MBE Practice Test 4
This is a timed quiz. You will be given 60 seconds per question. Are you ready?
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?
A statutory classification that does not infringe fundamental constitutional rights must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for it. Where there are plausible reasons for the classification, the inquiry is at an end. See, for example, FCC v. Beach Communications, Inc., 508 US 307, 313-314 (1993). See also Heller v. Doe, 509 US 312, 319-320 (1993). In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made are imperfect. If the classification has some "reasonable basis," it does not offend the Constitution simply because it "is not made with mathematical nicety or because in practice it results in some inequality." Dandridge v. Williams, 397 U.S. 471, 485 (1970).
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?
Private nuisance is a substantial, unreasonable invasion of an individual's interest in the use and enjoyment of land. Macca v. Gen. Telephone Co. of N.W., 262 Or. 414, 418-19, 495 P.2d 1193 (1972). Access to sunlight has become an important use due to solar energy. This has value to both homeowners and society in diversifying energy sources. Unhindered private development is no longer valid. Prah v. Maretti, 321 NW 2d 182 (WI Supreme Ct. 1982). The private nuisance asserted here is therefore given recognition over the landowner's right to build anywhere he pleases. The private nuisance is an interference with one or a relatively few owners, and is actionable by the person whose rights have been disturbed. Blessington v McCrory Stores Corp., 198 Misc. 291, 299, aff'd 279 App Div. 806, aff'd 305 N.Y. 140.
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?
This is not a “possibility of reverter” that reverts back to the grantor instantly on the happening of the event. This conveyance does not use durational language such as "for as long as", "while", and "during". When the language used is conditional, such as "on condition", "if used for", and "provided that," it is a fee simple subject to a condition subsequent. This conveyance creates a future interest called a "right of entry." The property only reverts to the grantor if it exercises this right. See, for a good explanation, Higbee Corporation v. Kennedy, 428 A. 2d 592, 286 Pa. Superior Ct. 101, 107-108-110 (Pa.Super. 1981). It is not relevant here but is worth noting that a good real estate attorney may argue that the modification was so minimal that the condition subsequent should not be enforced; that is an equitable question for the court to decide. See Allegheny Co. Port Auth. v. Flaherty, 6 Pa. Commonwealth Ct. 135, 142-43 (1972). Therefore, the best answer in this hypothetical is number 2, that this is a fee simple subject to a condition subsequent, and the grantor can get the land back by exercising its right of entry.
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?
Generally, if a person is committing a misdemeanor and unintentionally causes the death of another, that person may be prosecuted for involuntary manslaughter. This applies if the misdemeanor is malum in se - wrong in itself - such as assault. Thus an unintentional death caused by assault and battery is usually treated as involuntary manslaughter. See, as examples: Schlossman v. State, 105 Md. App. 277 (MD Ct of Spec. App 1995); Commonwealth v. Sheppard, 404 Mass. 774, 775-76, 537 NE 2d 583 (Mass Sup. Jud. Ct. 1989); State v. Davis, 798 SW 2d 268, 271 (TN Ct. of Crim. App. 1990).
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?
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.
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?
See Liparota v. United States, 471 US 419, 425-27 (1985). The government must prove that the defendant knew that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulation. Statutes dispensing with mens rea have a generally disfavored status, and where the statute is silent or ambiguous, the criminal intent element should be favored as a requirement for conviction.
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?
It is highly doubtful that these circumstances could justify charging the babysitter with a crime. First, there is no mens rea or criminal intent. There was a negligent act but not one of such seriousness that it would generally put persons at serious risk for their lives. The large menacing man also far overpowered her potential ability to resist. Furthermore, the crime was arguably not foreseeable in the way that the death occurred. For a good discussion of the requirements of criminal negligence and mens rea under modern views, see US v. Cordoba-Hincapie, 825 F. Supp. 485, 500-505 (E.D. NY 1993).
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?
Manufacturers are not strictly liable for risks that were considered undiscoverable by the standards of the time. This is the case regardless of what consumer expectations may have been at the time. See Brown v. Superior Court, 751 P. 2d 470 (CA Supreme Ct. 1988).
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?
Criminal intent exists because rape is a general intent crime, requiring only that he intended to perform the act. Also, there cannot be a reasonable belief that prior experience gives future consent to sex. See People v. Dancy, 124 Cal. Rptr. 2d 898, 908-911 (CA Ct of Appeal, 6th App. Dist. 20020). There is no free pass for future sexual relations, and actual consent cannot be inferred from an unconscious person. Thus, a man who intentionally engages in sexual intercourse with an unconscious woman is denying her right to refuse consent. Since a woman may withdraw her consent at any time, People v. Roundtree, 91 Cal. Rptr. 921, 925-926, 77 Cal.App.4th 846 (Cal. App. 2000), neither a woman's actual "advance consent" nor a man's reasonable belief in such consent could possibly eliminate the wrongfulness of the man's conduct.
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?
Criminal attempt is an act or omission constituting a substantial step in a course of conduct planned to culminate in the actor's commission of the crime. See, generally, for example, State v. Hohnstein, 328 NW 2d 777, 780 (NE Supreme Ct 1983); State v. Group, 98 Ohio St.3d 248, 781 N.E.2d 980 (OH 2002). The man has not gone far enough nor committed a substantial act intended to commit the crime. The candle was on his desk at that point for innocent purposes. Although he has intended plan in his mind, he carried none of them out. There is no attempted crime. See Model Penal Code § 5.01. There is no action that can be attributed to him just because the janitor was careless with the candle.
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?
This doctrine, called the dormant commerce clause, is violated when there is a local entity that is favored to exclusively deal with products that will go into commerce. This is a form of protectionism that is prohibited. In a dormant Commerce Clause violation, the state or local law discriminates against out-of-state actors or has the effect of favoring in-state economic interests over out-of-state interests. Discriminatory laws motivated by "simple economic protectionism" are subject to a "virtually per se rule of invalidity." See City of Philadelphia v. New Jersey, 437 U.S. 617 (1978); C&A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383 (1994); Dean Milk Co. v. City of Madison, Wisconsin, 340 U.S. 349 (1951), Hunt v. Washington State Apple Advertising Comm., 432 U.S. 333 (1977).
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 three elements of conspiracy are: (1) intent to commit the crime; (2) agreement between the defendant and at least one other person to commit it; and (3) an "overt act" performed by one of the conspirators in furtherance of the conspiracy. See State v. Peralta, 800 NW 2d 512, 516-17 (WI Ct of Appeals 2011). Any act toward commission of the crime is sufficient. Id. The overt act in conspiracy should not be confused with the "substantial step" element required for attempt. To convict of attempt, the State must prove that defendant did acts toward the commission of the crime showing clearly that she formed that intent and would commit the crime. Id. at 517. The three men had an agreement to murder the neighbor, which was conspiracy through the overt act of getting the poison. See Model Penal Code § 5.03. Friend did not go beyond mere planning but the man and brother did, and the two are guilty of attempted murder. Friend did not form the specific intent to murder and would not have done the crime.
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?
A criminal conspiracy may exist and be punished whether or not the substantive crime is achieved because the conspiracy is a distinct evil, dangerous to the public, and punishable in itself. State v. Huff, 769 NW 2d 154, 158-59 (WI Ct. of Appeals 2009), citing to United States v. Fiander, 547 F.3d 1036, 1042-1043 (9th Cir.2008). The illegality of the agreement does not depend on the achievement of its ends, and it is irrelevant that the ends of the conspiracy were from the very inception of the agreement objectively unattainable. Legal impossibility is not a defense to the crime of conspiracy. See also, US v. Hsu, 155 F. 3d 189, 203-04 (3rd Cir. 1998). It is also irrelevant that the defendant enters an agreement with undercover agents. Under a unilateral conspiracy, a person who intends to accomplish the criminal objective of the conspiracy is guilty even though the other members never intended that a crime be committed. Huff, 769 NW2d 158.
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?
This is a legitimate government interest that cannot be successfully challenged on discriminatory grounds without more of a showing of discrimination, the offering of truly less burdensome alternatives, and a showing that the government's interest is not legitimate. The Supreme Court has held that “Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 143 (1970), citing Huron Cement Co. v. Detroit, 362 U.S. 440, 443 (1960). Here, we don't have a state statute, instead it is a local law or ordinance, but the reasoning would be the same.
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?
A fundamental principle of the Constitution is that Congress has the power to preempt state law. Art. VI, cl. 2; state law is also naturally preempted to the extent of any conflict with a federal statute. It also violated the dormant Foreign Commerce Clause, U. S. Const., Art. I, § 8, cl. 3. See Crosby v. National Foreign Trade Council, 530 US 363, 371 (2000).
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?
Common law burglary consisted of breaking and entering the dwelling of another at nighttime with the intent of committing a felony therein. See Black's Law Dictionary. See Taylor v. United States, 495 US 575, 592-93 - Supreme Court 1990. The perp here busted in the door of the residence late at night with the intent of committing a theft of the man's money. Robbery is the felonious taking of money or property from another without consent, and accomplished by means of force or fear. See Black's Law Dictionary. See People v. Williams, 305 P. 3d 1241, 57 Cal.4th 776, 781 (2013). The perp did take the money by the use of force or fear by waving the gun. Attempted murder does not exist: no threats of death, no evidence of intent, and no substantial steps taken with the intent to commit murder.
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?
The offense of criminal assault, i.e., the intent to put the victim in fear of harm, is a specific intent crime because the focus is on the intent of the actor and not on the results. In criminal assault, therefore, the defense of voluntary intoxication may be used. In this case, however, the offense is criminal battery, which involves the actual infliction of bodily harm on the victim. The forbidden conduct in battery is a physical act, which results in bodily harm upon another. Although the definition of battery requires the State to prove that the defendant intended to do the physical act, nothing in the definition requires proof that the defendant meant to violate the law or cause a particular result. The definition of criminal assault under common law requires the State to prove the defendant committed an act with an additional special mental element — specifically, an act done with intent to cause fear in another of immediate bodily harm or death. State v. Fleck, 810 NW 2d 303, 309-312 (MN Supreme Ct. 2012). Fleck provides a very good explanation of the difference between specific intent and general intent crimes, and particularly, between criminal assault and criminal battery. See also, State v. Jamison, 517 P. 2d 1241 (AZ 1974); State v. Redmon, 244 NW 2d 792, 797-98 (IA 1976).
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?
Generally, under the UCC and the Restatement, a prohibition on assignment of the contract refers only to duties that may be delegated, and not to rights in the contract. Here there is an attempt to restrict all aspects of the contract, but prohibiting the assignment of the right to receive payment is generally invalid under the UCC and not favored under common law. See Restatement (Second) of Contracts, § 322(1). See also, Aldana v. Colonial Palms Plaza, Ltd., 591 So.2d 953 (Fla.Dist. Ct.App.1991). See Charles L. Bowman & Co. v. Erwin, 468 F.2d 1293, 1297 (5th Cir.1972); Cedar Point Apartments, Ltd. v. Cedar Point Investment Corp., 693 F.2d 748, 753 (8th Cir.1982), cert. denied, 461 U.S. 914, 103 S.Ct. 1893, 77 L.Ed.2d 283 (1983).
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?
In Engquist v. Oregon Dept. of Agriculture, 128 S. Ct. 2146, 2150-51 (2008), the Supreme Court held that the core concern of the Equal Protection Clause as a shield against arbitrary classifications, combined with unique considerations applicable when the government acts as employer as opposed to sovereign, makes a class-of-one theory of equal protection not applicable in the public employment context. The state as manager needs to use discretion to determine who may be hired or fired. The rule is not the same when the government is acting as a regulator.
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?
See Powell v. Texas, 392 US 514, 532-33 (1968). He was convicted, not for being a chronic alcoholic, but for being in public while drunk on that occasion. The state has not sought to punish a mere status, nor has it attempted to regulate appellant's behavior in the privacy of his own home. Rather, it has imposed on him a criminal sanction for public behavior which may create substantial health and safety hazards, both for him and for members of the general public, and which offend the moral and esthetic sensibilities of a large segment of the community. This is not the same as convicting one for being an addict, being a chronic alcoholic, or a leper.
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?
The tenancy by the entirety is predicated upon the legal unity of husband and wife, and the estate is held by them in single ownership. They do not take by moieties, but both and each are seized of the whole estate. Lang v. Commissioner of Internal Revenue, 289 U.S. 109, 53 S.Ct. 534, 77 L.Ed. 1066 (1933). Neither husband nor wife has a separate divisible interest in the property held by the entirety that can be conveyed or reached by execution. Fairclaw v. Forrest, 76 U.S.App.D.C. 197, 130 F.2d 829 (1942). The indivisibility of the estate, except by joint action of the spouses, is an indispensable feature of the tenancy by the entirety. Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S.W. 72 (1918); Newman v. Equitable Life Assur. Soc., 119 Fla. 641, 160 So. 745 (1935).
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?
Past consideration cannot form the basis for a binding contract. A party cannot rely on a pre-existing duty as new consideration in an attempt to formulate a contract. Here, the defendants clearly rely on past consideration, which renders the alleged oral modification unenforceable. Generally, new consideration is needed to modify a contract. The seller already has a duty to sell for $10,000 and there’s no consideration offered to make the seller want to sell for $8,000. This is partly because it’s not fair to allow one party to dictate change, on the threat of non-performance, which only benefits himself without taking on a new detriment. See, for example, Margeson v. Artis, 776 NW 2d 652, 656-57 (IA Supreme Ct 2009).
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?
The proof concerning impairment of earning capacity is, to some extent, speculative and imprecise. Overstreet v. Shoney's, Inc., 4 SW 3d 694, 703-04 (TN Ct of Appeals, Middle Section 1999). However, this imprecision is not grounds for excluding the evidence. Id. See also, Turrietta v. Wyche, 54 N.M. 5, 212 P.2d 1041, 1047-48 (1949); Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027, 1037 (1980). Impairment of earning capacity is not necessarily measured by an injured person's employment or salary at the time of the injury. An injured person may assert that an injury caused a change of plans or loss of a career. Overstreet at 704-705. The jury will decide between persons with only vague hopes of a profession and those with the demonstrated ability and intent to do so. Often, making this distinction depends on the steps the person has actually taken to accomplish his or her educational or career goals. Id.
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?
The Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will adequately protect the constitutionally protected freedoms of expression. Our constitutional framework requires the most rigorous procedural safeguards be provided in obscenity regulations. Freedom of expression must be protected by a barrier of bulwarks. Criminal sanctions may be applied only after a determination of obscenity has been made in a criminal trial comprising all the procedural safeguards of the criminal process. Bantam Books, Inc. v. Sullivan, 372 US 58, 69 (1963). Any system of prior restraint of publication, without a prompt and full due process judicial determination, is prohibited. Prior restraint of speech carries the danger inter alia of restricting non-obscene books and materials, and has a chilling effect on other publications. See, for example, Freedman v. Maryland, 380 US 51 (1965).
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?
The general rule is that a property owner is entitled to the continued subjacent lateral support of his neighbor's property, and the neighbor who excavates his property so as to remove the subjacent lateral support becomes liable for the resulting damages. Sometimes, as in this example, the court may also order injunctive or other equitable relief if appropriate. See, for example, Keck v. Longoria, 771 SW 2d 808, 809-810 (AR Ct. of App. 1st Div. 1989); Bradley v. Valicenti, 185 Pa. Superior Ct. 403, 406-07 (Pa.Super. 1958).
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?
Upon the transfer of real property covered by a mortgage as security for a debt, the property remains subject to a lien for the debt but the grantee is not personally liable for the debt unless he agreed to do so in the conveyance. Cornelison v. Kornbluth, 15 Cal.3d 590, 596, 542 P. 2d 981 (CA Supreme Ct 1975). The mortgage that is filed by the bank puts a lien on the property that lasts until the underlying debt is paid off. Anyone who buys the property without making sure that all liens are satisfied, takes subject to the lien, so that the bona fide purchaser (as well as the adult child) took title subject to the existing lien on the property. The lien of a mortgage is extinguished upon the sale of the real property unless the purchaser has knowledge, either actual or constructive, of the existence of the mortgage. Where the mortgage is of record it is constructive knowledge of its existence. Baccari v. De Santi, 70 AD 2d 198 (NY App Div., 2nd Dept. 1979); In re Schlabach, 490 BR 555, 561 Bankr. Ct, SD Ohio 2012). That is why the title search must be done.
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?
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).
