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

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?

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

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?

Accepted Answer

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

Answer

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?

Accepted Answer

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

Answer

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?

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

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.

Multistate Bar Exam Practice Test

Multistate Bar Exam Practice Test

MBE Simulator Exam 5