MBE Simulator Exam 5 — Questions and Answers

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?

There is no preemption because the first state’s law does not contradict the federal law and both laws could be complied with simultaneously. (Correct 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.
When it comes to fresh produce, federal laws will always preempt state laws, and the injunction will be granted for that reason.
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.

Correct 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.

Federal preemption occurs when federal law overrides state law, but it is not presumed. In this case, there is no express preemption, nor does federal law so thoroughly occupy the field of tomato standards as to imply field preemption. Crucially, the state law does not conflict with the federal standard; a grower can comply with both the state's genetic engineering factor limit and the federal standards simultaneously. Therefore, without a direct conflict or explicit federal intent to preempt, the state law is not 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?

The case was moot because there was no activity that could be enjoined anymore.
The case was not moot because the propriety of granting them a new permit had to be reviewed by the court.
The case was moot because there was no longer a “case or controversy” before the court.
The case was not moot because there was always the possibility that the defendant could return to its old ways without a judicial determination. (Correct answer)

Correct 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.

A case is not moot if the defendant's voluntary cessation of the challenged conduct does not eliminate the possibility that the conduct could resume. Although the industrial plant ceased polluting and obtained a new permit, there remains a possibility that it could revert to its old ways without a judicial determination. Therefore, the case is not moot, as the court retains jurisdiction to ensure the defendant's compliance and to address any remaining claims for civil penalties for past violations.

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?

The plaintiff still retains the burden of persuasion of proving discrimination by a preponderance of the evidence. (Correct 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.
The burden of proof and persuasion has shifted to the defendant who must now persuade the jury that there has been no racial discrimination.
The plaintiff retains the burden of persuasion of proving discrimination by a clear and convincing weight of the evidence.

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

In a discrimination case, once the plaintiff establishes a prima facie case, the burden of *production* shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. If the employer does so, the presumption of discrimination is rebutted, and the burden of *persuasion* always remains with the plaintiff to prove, by a preponderance of the evidence, that the employer's stated reason was a pretext for discrimination. The burden of proof never shifts to the defendant in this framework.

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?

This non-hearsay evidence is admissible as an adoptive party admission. (Correct answer)
This hearsay exception is admissible as a statement against interest.
This non-hearsay evidence is admissible as a prior statement of witness.
This is hearsay evidence that is not admissible.

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

The news articles, though initially out-of-court statements by third parties, become admissible as non-hearsay under the adoptive party admission rule. By reprinting and distributing these articles to prospective customers, the defendant company implicitly adopted the statements within them as their own representations. This act of adoption makes the content of the articles attributable to the company, allowing them to be offered against the company for the truth of the matter asserted without being excluded as hearsay.

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?

The farmer could have used insecticide to kill the insects; he breached the contract, and gets nothing.
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. (Correct 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.
The farmer is entitled to collect on the 60 tons and will be reimbursed for the 40 unproduced tons by the federal government.

Correct 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.

Under the Uniform Commercial Code, a seller may be excused from full performance if an unforeseen contingency, like a severe insect invasion destroying a crop, makes performance commercially impracticable. The insect invasion was a natural disaster that fundamentally altered the basic assumption of the contract regarding the availability of the full cucumber yield. Therefore, the farmer is excused from delivering the remaining 40 tons and is entitled to payment for the 60 tons delivered, as the contract was partially discharged due to impracticability.

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?

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

Correct 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.

The settlement agreement is binding because the insurer, by agreeing to settle while a summary judgment motion was pending, assumed the risk that the motion could be decided unfavorably or favorably. The "mistake" regarding the timing of the summary judgment ruling was a known uncertainty inherent in the litigation process. A party cannot claim mutual mistake to rescind a settlement when they were aware of the uncertain nature of a material fact (the outcome of the pending motion) and proceeded to contract despite that uncertainty.

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?

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

Correct 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.

The purchaser breached the contract by failing to deposit the remaining $750 of the down payment within the stipulated 10 days, which was a material term of the written agreement. The rumor of an ancient easement, without further investigation or a formal declaration of unmarketable title, did not excuse the buyer's obligation to perform this condition precedent. Since the buyer was in breach first, the seller was justified in rescinding the agreement, and the court will not compel specific performance.

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.

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. (Correct answer)

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

An easement by necessity arises when a parcel of land is landlocked and requires access over an adjoining parcel, provided both parcels were once under common ownership and the necessity arose at severance. The scope of such an easement is not limited to the original use but expands to include any reasonable use necessary for the dominant estate's enjoyment, which encompasses both farming and personal use and can evolve with the reasonable development of the property. This ensures the landlocked parcel remains usable.

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?

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

Correct 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.

First-degree murder is a specific intent crime requiring premeditation and deliberation. Voluntary intoxication can negate the specific intent required for such a crime if it is so substantial that the defendant is incapable of forming that intent. Given the man's extreme intoxication from 'drinking straight shots of alcohol for several hours,' it is highly likely he lacked the mental capacity to premeditate and deliberate, thus preventing a conviction for first-degree murder.

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?

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

Correct 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.

Under the felony murder rule, a defendant can be convicted of murder if a death occurs during the commission or attempted commission of an inherently dangerous felony, such as arson. The intent to commit the underlying felony is transferred to the killing. The death of a firefighter responding to an arson is a reasonably foreseeable consequence of setting a building on fire, satisfying the causation requirement for felony murder, even if the defendant did not intend to kill anyone.

Question 11: Every evening a bill collector would call the plaintiff every 30 minutes throughout the night. The caller would make threats about collecting the money owed but would also mention personal facts about the plaintiff’s private life, such as the names of his two prior spouses, the names of his children, his prior jobs, a prior lawsuit against him, and many other personal matters. Then packets of mail would arrive with photos indicating that the bill collector was following plaintiff and taking photos of him in his yard, outside with his dog, at family picnics and doing odd jobs around his house, and even inside his house, leading plaintiff to suspect and believe that a micro-video device was planted in his home. The plaintiff felt that nothing was sacrosanct and that the harasser seemed to know everything he did and everything from his past. He finally obtained information on the identity and address of the company engaging in the activities, and sued it for invasion of privacy and violations of federal and state fair debt collections practices acts. With respect to the invasion of privacy tort, will the court grant the motion to dismiss filed by the defendant company?

Yes, because invasion of privacy does not apply where the activity of the plaintiff is observable by the public.
No, the activities here are highly offensive to a reasonable person, probe into his private, affairs, and go far beyond what would reasonably be expected under the circumstances. (Correct answer)
Yes, the plaintiff does not have a right to complaint because these are normal and reasonable collection activities and the information is all public information.
No, the defendant company was illegally holding the plaintiff in a false light, in a way that was highly offensive.

Correct answer: No, the activities here are highly offensive to a reasonable person, probe into his private, affairs, and go far beyond what would reasonably be expected under the circumstances.

The bill collector's actions, including constant calls, revealing private facts, following, photographing the plaintiff in private settings, and the suspected planting of a micro-video device, constitute an extreme intrusion upon the plaintiff's solitude and private affairs. This conduct goes far beyond reasonable debt collection practices and would be considered highly offensive to a reasonable person, thus satisfying the elements for the tort of intrusion upon seclusion, a form of invasion of privacy.

Question 12: A foreman in a slaughterhouse approached three female workers who were taking a proper 15-minute break and accused them of laziness, not doing their jobs, incompetency and taking an unauthorized break. He shouted profanities, various insults and accused them of “breaking the rules.” After a one-minute tirade, he left the area. One of the workers, a 69-year-old woman, became immediately ill, with complaints of chest pains, shortness of breath and anxiety. The employer transported her to a local hospital, where she remained for two days. Although all tests were negative, the doctor diagnosed severe panic attack. Despite no need for further treatment, and an apology from the foreman, she remained upset and stressed. She sued the foreman and the company for one count of intentional infliction of emotional distress, along with other claims. The defendants filed a motion to dismiss the intentional infliction count for failure to state a legal claim. Will the judge grant the motion and dismiss the intentional infliction count preliminarily?

No, the foreman knew or should have known that his tirade would cause severe emotional distress, so that he acted intentionally.
No, the obscenities and the personal insults were so outrageous and extreme that no reasonable employee could endure the experience.
Yes, because a one-minute tirade of obscenities in a work environment is not so extreme and outrageous as to qualify for the intentional infliction of emotional distress tort. (Correct answer)
Yes, because the tort requires a physical touching to accompany the insults and outrageous behavior and no physical contact occurred.

Correct answer: Yes, because a one-minute tirade of obscenities in a work environment is not so extreme and outrageous as to qualify for the intentional infliction of emotional distress tort.

To establish intentional infliction of emotional distress (IIED), the defendant's conduct must be 'extreme and outrageous,' meaning it goes beyond all possible bounds of decency. While the foreman's one-minute tirade of insults and profanities was unprofessional and rude, it generally does not meet the very high threshold of 'extreme and outrageous' conduct required for IIED in a workplace context. Courts typically require more severe or prolonged harassment to sustain such a claim.

Question 13: A Wildlife Preservation League sued the U.S. Coast Guard to obtain a preliminary injunction to stop certain “war games” being conducted by the Coast Guard. The sonar blasts were allegedly disruptive to natural wildlife and fish populations. The plaintiff could not prove actual injury to wildlife, but did present expert testimony that this was a distinct possibility for the future. There was uncontested testimony by the Coast Guard indicating an increase in crime if the games were closed. The lower courts approved a preliminary injunction stopping the games until further order. This was based on the growing possibility that the wildlife would be disrupted and\/or displaced. The Coast Guard appealed and the U.S. Supreme Court agreed to hear the appeal. Is it likely that the Supreme Court will uphold the injunction, and why or why not?

Yes, because it virtually always defers to the lower court’s discretion on whether an injunction should issue.
Yes, because there was a possibility of irreparable harm to the wildlife in the area of the games.
No, because in this case the interests of national defense outweighed the interests of the wildlife organization. (Correct answer)
No, because there was no real indication of danger to the wildlife population.

Correct answer: No, because in this case the interests of national defense outweighed the interests of the wildlife organization.

When considering a preliminary injunction, courts balance the likelihood of irreparable harm to the plaintiff against the public interest and the balance of hardships. In this case, the 'distinct possibility' of harm to wildlife is outweighed by the significant public interest in national defense and crime prevention, as evidenced by the uncontested testimony regarding increased crime if the Coast Guard's 'war games' were halted. The Supreme Court would likely prioritize these broader public interests.

Question 14: A severely injured passenger sued the driver of the car (defendant 1) that crashed into the car she was riding in at the time of the accident. She also sued the driver of the car she rode in (defendant 2), claiming that both drivers were negligent in the accident. Defendant 2 wants his attorney to sue defendant 1 for contribution because he is insistent that the other vehicle was totally responsible and liable for all damages. Which of the following would be more appropriate for defendant 2 to file under the circumstances?

He can file a counterclaim against defendant 1.
He can file a new complaint and action against defendant 1.
He can file a compulsory counterclaim against defendant 1.
He can file a crossclaim against the coparty defendant 1. (Correct answer)

Correct answer: He can file a crossclaim against the coparty defendant 1.

Defendant 2 and Defendant 1 are co-parties in the original lawsuit. A crossclaim is the appropriate procedural mechanism for one party to assert a claim against a co-party (e.g., co-defendant against co-defendant) when that claim arises out of the same transaction or occurrence as the original action. Here, the claim for contribution stems directly from the same car accident. Counterclaims (options A and C) are filed by a defendant against the *plaintiff*, not against another defendant, and filing a new complaint (option B) would be less efficient than using the existing litigation framework.

Question 15: A man who works and resides in State A is injured seriously while using a defective lawn mower. The mower was made in State B where the manufacturer has a large manufacturing plant. The manufacturer is incorporated in State C where it has a registered agent and receives lawsuits and service of process. The manufacturer does business in State A but is headquartered, controlled and has its “nerve center” in State D. The man sues the manufacturer in a federal court in State A on a products liability tort claim. The complaint alleges serious and permanent injuries, a permanent disability, and damages in excess of $75,000. Leaving aside any potential questions of venue, is there subject matter jurisdictional authority for the case to be filed in State A and what is the reason for or against it?

Yes, there is federal subject matter jurisdiction in State A because the case is brought under the federal laws of products liability.
No, the plaintiff must sue in state B where the manufacturer has a physical presence.
Yes, there is diversity jurisdiction because the man is domiciled in State A and the manufacturer is incorporated in State C and headquartered in State D, making them citizens of different states. (Correct answer)
No, because the man lives in State A and the manufacturer does business there, which defeats diversity jurisdiction.

Correct answer: Yes, there is diversity jurisdiction because the man is domiciled in State A and the manufacturer is incorporated in State C and headquartered in State D, making them citizens of different states.

Federal diversity jurisdiction requires complete diversity of citizenship between all plaintiffs and all defendants, and an amount in controversy exceeding $75,000. For an individual, citizenship is determined by domicile (State A for the man). For a corporation, citizenship is *both* the state of incorporation (State C) *and* the state of its principal place of business (nerve center, State D). Since the plaintiff (State A) is diverse from both corporate citizenships (State C and State D), and the damages exceed $75,000, diversity jurisdiction exists. Products liability claims are generally state law torts, not federal law claims (option A), and doing business in a state does not automatically confer citizenship for diversity purposes (option D).

Question 16: Several casinos located in a state where gambling was legal placed advertisements about hotel prices and casino activities in newspapers in neighboring states that did not allow casino gambling. One of those states had a statute that prohibited advertising of casino gambling in any form or manner. A casino sued the state claiming an abridgement of First Amendment rights to free speech. The state responded that the rights of commercial speech were highly restricted and could not be used to advertise something that is illegal in the state. What would be the likely decision of the federal court regarding the statute’s constitutionality?

It is constitutional to prohibit advertising of a business’ products in a state where such products are illegal.
It is unconstitutional to bar the advertising of information about an activity that is legal in the originating state. (Correct answer)
It is constitutional because there is no right to free commercial speech.
It is unconstitutional to regulate any commercial speech as such would deny the business its substantive due process rights.

Correct answer: It is unconstitutional to bar the advertising of information about an activity that is legal in the originating state.

Commercial speech, while subject to greater regulation than other forms of speech, is protected by the First Amendment. Under the Central Hudson test, a state cannot ban truthful advertising of a lawful product or service unless it has a substantial government interest, the regulation directly advances that interest, and it is narrowly tailored. The Supreme Court has held that states cannot prohibit truthful advertising of a legal activity (like gambling in a state where it's permitted) simply because the activity is illegal in the state where the advertisement is received. Therefore, a blanket ban on advertising a legal out-of-state activity is unconstitutional (option B), as there is a right to free commercial speech (option C is wrong), and the state's interest is not absolute (option A is wrong).

Question 17: A law graduate applied for admission and licensing to a state bar committee. On the questionnaire she was required to complete a question that asked whether the applicant “had belonged to the Communist Party or any organization that advocated overthrow of the United States Government by force?.” It also asked for a list of all organizations joined in the past 10 years. The graduate refused to answer those two questions, citing First Amendment rights. She was denied her law license and sued the state committee. The case is accepted for review by the United States Supreme Court. What will be the most likely decision of the court?

The state has an absolute right to know the applicant’s background – she can be denied admission for failing to answer.
The state must know, in this age of terrorism, whether she has ever been involved in terrorist organizations – her license can be withheld.
The committee’s requirements are unconstitutional as violation of procedural due process, and the license must be issued.
The committee’s requirements are unconstitutional as an interference with First Amendment rights. (Correct answer)

Correct answer: The committee’s requirements are unconstitutional as an interference with First Amendment rights.

The Supreme Court has consistently held that states cannot inquire into an applicant's mere membership in an organization, even one like the Communist Party, without also requiring proof that the applicant *knowingly* participated with the *specific intent* to further the organization's illegal aims. Broad questions about past associations, without this specific intent requirement, are considered an unconstitutional interference with First Amendment rights to freedom of association and speech. While states have an interest in bar fitness, it is not absolute and cannot infringe on fundamental constitutional rights (options A and B are wrong). The issue here is the substance of the questions, not procedural due process (option C is wrong).

Question 18: A man was arrested on a federal crime that prohibits a person who has a prior felony conviction from possessing a firearm. The prosecution is usually satisfied to prove the existence of a prior felony by reading the date and the offense to the jury. Despite objections from the defense, the prosecutor insisted, with the court’s approval, on putting the full details of the man’s prior conviction for sexual assault on the record by reading the indictment and other pertinent details. The man had offered to stipulate to the date and penalty of the offense, and to have the prosecution read that to the jury and nothing else. The prosecution went ahead and read to the jury all of the details of the prior sexual assault conviction. The jury convicted him of the firearm possession charge after deliberating for 30 minutes. On appeal, he objected again to the unfair prejudice that he suffered by the court’s ruling. Considering the case law interpretations of Rule 403 of the Federal Rules of Evidence, what is the most likely outcome.

The appeal will be denied on the basis that the prosecution is always entitled to introduce the details of the man’s prior conviction.
The appeal will be denied because in this case proving the charged crime involved the necessity of proving the details of the prior felony.
A new trial will be ordered because it was unfair to allow the prosecution to use that kind of detailed character evidence to try and inflame the jury to convict on the current charges. (Correct answer)
A new trial will be ordered because evidence of sexual offenses is never admissible lest it taint the jury’s objectivity.

Correct answer: A new trial will be ordered because it was unfair to allow the prosecution to use that kind of detailed character evidence to try and inflame the jury to convict on the current charges.

Under Federal Rule of Evidence 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. While the *fact* of a prior felony is an element of the felon-in-possession charge, the detailed nature of a prior sexual assault conviction is highly inflammatory and has minimal probative value beyond establishing the 'felony' element. When a defendant offers to stipulate to the fact of the prior felony, courts generally find that introducing the full, prejudicial details is unfairly prejudicial and warrants a new trial, as established in *Old Chief v. United States*. The prosecution is not always entitled to introduce such details (options A and B are wrong), and the issue is the prejudicial effect of the *details*, not a blanket inadmissibility of all sexual offense evidence (option D is wrong).

Question 19: In a child sexual abuse case, the prosecution called a doctor to the stand to testify to statements made by the child victim regarding the abuse. She told the doctor during the medical examination after an extended period of abuse that she was slapped, hit and spanked by the defendant who was her mother’s boyfriend. She reported that he also penetrated her with his fingers. At trial, the prosecution put the doctor on the stand to testify, among other things, to those statements of the child. The defense objected on the basis of hearsay. Will the court likely exclude the child’s statements to the doctor?

Yes, the statements are too inflammatory in comparison to their probative value and they will be excluded.
Yes, the statements are hearsay and are inadmissible for the purposes of proving the abuse.
No, the statements are admissible as exceptions to the hearsay rule in that they are given for the purpose of medical diagnosis or treatment. (Correct answer)
No, the statements are admissible as exceptions to the hearsay rule in that they are within the present sense impression exception to the rule.

Correct answer: No, the statements are admissible as exceptions to the hearsay rule in that they are given for the purpose of medical diagnosis or treatment.

The child's statements to the doctor, though hearsay (out-of-court statements offered for the truth of the matter asserted), are admissible under Federal Rule of Evidence 803(4), the exception for statements made for medical diagnosis or treatment. This exception covers statements describing medical history, symptoms, or the general cause of an injury, if reasonably pertinent to diagnosis or treatment. A child's description of abuse to a doctor is crucial for understanding the injuries and providing appropriate medical and psychological care. The statements are highly probative for this purpose (option A is wrong), and while hearsay, they fall under a specific exception (option B is wrong). The present sense impression exception (option D) is inapplicable as the statements were made after an 'extended period of abuse,' not contemporaneously.

Question 20: A professional hockey player was traded from one team to another, with his existing contract being assigned to the new team. The contract had an option to require the four-time all-star player to sign a new three-year contract at a newly negotiated amount. The new team exercised the option. After successful negotiations, they agreed on and signed a three-year contract. However, that team later discovered that the player also signed a one-year contract with another team. Despite demands, the player has failed to assure his new team that he is going to honor the three-year contract. For that reason, the team filed an action requesting injunctive relief. What will the court most likely decide?

The one-year document was an anticipatory repudiation of the valid three-year contract, but injunctive relief was denied because the team can sue for money damages.
There is an anticipatory repudiation of the valid three-year contract, and an injunction will issue because money damages are inadequate to replace the players highly unique and special services. (Correct answer)
Although there was an anticipatory repudiation of a valid contract, money damages will suffice because the court can never attempt to enforce a contract for personal services.
There was no valid contract because it’s illegal for two teams to trade and negotiate the freedom of choice and freedom of movement of a player.

Correct answer: There is an anticipatory repudiation of the valid three-year contract, and an injunction will issue because money damages are inadequate to replace the players highly unique and special services.

The player signing with another team after agreeing to a new contract with the current team constitutes an anticipatory repudiation, an unequivocal indication that he will not perform his contractual obligations. While courts generally do not grant specific performance for personal service contracts (forcing someone to work), they *can* issue an injunction to prevent a party from performing *similar services for a competitor* if the services are unique or extraordinary and money damages would be inadequate. Professional athletes are typically considered to provide unique services, making injunctive relief appropriate to prevent them from playing for another team (option B). Money damages are often inadequate in such cases (options A and C are wrong). Player trades and contracts are standard and legal in professional sports (option D is wrong).

Question 21: A building owner hired a painter to paint 20 office units that were vacant and being refurbished. They agreed to terms in writing, and the painter started on the work. After completing only two units, he received a written message from the owner repudiating their agreement and stating that his services were no longer needed. The painter ignored the message because he believed that his contract guaranteed him the full 20 units of work. He finished all units and sent a bill to the owner, who responded with a check for the first two units only. The painter sued the building owner for the full balance due. The building owner countered that he only owed up to the point that he repudiated the contract. Which of the following most closely states the probable decision of the court?

The painter had a duty to stop work and thus mitigate damages when he received a written repudiation of the contract. (Correct answer)
The painter had a right to complete performance because he had already started the work and had a right to perform his part of the valid and enforceable agreement.
The “avoidable consequences” doctrine is applicable to support the right of the painter to finish the job and be paid.
The painter could not receive the full contract price because he would be unjustly enriched under these circumstances.

Correct answer: The painter had a duty to stop work and thus mitigate damages when he received a written repudiation of the contract.

Upon receiving an unequivocal repudiation of a contract, the non-breaching party has a legal duty to mitigate damages. This means they must take reasonable steps to minimize their losses and should not continue performance if doing so would increase the damages. The painter, by continuing to paint after the owner's clear repudiation, failed to mitigate damages for the remaining units. He cannot recover for work performed after the repudiation that could have been avoided. Therefore, the owner only owes for the work completed up to the point of repudiation (option A). The right to perform (option B) is superseded by the duty to mitigate. The 'avoidable consequences' doctrine (option C) supports the owner's position, not the painter's. The issue is mitigation, not unjust enrichment (option D).

Question 22: A tenant moved into a single-family residence. She and the landlord signed a lease-purchase agreement, which applied $200 of each month’s rent to the purchase price of $50,000. The tenant agreed to get a mortgage within 33 months and to pay the full balance due, less the payments credited, on the final settlement date, which was set for 90 days after the 33rd month. A default by the tenant caused a forfeiture of all credits and voided the agreement. The tenant made 31 consecutive payments, but stopped on month 32, when part of the roof caved in causing an uninhabitable situation in the dead of winter. She put the rental payments in an escrow account. The landlord sued for eviction and termination of the lease-purchase agreement. The tenant answered that the landlord had breached the warranty of habitability. She also counterclaimed to compel specific performance of the agreement because she was ready to tender the balance due and take full title to the property. Under the circumstances, what is the most likely ruling of the court?

The landlord breached the warranty of habitability, which released the tenant at least temporarily from further rent payments, but the purchase agreement was still valid and it would be enforced. (Correct answer)
The landlord breached the warranty of habitability, which had the effect of voiding the lease-agreement and making the tenant’s right unenforceable, so that closing could not be compelled.
The tenant breached the agreement by stopping the rent payments, which she had no right to do just because there was a repair that needed to be made, and closing would not be compelled.
The landlord must refund the $200 per month payments made toward the purchase; however, the agreement became void due to both parties nonperformance, and the closing would not be compelled.

Correct answer: The landlord breached the warranty of habitability, which released the tenant at least temporarily from further rent payments, but the purchase agreement was still valid and it would be enforced.

Landlords have an implied warranty of habitability, requiring them to provide premises fit for human habitation. A caved-in roof in winter clearly breaches this warranty, justifying the tenant's temporary withholding of rent (especially if placed in escrow). However, a breach of the *lease* portion of a lease-purchase agreement does not automatically void the *purchase option*, particularly when the tenant is ready and willing to perform the purchase. The lease and purchase components are often severable. Thus, the landlord breached the warranty of habitability, but the purchase agreement remains valid and enforceable if the tenant is ready to close (option A). The tenant was justified in withholding rent (option C is wrong), and the agreement is not voided by the landlord's breach (option B and D are wrong).

Question 23: An owner and a buyer signed an agreement of sale for the owner’s residential premises. Time was of the essence. The closing date was set for 90 days from the date of the agreement. The buyer turned over a significant down payment, which was held in escrow by the real estate broker. The settlement was contingent on the buyer obtaining a conventional mortgage at prevailing rates within 45 days of the date of the agreement. The buyer promised to make a good faith effort to apply for a mortgage. The only mortgage that the buyer was able to obtain was a variable rate mortgage that was then set at 5 points above the prime rate. It contained a balloon payment in 5 years with a large balance that the buyer could ill-afford if he was unable to obtain new financing. The buyer advised the seller that he could not get a mortgage and demanded his down payment back. The seller disputed that the buyer could not get a mortgage and refused the refund. Will the court enforce the refund?

Yes, because this was not a conventional mortgage at prevailing rates. (Correct answer)
Yes, because the loan was usurious in any event.
No, because this was a conventional mortgage at prevailing rates.
No, because the mortgage would be easily re-financed in five years.

Correct answer: Yes, because this was not a conventional mortgage at prevailing rates.

Mortgage contingency clauses protect buyers by making the sale conditional on obtaining specific financing. The contract required a 'conventional mortgage at prevailing rates.' A variable rate mortgage at 5 points above prime with a balloon payment is generally not considered a conventional mortgage at prevailing rates, especially if it makes the purchase unaffordable for the buyer. Since the buyer made a good faith effort but could only obtain a loan that did not meet the specified contractual conditions, the contingency was not satisfied, entitling the buyer to a refund of the down payment (option A). The question does not provide information to assess usury (option B), and the mortgage described is not 'conventional at prevailing rates' (option C). Future refinancing prospects are irrelevant to the current contractual condition (option D).

Question 24: A domestic day worker for a family decided to steal some jewelry that she had been admiring. She came back at night and entered a door that she knew was unlocked. She took several valuable pieces of jewelry that she had seen while performing her job duties. Someone in the house saw her leave with a bag and called the police. The worker was charged with burglary. Is there sufficient evidence to convict on the charge of burglary under the common law definition?

No, common law burglary required a breaking, and there was no breaking here.
No, common law burglary requires the intent to commit a felony inside, but stealing jewelry is usually a misdemeanor.
Yes, this crime has all the necessary elements to establish the common law crime of burglary. (Correct answer)
Yes, this is a burglary under the common law because there was a breaking and entry at nighttime with the attempt to commit a misdemeanor therein.

Correct answer: Yes, this crime has all the necessary elements to establish the common law crime of burglary.

The correct answer is Yes, this crime has all the necessary elements to establish the common law crime of burglary. Common law burglary requires a breaking and entry of a dwelling house of another at nighttime with the intent to commit a felony therein. Entering an unlocked door without permission to do so for the purpose of committing a felony constitutes a 'constructive breaking' under common law, and stealing valuable jewelry is typically grand larceny, a felony. Options A and D are incorrect because entering an unlocked door without permission for a criminal purpose is a breaking, and the intent must be to commit a felony, not a misdemeanor. Option B is incorrect because stealing valuable jewelry is generally a felony (grand larceny).

Question 25: A man was under custodial interrogation as a suspect in the murder of a child. The police initially gave him a written list of his Miranda rights. They told him to read the list out loud, which he did. They then asked him if he understood the right to remain silent and to have a lawyer present and he nodded affirmatively. He refused to sign the writing but did not ask for an attorney. During the next three hours they interrogated him and got few answers; he was largely silent but did respond at times with a “no” or “yes” or a nod of the head. Then one of the detectives asked him if he was ready to ask God for forgiveness for killing the child. His eyes welled with tears and he said “yes.” This opened further questioning leading to his admission of guilt. He would not sign a written confession or a waiver of the right to remain silent. He was arrested for murder and moved to suppress the confession. Will the court suppress the confession as being involuntarily given?

No, the circumstances indicate that he understood that he could stop the questioning and get a lawyer but he did not do so. (Correct answer)
No, whenever a written list of Miranda warnings is given to a suspect and he doesn’t ask for a lawyer, this is proof that the suspect fully understands his rights.
Yes, the confession must be suppressed because he was questioned for over three hours, making anything he said essentially involuntary.
Yes, the use of religious deception to get a suspect to admit to crime renders the confession involuntary.

Correct answer: No, the circumstances indicate that he understood that he could stop the questioning and get a lawyer but he did not do so.

The correct answer is No, the circumstances indicate that he understood that he could stop the questioning and get a lawyer but he did not do so. A confession is voluntary if, under the totality of the circumstances, the suspect's will was not overborne by police coercion. Here, the suspect was given Miranda warnings, read them aloud, and nodded affirmatively to understanding his rights, including the right to remain silent and have a lawyer, but he did not invoke them. While he refused to sign a waiver, an implied waiver can be found through conduct if the suspect understands their rights and chooses to speak. The length of questioning or the use of religious appeals, without more, typically does not render a confession involuntary if the suspect understood and waived their Miranda rights.

MBE Simulator Exam 5

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?