonable and cannot support an equal protection argument.
Yes, she can claim a class of one who is being discriminated against.
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.

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 19: 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, the jury's award is discretionary and inviolate, and it may not be disturbed with respect to personal injury damages.
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)
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 20: 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?

First degree murder
Second degree murder
Involuntary manslaughter (Correct answer)
voluntary manslaughter

Correct 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.

Question 21: A man works as an engineer in a small building. He uses a candle to meditate when he is stressed on the job, which then calms him down. He has been mulling an idea in his mind to take a lot of money from his employer using his computer skills, and he has worked out a general plan in his mind. Once he obtains the money, he thinks it might be good to let a candle drop and have the whole building burn down. While he is out at lunch, the janitorial staff came through his office. While cleaning the area, one person lit a candle on the man's desk. When they left, he forgot to blow it out. They slammed the door on the way out, causing the lit candle to fall. It started a fire that burned the building down. What crime, if any, is the man most likely to be convicted of?

Attempted arson, because he took steps to have a candle there to finish the criminal act, but someone else ended up causing an accidental fire that he did not cause.
Arson, because he took a substantial act by having the candle on his desk, and the crime was finished by the foreseeable act of a janitor lighting it and causing a fire.
Attempted arson and attempted murder. Attempted arson because he took a substantial step to committing arson. Attempted murder because his recklessness put the lives of the janitors in potential peril.
No crime, because he only had ideas in his mind and leaving the candle on his desk where he used it for meditation cannot be a substantial act toward committing a crime. (Correct answer)

Correct answer: No crime, because he only had ideas in his mind and leaving the candle on his desk where he used it for meditation cannot be a substantial act toward committing a crime.

For criminal attempt, a defendant must not only have the intent to commit the crime but also take a 'substantial step' toward its commission, which goes beyond mere preparation. Here, the man's thoughts and the presence of a candle he used for meditation do not constitute a substantial step towards arson. The fire was caused by an accidental act of a third party, not by any action taken by the man to further his criminal plan.

Question 22: A husband and wife own a piece of land as tenants by the entirety. When there were marital problems, wife secretly conveyed her interest in the real estate to her youngest son from a prior marriage so that he would always have a place to live. Wife died and the husband filed to evict his stepson. According to the majority view among the states, can the stepson prevail by asserting his deed from his mother?

Yes, the entireties ownership was severed by the valid deed from mother to her son, and son now owns one-half of the property as tenants in common with the husband.
Yes, the son became a tenant by the entireties with his mother's husband upon his mother's death.
No, the mother's deed was a nullity because the entireties estate can only be broken with the consent of both parties; the husband became the sole fee simple owner on wife's death. (Correct answer)
No, a mother cannot convey a real estate interest to a son without getting the approval of all of her children.

Correct answer: No, the mother's deed was a nullity because the entireties estate can only be broken with the consent of both parties; the husband became the sole fee simple owner on wife's death.

Tenancy by the entirety is a form of concurrent ownership available only to married couples, characterized by a right of survivorship and the inability of one spouse to unilaterally convey or encumber their interest. To sever a tenancy by the entirety, both spouses must agree to the conveyance or a divorce must occur. Therefore, the wife's secret deed to her son was ineffective, and upon her death, the husband automatically became the sole owner in fee simple.

Question 23: 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, strict liability applies to pharmaceutical companies and questions of knowledge of defects is irrelevant.
Yes, the manufacturer must assume the cost of compensating those innocent victims who took the defective drug.
No, the company has no duty to conduct research to determine a product's safety.
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)

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 24: A writer’s latest novel created a debate among critics regarding whether the sexual references and the graphic practices in the book made it obscene. While the publisher was readying the book for distribution, the head of a state commission for morality contacted her to tell her that the book was obscene and that she should collect all copies and turn them over for seizure by the government. He also advised that the commission was putting the book on a list of obscene works that retailers should not handle. She responded that dozens of retailers already had the book for an opening day promotion. The commission seized all of the books from the retailers and destroyed them, without any due process procedural safeguards to the author or the publisher. The author and publisher appealed the case and eventually received a writ of certiorari issued by the U.S. Supreme Court. Will the Court uphold the procedure that was used to declare the book obscene and to restrain its distribution?

Yes, if the authorities determine the book to be obscene, then they may seize and prevent its prospective distribution for the protection of the public.
Yes, the determination of obscenity can be made prior to publication because the local authorities have a right to determine the local "community morals" standard.
No, the state must first give the publisher and author a preliminary hearing before a magistrate to get a determination if the book is obscene.
No, the state cannot exercise prior restraint over published material because that has a chilling effect on free speech; a full judicial determination, with a criminal trial, is required before there can be a finding of a work being obscene. (Correct answer)

Correct answer: No, the state cannot exercise prior restraint over published material because that has a chilling effect on free speech; a full judicial determination, with a criminal trial, is required before there can be a finding of a work being obscene.

The First Amendment generally prohibits prior restraints on speech, which are government actions that prevent material from being published or distributed. Even for categories of speech like obscenity, which are not protected, the government cannot seize or destroy materials without a prompt and full judicial determination that the material is indeed obscene, including procedural safeguards for the publisher and author. Summary seizure without a hearing is unconstitutional.

Question 25: Four people own a property, and they agree to convey to an adult child of one of them. There is a purchase-money mortgage on the property for which the four signed a promissory note as security. The loan was not satisfied at the time of the conveyance. The conveyance is a deed in fee simple to the adult child. The adult child then takes over the mortgage payments. The adult child stops making the payments and conveys the property to a bona fide purchaser who does not do a title search. The purchaser sues his grantor to get an order compelling him to pay the mortgage and remove the lien from his property. Will the court more than likely grant the motion to dismiss made by the defendants?

Yes, that is the risk the purchaser took; he cannot go to closing without a title search and a title company making arrangements for payment of the outstanding mortgage by the seller at closing. (Correct answer)
Yes, because the court can only force the original four owners to clear the mortgage by paying it in full.
No, the court will order the original four owners to come into court and defend on behalf of the adult child, who has no legal responsibility for the mortgage.
No, the court will order the adult child to resume paying on the mortgage and to obtain a loan to pay it off within a reasonable time.

Correct answer: Yes, that is the risk the purchaser took; he cannot go to closing without a title search and a title company making arrangements for payment of the outstanding mortgage by the seller at closing.

A bona fide purchaser (BFP) is someone who purchases property for value without notice of any prior adverse claims. However, a purchaser is typically charged with constructive notice of anything that would be revealed by a reasonable title search. Since the purchase-money mortgage was recorded, a title search would have revealed it. The purchaser's failure to conduct a title search means they are deemed to have notice of the mortgage and cannot compel the grantor to pay it off.

Question 26: A city "flow control" ordinance mandated that all solid waste that was within the limits of the town was to be transported to a local facility in the city for processing before it could be sent to other states for further disposal. A solid waste processor sued the city in federal court claiming that the ordinance discriminated based on local economic protectionism. The city responded that the ordinance did not discriminate because it does not differentiate solid waste due to geographic origin. All solid waste, regardless of origin, must be processed and made environmentally safe at the transfer station before it leaves town. Will the federal court rule that the flow control ordinance is a discriminatory law against the free flow of interstate commerce?

Yes, because it allows only the favored operator to process waste that is within the limits of the town, to the exclusion of outside processors who might be interested in getting some of the business. (Correct answer)
Yes, because it requires processors to come into the state to be allowed to do processing instead of being able receive the waste at their out-of-state location.
No, because the city did not discriminate against anyone's waste, if it was in the city limits the state from where the material originated did not come into consideration.
No, because the city simply wanted to assure that the solid waste leaving the area was not environmentally harmful.

Correct answer: Yes, because it allows only the favored operator to process waste that is within the limits of the town, to the exclusion of outside processors who might be interested in getting some of the business.

A 'flow control' ordinance that mandates all local waste be processed at a specific local facility before being sent out of state is generally considered discriminatory under the Dormant Commerce Clause. Such ordinances are typically struck down because they favor local economic interests (the local facility) over out-of-state competitors, effectively hoarding local business and impeding the free flow of commerce.

Question 27: A state government enacted a law that prohibited the state's agencies from purchasing services or goods from and companies doing business with Cuba. The federal government at the time was implementing a thaw in relations with the Cuban government. The U.S. Congress passed a statute regarding various policies and dealings toward Cuba. A National Trade Council sued the state in federal court seeking an injunction and declaratory judgment that the state law toward Cuba was unconstitutional. 30 of the business entities that were discriminated against by the state were members of the council. Is the federal court likely to grant the declaratory judgment and declare the state law unconstitutional?

No, the state law was consistent with the federal law and with federal policy on Cuba.
No, a state has the sovereign right to pass its own laws concerning its policies toward foreign countries.
Yes, the state law is unconstitutional because it denies equal protection to citizens of other states.
Yes, the state law is unconstitutional because it illegally interfered with the foreign affairs power of the federal government. (Correct answer)

Correct answer: Yes, the state law is unconstitutional because it illegally interfered with the foreign affairs power of the federal government.

The power to conduct foreign policy and regulate foreign affairs is exclusively vested in the federal government. State laws that interfere with or contradict federal foreign policy, even if not directly preempted by a specific federal statute, are unconstitutional under the Supremacy Clause and the inherent federal power over foreign relations. The state's law regarding Cuba directly conflicts with the federal government's established foreign policy.

MBE Practice Test 4

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?