MBE Simulator Exam 5

Question 1

A law in one state forbids the transportation or sale of tomatoes in the state that have a more than 10% “genetic engineering factor.” The U.S.
Department of Agriculture does not use or mention genetic engineering factors in its standards for the sale and transportation of tomatoes.
Tomato growers in a second state wish to ship tomatoes for sale into the first state but its tomatoes are in compliance only with the federal standards.
The tomato growers’ association in the second state brought an injunctive action in federal court against the agricultural department of the first state to enjoin enforcement of the genetic engineering rule on the basis of federal preemption.
According to U.S.
Supreme Court precedent, how will the courts decide the preemption claim?

Accepted Answer

There is no preemption because the first state’s law does not contradict the federal law and both laws could be complied with simultaneously.

Answer

The injunction will be granted because tomatoes that are in compliance with federal law never have to be approved also under a state law.

Answer

When it comes to fresh produce, federal laws will always preempt state laws, and the injunction will be granted for that reason.

Answer

The first state’s law sets standards that interfere impermissibly with the second state’s law and therefore the first state’s law is preempted.

Question 2

A group of neighbors sued an industrial plant under the provisions of the federal Clean Water Act for discharging mercury and other poisons into a river near their properties. The group asked for an injunction and civil penalties to stop the discharges. The discharges were tested and exceeded the maximum amounts of several pollutants allowable under federal regulations. After the suit was filed, the industrial plant ceased the polluting activities and was able to get its discharges into compliance, and obtained a renewal of its permit. The company then asserted that the lawsuit was moot. What was the likely decision of the federal court?

Accepted Answer

The case was not moot because there was always the possibility that the defendant could return to its old ways without a judicial determination.

Answer

The case was moot because there was no activity that could be enjoined anymore.

Answer

The case was not moot because the propriety of granting them a new permit had to be reviewed by the court.

Answer

The case was moot because there was no longer a “case or controversy” before the court.

Question 3

In a civil rights case, a former employee sued her former employer for racial discrimination in terminating her from her job. The employee proved the facts required to raise a presumption of racial discrimination against the employer. At that point, the burden of going forward shifted to the employer, who presented evidence that there was an innocent, non-discriminatory reason for firing her. Which of the following best describes the procedural posture of the case and the plaintiff’s remaining evidentiary burden?

Accepted Answer

The plaintiff still retains the burden of persuasion of proving discrimination by a preponderance of the evidence.

Answer

The plaintiff’s case has been defeated by the defendant’s evidence in rebuttal of the presumption – the court will direct a verdict in favor of the defendant.

Answer

The burden of proof and persuasion has shifted to the defendant who must now persuade the jury that there has been no racial discrimination.

Answer

The plaintiff retains the burden of persuasion of proving discrimination by a clear and convincing weight of the evidence.

Question 4

A consumer sued a company that makes and installs security alarms, claiming fraud. The consumer alleged that the company knew that some of its representations and hardware did not work as advertised. Prior to purchasing a security system, employees of the company reprinted news articles about the financial worth of the company and about the effectiveness of their security equipment, and distributed the articles to the consumer. These articles contained false and misleading information that made the company appear more established and their equipment more reliable than in reality. At trial, the plaintiff consumer offered these articles into evidence. The defendant company objected to the articles on the basis that they were hearsay. What is the likely decision of the trial court regarding the evidentiary objection?

Accepted Answer

This non-hearsay evidence is admissible as an adoptive party admission.

Answer

This hearsay exception is admissible as a statement against interest.

Answer

This non-hearsay evidence is admissible as a prior statement of witness.

Answer

This is hearsay evidence that is not admissible.

Question 5

A farmer contracted to sell 100 tons of his home-grown cucumbers to a wholesaler. An invasion of cucumber-eating insects attacked the crop and made it a poor season. The farmer delivered only 60 tons. The wholesaler claimed a breach of contract due to his being shorted 40 tons. The farmer sued the wholesaler for payment on the 60 tons, and the wholesaler counterclaimed for damages caused by the loss of the additional 40 tons. What is the most likely decision of the court?

Accepted Answer

There is an industry-wide implied condition that natural causes could limit the amount of an agricultural product -- the wholesaler must pay for the 60 tons and gets no credit on the rest.

Answer

The farmer could have used insecticide to kill the insects; he breached the contract, and gets nothing.

Answer

The farmer breached the contract but he’s entitled to be paid for the 60 tons, less the amount of damages suffered by the wholesaler in not getting the full value of the bargain.

Answer

The farmer is entitled to collect on the 60 tons and will be reimbursed for the 40 unproduced tons by the federal government.

Question 6

A small business sued an insurance company in federal court for failing to pay certain claims made. After completion of discovery, the insurer filed a motion for summary judgment, requesting dismissal of the lawsuit. In the meantime, the parties went to a scheduled settlement conference with the federal magistrate judge and agreed to settle for $75,000. The district court judge had, however, granted the pending summary judgment motion and issued an order of dismissal a day earlier. The dismissal order, however, had not been docketed and no judgment was entered of record. When the district judge learned of the settlement, she rescinded the order of dismissal and instead ordered the settlement agreement to be docketed. The insurer’s attorney then moved to have the settlement rescinded on the basis of mutual mistake. What is the best and most likely decision of the United States Court of Appeals when it hears the case on appeal?

Accepted Answer

The settlement contract is binding because the insurer knew it had a pending motion when it agreed on a settlement, thus it assumed the risk of these developments and cannot now complain.

Answer

The contract is binding because by accepting responsibility for at least $75,000, the insurance company admitted that its claims in the summary judgment motion were false and unsupportable.

Answer

There is no settlement because both parties were mutually mistaken in believing that a motion for summary judgment had not yet been decided.

Answer

The settlement contract is void because the district court did not have the authority to rescind the summary judgment order and enter instead the settlement agreement on the docket.

Question 7

A man signed an agreement to purchase real estate from a woman for $10,000. He put $250 down at the time of signing the contract but was bound to put up another $750 within 10 days, so as to equal a total of 10% down, as per the written contract terms. The ten days passed without the balance being deposited. The purchaser’s broker told him that the title search revealed an ancient easement over the rear of the property allowing a farmer to take his sheep across the land. Nothing more was said about it. About 30 days after the date of the agreement, the seller gave written notice that she did not intend to perform the agreement and enclosed the check for $250 to the purchaser. The purchaser did not cash that check and put the remaining $750 in the escrow. He then sued for specific performance. Will the court enforce the agreement and compel the seller to sell under the contract?

Accepted Answer

No, because the purchaser breached the agreement by not putting up the balance of the down payment in time, and he had no right to delay just because of rumors about the title search.

Answer

Yes, because the seller breached the contract without reason and the buyer has a right to compel conveyance of the specific property.

Answer

Yes, because the buyer did not have to put the remaining down payment in the escrow account until the seller cleared title and the problem with the easement.

Answer

No, because the court will not compel a seller that has a cloud on title to sell to the purchaser without first showing proof that the title is cleared.

Question 8

In 1970 a farmer purchased 50 acres of farm land. Several years later he built a house and lived on the property while also farming it. The property was landlocked, but there was a gravel road over the adjoining land directly to the nearest highway. Both the farmer’s land and the adjoining lot came from a larger parcel that was divided by the original owner. The farmer used the gravel road for farming and personal use. In 1991, a new owner purchased the adjoining land. She bulldozed the gravel road shut. The farmer filed an action in equity, asserting his absolute necessity to continue using the road to get to the highway. The new owner disagreed, and claimed that if an easement was granted by the court, it must be restricted to use only for crops at certain times, and that personal use should be disallowed or severely restricted because it was an unauthorized expansion of the original use. Which of the following would be the more likely decision of the equity court based on generally prevailing principles? The court will decree an express easement for the crops but the farmer’s personal use will be limited to twice daily. The court will decree that there is an easement in gross that can be used as long as the farmer pays a monthly charge to be determined by the new owner. The court will decree an implied license to use the adjoining property, which the new owner may terminate at any time. The court will decree an easement of necessity which includes the expanding reasonable use of the easement for any lawful use.

Accepted Answer

The court will decree an easement of necessity which includes the expanding reasonable use of the easement for any lawful use.

Answer

The court will decree an express easement for the crops but the farmer’s personal use will be limited to twice daily.

Answer

The court will decree that there is an easement in gross that can be used as long as the farmer pays a monthly charge to be determined by the new owner.

Answer

The court will decree an implied license to use the adjoining property, which the new owner may terminate at any time.

Question 9

A man was arrested and charged with first-degree murder. Police say that he killed his wife about two minutes after she returned home from a social evening. He had been drinking straight shots of alcohol for several hours before that. He claims that he was waiting to talk and not kill her. When she did come home, he was in an extremely intoxicated condition. He complained of her whereabouts and she responded by taunting him about his sexual deficiencies and uncontrolled drinking habits. He responded by picking up his gun from his desk drawer and shooting her. Will the prosecution likely succeed in its attempt to convict him of first-degree murder?

Accepted Answer

No, because there’s ample proof of intoxication substantial enough to prevent him from having the sufficient mental capacity to form the specific premeditative intent necessary for first-degree murder.

Answer

Yes, because voluntary intoxication is never an excuse that can be used as an affirmative defense to a criminal charge; at the most, it can be used as mitigating circumstances in the sentencing stage.

Answer

No, because intoxication, even if voluntary, is an absolute defense to most kinds of violent crime due to the lack of mental capacity necessary for committing a crime.

Answer

Yes, because he waited for his wife knowing that he could exact revenge against her by killing her.

Question 10

A man set fire to his grocery store in order to collect on the insurance. He started a blaze at night when the store was closed and no one would be on the premises. During the blazing fire, a fireman was killed. The authorities arrested the man on charges of arson and felony murder. He was convicted of murder at a jury trial. The man argued that he could not be convicted of murder because he never intended to murder anyone. Will the courts uphold the murder conviction?

Accepted Answer

Yes, because the death of a fireman in the blaze was reasonably foreseeable as a consequence of the arson and therefore intent is attributed to the defendant and he is guilty of murder.

Answer

No, the death of a fireman was not foreseeable and could not have been anticipated – the man had no intent to kill and he cannot be convicted of murder.

Answer

No, felony murder only applies where there are two or more suspects acting jointly to commit a felony.

Answer

Yes, once a felony is committed the perpetrator is liable for all events that may be connected to the felony, even if they are unusual outcomes.