Multistate Bar Examination (MBE) — Questions and Answers

Question 1: An offer states: 'I'll sell you my car for $5,000. Accept by Friday noon.' On Thursday, the offeree sends a letter saying 'I accept, but please include a full tank of gas.' This response is:

A counter-offer that terminates the original offer (Correct answer)
A valid acceptance with a mere request that doesn't affect the contract
A valid acceptance creating a contract on the original terms
An acceptance of a unilateral contract

Correct answer: A counter-offer that terminates the original offer

Under the common law mirror-image rule, an acceptance that adds new terms is a counter-offer, which rejects and terminates the original offer.

Question 2: A defendant is entrapped by a government agent who repeatedly persuades a previously law-abiding person to sell drugs. Which entrapment test focuses on the defendant's predisposition?

The but-for causation test
The subjective test (majority federal rule) (Correct answer)
The reasonable person test
The objective test (MPC)

Correct answer: The subjective test (majority federal rule)

The subjective test, used by most federal courts, focuses on whether the defendant was predisposed to commit the crime before government inducement.

Question 3: Under Barker v. Wingo, courts assess Sixth Amendment speedy trial claims using a four-factor balancing test. Which of the following is NOT one of the four Barker factors?

Whether the defendant was held in pretrial detention (Correct answer)
Length of the delay
The reason for the delay
Whether the defendant asserted the right to a speedy trial

Correct answer: Whether the defendant was held in pretrial detention

The four Barker v. Wingo factors are: (1) length of the delay, (2) reason for the delay, (3) defendant's assertion of the speedy trial right, and (4) prejudice to the defendant; pretrial detention is relevant to prejudice but is not itself a standalone Barker factor.

Question 4: Plaintiff filed a personal injury action against a trucking company whose truck rear-ended the plaintiff's vehicle while he was stopped at a stop light. The plaintiff made timely disclosure to the defendants. After 60 days, the plaintiff did not receive any disclosures from defendants. The defendants’ lawyer did not respond to phone calls and letters from plaintiff’s attorney. The plaintiff filed a motion to compel disclosure and the answers to interrogatories, and asked for monetary sanctions compelling the defendants to pay for plaintiff’s expenses and legal fees. Will the court likely grant the motions, and why or why not?

No, the plaintiff forgot to send defendants each a formal notice of intent to enter a motion to compel discovery, and the defendants cannot combine a motion to compel with a motion for sanctions.
Yes, the court will order the disclosures and answers to interrogatories, but it is premature to enter sanctions in the form of legal fees or expenses.
Yes, the plaintiff did everything required under the rules, and now is entitled to a court order compelling disclosure and for the imposition of sanctions by having the defendants pay the legal fees for the motion to compel. (Correct answer)
No, plaintiff must wait 90 days before filing to compel discovery.

Correct answer: Yes, the plaintiff did everything required under the rules, and now is entitled to a court order compelling disclosure and for the imposition of sanctions by having the defendants pay the legal fees for the motion to compel.

Rule 37 does not require that a motion to compel be completed prior to asking for sanctions. Instead, the rule states only that, "[i]f a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions." Fed.R.Civ.P. 37(a)(2)(A). The Supreme Court has described the process of weighing the statutory factors in calculating civil penalties as "highly discretionary" with the trial court. Tull v. United States, 481 U.S. 412, 427, 107 S.Ct. 1831, 1840-41, 95 L.Ed.2d 365 (1987).

Question 5: A plaintiff sues a doctor for medical malpractice. The plaintiff offers expert testimony that the doctor's technique fell below the standard of care. The doctor offers no expert testimony. Can the plaintiff prevail?

Yes, if the expert's testimony is credible and establishes the standard of care and breach (Correct answer)
No, because both parties must offer expert testimony
No, because the plaintiff has the burden to prove causation beyond a reasonable doubt
Yes, but only if the res ipsa loquitur doctrine applies

Correct answer: Yes, if the expert's testimony is credible and establishes the standard of care and breach

In a malpractice case, the plaintiff must establish the standard of care, breach, causation, and damages through expert testimony, and uncontested credible expert testimony can be sufficient for the plaintiff to prevail.

Question 6: 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 “avoidable consequences” doctrine is applicable to support the right of the painter to finish the job and be paid.
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 painter had a duty to stop work and thus mitigate damages when he received a written repudiation of the contract. (Correct answer)
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 generally has a duty to stop performance and mitigate their damages. By continuing to paint the remaining 18 units after the owner's clear repudiation, the painter failed to mitigate his damages. Therefore, he can only recover for the work completed up to the point of repudiation, plus any damages incurred in preparing for the remaining work, not the full contract price for all 20 units.

Question 7: A trial court admits evidence over a proper objection. For an appellate court to reverse on evidentiary grounds, the appellant must show:

The error affected a substantial right — i.e., was not harmless error (Correct answer)
The objection was made before the evidence was introduced
Any error in admitting the evidence
The error was harmless but the court should exercise discretion

Correct answer: The error affected a substantial right — i.e., was not harmless error

Under FRE 103(a), an error in admitting or excluding evidence requires reversal only if it affects a substantial right of the party — the harmless error standard.

Question 8: 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?

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

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.

Because first-degree murder requires proof of a premeditative kind of specific intent, it may be one of the easier offenses in which to negate the intent element by proof of voluntary intoxication. The intoxication in this case appears to have been severe enough to rob the defendant of his ability to premeditate and deliberate. This does not work as a defense if he already had the specific intent to murder his wife but was drinking just to get up the nerve. But there are no facts in this case to indicate that possibility.

Question 9: A defendant, intending to frighten a plaintiff, fires a gun near her ear. The plaintiff does not see or hear the gun but suffers a heart attack from the noise. Has assault been committed?

No, because the plaintiff did not have apprehension of imminent harmful contact. (Correct answer)
No, because the harm was unforeseeable.
Yes, because the defendant's act caused physical harm.
Yes, because the defendant intended to cause apprehension.

Correct answer: No, because the plaintiff did not have apprehension of imminent harmful contact.

Assault requires that the plaintiff have apprehension of imminent harmful or offensive contact; if the plaintiff was unaware of the threatening act, no assault occurred.

Question 10: A woman was injured when her motorcycle crashed after it failed to handle a sharp turn in the roadway. She had been traveling on a state highway in another state. She suffered grievous injuries. There were no warning signs about the dangerous curve, and visibility was difficult due to overgrown tree branches. She sued the state and its director of highways, claiming negligent maintenance and failure to warn of a dangerous roadway. She claimed that the defendants’ negligence caused her grievous injuries. A jury awarded her a modest sum after a trial. The plaintiff then sued the same defendants in federal court due to diversity jurisdiction and claimed the same injuries from the accident, but alleged that they had gotten much worse since then. The defendants requested dismissal of the second case. Will the federal court judge likely grant the request of the defendants and why?

Yes, because the second case is precluded by res judicata. (Correct answer)
No, because the second case is in a totally different court with different legal principles applicable to the issues.
No, because the aggravation of injuries makes the second case sufficiently different from the first.
Yes, because the second case is not allowed due to collateral estoppel.

Correct answer: Yes, because the second case is precluded by res judicata.

Claim preclusion, or res judicata, bars the litigation of claims that either have been litigated or should have been raised in an earlier suit. Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395 (5th Cir.2004) (quoting In re Southmark Corp., 163 F.3d 925, 934 (5th Cir.1999)). The test for res judicata has four elements: (1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions. Id.

Question 11: A court finds that a government regulation has gone 'too far' and constitutes a regulatory taking. The landowner is entitled to:

Criminal penalties against the regulating officials
Just compensation under the Fifth Amendment (Correct answer)
Rescission of the regulation without compensation
Injunctive relief only

Correct answer: Just compensation under the Fifth Amendment

When a government regulation constitutes a taking under the Penn Central or Lucas tests, the Fifth Amendment requires payment of just compensation.

Question 12: The owner of real estate neglected to pay his real estate tax bills. The county tax bureau sent a notice by certified mail to him at the property address informing that the property would be sold at a public sale if the taxes were not paid. Nobody was home to sign for the letter and nobody claimed it. It was returned to the county marked “unclaimed.” One year later the property was advertised in the local newspaper and exposed to public sale. Prior to completing the sale, the county sent another notice to the owner that came back “unclaimed.” The buyer at the sale tried to evict the owner. The owner filed a complaint against the county and the buyer claiming a taking of his property without due process. The state courts held that the procedure complied with due process notice. The case came before the U.S. Supreme Court. What was the likely decision of the Supreme Court regarding the method of notice provided here?

Certified mail addressed to the owner of the property is always sufficient notice for due process purposes.
Additional attempts at notice are required if at all possible when the county knows in advance that its methods were returned as unclaimed. (Correct answer)
The county’s notice was inadequate because it must have the sheriff serve the notice personally on the owner under U.S. Supreme Court precedent.
The notice was adequate because it was sent twice and was fairly calculated to get to the right person.

Correct answer: Additional attempts at notice are required if at all possible when the county knows in advance that its methods were returned as unclaimed.

When a notice of a tax sale is returned as unclaimed, a State must take additional reasonable steps to attempt to provide notice to the owner prior to selling his property, if it is practicable to do so. In this case, a notice could have been posted on the front door, and the notice could have been sent also by regular mail. If the regular mail was not returned, that would indicate notice received. See Jones v. Flowers, 547 U.S. 220 (2006).

Question 13: A defendant charged with sexual assault seeks to introduce evidence of the victim's prior sexual conduct. Under FRE 412 (Rape Shield), this evidence is:

Admissible if older than one year
Generally admissible to show the victim's credibility
Generally inadmissible, with narrow exceptions (Correct answer)
Admissible only if the defendant testifies first

Correct answer: Generally inadmissible, with narrow exceptions

FRE 412 (the rape shield law) generally bars evidence of a victim's other sexual behavior or predisposition, with narrow exceptions.

Question 14: The owner of an engineering design company recruited a young man to work as a design engineer in the business development section of the business for two years. The man agreed to relocate from another state. He started working as soon as he arrived, and due to the pressing volume of work the parties never put the agreement in writing. Three months later, the owner fired the young man. The young man sued for damages, claiming that he had a legal right to the job for two years, unless fired for just cause, which the owner did not have. The owner countered that the alleged agreement was in violation of the Statute of Frauds and was void. Which one of the following legal principles did the trial court most likely cite in support of its ruling that the agreement was excepted from the Statute of Frauds and would be enforced?

The principle of accord and satisfaction.
The principle of promissory estoppel. (Correct answer)
The principle of specific performance.
The principle of mutual mistake.

Correct answer: The principle of promissory estoppel.

The Statute of Frauds generally requires contracts that cannot be performed within one year to be in writing. However, promissory estoppel can serve as an exception. The owner's promise of a two-year job, the young man's reasonable and foreseeable reliance by relocating, and the resulting detriment (being fired) make it unjust not to enforce the promise. Promissory estoppel allows enforcement to prevent injustice despite the lack of a written agreement.

Question 15: A defendant was charged and convicted of felony murder as a participant in a robbery in which the store clerk was murdered by his accomplice. The authorities then indicted and convicted him of robbery with a firearm. The two prosecutions were not the same offense because felony murder could be proved by proof of any felony, not just robbery, and robbery with a firearm did not require proof of a death. However, the prosecution acknowledged that it was necessary for all the ingredients of the underlying felony of robbery with a firearm to be proved in the felony-murder trial. Will the defendant prevail on appeal in getting the robbery with a firearm conviction dismissed with prejudice on the basis of a double jeopardy violation?

No, because the two offenses were different and required different elements of proof, the second prosecution was valid.
No, because the second prosecution was for a status crime of using a firearm in a robbery and as such it was totally different from the first prosecution.
Yes, because it was necessary for all the ingredients of robbery with a firearm to be proved in the felony-murder trial, the second prosecution was barred by the double jeopardy constitutional prohibition. (Correct answer)
Yes, because the second prosecution of using a firearm in a robbery was based on the same firearm already proved in the earlier case, and when the same firearm is raised twice, double jeopardy applies.

Correct answer: Yes, because it was necessary for all the ingredients of robbery with a firearm to be proved in the felony-murder trial, the second prosecution was barred by the double jeopardy constitutional prohibition.

The U.S. Supreme Court has held that the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. See Grady v. Corbin, 495 US 508 (1990); Harris v. Oklahoma, 433 U. S. 682 (1977).

Question 16: A seller of computers advertised for sale: “lot number 931, brand new computers, state-of-the-art, deeply discounted in price and with factory warranties.” Some of the buyers of these computers ran into problems in trying to register for the factory warranty. They were rejected without explanation, and several of them reported the problem to local authorities. The authorities eventually discovered that the whole lot of computers advertised by the seller was part of a truckload that was hijacked and emptied of its contents a few months earlier. Under questioning, the seller admitted to being part of a group that committed the hijacking. The police arrested him for theft, receiving stolen property, and criminal fraud. Can he likely be convicted of receiving stolen property?

Yes, because the thief is always guilty of both theft and receiving stolen property.
No, because one who has a retail business can never be guilty of receiving stolen property.
Yes, because he received the stolen goods with the intent of selling them to unsuspecting consumers.
No, one who steals the property from its owner cannot be convicted of receiving stolen goods when he tries to sell the stolen item. (Correct answer)

Correct answer: No, one who steals the property from its owner cannot be convicted of receiving stolen goods when he tries to sell the stolen item.

Under the common law and in many jurisdictions, a person who actually steals property cannot also be convicted of receiving stolen property for the same items. The crimes of larceny (theft) and receiving stolen property are distinct; receiving stolen property requires that the goods were stolen by *another* person. Since the seller admitted to being part of the hijacking, he is the thief and cannot be convicted of receiving the property he himself stole.

Question 17: A police officer testifies that he arrested defendant based on information from a reliable informant. The defendant seeks to compel disclosure of the informant's identity. The government invokes the informer's privilege. The court will:

Always require disclosure to protect the defendant's rights
Never require disclosure of a confidential informant
Allow the jury to decide if disclosure is necessary
Balance the public interest in protecting informants against the defendant's need for disclosure (Correct answer)

Correct answer: Balance the public interest in protecting informants against the defendant's need for disclosure

Courts balance the government's interest in protecting informant identities against the defendant's need to prepare a defense, sometimes allowing in camera review.

Question 18: Two parties entered into an agreement of sale for a residential property. The title insurance company called the seller’s attorney to advise that one of the owners in the seller’s prior chain of title over 40 years ago had neglected to get a first mortgage with a private lender satisfied. It was likely that the mortgage was paid but that someone neglected to file a satisfaction notice with the recorder. If the problem had been corrected back then there was no evidence of it on the record. As such, the open mortgage now constituted a cloud on title. The title company required that the seller take action to clear title before final closing could be approved. Which of the following is the most likely way for the seller to clear title so that conveyance can be made.

A warranty action against the current seller demanding that the seller take action to clear his title and to convey good title at the final closing.
An action of adverse possession against the bank holding the open mortgage of record. (Correct answer)
A lis pendens action to remove the mortgage from the record and declare title restored in the current owner and seller.
A quiet title action against the holder of the open mortgage, along with that party’s heirs and assigns.

Correct answer: An action of adverse possession against the bank holding the open mortgage of record.

While a quiet title action is the typical remedy for clearing a cloud on title, an 'action of adverse possession against the bank holding the open mortgage' could refer to a claim that the mortgagee's right to enforce the lien has been extinguished by the passage of time. After 40 years without any action to collect or foreclose, the statute of limitations for enforcing the mortgage would likely have run. Such an action would essentially seek a judicial declaration that the mortgagee's interest is no longer valid, thereby clearing the cloud on title.

Question 19: 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 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.
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 he waited for his wife knowing that he could exact revenge against her by killing her.
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.

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 20: A motorist is making a left turn at a traffic light. When the light turns yellow he waits a second and decides to try and rush through the left turn. He is hit broadside by a car traveling through the intersection with the right of way. The investigating police officer points out the sign above the light that informs motorists to make a “left turn on signal only,” meaning that there was a left turn arrow that he was supposed to wait for prior to negotiating the turn. The officer gives him a ticket for “improper left turn.” The motorist pays the ticket. The other driver was severely injured and sues the motorist for negligence. The injured driver asserts in the complaint that the violation of the traffic ordinance is proof of “negligence per se.” Will the court instruct the jury that there was negligence per se?

No, because a violation of a traffic ordinance never can be used as proof of negligence.
Yes, because the ordinance that was violated was intended to avoid the precise harm that occurred. (Correct answer)
No, because the violation of the ordinance under these facts did not support the claim that the motorist caused the accident.
Yes, because the violation of a traffic ordinance is always proof that the defendant caused the accident.

Correct answer: Yes, because the ordinance that was violated was intended to avoid the precise harm that occurred.

Negligence per se applies when a defendant violates a statute, and the statute was intended to protect a particular class of persons from a particular type of harm. The 'left turn on signal only' ordinance is specifically designed to prevent collisions and ensure safe traffic flow at intersections, thereby protecting other motorists from the precise harm of an accident. Since the motorist violated this ordinance, and the injured driver is a member of the protected class, the court will instruct the jury on negligence per se.

Question 21: For the safety of the general public, a regulation prohibits anyone with a drug arrest and conviction as well as those who are currently receiving treatment for drug abuse from working in certain state-run facilities. An action was filed by a department of treasury employee who claimed that losing his employment violated his rights to equal protection and due process. It is asserted that the ban is essential to safeguard the public from any potential issues. Which constitutional validity standard would most likely be used to evaluate this regulation?

Intermediate scrutiny, because, like gender, this can be a sensitive area where discrimination is common.
Strict scrutiny, since drug users are a special class of persons often discriminated against by the public.
The rational basis test, because discrimination is generally favored with drug users or even those getting treatment.
The rational basis test, because the regulation need only be related to a legitimate state interest to be valid. (Correct answer)

Correct answer: The rational basis test, because the regulation need only be related to a legitimate state interest to be valid.

Explanation: Laws and statutes that do not directly affect a suspect class or obstruct a basic right are subject to the rational grounds test. Although the right to work is basic, the right to work as a government or state employee at a certain location is not regarded as a fundamental right. Drug addicts would not be accorded special treatment or be considered a protected class. See Wadsworth v. State (Supreme Ct of Montana, 1996), 275 Mont. 287, 301, 911 P.2d 1165, 1173. 109 S.Ct. 656; Treasury Employees v. Von Raab, supra. Ct. 1384, 103 L. Ed. 2d 685 (1989).

Question 22: An adverse possessor has openly, continuously, and exclusively used a neighbor's land for 9 years in a jurisdiction with a 10-year statute. The original owner conveys the land to a bona fide purchaser. Does the clock reset?

No, but the adverse possessor must re-file a claim within one year of the transfer
No, because adverse possession runs against successive owners and the statute does not reset on transfer (Correct answer)
Yes, because the adverse possessor's claim is extinguished by the recording act
Yes, because a bona fide purchaser takes free of the adverse possessor's claim

Correct answer: No, because adverse possession runs against successive owners and the statute does not reset on transfer

Adverse possession runs against the land and not just the person; transferring the land to a new owner does not restart the statute of limitations, and the adverse possessor's period of possession tacks against all successive owners.

Question 23: A defendant agrees with two others to rob a bank. Before any overt act is taken, the defendant withdraws and informs the police. Under the MPC, has the defendant effectively withdrawn from the conspiracy?

Yes, but only if the others also withdraw
No, because he already agreed to the plan
No, because withdrawal is never a defense to conspiracy under the MPC
Yes, because he withdrew before any overt act (Correct answer)

Correct answer: Yes, because he withdrew before any overt act

Under the MPC, a defendant may withdraw from conspiracy by renouncing the criminal purpose and thwarting the conspiracy's success before an overt act is committed.

Question 24: A witness in a murder case doesn't always offer the same account truthfully; instead, he has given many accounts of his observations to various people and investigators throughout the course of time. The witness was called to the stand by the prosecution during the trial to describe what he saw. By referencing earlier contradictory statements and charging him with fabricating his testimony, the defendant's attorney attacked the credibility of the witness's testimony. The prosecution then made an effort to restore his credibility by bringing up earlier, reliable remarks. Since prior consistent comments are alleged to be repetitive, cumulative, and to unfairly enhance the witness's credibility, they are typically not admissible. Will the court probably permit the prosecution to rehabilitate the witness based on earlier reliable testimony in light of these circumstances?

No, because the witness cannot be rehabilitated once a successful impeachment has occurred.
Yes, because all repetitive prior statements are important to show the consistency of the witness’ testimony.
Yes, because it is being used to rehabilitate a witness whose credibility was attacked. (Correct answer)
No, because it would tend to confuse the jury with too much conflicting evidence.

Correct answer: Yes, because it is being used to rehabilitate a witness whose credibility was attacked.

Explanation: Repeated prior consistent remarks improperly support the witness' evidence. There is one exception, nevertheless, in which the previous reliable statement is required to restore the witness' credibility after being called into question on cross-examination. Rule 801(d)(1)(B) of the Federal Rules of Evidence was amended in 2014 to add two grounds for allowing the prior consistent statement: ""(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground. The rule provides enough justification for the rehabilitation inquiries to be permitted. Observe Mason v. US, 53 A, for instance. (DC Ct of App 2012) 3d 1084, 1090.

Question 25: A woman is denied admission to a state-supported nursing school solely because of her sex. The school argues it provides a unique educational benefit to women. Under Mississippi University for Women v. Hogan, the exclusion of men is:

Unconstitutional because sex-based discrimination must substantially relate to an important government interest, and this policy perpetuates stereotypes (Correct answer)
Constitutional because the Fourteenth Amendment only prohibits discrimination against historically disadvantaged groups
Constitutional because single-sex educational institutions serve an important governmental interest
Unconstitutional only if the man can show he suffered a concrete educational harm

Correct answer: Unconstitutional because sex-based discrimination must substantially relate to an important government interest, and this policy perpetuates stereotypes

In Mississippi University for Women v. Hogan, the Court held that excluding men from a state nursing school violated equal protection because the policy reinforced gender stereotypes rather than compensating for past discrimination.

Question 26: An owner of a small online startup company sued a competitor for copyright infringement and interference with contract. At trial, the owner's attorney questioned a juror who stated that she had worked for the competitor for 10 years in the past and still did regular part-time work for the company when it was extra busy. However, under questioning she stated that she could hear the case fairly and without prejudice. Can the attorney prevail in a motion to strike the juror for cause?

No, because having worked for one of the litigants is not a grounds to make any assumptions whatsoever about the potential juror's ability to be fair.
Yes, because by having knowledge of the business practices of the defendant it makes her absolutely unqualified to serve as a juror on any cases involving the same type of business.
No, because the assertion that she could fairly decide the case erases the tendency to presume bias on her part.
Yes, because the juror had a business relationship with the defendant that has not yet even ended, there is too much chance for bias. (Correct answer)

Correct answer: Yes, because the juror had a business relationship with the defendant that has not yet even ended, there is too much chance for bias.

Where there is still an employment relationship, the courts will presume bias and grant a strike for cause. Vasey v. Martin Marietta Corp., 29 F. 3d 1460, 1468 (10th Cir. 1994); Gladhill v. General Motors, Corp., 743 F.2d 1049, 1050-51 (4th Cir.1984); Francone v. Southern Pacific, 145 F.2d 732, 733 (5th Cir.1944). In these situations, the relationship between the prospective juror and a party to the lawsuit points too directly to bias.

Question 27: A buyer purchases land from a seller. The deed contains a covenant of seisin. This covenant is breached if:

The seller did not own the property at the time of conveyance (Correct answer)
The seller dies before closing
The land is encumbered by a mortgage
The buyer fails to record the deed

Correct answer: The seller did not own the property at the time of conveyance

The covenant of seisin is breached at the moment of conveyance if the grantor does not actually own the estate being conveyed.

Question 28: A defendant in a criminal trial does not testify. The prosecutor in closing argument comments, 'The defendant chose not to explain away the evidence.' This violates:

The defendant's Eighth Amendment rights
The Fourth Amendment protection against unreasonable searches
The defendant's Fifth Amendment right against self-incrimination (Correct answer)
The Sixth Amendment Confrontation Clause

Correct answer: The defendant's Fifth Amendment right against self-incrimination

The Fifth Amendment, along with FRE 513 and Griffin v. California, prohibits adverse comment on a criminal defendant's failure to testify.

Question 29: A plaintiff sues a corporation in federal court. The plaintiff's attorney seeks to depose the corporation. Under FRCP 30(b)(6), the corporation must:

Allow the plaintiff to choose which employee to depose
Produce written answers to deposition questions in lieu of an oral deposition
Designate one or more representatives who will testify on the organization's behalf (Correct answer)
Produce its CEO or highest-ranking officer

Correct answer: Designate one or more representatives who will testify on the organization's behalf

Under FRCP 30(b)(6), a corporation must designate one or more representatives who will testify on its behalf as to matters described in the deposition notice.

Question 30: Under the Erie doctrine, a federal court sitting in diversity must apply state law on which type of issue?

All procedural matters governed by the Federal Rules of Civil Procedure
The admissibility of evidence under the Federal Rules of Evidence
Substantive issues such as elements of a claim, defenses, and statutes of limitations (Correct answer)
The burdens and standards of proof applicable at trial

Correct answer: Substantive issues such as elements of a claim, defenses, and statutes of limitations

Under Erie Railroad Co. v. Tompkins, federal courts in diversity cases apply state substantive law, including elements of claims, defenses, and statutes of limitations, while federal procedural law governs the manner of litigation.

Question 31: A life tenant makes improvements to real property without the remainderman's consent. Upon the life tenant's death, who owns the improvements?

They must be auctioned and proceeds split proportionally
The state, under the doctrine of waste
The life tenant's estate, which may remove them
The remainderman, because they become part of the realty (Correct answer)

Correct answer: The remainderman, because they become part of the realty

Improvements attached to realty become part of the land and pass to the remainderman upon the life tenant's death.

Question 32: A former patient sued her surgeon in a federal district court for medical malpractice arising out of an allegedly botched operation. She asked for both compensatory and punitive damages. The law of State A applies, but the State A does not recognize punitive damages in medical malpractice cases. The surgeon moves for summary judgment on the punitive damages count. The surgeon’s motion does not contain any affidavits, discovery or other factual evidence with respect to the punitive damages count. The motion is entitled "Motion for Summary Judgment Regarding Count 2.” It refers to the applicable State A statute, with a request for dismissal. The plaintiff does not respond to the summary judgment motion. Trial is approaching and the defendant surgeon requests a decision. What will the court decide and why?

Reject the motion because it has no supporting affidavits or other evidence.
Reject the motion and order the jury to decide the issue of punitive damages.
Grant the motion and dismiss the punitive damages complaint as a matter of law. (Correct answer)
Grant the motion and dismiss the lawsuit because the plaintiff did not respond to the motion.

Correct answer: Grant the motion and dismiss the punitive damages complaint as a matter of law.

A court orders summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” See F.R.C.P. 56(c). To survive summary judgment, there must be a “genuine issue as to any material fact.” If there is no genuine issue and “the movant is entitled to judgment as a matter of law,” summary judgment is granted. In this case, the answer is easy because the law precludes punitive damages so that the plaintiff could not allege any facts that would raise an issue of material fact, and most importantly, the defendant is entitled to judgment as a matter of law. See, generally for standards required for summary judgment, Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Question 33: A defendant seeks to suppress evidence presented to a federal grand jury on the grounds that it was obtained through an illegal search. Under United States v. Calandra, this challenge will:

Succeed because the exclusionary rule applies in all proceedings
Fail only if the grand jury also had independent lawful evidence of probable cause
Succeed if the illegally obtained evidence was essential to the indictment
Fail because the exclusionary rule does not apply to grand jury proceedings (Correct answer)

Correct answer: Fail because the exclusionary rule does not apply to grand jury proceedings

United States v. Calandra (1974) held that the exclusionary rule does not apply to grand jury proceedings; a grand juror may not refuse to answer questions or a grand jury may not be precluded from using illegally obtained evidence.

Question 34: A tenant holds a commercial lease for five years. The landlord conveys the leased property. The tenant has not recorded the lease. Under a notice recording act, the new owner:

Takes free of the lease if the new owner had no actual or constructive notice (Correct answer)
Must offer the tenant a new lease at market rate
Takes free of the lease because leases cannot be recorded
Is always bound by the lease regardless of notice

Correct answer: Takes free of the lease if the new owner had no actual or constructive notice

Under a notice recording act, a subsequent purchaser without actual or constructive notice of a prior unrecorded interest takes free of it.

Question 35: 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?

Yes, there was a lack of additional consideration under the pre-existing duty rule so that the modification was invalid and the original price was still valid. (Correct answer)
No, the modification of the sales price was accepted and therefore both parties are bound to the $8000 price.
No the original contract was a unilateral contract that could not be modified and had to be performed at the original price
No, there was full performance of the contract.

Correct answer: Yes, there was a lack of additional consideration under the pre-existing duty rule so that the modification was invalid and the original price was still valid.

Under the common law pre-existing duty rule, a promise to perform a duty already owed under an existing contract is not sufficient consideration for a new promise. Here, the neighbor was already contractually obligated to pay $10,000. His offer to pay $8,000, without providing any new consideration, means the man's agreement to accept less was not supported by consideration and thus the modification is invalid. The original contract price of $10,000 remains enforceable.

Question 36: A grower based in one state grew and marketed corn nationwide. The U.S. Congress passed a law attempting to stabilize the price of corn by limiting the volume of corn produced by growers to a specified volume per each cubic acre, on a semi-annual basis. The Department of Agriculture fined the grower for exceeding the production volume. He only intended to use the excess for feeding his livestock and domestic purposes, but he was ordered to destroy it. The grower brought an action claiming that his substantive due process rights had been illegally interfered with. He asked for an injunction and reparations. What would be the most likely decision of the court?

Relief would be granted because the Commerce Clause does not authorize the regulation of indirect influences on interstate commerce, making this action illegal.
No relief was granted because the Supreme Court has made it clear in numerous cases that the power of Congress to regulate interstate commerce is unlimited and unrestricted.
No relief was granted because Congress has the power to regulate interstate commerce, and even though he used the excess corn internally, it reduced the feed that he had to buy, thus having an effect on interstate commerce. (Correct answer)
The fact that he used the excess corn and did not ship it resulted in no effect on interstate commerce, and the government’s actions would be enjoined as being beyond the power authorized by the Commerce Clause.

Correct answer: No relief was granted because Congress has the power to regulate interstate commerce, and even though he used the excess corn internally, it reduced the feed that he had to buy, thus having an effect on interstate commerce.

This scenario is analogous to *Wickard v. Filburn*, where the Supreme Court held that Congress's Commerce Clause power extends to regulating purely intrastate activities if, in the aggregate, they substantially affect interstate commerce. Even though the grower used the excess corn for personal livestock, this reduced his demand for purchased feed, thereby impacting the overall interstate market for corn and feed, thus falling within Congress's regulatory authority.

Question 37: During trial, a party attempts to impeach their own witness after the witness gives damaging testimony. Under FRE 607:

A party may impeach their own witness only with written inconsistent statements
A party may impeach any witness, including their own (Correct answer)
A party may never impeach their own witness
A party may impeach their own witness only with prior convictions

Correct answer: A party may impeach any witness, including their own

FRE 607 abolished the common law voucher rule and permits any party, including the calling party, to impeach any witness.

Question 38: A homeowner hires a painter for $2,000 to paint her house. The painter delegates the job to his assistant without the homeowner's consent. The homeowner objects to the assistant. This delegation is:

Impermissible because painting involves personal skill and trust (Correct answer)
Void because service contracts cannot be delegated
Permissible because all duties may be delegated freely
Permissible only if the assistant is equally qualified

Correct answer: Impermissible because painting involves personal skill and trust

Duties requiring personal skill, taste, or judgment — such as painting a home where the customer relied on the specific contractor — cannot be delegated without the obligee's consent.

Question 39: A plaintiff fails to comply with a court order requiring production of documents. The opposing party moves for sanctions under FRCP 37. Which of the following sanctions is NOT available under Rule 37(b)?

Striking the disobedient party's pleadings
Directing that certain facts be taken as established
Holding the disobedient party in contempt
Awarding punitive damages to the opposing party (Correct answer)

Correct answer: Awarding punitive damages to the opposing party

Rule 37(b) sanctions include striking pleadings, contempt, deeming facts established, and dismissal, but punitive damages are not among the authorized sanctions.

Question 40: 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?

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

When a contract involves the sale of specific goods, like a farmer's home-grown crop, and performance becomes impracticable due to unforeseen natural events (such as a pest invasion), the seller may be excused from full performance. Under the UCC, if a seller's performance is partially excused due to impracticability, they must allocate production and deliveries among their customers in a fair and reasonable manner. The buyer must then accept the reduced quantity and pay for what was delivered, with the seller excused from the remainder.

Question 41: A bankruptcy attorney advised a client that he could be committing a crime if he did not disclose all assets on his personal bankruptcy schedules. The client signed a form agreeing that he had received specific legal advice from regarding the legal duty to reveal all assets. The client was later prosecuted for bankruptcy fraud for allegedly not fully disclosing assets in his bankruptcy papers. In the federal court prosecution, the United States Attorney subpoenaed the attorney to testify regarding the advice given to the client and to authenticate the acknowledgment signed by the client. The defendant objects to that evidence on the basis of it being inadmissible and in violation of the attorney-client privilege. What is the most likely decision of the trial court regarding the admissibility of the attorney’s proposed testimony and the exhibit?

The attorney-client privilege does not apply to situations where the lawyer is advising the client on legal duties that the individual has under the criminal laws, so that the evidence is admissible.
The proposed evidence is not admissible because discussions about potential criminal behavior are always protected under the privilege.
The evidence is inadmissible because the communications did not in any way tend to further a crime by the client, and they constituted legal advice normally given with an expectation of confidentiality. (Correct answer)
The advice and signed document are within the fraud-crime exception to the privilege and would be fully admissible.

Correct answer: The evidence is inadmissible because the communications did not in any way tend to further a crime by the client, and they constituted legal advice normally given with an expectation of confidentiality.

The attorney-client privilege protects confidential communications made for the purpose of obtaining or providing legal assistance. The crime-fraud exception applies only when the client consults the attorney to further an ongoing or future crime or fraud. Here, the attorney was advising the client on their legal duty to avoid committing bankruptcy fraud, which is legitimate legal advice and does not fall under the crime-fraud exception.

Question 42: 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?

Yes, the use of religious deception to get a suspect to admit to crime renders the confession involuntary.
Yes, the confession must be suppressed because he was questioned for over three hours, making anything he said essentially involuntary.
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.

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.

These circumstances indicate that he voluntarily waived his right to remain silent. There is no evidence that he did not understand the rights given to him and that he read back out loud. There is no evidence of coercion – the mere questioning for over three hours is not coercion. The response to the question about God and forgiveness indicates a course of conduct evidencing a waiver of the right to remain silent. There is no requirement that police must get a written waiver prior to beginning interrogation. See Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).

Question 43: 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.

The Supremacy clause (Article VI, clause 2) of the United States Constitution, declares the supremacy of federal laws over state laws that contradict them. The first state’s law did not contradict or frustrate the purpose of the federal law and was not preempted by it. There was no direct conflict between the federal and state statutes because it was possible to comply with both standards simultaneously. Furthermore, the federal law did not clearly set up an exclusive framework that excluded the genetic subject matter. There is a place for state consumer protection in a federal system. See Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963).

Question 44: 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?

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

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

See Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 377-78 (2008). In the makeup of the court in 2008, national defense interests outweighed wildlife concerns. Also, the Court held that the possibility of irreparable harm was too easy of a standard and that it had to be “likely” that harm to wildlife would be irreparable.

Question 45: A contractor agrees to build a bridge for a county. Halfway through construction, the county assigns its right to receive the completed bridge to a neighboring township. The contractor objects. The assignment is:

Invalid because government contracts cannot be assigned
Valid but the county remains secondarily liable
Invalid because it materially increases the contractor's burden
Valid because contract rights are freely assignable (Correct answer)

Correct answer: Valid because contract rights are freely assignable

The right to receive performance (the completed bridge) can be freely assigned to a third party; assignment of rights to receive a fixed performance generally does not materially burden the obligor.

Question 46: A defendant charged with homicide had a long and tortured history of mental illness. He related several outrageous paranoid fantasies to the authorities and was sent to a mental hospital for evaluation of his ability to stand trial. The doctors reported that the only hope to restore the defendant to relative normalcy where he could stand trial was to administer widely-used anti-psychotic medicine. The man was also a danger to himself and others, and the medicine was in his medical best interests. The defendant asserted that the administration of drugs against his will would violate his liberty interest to substantive due process. Will the court likely order that the defendant should be involuntarily administered the anti-psychotic medications?

No, the involuntary administration of medications to a criminal defendant is considered to be cruel and unusual punishment in violation of state and federal constitutional protections.
Yes, the individual has no right to be protected from involuntary medical treatment when he is in custody of federal authorities.
Yes, the administration of medications to render the defendant capable of standing trial, without serious side effects, is an important governmental interest, and even more so in a homicide case. (Correct answer)
No, the individual has an absolute constitutional right to be free from intrusion of medications into his system against his will.

Correct answer: Yes, the administration of medications to render the defendant capable of standing trial, without serious side effects, is an important governmental interest, and even more so in a homicide case.

That it is in his medical best interest is important factor and makes it easier to decide that the secondary effect of rendering him capable of standing trial was also valid. Furthermore, at present he is a danger to himself and others, and the medication may improve also that problem. In this case, all of the factors would militate in favor of granting the order.

Question 47: A man entered into a lease for an apartment with a landlord. The lease stated that the term was month-to-month. After one month, the man went to the city health and licensing department and complained about various sanitary code violations that the landlord failed to correct. The agency made an inspection and found 40 sanitary code violations. It cited the landlord, and ordered him to clear up all of the violations. After the inspection, the landlord brought an eviction action against the man and obtained a judgment against him for eviction. Will the eviction order hold up under the stated facts?

Yes, because the law of landlord-tenant generally favors the landlord and doesn’t require that the landlord make repairs or keep a property up to code.
No, because eviction is not recognized with respect to a month-to-month lease; instead, the tenant must vacate immediately on receiving written notice.
No, because the landlord’s action is a retaliatory eviction, which cannot be used against a tenant who reports code violations and is a defense that the tenant may raise. (Correct answer)
Yes, because the tenant’s act of disloyalty is a breach of the lease that may be enforced by an eviction action.

Correct answer: No, because the landlord’s action is a retaliatory eviction, which cannot be used against a tenant who reports code violations and is a defense that the tenant may raise.

Most jurisdictions prohibit retaliatory eviction, meaning a landlord cannot evict a tenant in response to the tenant's good-faith complaints about housing code violations. This protection is designed to encourage tenants to report unsafe or unhealthy living conditions without fear of losing their home. The tenant's report to the health department, followed by the eviction action, strongly suggests a retaliatory motive, which serves as a valid defense against the eviction.

Question 48: A state law required that whenever a newspaper prints an editorial criticizing a candidate for office, his character or personal record on the issues, it must provide space for the opposing candidate to reply to the criticisms. A failure to do so is a second-degree misdemeanor. A candidate demanded space for responding to an editorial in a local newspaper that was critical to his character and his candidacy. The newspaper refused to comply. The candidate brought an action seeking declaratory and injunctive relief, and requesting actual and punitive damages. Based on U.S. Supreme Court precedent, what did the court likely decide?

This is a constitutional statute because the government has a duty to assure that a wide variety of views reach the public.
This was a proper attempt to regulate the fairness of speech and give equal time to both sides of an issue so that a slanted opinion would not be perceived as necessarily true.
It was an improper restraint on freedom of speech, which guarantees the right to have a full discussion of the merits of the candidates and their views. (Correct answer)
This was an unconstitutional statute because by allowing a response, the statute was favoring the criticized candidate and setting up a silent endorsement of that candidate.

Correct answer: It was an improper restraint on freedom of speech, which guarantees the right to have a full discussion of the merits of the candidates and their views.

The statute threatens the free expression of opinions by the newspaper. Newspapers might take the safe route and not comment to avoid controversy and the expense of printing a reply. The First Amendment protects the free discussion of governmental affairs, including of the candidates. Such regulation of the process is inconsistent with the guarantees of a free press. See Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974).

Question 49: The defendant was convicted under a criminal statute of raping a child under the age of 12. The court sentenced him to death pursuant to the permissible provisions of the criminal statute. The defendant appealed the death sentence, claiming that it violates the Eighth Amendment by imposing a sentence that is cruel and unusual based on the crime committed. Based on U.S. Supreme Court Eighth Amendment jurisprudence, what will be the most likely outcome?

With respect to crimes against individuals, the death penalty should not be extended to instances where human life was not taken. (Correct answer)
The death penalty can never be imposed on someone who did not take human life despite the despicable nature of the crime.
This was as heinous a crime as can be imagined and the penalty of death is therefore justified despite the fact that the victim survived the brutal sexual attack.
The death penalty can be imposed whether or not human life was taken as long as the statute includes it as a specified punishment.

Correct answer: With respect to crimes against individuals, the death penalty should not be extended to instances where human life was not taken.

This is a crime against the individual, and not the state. In this kind of crime, the U.S. Supreme Court has held that it is unconstitutional to put a man to death when there was no taking of life.

Question 50: The police were called to a domestic dispute. The wife told police that her husband was abusive and that he was a heavy cocaine user. The husband was present and denied the allegation. Police asked for permission to search the premises for drugs, which was consented to by the wife. The husband, however, refused to consent to the search. The police went ahead anyway and found drugs in the husband’s belongings. After being arrested on drug charges, the husband filed a motion for suppression of the evidence based on lack of consent. What should be the likely decision of the trial court?

The search was invalid and the evidence must be suppressed because the co-occupant of the premises was present and specifically refused to give consent to the search. (Correct answer)
The search was valid because the cases say that one occupant’s consent to the search overrules the other occupant’s refusal to consent.
The search was invalid because, even though consent was given, the police must first attempt to get a search warrant to enter a home.
The search was valid because the wife’s statement established probable cause that a crime was being committed – this created exigent circumstances for the search.

Correct answer: The search was invalid and the evidence must be suppressed because the co-occupant of the premises was present and specifically refused to give consent to the search.

Under the Fourth Amendment, if co-occupants are present and one consents to a search while another objects, the objection prevails, and the police cannot conduct a warrantless search based solely on the consenting co-occupant's permission. This rule, established in *Georgia v. Randolph*, protects the objecting occupant's privacy interest in their home. Therefore, the evidence found after the husband's explicit refusal to consent must be suppressed.

Question 51: An owner leased land to a tenant who said that he was going to use the land for farming. The tract contained farmland and dozens of acres of pristine, scenic woodlands that were part of the view from the owner’s adjoining residence. The owner noticed that the tenant was cutting down trees and selling them to companies who manufactured wood and paper products. After a while, 20 acres or so had been cut down and the activity was continuing, leaving a ravaged sight on the land. Does the landlord have a right to stop the activity and recover the value of the lost trees?

The landlord cannot interfere with lawful activities conducted by the tenant, and in this case the use of inactive trees that are mere woodlands cannot be prohibited.
Under the doctrine of transfer of leasehold estate, the tenant may change the original use intended and perform any legal use that he wishes.
This is ameliorative waste, which actually improves the value by having a profitable business on site; the tenant will not be held liable because he has improved the property.
This is voluntary waste to the property, which is prohibited by most leases; the tenant may be ordered to pay for the value of the waste, stop further activities, and is subject to being evicted. (Correct answer)

Correct answer: This is voluntary waste to the property, which is prohibited by most leases; the tenant may be ordered to pay for the value of the waste, stop further activities, and is subject to being evicted.

Voluntary waste is the willful destruction and carrying away of something that is attached to the premises. It creates injury and some form of damage to the leased premises. Although he is conducting a business, this particular business is like strip mining, where once the activity is completed, there is no further profit to be gained but instead the property has lost in its intrinsic value and turned into an eyesore. In all likelihood, damages and an injunction would be granted in this case.

Question 52: 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?

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

Correct answer: Robbery and burglary.

Burglary at common law is the breaking and entering of the dwelling of another at night with the intent to commit a felony therein. Here, the perpetrator kicked in the door (breaking and entering), it was late at night (at night), and he intended to commit robbery (a felony). Robbery is the taking of personal property of another from their person or presence, by force or intimidation, with the intent to permanently deprive. The perpetrator waved a gun and demanded money, fulfilling the elements of robbery.

Question 53: 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, because the man lives in State A and the manufacturer does business there, which defeats diversity jurisdiction.
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)

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.

A federal court must have at least one of three types of subject matter jurisdiction: (1) under a federal statutory grant; (2) federal question jurisdiction under 28 U.S.C. § 1331; or (3) diversity jurisdiction under 28 U.S.C. § 1332. (1) and (2) do not apply here because this is a state law tort case. Under (3), diversity jurisdiction is where (1) the amount in controversy exceeds $75,000, exclusive of interests and costs, and (2) the parties are citizens of different states. A corporation is a citizen of the state of incorporation and also of the state where it has a principal place of business. 28 U.S.C. § 1332(c)(1). The “principal place of business” is where the corporation's high level officers direct, control, and coordinate its activities, which is often called its `nerve center.' Hertz Corp. v. Friend, 559 U.S. 77, 130 S.Ct. 1181, 1189-90, 175 L.Ed.2d 1029 (2010). Here, the man is domiciled in, and a citizen of, State A where he works and resides. The manufacturer is a citizen of State D, where it has its nerve center and of State C where it is incorporated. Thus, the man and the company are citizens of different states.

Question 54: Seller contracts to sell 1,000 barrels of oil to Buyer for $50/barrel. Before delivery, a government embargo makes performance illegal. Under the doctrine of impossibility/impracticability, the likely result is:

Buyer may sue for breach because price risk was seller's
Seller must perform or pay expectation damages
The contract is discharged and neither party is liable (Correct answer)
The contract is reformed to reflect market price

Correct answer: The contract is discharged and neither party is liable

Supervening illegality (a government embargo) renders performance objectively impossible, discharging both parties' obligations under the doctrine of impossibility.

Question 55: An adverse possessor who has satisfied all elements of adverse possession for the statutory period holds:

A claim that must be confirmed by court judgment before title vests
A personal right to use the land that is not transferable
Title that automatically becomes a legal estate upon expiration of the period (Correct answer)
A future interest that ripens upon recording an affidavit

Correct answer: Title that automatically becomes a legal estate upon expiration of the period

Under most jurisdictions, title vests automatically by operation of law when all elements of adverse possession are satisfied for the statutory period; a quiet title action merely confirms what already occurred.

Question 56: A businessman files a complaint for defamation against a former customer in a federal district court. The businessman sends an adult friend to serve the complaint and summons to the home of the former customer. The friend leaves the papers with a cleaning person who is the only person home, and who has control of the premises for just the several hours while she is there doing her job. The defendant files a motion to dismiss for insufficiency of service of process under Rule 12(b)(5). Assume that state law regarding service of a complaint is the same as Rule 4 of the Federal Rules of Civil Procedure. What is the court's likely decision and reason?

The court will grant the motion and reject service because the papers must be served only on the defendant herself.
The court will grant the motion and reject service because the person served did not reside there. (Correct answer)
The court will deny the motion and allow service due to the fact that the person had control of the house for that temporary time.
The court will deny the motion and allow service because the circumstances point to reliable service of process.

Correct answer: The court will grant the motion and reject service because the person served did not reside there.

Rule 4( e) provides that the complaint and summons must be delivered to the person individually, or by leaving a copy at the defendant's dwelling or abode with someone of suitable age and discretion who resides there. Clearly, the cleaning person does not reside there and service under these facts is defective.

Question 57: A party enters a contract under duress caused by the other party's improper threat. The contract is:

Void ab initio
Enforceable because pressure is inherent in negotiations
Voidable at the option of the party under duress (Correct answer)
Voidable at the option of either party

Correct answer: Voidable at the option of the party under duress

A contract induced by duress is voidable — not void — at the election of the party who was coerced, because the agreement lacked genuine assent.

Question 58: A defendant wants to implead a third party who may be liable to the defendant if the defendant is found liable to the plaintiff. Under FRCP 14, the defendant may implead a third party:

At any time before trial without restriction
As of right within 14 days of serving the answer; thereafter, with leave of court (Correct answer)
Only if the third party is jointly liable with the defendant to the plaintiff
Only with leave of court, regardless of when the motion is filed

Correct answer: As of right within 14 days of serving the answer; thereafter, with leave of court

Under FRCP 14(a)(1), a defending party may serve a third-party complaint as of right within 14 days of serving its original answer; after that, leave of court is required.

Question 59: A civil case for damages depended on whether the defendant was actually the man driving the identified vehicle at the time of the accident. It was established that others had access to the vehicle so that it was important to identify the person driving at that time. The plaintiff’s attorney asked a witness on direct examination if he saw the driver in the courtroom, and while saying that he pointed, almost instinctively, to the defendant’s table and to the defendant. The witness agreed with the pointing, and said, “Yes, that’s him!” The defendant vehemently objected and called for a mistrial, claiming that this was unfair leading of the witness into answering the ultimate issue of identity. The trial court denied the objections. The defendant appealed. Will the appellate court likely order a new trial?

No, the examination was appropriate because the witness was still capable of saying whether he recognized the person or not.
No, cross examination is a far-reaching kind of questioning that cannot be limited in very many instances.
Yes, the examination was in violation of the rule that requires establishing a prior foundation before asking a question like that.
Yes, the plaintiff’s attorney manipulated the witness’ testimony on the ultimate issue of who was driving the car by impermissibly leading the witness to identify the opposing party. (Correct answer)

Correct answer: Yes, the plaintiff’s attorney manipulated the witness’ testimony on the ultimate issue of who was driving the car by impermissibly leading the witness to identify the opposing party.

On direct examination, leading questions (questions that suggest the desired answer) are generally prohibited, especially when they concern a material or ultimate issue in the case, such as the identity of the perpetrator. The attorney's act of pointing to the defendant and asking 'Yes, that’s him!' directly suggested the answer and improperly influenced the witness's identification. This constitutes impermissible leading and could warrant a new trial due to the prejudice on a critical issue.

Question 60: A mortgagor sells the mortgaged property and the buyer 'takes subject to' the mortgage. The original mortgagor later defaults. Who is personally liable to the lender?

Both the buyer and the original mortgagor jointly
Only the buyer, as current owner
Only the original mortgagor (Correct answer)
Neither party, because the mortgage was assumed

Correct answer: Only the original mortgagor

When a buyer takes subject to a mortgage without assuming it, the buyer has no personal liability; only the original mortgagor remains personally obligated.

Question 61: Defendants agreed to lease to plaintiffs a building that they were going to build. The lease was for a period of 10 years. The lease of the building was to commence upon the “completion of the building.” The defendants were bound in the agreement to start “forthwith” and proceed to build the building “expeditiously” after receiving all permits, and to complete the project in a reasonable time. Plaintiffs put $10,000 down on the rental agreement. Plaintiffs and defendants started arguing about other terms, such as who was to pay for an expensive sprinkler system. Eventually, plaintiffs sued for rescission and for return of the down payment. One of the main contentions of the plaintiffs was that the agreement violated the rule against perpetuities in that it was impossible to tell whether it could be performed within 21 years due to the ambiguity over when the building would be completed. What is the likely decision of the court?

The court would favor an interpretation that does not unduly interfere with commercial transactions, and here it appears that the building will easily be completed within 21 years. (Correct answer)
The rule must be applied very strictly in commercial transactions to make sure that the performance is not intentionally delayed beyond reason.
The court would favor enforcement of the rule, and would interpret all of the contingencies involved to be so speculative that it could not be said that the building would be completed within 21 years.
The rule against perpetuities does not apply to leases and therefore the agreement is enforceable.

Correct answer: The court would favor an interpretation that does not unduly interfere with commercial transactions, and here it appears that the building will easily be completed within 21 years.

Generally, modern cases hold that a document should be interpreted if feasible to avoid the conclusion that it violates the rule against perpetuities. The mandates for expeditious action, to start forthwith and complete within a reasonable time all militate toward finishing within 21 years. The court will not assume that the parties will breach their promises in order to be able to apply the rule against perpetuities to invalidate the transaction. See Wong v. Di Grazia, 60 Cal. 2d 525(Cal. Supreme Court 1963).

Question 62: An elderly married couple were shopping in a large retail super center. The husband fell on a yellow sticky substance resembling floor wax. Wife saw that there was some kind of hazardous condition ahead, but was quickly disoriented by seeing her husband on the floor in pain several yards ahead. She stepped forward onto the substance and immediately fell on her side, breaking her hip. After extensive rehabilitation and complex hip replacement surgery, the wife sued the retailer. The complaint alleged negligence in maintaining the premises. After these and other facts were pinned down in discovery, the store filed a motion for summary judgment, alleging that the wife voluntarily assumed the risk of the dangerous condition by knowing that it was there and voluntarily proceeding into it anyway. Will the store likely win the motion for summary judgment under these facts?

No, the store generally has an absolute duty to keep the floors cleaned and a breach of that duty will result in the imposition of strict liability
No, because the wife found herself in a sudden emergency and she did not have a reasonable time and opportunity to elect intelligently whether to take another step. (Correct answer)
Yes, even taking the facts in the light most favorable to the non-moving party, i.e., the wife, it is clear that there is no dispute that she voluntarily assumed the risk.
Yes, there is no material fact that is under dispute because the wife proceeded to encounter a known danger voluntarily, thereby assuming the risk of injury.

Correct answer: No, because the wife found herself in a sudden emergency and she did not have a reasonable time and opportunity to elect intelligently whether to take another step.

The defense of assumption of risk requires that the plaintiff voluntarily and knowingly encountered a known danger. Here, the wife was confronted with a sudden emergency—her husband's fall—which disoriented her and prevented a reasonable opportunity to assess the risk and make an intelligent choice. The sudden emergency doctrine often negates the voluntariness element of assumption of risk, making it unlikely the store would win summary judgment.

Question 63: A foreign visitor who had abducted a young child was on trial. The prosecutor claimed that the visitor personally knew the youngster, which is why the child accompanied him, and that the offender was aware that the child's parents were wealthy. A witness was produced by the prosecution to attest that the offender informed him, "I am looking forward to visiting with the boy and his parents. The suggested testimony was rejected by the defense because of the couple's gorgeously opulent home. Will the court probably uphold the protest?

No, the statement can come in as impeachment if the accused takes the stand, and as a party admission to show the material facts of knowing the child and that the family had money. (Correct answer)
Yes, the statement is irrelevant to the issue of guilt or innocence.
Yes, the prejudice of the statement will greatly outweigh its probative value.
No, the statement is admissible to impeach the accused and establish he is lying on cross, if he takes the stand.

Correct answer: No, the statement can come in as impeachment if the accused takes the stand, and as a party admission to show the material facts of knowing the child and that the family had money.

Explanation: Fed.R.Evid. An opposing party's out-of-court comment is considered non-hearsay under 801(d)(2)(A) and (B). All of the aforementioned purposes are relevant to the case and proper uses of a party admission, and impeachment is permitted for important problems of the case. Because the offender made the claim, it is not hearsay because it is a party's admission. Fed. R. Evid. Out-of-court statements are admissible according to 801(d)(2) if they are used against the person who made them. FED. R. EVID is cited. 801(d)(2)(A) (accepting remarks made by a party against the other party as admissible); see also Rodriguez v. Modern Handling Equip. 604. of NJ, Inc. Supp. 2d 612, 622 (S.D.N.Y. 2009) (statements made by the plaintiff in the complaint regarding an OSHA report are admissible under 801(d)(2)(B)).

Question 64: A city school board presented a bond issue to the public for $5 million to modernize some city schools. During the public debate on the proposal, a middle school teacher had published two “letters to the editor” criticizing the “duplicitous” practices of certain school board members in using “backroom politics” to try and get the vote approved. He doubted the need for new expenditures and criticized the superintendent of schools for trying to influence teachers on the issue. After the bond issue passed, the school district brought internal charges against the teacher, and after a hearing he was fired. He brought a state court action claiming an unconstitutional interference with his First Amendment free speech rights. The claim was rejected, and the highest state appellate court upheld the termination. After hearing the case on appeal, will the United States Supreme Court uphold the teacher’s firing?

No, because teachers, as informed citizens, have a constitutional right to speak out on current issues of importance. (Correct answer)
Yes, teachers are civil servants who must refrain from political issues.
Yes, because he went too far in criticizing his own employer.
No, the teacher’s remarks were void for vagueness and couldn’t be enforced against him.

Correct answer: No, because teachers, as informed citizens, have a constitutional right to speak out on current issues of importance.

The Supreme Court has held that the public interest in having free and unhindered debate on matters of public importance—the core value of the Free Speech Clause of the First Amendment—is so great that the speech is protected unless such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity, and there is no suggestion here of the comments being defamatory. See Pickering v. Board of Ed. of Township High School Dist. 205, Will County, 391 US 563 (1968). Additionally, the teacher was acting as a private citizen and not in the course of performing his duties, as distinguished by the Supreme Court's opnion in Garcetti v. Ceballos, 547 U.S. 410 (2006). Thus, the teacher's speech was duly protected by the First Amendment.

Question 65: Owen grants Blackacre 'to Anna and her heirs, but if the land is ever used for commercial purposes, then to Ben.' What interest does Ben hold?

A right of entry
An executory interest (Correct answer)
A remainder
A reversion

Correct answer: An executory interest

Ben holds a shifting executory interest because his future interest cuts short a fee simple rather than following the natural expiration of a prior estate.

Question 66: A defendant pleads guilty under a plea agreement where the prosecutor promises to recommend a 5-year sentence. The judge, who made no promises, imposes 10 years without informing the defendant beforehand that the recommendation was not binding. The defendant seeks to withdraw the plea. The most likely result is:

The defendant may only seek resentencing, not withdrawal of the plea
The plea stands because judges are never bound by prosecutorial recommendations
The plea stands because the prosecutor fulfilled the agreement by making the recommendation
The defendant may withdraw the plea because the judge failed to advise him that the recommendation was not binding before accepting the plea (Correct answer)

Correct answer: The defendant may withdraw the plea because the judge failed to advise him that the recommendation was not binding before accepting the plea

Under Federal Rule of Criminal Procedure 11(c)(3)(B), when a court rejects or declines to follow a non-binding recommendation plea agreement, the court must inform the defendant and give the defendant an opportunity to withdraw the plea.

Question 67: The government seizes a landowner's property for a private shopping mall development under eminent domain, offering fair market value. The landowner argues this violates the Takings Clause. Under Kelo v. City of New London, the taking is:

Unconstitutional because private commercial development is not a 'public use'
Unconstitutional because fair market value is not 'just compensation' for a forced sale
Constitutional only if the state legislature has specifically authorized economic development takings
Constitutional because economic development can satisfy the 'public use' requirement (Correct answer)

Correct answer: Constitutional because economic development can satisfy the 'public use' requirement

In Kelo v. City of New London, the Court held that transferring land to private developers for economic development qualifies as 'public use' under the Takings Clause, provided just compensation is paid.

Question 68: A leading question is one that suggests to the witness the answer desired by the examiner. Rule 611 (c) of the Federal Rules of Evidence generally prohibits the use of leading questions on direct examination. There are, however, some exceptions to that rule. Which of the following would be a permissible instance of using leading questions on direct examination?

When counsel is attempting to rehabilitate the testimony of the witness on re-direct examination.
When the witness being examined on direct is an adverse party or a hostile witness. (Correct answer)
When both counsel stipulate that they’ll not object to any leading questions during the trial.
When the direct examination is conducted during a videotaped depositions of a witness.

Correct answer: When the witness being examined on direct is an adverse party or a hostile witness.

Federal Rule of Evidence 611(c) generally prohibits leading questions on direct examination, but it provides specific exceptions. One key exception allows leading questions when the witness being examined is an adverse party, a hostile witness, or a witness identified with an adverse party. This is because such witnesses are unlikely to be cooperative or susceptible to the examiner's suggestions, making leading questions necessary to elicit relevant testimony.

Question 69: A federal statute strips federal courts of jurisdiction to hear habeas corpus petitions from enemy combatants held at Guantanamo Bay. The Supreme Court held this law:

Constitutional because Congress has plenary power to define the jurisdiction of lower federal courts
Constitutional because enemy combatants are not 'persons' within the meaning of the Constitution
Unconstitutional because habeas corpus can only be suspended by the President during wartime
Unconstitutional because it suspends the writ of habeas corpus without the conditions required by Article I, Section 9 (Correct answer)

Correct answer: Unconstitutional because it suspends the writ of habeas corpus without the conditions required by Article I, Section 9

In Boumediene v. Bush, the Court held that Guantanamo detainees had a constitutional right to habeas corpus and that Congress could not strip courts of jurisdiction without providing an adequate substitute.

Question 70: Buyer and Seller agree on a contract for 200 units, but the written contract mistakenly states 100 units due to a mutual scrivener's error. The appropriate remedy is:

Enforcement of the written term for 100 units only
Reformation to reflect the true agreement of 200 units (Correct answer)
Rescission of the entire contract
Specific performance for 200 units as the oral agreement stated

Correct answer: Reformation to reflect the true agreement of 200 units

Reformation is the proper equitable remedy when a written contract does not reflect the parties' actual agreement due to mutual mistake in drafting.

Question 71: A witness called to testify has previously been convicted of perjury five years ago. Under FRE 609, this conviction:

Is admissible only if the probative value outweighs prejudice (Correct answer)
Is admissible to attack credibility regardless of the time passed
Is inadmissible because perjury is not a felony
Is inadmissible because more than two years have passed

Correct answer: Is admissible only if the probative value outweighs prejudice

Under FRE 609(b), convictions more than 10 years old face a higher standard, but convictions within 10 years are admissible if probative value outweighs prejudicial effect.

Question 72: A party seeks consequential damages for lost profits after a breach. Under Hadley v. Baxendale, these damages are recoverable only if:

The non-breaching party mitigated all other damages
The lost profits were foreseeable at the time of contracting (Correct answer)
The contract expressly provides for consequential damages
The breaching party was negligent in performance

Correct answer: The lost profits were foreseeable at the time of contracting

Under the rule of Hadley v. Baxendale, consequential damages are recoverable only if they were within the reasonable contemplation of the parties as a probable result of breach at the time of contracting.

Question 73: A state law required voters to present a photo identification card at the time of voting. If they did not, they could cast a provisional vote and present an ID within 10 days or sign an affirmation that they were unable to afford one. Actually, ID cards were free at state agencies. Disgruntled voters sued to have the provision declared unconstitutional. What was the most likely decision of the courts?

Voter ID laws are unconstitutional and not allowed to restrict free voting rights.
The law was constitutional because the U.S. Supreme Court has ruled that all such laws are legitimate exercises of the police power of the state.
The law was unconstitutional because it imposed an undue burden on the old, disabled and poor.
This law was constitutional because it was not a burden for people to live up to it, and they could always file a provisional vote if need be. (Correct answer)

Correct answer: This law was constitutional because it was not a burden for people to live up to it, and they could always file a provisional vote if need be.

Because the cards are free, the trouble of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph is not a substantial burden on most voters' right to vote, and is not a significant increase over the usual burdens of voting. See Crawford v. Marion County Election Board, 553 U.S. 181 (2008

Question 74: In a products liability case, plaintiff offers expert testimony that the product was defectively designed. The expert bases his opinion solely on other experts' reports not in evidence. Under FRE 703, this is:

Admissible only if the underlying reports are also entered into evidence
Admissible if experts in the field reasonably rely on such reports (Correct answer)
Inadmissible because secondary sources cannot support expert opinion
Inadmissible because the expert must have personal knowledge

Correct answer: Admissible if experts in the field reasonably rely on such reports

FRE 703 allows experts to base opinions on facts or data that experts in the field reasonably rely upon, even if not independently admissible.

Question 75: Police conduct a lineup in which the defendant is the only person matching the robber's height and is wearing a red jacket like the one described by the witness. The witness identifies the defendant. Under Manson v. Brathwaite, this identification is admissible unless:

The witness had previously failed to identify the defendant from a photo array
The procedure was unnecessarily suggestive and, considering the totality of circumstances, created a substantial likelihood of misidentification (Correct answer)
The defendant had no counsel present at the post-indictment lineup
The lineup was conducted without a court order

Correct answer: The procedure was unnecessarily suggestive and, considering the totality of circumstances, created a substantial likelihood of misidentification

Under Manson v. Brathwaite and Neil v. Biggers, an identification obtained through an unnecessarily suggestive procedure violates due process only if the totality of circumstances creates a substantial likelihood of irreparable misidentification, weighed against indicia of reliability.

Question 76: Two parties entered into an agreement of sale for a residential property. The title insurance company called the seller’s attorney to advise that one of the owners in the seller’s prior chain of title over 40 years ago had neglected to get a first mortgage with a private lender satisfied. It was likely that the mortgage was paid but that someone neglected to file a satisfaction notice with the recorder. If the problem had been corrected back then there was no evidence of it on the record. As such, the open mortgage now constituted a cloud on title. The title company required that the seller take action to clear title before final closing could be approved. Which of the following is the most likely way for the seller to clear title so that conveyance can be made.

A warranty action against the current seller demanding that the seller take action to clear his title and to convey good title at the final closing.
A lis pendens action to remove the mortgage from the record and declare title restored in the current owner and seller.
A quiet title action against the holder of the open mortgage, along with that party’s heirs and assigns. (Correct answer)
An action of adverse possession against the bank holding the open mortgage of record. (Correct answer)

Correct answer: A quiet title action against the holder of the open mortgage, along with that party’s heirs and assigns.

A quiet title action is the appropriate legal proceeding to resolve competing claims to real property and remove a cloud on title, such as an old, unreleased mortgage. By naming the original mortgage holder and their potential heirs or assigns, the court can issue a judgment declaring the mortgage satisfied and clearing the title. This action makes the property marketable for sale.

Question 77: A seller of residential property told the buyer that he could use his gravel road to the main highway if he purchased the property, which adjoined the seller’s property. Although the property was not otherwise landlocked, the buyer relied on the seller’s promise in making an offer. The buyer had specific uses in mind for improvements that needed the gravel road. The purchase took place but the seller did not include the easement in the deed or the other papers. The buyer built a garage that accessed the gravel road leading to the highway. The seller later decided to fence off the driveway and divert it from buyer’s use. Will a court compel the seller to open up the road and provide an easement to the buyer?

No, because there were other roads to get in and out, and this was not a necessity.
Yes, because this was an easement by estoppel, created by the seller’s promises and relied upon by the buyer. (Correct answer)
No, because the buyer was careless in not putting the agreement in writing at the time of the closing.
Yes, because any road that goes over or next to the buyer’s lot is a part of the buyer’s property, and is considered a prescriptive easement.

Correct answer: Yes, because this was an easement by estoppel, created by the seller’s promises and relied upon by the buyer.

An easement by estoppel arises when a landowner makes a promise or representation regarding the use of their land, and another party reasonably and detrimentally relies on that promise. Here, the seller promised the buyer access to the gravel road, and the buyer relied on this promise by purchasing the property and building a garage that accessed the road. To prevent injustice, the court will enforce this promise as an easement, compelling the seller to honor the access.

Question 78: A man was injured when his kitchen oven exploded due to a manufacturing defect. He filed a complaint against the oven manufacturer for personal injury damages. He also added a count for class certification and requested a recall of all similar ovens sold to consumers to stop the danger of physical injury. He created two putative classes: (1) everyone who purchased that model oven who lived in New York, the state where the man resided; and (2) everyone who purchased that model oven who resided in 25 other designated states where the company did business. The manufacturer filed a motion to dismiss the second putative class preliminarily under Rule 12(f) of the Federal Rules of Civil Procedure which allows for the early striking of any immaterial matter from the complaint. Will the federal district court judge likely grant the motion?

Yes, the court will grant it because the plaintiff has not specifically listed the identity of each member of the second putative class.
No, the court will not grant it because it is too early to decide class certification issues and it can’t be done through Rule 12(f) of the FRCP.
Yes, the court will grant it because the plaintiff is not a member of the second class that he set up. (Correct answer)
No, the court will not grant it because the plaintiff does not have to be a member of the exact class in order to represent that class.

Correct answer: Yes, the court will grant it because the plaintiff is not a member of the second class that he set up.

Rule 23 of the FRCP governs class actions. The class representative must be part of the class and possess the same interest and suffer the same injury. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550, 180 L. Ed. 2d 374 (2011) (quoting East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)). See also, Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 360 (3d Cir. 2013) ("It is axiomatic that the lead plaintiff must fit the class definition"). The dismissal of the second claim was upheld.

Question 79: Under the best evidence rule (FRE 1002), which of the following is correct?

A photocopy is never acceptable in place of an original
The rule applies only to documentary evidence in criminal cases
An original writing must be produced to prove its contents unless an exception applies (Correct answer)
Oral testimony about the contents of a document is always inadmissible

Correct answer: An original writing must be produced to prove its contents unless an exception applies

FRE 1002 requires production of the original writing to prove its contents, but FRE 1003–1004 provide exceptions for duplicates and when originals are unavailable.

Question 80: A married couple own a residential premises. They received a foreclosure action from the first mortgage lender in a state that has judicial foreclosure procedures. The state also statutorily extends the right of redemption both prior to the sale, and for a period of one year after the sale. The sale took place; the property was sold to the lender. The lender then filed a deficiency judgment action. The couple received a loan from family members about six months after the sale. It was sufficient to pay the balance on the mortgage plus interest and costs. The couple notified the lender and the court of their intent to exercise their right of redemption. What is the likely outcome?

The court will order the couple evicted because they should have acted prior to the entry of the deficiency judgment.
The couple will exercise their right of redemption to retain ownership of their property. (Correct answer)
The court ruled that the lender did not have a right to file a deficiency judgment, and it ordered the foreclosure action null and void without the couple having to exercise the right of redemption.
A hearing must first be held to determine whether abatement has occurred.

Correct answer: The couple will exercise their right of redemption to retain ownership of their property.

At the end of the redemption period, if the former homeowner cannot exercise the right of redemption, the new owners have the right to evict them. Here, the couple will be able to exercise the right of redemption, assuming they have sufficient funds to do so, and title will revert back to them by order of court.

Question 81: An officer lawfully stops a vehicle for a traffic violation and sees a bag of marijuana in plain view on the passenger seat. Under the plain view doctrine, the officer may seize the marijuana if:

The officer suspected drug activity before making the traffic stop
The officer had a warrant specifically authorizing a drug search
The officer is lawfully present and the incriminating character of the item is immediately apparent (Correct answer)
The driver does not affirmatively object to the seizure

Correct answer: The officer is lawfully present and the incriminating character of the item is immediately apparent

The plain view doctrine permits warrantless seizure when the officer is lawfully present at the location and the incriminating nature of the item is immediately apparent without further manipulation or investigation.

Question 82: A mother was called by a witness to the scene of an accident in which her son was involved. She did not observe the accident, and arrived about 15 minutes later. When she arrived the cars had been towed away and the scene was substantially cleared of debris. However, she saw her son, conscious but on an oxygen ventilator, being lifted onto the rear of an ambulance and driven away. She suffered emotional distress, thinking that her son was severely injured and not knowing at that moment whether he would survive or not. The son did survive the accident and recover. She later sued the other driver who had caused the accident by his negligent driving. She asserted the tort of negligent infliction of emotional distress in her complaint. The defendant filed a motion to dismiss, asserting that he had no duty to compensate the victim’s mother and that the mother did not observe the accident. Under the view expressed by the majority of state court decisions, will the court likely grant the motion and dismiss the case?

Yes, because the woman did not actually view the accident or its immediate aftermath, which is generally required for negligent infliction of emotional distress to an immediate family member. (Correct answer)
Yes, because there can never be a recovery for emotional distress without a physical impact against the plaintiff herself.
No, the observing of the son severely injured near where the accident occurred was sufficient; she did not have to actually witness the accident or arrive there before the scene was cleared.
No, it’s up to the jury to decide if the circumstances were such as to cause sufficient emotional trauma to the plaintiff.

Correct answer: Yes, because the woman did not actually view the accident or its immediate aftermath, which is generally required for negligent infliction of emotional distress to an immediate family member.

The majority view for negligent infliction of emotional distress to a bystander requires the plaintiff to contemporaneously observe the accident or its immediate aftermath. Here, the mother arrived 15 minutes later, after the cars were towed and the scene was substantially cleared, failing this crucial requirement. Therefore, her claim would likely be dismissed because she did not witness the injury-producing event as it occurred.

Question 83: Two teens were hired to assist the custodial staff at a high school over the summer as part of a summer youth program sponsored by the Board of Education. It was known that young children played and congregated on the outside school grounds over the summer. When their supervisors were on coffee break, the two teen assistants went into the unlocked chemistry lab where the confiscated magnesium and potassium nitrate, which they placed in sandwich baggies and hid outside the school in the bushes, where they intended to retrieve it later. An 8-year-old child came along and found the bags, and thinking them to be play dust, he played with the substances and with some matches he had found. The chemicals ignited and caused the boy severe burns over his hands, face and neck. His parents, on behalf of the boy, sued the school district for all proximately caused injuries, and a jury awarded damages to the boy. The school district appealed. Will the appellate court affirm the award based on negligence and negligent supervision of the teens?

No, the school was out of session and had no duty to the uninvited 8-year-old; nor could it be held responsible for the teens, who were a superseding cause that absolved the school district.
Yes a duty was owed to the child, who was a foreseeable user of the land, and the chemical labs were supposed to be closed; thus, due care was not taken to prevent a foreseeable danger. (Correct answer)
No, the school cannot be liable for an uninvited 8-year-old’s rummaging in the bushes.
Yes, there was strict liability for the distribution and dissemination of abnormally dangerous chemicals.

Correct answer: Yes a duty was owed to the child, who was a foreseeable user of the land, and the chemical labs were supposed to be closed; thus, due care was not taken to prevent a foreseeable danger.

The school district owed a duty of care to the child, who was a foreseeable user of the school grounds where children were known to play. The school breached this duty by leaving the chemistry lab unlocked and failing to properly supervise the teen assistants, allowing them to access and hide dangerous chemicals. This created a foreseeable danger to children, making the school liable for the resulting injuries.

Question 84: A mother of four children age 3 to 9 left her children alone in their single-family home while she went to the store to get groceries. While she was still out, neighbors heard the children calling for their mother, and saw smoke coming from the windows. One neighbor pulled the three oldest children out of the house. The fire department arrived and a fireman found the fourth child dead inside. The fire was not intentionally started. The police found the mother and arrested her for involuntary manslaughter. Is her negligence sufficient to warrant conviction for involuntary manslaughter?

Yes, it was fully foreseeable that a fire or other hazard could arise without the mother there to supervise and monitor the situation.
Yes, the woman’s negligence was gross and reckless, and such that evidences a callous disregard of human life sufficient to establish involuntary manslaughter.
No, her negligence was stupid and near-sighted but not the kind of heightened awareness of probable danger that is required for involuntary manslaughter. (Correct answer)
No, she did not have the depraved heart intent to kill that is required for involuntary manslaughter.

Correct answer: No, her negligence was stupid and near-sighted but not the kind of heightened awareness of probable danger that is required for involuntary manslaughter.

For involuntary manslaughter, there generally must be the killing of a human being in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. The general rule is that involuntary manslaughter requires more than mere negligence in the civil sense. The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to show a disregard of human life or an indifference to consequences. This cannot be judged on the outcome but must be judged on the behavior. Criminal liability cannot be predicated on every careless act merely because its carelessness results in injury to another.

Question 85: A federal court enters a default judgment against a defendant who was never properly served. The defendant learns of the judgment one year later. Under FRCP 60(b)(4), the defendant may seek relief from the judgment because:

The judgment was entered through fraud on the court
The judgment is void due to lack of personal jurisdiction (Correct answer)
Enforcing the judgment would be unjust
Newly discovered evidence supports setting aside the judgment

Correct answer: The judgment is void due to lack of personal jurisdiction

A judgment is void under Rule 60(b)(4) when the court lacked personal jurisdiction over the defendant, and there is no time limit for seeking relief from a void judgment.

Question 86: A small business owner was sued for breach of contract. In his answer, he claimed that he acted upon advice of his prior counsel to return the truckload of widgets that were delivered by the plaintiff company. He later repeated that contention in a deposition but refused to elaborate on the details because of the attorney-client privilege. At trial, the plaintiff company called the business owner’s prior attorney to question him on what advice he gave his client regarding the shipment and refusing to perform on the contract. The business owner objected on the basis that the conversations with his former lawyer were privileged. What is the most likely decision of the trial court regarding the objection to the evidence?

The testimony will be precluded because the privilege with respect to confidential communications to former counsel remained in effect and could not be waived in a pleading.
The testimony must be admitted because the business owner’s answer raised the advice of former counsel and thus placed the subject matter of that advice in issue; that is a waiver of the privilege (Correct answer)
The privilege has been waived in the sense that when a party changes counsel, all privileged communications with prior counsel are no longer protected.
The privilege still stands and the testimony will be precluded because the raising of the defense in the answer is in itself privileged and not subject to further revelation.

Correct answer: The testimony must be admitted because the business owner’s answer raised the advice of former counsel and thus placed the subject matter of that advice in issue; that is a waiver of the privilege

The attorney-client privilege can be waived when a party puts the privileged communication 'at issue' in litigation. By asserting in his answer and deposition that he acted upon the advice of his prior counsel, the business owner made that advice central to his defense. He cannot use the advice as a justification for his actions while simultaneously invoking the privilege to prevent the opposing party from examining the details of that advice. This constitutes an implied waiver of the privilege.

Question 87: An undergraduate went to a fraternity party. He caught a young woman making sexually provocative eye contact with him. He took her home, raped her without her consent, and then left. After being raped, she ran away and went straight to the police. The rape case was reported by the police. Many guys agreed to testify that the woman was promiscuous, that they had intercourse with her, and that she was quite prolific in her sexual life, according to the student-defendant, who found them willing witnesses. According to the Federal Rules of Evidence, will the trial court likely allow the witnesses to testify about the woman's sexual propensities?

No, because the rules of evidence prohibit all evidence of a victim’s prior sexual history.
Yes, because the rules permit evidence of a victim’s sexual predisposition to test credibility.
No, because such "sexual predisposition" evidence is generally prohibited by the rules of evidence except under narrow exceptions. (Correct answer)
Yes, because the evidence will help the jury see that there may be two sides to the story and that the woman was thus the sexual predator instead of the man.

Correct answer: No, because such "sexual predisposition" evidence is generally prohibited by the rules of evidence except under narrow exceptions.

Explanation: Fed.R.Evid. 412 forbids showing signs of sexual proclivity or previous sexual behavior. The exception is when information about past behaviors will directly affect the defendant's innocence. Additionally, it can be necessary to demonstrate the victim's permission in specific factual circumstances. However, testimony about the rape victim's general reputation or testimony about specific acts with other people are typically not probative of the victim's overall credibility as a witness or of her consent to having sex with the defendant. Instead, such evidence of a rape victim's chastity relates to her sex life in general. American v. Kasto, 584 F. 8th Cir. 1978), 2d 268, 271–72. Additionally, see Grant v. Demskie, 75 F. Supp. ""The [rape shield] bill] limits the introduction of such evidence and attempts to strike a reasonable balance between protection of a victim's privacy and reputation while not infringing on the defendant's right to a fair trial based on the presumption of innocence... "" Answer 1 is inappropriate because it falls under the category of questions covered by Rule 412, which forbids inquiries concerning the victim's sexual propensity.

Question 88: A defendant is acquitted of murder in state court. The federal government subsequently prosecutes him for federal civil rights violations arising from the same killing. Does the Double Jeopardy Clause bar the federal prosecution?

No, but only if the federal charges require proof of at least one different element
No, because the dual sovereignty doctrine permits separate prosecutions by independent sovereigns (Correct answer)
Yes, because federal prosecution after a state acquittal always violates double jeopardy
Yes, because the defendant was already acquitted for the same conduct

Correct answer: No, because the dual sovereignty doctrine permits separate prosecutions by independent sovereigns

Under the dual sovereignty doctrine, the Double Jeopardy Clause does not bar successive prosecutions by separate sovereigns — federal and state governments are independent sovereigns that may each prosecute based on the same conduct.

Question 89: A land owner sued a purchaser of the land for breach of contract in not performing on their sales agreeement as of the last day set for closing. The defendant filed a counterclaim, alleging fraud by plaintiff in certain claims about the property, which greatly diminished the value, and requesting certain business loss damages, along with a refund of down payment funds. Six months later, the same defendant-purchaser of the land filed a complaint against the land owner, claiming fraud on two adjoing tracts of land that were allegedly negotiated around the same time as the origninal agreement between the parites. The purchaser included a promissory note to the complaint that allegedly superceded the original note listed in the first lawsuit and was signed a few days later. The purchaser's new, separate lawsuit claimed additional fraud damages against the land owner and return of additional funds being held by him. Can the second action by the purchaser be maintained or should it have been included with the counterclaim filed in the first case?

Yes, it can be maintained because in the earlier case it was not mentioned and therefore was not a part of the subject matter of that case.
No, it cannot be maintained because it violates the parol evidence rule in that you can't have two contracts defining the same land.
No, it cannot be maintained independently because it was a compulsory counterclaim that should have been raised as a counterclaim in the original lawsuit. (Correct answer)
Yes, it can be maintained because in the earlier lawsuit it was only a permissive counterclaim.

Correct answer: No, it cannot be maintained independently because it was a compulsory counterclaim that should have been raised as a counterclaim in the original lawsuit.

Rule 13(a) defines compulsory counterclaim. A pleading must include a counterclaim that arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim. If it is not raised with the other claims, it is forever barred. The purpose is to cut out duplicative litigation. The Ninth Circuit applies the "logical relationship test" which "analyze[s] whether the essential facts of the various claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit." Pochiro v. Prudential Ins. Co. of Am., 827 F.2d 1246, 1249 (9th Cir. 1987) (quoting Harris v. Steinem, 571 F.2d 119, 123 (2d Cir. 1978)) Here, the relationship is so close in subject matter and time that the second lawsuit should not be allowed and the purchaser should have raised it in the first case.

Question 90: A state passed a statute that prevents the sale of violent video games to minors. The act prohibits video games being sold or rented to minors where the player may have a choice of killing, maiming, dismembering or sexually assaulting an image of a human being in a manner that appeals to a deviant or morbid interest of minors and offends prevailing community standards of what is suitable for minors. The Petitioners, representing various interests of the video game industry, brought an action in federal court to have the statute declared unconstitutional. The video game industry has a voluntary rating system (like the one relating to movies) to assist parents. The state did not present evidence showing a connection between violent videos and violence in children. Based on U.S. Supreme Court precedence, what is the most likely decision of the federal court?

The statute is unconstitutional because minors have unlimited rights under the First Amendment.
The statute is constitutional because the restrictions are obviously going to reduce the crime rate among minors.
The statute is unconstitutional because it is does not meet a compelling state interest that would allow for restrictions on free speech. (Correct answer)
The statute is constitutional because it meets a compelling government interest and it is drawn narrowly to fit very specific dangers.

Correct answer: The statute is unconstitutional because it is does not meet a compelling state interest that would allow for restrictions on free speech.

See Brown v. Entertainment Merchants Ass'n, 131 S. Ct. 2729 (2011), pertaining to a very similar state statute. The Court held that minors have a “significant measure” of First Amendment rights, including the right to view video games. In addition, the First Amendment’s protections don’t vary when a new and different medium for communication appears. Id. at 2733. Free speech about violence is not obscenity, and it is obscenity that the Constitution permits to be regulated. Id. at 2735. The statute here might make more sense if the state could prove a connection between violent video games and violence in minors, but it has not done so. The industry’s rating system does give protection to minors and parents. The state has not proved the compelling governmental interest and the statute does not pass strict scrutiny. Id. at 2737.

Question 91: A wife told her husband that she had extramarital relations with one of his friends, who was also his co-worker. The husband was enraged but “cooled off” by the next day when he went to work. At work, he approached the adulterous friend and asked why he did it. The so-called friend replied that the husband was a cuckold, the laughing stock of the office, and that he should open his eyes to the many sexual encounters that his wife had had behind his back. In a fit of rage, the husband returned home and violently strangled his wife to death. The stories of widespread infidelity were not true. The state prosecuted the husband for first degree murder but he defended on the basis that he acted in a heat of passion. Which of the following best describes the criminal liability of the defendant?

Voluntary manslaughter. (Correct answer)
Depraved heart second degree murder.
Felony murder.
Involuntary manslaughter.

Correct answer: Voluntary manslaughter.

Voluntary manslaughter occurs when a killing, which would otherwise be murder, is committed in the heat of passion due to adequate provocation. Although the initial rage cooled, the friend's renewed taunts about widespread infidelity immediately reignited the husband's passion, leading to the killing. This sudden, intense emotional disturbance, caused by sufficient provocation, reduces the culpability from murder to voluntary manslaughter.

Question 92: An online company has sued a competitor for trademark infringement in federal court. The company has made some broad discovery requests, which are being refused by the competitor. The Court issues a date for a scheduling conference. After the scheduling conference, which of the following appears to be the most appropriate subjects for a scheduling order, considering the mandates of the Federal Rules of Civil Procedure?

The Order will set the schedule for the providing the disclosure items that must be provided in the Rules, which includes detailed information by each party regarding its evidence.
The Order will deal primarily with the nature of the evidence and discovery obtained to date, with the goal of setting the summary judgment dates for future resolution.
The Order will limit the time to join other parties, the time to amend the pleadings, the time to complete discovery, and the time to file motions. It will also set the limits of discovery, and set dates for pre-trial conferences and trial. (Correct answer)
The Order will set sanctions for any party not appearing at pre-trial conferences, determine the form and content of the pretrial order, dispose of pending motions, and set special procedures for managing potentially difficult or protracted actions that may involve complex problems.

Correct answer: The Order will limit the time to join other parties, the time to amend the pleadings, the time to complete discovery, and the time to file motions. It will also set the limits of discovery, and set dates for pre-trial conferences and trial.

See FRCP 16(b). After consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference, the Court must issue and Order within the time specified in the Rule. The Order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions. There are several other permissible functions listed in Rule 16(b).

Question 93: A court must determine whether a contract was formed. Witness testimony and written documents are introduced. Which standard applies to this preliminary question of fact?

Preponderance of the evidence under FRE 104(a) (Correct answer)
Clear and convincing evidence
The court defers entirely to the jury
Proof beyond a reasonable doubt

Correct answer: Preponderance of the evidence under FRE 104(a)

Under FRE 104(a), the court determines preliminary questions of fact regarding admissibility under a preponderance of the evidence standard.

Question 94: Congress enacts a law requiring state governors to submit monthly reports to a federal agency on their state's environmental compliance. This law is most likely:

Unconstitutional as commandeering state executive officials in violation of the Tenth Amendment (Correct answer)
Unconstitutional only if a majority of states formally object to Congress
Constitutional because states consented to federal oversight by accepting federal funds
Constitutional under the Supremacy Clause because federal environmental law is supreme

Correct answer: Unconstitutional as commandeering state executive officials in violation of the Tenth Amendment

Under Printz v. United States, Congress cannot compel state executive officers to administer or enforce a federal regulatory program, as this violates the anti-commandeering principle.

Question 95: 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 had the effect of voiding the lease-agreement and making the tenant’s right unenforceable, so that closing could 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.
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 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)

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.

The warranty of habitability is implied in residential leases, requiring landlords to maintain premises fit for human habitation. The caved-in roof in winter clearly breaches this warranty, excusing the tenant from rent payments during that period. However, the lease-purchase agreement has two distinct components: the lease and the option to purchase. While the landlord's breach affects the lease, it does not automatically void the purchase agreement, especially since the tenant is ready to tender the balance, thus the purchase agreement would be enforced.

Question 96: An article appeared in a magazine dealing with public issues. The article discussed the author’s “personal theory” that a small group of industrial magnates, called the American Illuminati, controlled the government of the United States, regardless of the political party in power. The article mentioned names, and described how they generally aggrandized their economic power by keeping the poor down and concentrating all wealth at the top. The author believed that as long as these “fascist” individuals were ruling behind the scenes, that children here would continue to be deprived of food, a quality education and the right to true freedom. He called the group the “murderers” of the American spirit that once lived free. He concluded that if his “theory” was true, then the country must rise up and “bring down” this system of non-democratic governance. One of the individuals mentioned in the article, a well-known billionaire philanthropist who supported various political movements and candidates, brought a libel action against the author and the magazine. The defendants asked the court to dismiss the action because it failed to state a valid legal claim. Which of the following is the most likely ruling of the court under these circumstances?

The plaintiff was a private figure never holding a public office and the limited privilege of the New York Times case would not be given to the defendants, so that the case will go to trial.
The case would proceed; the plaintiff is a public figure who must prove publication of defamatory falsehood with knowledge that it was false or with reckless disregard of whether it was false or not.
The media cannot be censored – it enjoys an absolute privilege to publish controversial allegations of fact regardless of whether it commits injurious falsehood, so that the case would be dismissed.
The defendants had a constitutional right to discuss and publish theories of politics and ideas that were not presented as truth but as theory of the current political system, and the case would be dismissed. (Correct answer)

Correct answer: The defendants had a constitutional right to discuss and publish theories of politics and ideas that were not presented as truth but as theory of the current political system, and the case would be dismissed.

For a statement to be defamatory, it must be a false statement of fact, not merely an opinion or a theory. The article explicitly presented its claims as the author's 'personal theory' and 'if his "theory" was true.' Statements of opinion or theory, especially concerning political matters, are generally protected by the First Amendment and cannot form the basis of a libel claim, as they are not verifiable as true or false.

Question 97: A female driver approached an intersection and went through just as the yellow light appeared. She accelerated to make sure she made it through in time. She collided into a car driven by a male motorist coming from the intersecting street who was getting a jump on his red light that was in the process of turning green. The two cars collided, and the male motorist was seriously injured. He sued the other motorist for negligence. A jury assessed the man’s damages award at $100,000. It found that female driver was 40 percent at fault whereas the male driver was 60 percent at fault. What, if anything, can he collect from this verdict in a pure comparative negligence state?

He cannot collect because he is more than 50 percent at fault.
He can collect $40,000, representing the percentage of fault of the other driver. (Correct answer)
He can collect his full damages because the other driver was substantially at fault.
He can collect his full damages because the other driver was substantially at fault.

Correct answer: He can collect $40,000, representing the percentage of fault of the other driver.

In a pure comparative negligence state, a plaintiff can recover damages even if they are more at fault than the defendant. The plaintiff's recovery is simply reduced by their percentage of fault. Here, the male driver was 60% at fault, so his $100,000 damages award will be reduced by 60%, allowing him to collect the remaining 40% from the female driver, which is $40,000.

Question 98: A witness testifies she cannot recall the events in question. The party who called her seeks to refresh her recollection using a document. Under FRE 612, the opposing party:

May inspect the document, cross-examine on it, and introduce relevant portions (Correct answer)
Must stipulate to the document's authenticity
May demand the witness read the entire document into evidence
Has no rights regarding the document used

Correct answer: May inspect the document, cross-examine on it, and introduce relevant portions

FRE 612 grants the opposing party the right to inspect any writing used to refresh a witness's recollection and to introduce relevant portions.

Question 99: A woman conveyed by deed her farm to her nephew, for the nephew’s life. The nephew died prior to his aunt. The deed was silent on what happens on the nephew’s death. The nephew’s heirs tried to assert control and ownership of the property. The aunt sued them to assert her claimed superior interest in the property. Will the court return the property to the aunt?

No, because the nephew’s life estate was transferred to his heirs upon his death.
Yes, because the nephew’s death prior to the aunt created a unexpected condition subsequent.
No, because the nephew’s fee simple interest passed to his heirs upon his death.
Yes, because the life estate terminated on the nephew’s death and title reverted back to the aunt. (Correct answer)

Correct answer: Yes, because the life estate terminated on the nephew’s death and title reverted back to the aunt.

A life estate is an interest in real property that lasts only for the duration of a specific person's life, in this case, the nephew's life. Upon the death of the measuring life (the nephew), the life estate automatically terminates. Since the deed was silent on a remainder interest, the property reverts back to the grantor (the aunt) or her heirs, as she retained a reversionary interest.

Question 100: A plaintiff files a federal lawsuit that is ultimately dismissed on the merits. The plaintiff then files an identical suit in a different federal court. Under claim preclusion (res judicata), the second suit will be barred if:

The second court has jurisdiction over different subject matter
The plaintiff adds one new allegation to the second complaint
The first dismissal was without prejudice
The first judgment was on the merits, involving the same claim and the same parties (Correct answer)

Correct answer: The first judgment was on the merits, involving the same claim and the same parties

Claim preclusion bars re-litigation when there is a final judgment on the merits, the same parties or those in privity, and the same cause of action (arising from the same transaction or occurrence).

Question 101: 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?

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

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.

A suit for specific performance cannot be enforced in favor of one who has not fully and fairly performed all conditions precedent on his part. Failure to pay the money within the specified time deprives the purchaser of his right of action to enforce performance. If he had a problem with the title search he had a duty to complain and demand a refund, but he did not do that.

Question 102: A candy manufacturer used pre-printed purchase order forms to purchase separate orders of baking sugar from a supplier. The supplier responded to each order by sending the shipment along with its own printed form confirming the shipment and the terms. According to the manufacturer, the last shipment contained spoiled sugar. The manufacturer filed a complaint in state court alleging breach of contract and damages. The supplier filed a motion to have the dispute transferred to arbitration. The manufacturer’s purchase order forms were silent as to the mode of settling disputes, but the supplier’s form contained a clause calling for “any controversy or claim” to be settled by arbitration. The manufacturer was silent as to the arbitration clause. What is the likely decision of the court?

The case must be transferred to arbitration because a clause in the acceptance form always becomes a part of the contract if the offeror does not reject it.
The clause did not become a part of the contract because the offer in this case expressly limited acceptance to the strict terms of the offer, and thus there is no transfer to arbitration.
The clause did not automatically become a part of the contract because it materially altered the offer, thus there is no transfer to arbitration. (Correct answer)
The case must be transferred to arbitration because the additional term did not materially alter the offer and therefore became incorporated into the contract.

Correct answer: The clause did not automatically become a part of the contract because it materially altered the offer, thus there is no transfer to arbitration.

Under UCC § 2-207, an additional term in an acceptance between merchants becomes part of the contract unless it materially alters the offer. An arbitration clause is generally considered a material alteration because it significantly impacts the parties' rights and remedies by changing the forum for dispute resolution. Therefore, the arbitration clause did not automatically become part of the contract without the manufacturer's express assent, and the case will not be transferred to arbitration.

Question 103: Seller and Buyer have a written agreement for sale of 200 tables. Buyer claims seller orally agreed to also paint the tables. Under the parol evidence rule, this oral promise is:

Admissible to supplement an incomplete written agreement
Admissible to explain an ambiguous term in the writing
Always admissible to show the true intent of the parties
Inadmissible if the written contract is fully integrated (Correct answer)

Correct answer: Inadmissible if the written contract is fully integrated

The parol evidence rule bars extrinsic evidence of prior or contemporaneous agreements that would add to or contradict a fully integrated written contract.

Question 104: A state university refuses to grant official recognition to a student religious organization because it limits membership to students who share its faith. The university's policy requiring all recognized groups to admit all students is challenged. Under Christian Legal Society v. Martinez, the policy is:

Constitutional if it is a reasonable, viewpoint-neutral condition on access to a limited public forum (Correct answer)
Unconstitutional because student organizations have a First Amendment right to expressive association
Unconstitutional because it discriminates against religion
Constitutional only if the university has a compelling interest in preventing discrimination

Correct answer: Constitutional if it is a reasonable, viewpoint-neutral condition on access to a limited public forum

In Christian Legal Society v. Martinez, the Court upheld an all-comers policy as a reasonable, viewpoint-neutral condition on access to a school-created limited public forum.

Question 105: Congress passes a law establishing a 'Department of Climate Policy' and grants its director, removable only for cause, authority to set binding emission standards. A regulated company challenges the director's for-cause removal protection. Under Seila Law LLC v. CFPB, the protection is most likely:

Constitutional because Congress may structure independent agencies as it sees fit
Constitutional because climate regulation is a longstanding area of congressional expertise
Unconstitutional because a single-director agency exercising significant executive power cannot be insulated from at-will presidential removal (Correct answer)
Unconstitutional only if the President formally objects to the removal restriction

Correct answer: Unconstitutional because a single-director agency exercising significant executive power cannot be insulated from at-will presidential removal

In Seila Law, the Court held that for-cause removal protection for the head of a single-director independent agency unconstitutionally limits the President's Article II removal power.

Question 106: A contract for the sale of land contains a clause: 'Time is of the essence.' Buyer tenders payment one day late. Seller refuses to convey. The likely result is:

Seller must give written notice before refusing to perform
Buyer is entitled to reasonable delay without consequence
Seller may rescind because buyer materially breached (Correct answer)
Seller must perform because one day is immaterial

Correct answer: Seller may rescind because buyer materially breached

A 'time is of the essence' clause makes timely performance a material condition, so even a one-day delay constitutes a material breach entitling the seller to rescind.

Question 107: A developer purchased two lots of ocean front property. He intended to build two single-family high-end homes like adjacent homes built in the surrounding areas. Two years later, the state passed a beachfront protection statute that prohibited the developer from building on his lots. The developer filed a claim in state court demanding compensation for a taking of his property under the Fifth and Fourteenth Amendments because the state denied all economic uses of the property. The trial court agreed that the property was now economically useless, and awarded compensation to the developer. However, on appeal the supreme court of the state reversed. The United States Supreme Court granted certiorari. Did the U.S. Supreme Court grant the developer’s plea for compensation based on an unconstitutional taking of his property by the state?

Yes, any interference with a landowner’s interest in building commercial property is prohibited by the due process clause and requires compensation.
No, the statute did not forbid all uses of the property; there were still social and recreational uses that remained.
No, the valid exercise of the police powers by the state cannot result in a claim for compensation by a property owner.
Yes, compensation is payable for a taking of property where a statute or regulation takes away all economic use of the land. (Correct answer)

Correct answer: Yes, compensation is payable for a taking of property where a statute or regulation takes away all economic use of the land.

The Takings Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, provides that private property shall not “be taken for public use, without just compensation.” Lingle v. Chevron USA Inc., 544 U.S. 528, 536-37. When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking for which reasonable compensation must be paid. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019, 1027 (1992).

Question 108: A group of women employed by a state government recently sued the state under Title VII of the Civil Rights Act of 1964, on the basis of allowing the creation of a hostile work environment against them. An amendment to that act extends coverage to the states as employers. The federal district court allowed an injunction to prevent further discrimination but refused to allow money damages and legal fees against the state on the basis of 11th Amendment sovereign immunity. The plaintiffs appealed. What should the Court of Appeals decide based on the established jurisprudence regarding sovereign immunity?

There is sovereign immunity that protects a state from any lawsuit by private citizens that the state does not authorize.
There is no sovereign immunity where the federal law provides a remedy to women in a civil rights law intended to apply the Fourteenth Amendment enforcement rights against the states. (Correct answer)
There is no sovereign immunity due to the First Amendment rights of the women to protest against discrimination.
There is sovereign immunity under the Supremacy Clause and it would take a new constitutional amendment to abrogate the immunity granted to the states.

Correct answer: There is no sovereign immunity where the federal law provides a remedy to women in a civil rights law intended to apply the Fourteenth Amendment enforcement rights against the states.

The Eleventh Amendment and the state sovereignty that it embodies are limited by the provisions of the Fourteenth Amendment, which grants Congress authority to enforce "by appropriate legislation" the provisions of the Fourteenth Amendment, which themselves are significant limitations on state authority. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).

Question 109: A manufacturer of widgets sent a letter to an international widget retailer offering to sell ten truckloads of construction-quality widgets for $1,000 per truck. The retailer emailed a note back saying “Please send 10 truckloads as promised.” No shipment was sent, but four months later when the market demand for widgets skyrocketed, the retailer sued the manufacturer for breach claiming that the retailer suffered damages by not having received the shipment of ten trucks as agreed. Does the retailer have a legal right to collect damages under these facts?

Yes, there is a specific and detailed enough offer, followed by an unequivocal acceptance, indicating an intent to form a contract. (Correct answer)
Yes, the retailer is entitled to collect damages because the manufacturer violated the doctrine of avoidable consequences.
No, the retailer never called back and asked for the widgets, which means that the contract was not finally confirmed and legalized.
No, the parties do not set a date for delivery, which always invalidates a contract between merchants for the delivery of goods.

Correct answer: Yes, there is a specific and detailed enough offer, followed by an unequivocal acceptance, indicating an intent to form a contract.

Under the UCC, a contract for the sale of goods can be formed if the parties intended to make a contract and there is a reasonably certain basis for giving a remedy, even if some terms are left open. Here, the manufacturer's letter was a clear and definite offer for 'ten truckloads of construction-quality widgets for $1,000 per truck.' The retailer's email 'Please send 10 truckloads as promised' was an unequivocal acceptance of these terms, indicating mutual assent and forming a binding contract.

Question 110: Some disabled veterans sued a state government alleging that the state’s courthouses were inaccessible to disabled persons. They alleged that the state violated federal laws assuring access rights to people with disabilities. The state countered that the action violated the state’s sovereign immunity under the 11th Amendment. The plaintiffs argued that the enforcement clause of the Fourteenth Amendment allowed the federal government to apply anti-discrimination measures to protect the rights of disabled persons. What is the most likely decision of the federal court based on U.S. Supreme Court precedent?

Congress unconstitutionally abrogated state sovereign immunity by trying to apply a remedy that was not congruent and proportional to the discrimination being addressed, but instead was unduly burdensome on the states.
Those disabled persons in this case were being denied equal protection of the law, and as such, the federal statute was a proper application of the police powers of the state.
Despite the discrimination these were not fundamental rights that were protected by the due process clause of the Fourteenth Amendment.
The right of the disabled to access the courthouse was fundamental and was guaranteed by the due process clause of the Fourteenth Amendment; the remedy was not unduly burdensome or disproportionate to the harm. (Correct answer)

Correct answer: The right of the disabled to access the courthouse was fundamental and was guaranteed by the due process clause of the Fourteenth Amendment; the remedy was not unduly burdensome or disproportionate to the harm.

The remedy was not unduly burdensome and was therefore 'congruent and proportional' to the harm intended to be remedied by the ADA. Congress had enough evidence to establish that the disabled were being denied fundamental rights that are protected by the Due Process clause of the Fourteenth Amendment, among those rights being the right to access a court. See Tennessee v. Lane, 541 U.S. 509 (2004).

Question 111: A state law grants a tax exemption to 'charitable and benevolent organizations.' A church claims the exemption. A taxpayer sues, arguing this violates the Establishment Clause. Under Walz v. Tax Commission, the exemption is:

Constitutional because it extends to a broad class of nonprofit organizations (Correct answer)
Unconstitutional because it financially benefits religious institutions
Constitutional only if the church spends funds on secular charitable activities
Unconstitutional unless the church can show the exemption is the least restrictive means

Correct answer: Constitutional because it extends to a broad class of nonprofit organizations

In Walz v. Tax Commission, the Court upheld property tax exemptions for churches because they were part of a broad class of nonprofit charitable organizations, avoiding excessive government entanglement.

Question 112: In a medical malpractice case, the plaintiff's attorney sends a notice to the defending doctor to appear for her oral deposition. Because the doctor did not appear the first time it was scheduled, the plaintiff sends a subpoena ordering the doctor to attend and to bring her medical file with her. The respective lawyers discussed the matter but did not stipulate to the deposition, although the doctor's counsel have not objected to the scheduling notice. Does the doctor have to attend and bring her records?

Yes, under Rule 30(a)(1) it may be scheduled without leave of court, and under Rule 45, she may be compelled to appear by a subpoena served on her. (Correct answer)
Yes, she must appear because she is a party to the case and she will automatically be held in contempt if she does not comply.
No, because the parties never stipulated to holding the deposition.
No, because in this case the deponent was already sent a notice and did not appear the first time; therefore, leave of court is required.

Correct answer: Yes, under Rule 30(a)(1) it may be scheduled without leave of court, and under Rule 45, she may be compelled to appear by a subpoena served on her.

Rule 30(a)(1) says that a party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent’s attendance may be compelled by subpoena under Rule 45. Here, none of the exceptions in 30(a)(2) exist, and she must attend or the plaintiff can file a motion to compel her attendance.

Question 113: A woman gets a phone call from a man representing himself to be a disabled veteran, asking for funding for the charitable group, “Veterans Welfare United,” that contributes its funds to disabled veterans of the Iraq and Afghanistan wars. He tells her that it is an established and respected national organization that has helped thousands of veterans. He tells her that a good 80% of the funds collected go directly to disabled veterans. She agrees to enter a program for automatic payments from her checking account of $500 per month. After one year, she discovers that the organization is only 20 months old, it provides 40% of its funds directly to disabled veterans and it has helped no more than a few dozen people since it started its operation. She sues the organization for misrepresentation, and includes the foregoing facts in the complaint. The organization files a motion to dismiss, arguing that the complaint fails to allege the elements of misrepresentation and the case should be dismissed as a matter of law. Will the court likely dismiss the action for failing to state a legal claim? No, because the organization made material misstatements of fact in an attempt to mislead the woman into making an investment. No, because the tort of misrepresentation is based on negligence, and the organization was negligent in making the claims that it made. Yes, the organization was merely engaging in “puffing” and exaggerating its claims for general effect. Yes, the telemarketer who called her was exercising his first amendment right to express an opinion; it is always up to the buyer to research a telephone solicitation for accuracy and truthfulness.

Yes, the telemarketer who called her was exercising his first amendment right to express an opinion; it is always up to the buyer to research a telephone solicitation for accuracy and truthfulness.
Yes, the organization was merely engaging in “puffing” and exaggerating its claims for general effect.
No, because the organization made material misstatements of fact in an attempt to mislead the woman into making an investment. (Correct answer)
No, because the tort of misrepresentation is based on negligence, and the organization was negligent in making the claims that it made.

Correct answer: No, because the organization made material misstatements of fact in an attempt to mislead the woman into making an investment.

The tort of misrepresentation is an intentional tort that includes the making of statements of material fact, with the intent to mislead, that are false, and that are justifiably relied by the victim in suffering actual damages.

Question 114: A murder victim's statement to a 911 operator saying 'My husband is trying to kill me!' is sought to be admitted after the victim dies. Under Crawford v. Washington, this statement is:

Admissible as a dying declaration regardless of its testimonial nature
Non-testimonial and admissible because it was made under emergency circumstances (Correct answer)
Inadmissible hearsay with no applicable exception
Testimonial and barred by the Confrontation Clause if the defendant cannot cross-examine

Correct answer: Non-testimonial and admissible because it was made under emergency circumstances

Under Davis v. Washington, statements made to enable police to respond to an ongoing emergency are non-testimonial and not barred by the Confrontation Clause.

Question 115: A patient confided to his psychologist that he was having urges to kill his former girlfriend. The psychologist notated those urges in his office notes and called the referring customer, the security department of the patient’s employer, asking them to take care of warning the potential victim and taking any other necessary action. The security department did nothing. The patient continued to repeat the urges in therapy sessions but the psychologist felt assured that his notifying the employer was sufficient protective action. About 30 days after first sharing the homicidal urges, the patient shot and killed his former girlfriend in her parents’ home. The parents sued the psychologist and the security department of the employer for negligence. The psychologist filed a motion to dismiss, alleging no legal duty to the victim and, despite having no duty to her, that he took reasonable steps to warn and protect her. Will the court likely dismiss the case as a matter of law against the psychologist?

Yes, because a therapist has no duty to a third person to take action to protect or warn the person, and she cannot reveal the secrets of the patient by breaking the doctor-patient privilege.
No, because the therapist owes a legal duty to those foreseeable third persons who may be in danger from the patient’s illness; it’s up to the jury to decide whether he took reasonable steps or not.
No, because the therapist is strictly liable to all persons in the foreseeable range of danger revealed by the patient’s expressions.
Yes, because he was absolved from further responsibility after he did take reasonable steps to have her warned. (Correct answer)

Correct answer: Yes, because he was absolved from further responsibility after he did take reasonable steps to have her warned.

Once a therapist does determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. While the discharge of this duty of due care will necessarily vary with the facts of each case, in each instance the adequacy of the therapist's conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances. That is usually a decision for the jury to make after all of the factual evidence is in.

Question 116: A non-profit organization sued a newspaper publisher in a federal district court for defamation. The paper had run an investigative article claiming the group was a cult that conducted strange rituals and used mind control. The group asked for a protective order pertaining to the publisher's broad discovery requests. It requested an order preventing the newspaper from publishing highly private material about its members and outside contributors, including their financial affairs, obtained during discovery. It asserted the right of religious freedom and of association. It had tried to settle the matter with the paper but failed. In an earlier hearing, the magistrate judge had fashioned a similar protective order but deferred its activation. The paper claimed the right of First Amendment free speech. The trial court issued an order of protection prohibiting publication of the materials, but not if they were discovered later by other independent sources. Did the U.S. Court of Appeals likely uphold the trial court's order?

No, because whenever the First Amendment is involved, the information received may be published by a newspaper that has obtained the information legally.
Yes, because there was already a finding of potential oppression, and the Rules give the trial court wide discretion to fashion an order to protect privacy and religious freedom. (Correct answer)
No, because the interests of the public outweighed the danger to the members and others.
Yes, because the district court judge was bound by res judicata to adopt the finding of the magistrate judge.

Correct answer: Yes, because there was already a finding of potential oppression, and the Rules give the trial court wide discretion to fashion an order to protect privacy and religious freedom.

See Seattle Times Co. v. Rhinehart, 467 US 20 - Supreme Court 1984. Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required. There was a prior finding of potential oppression. The appellate court will affirm the protective order where, as in this case, a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.

Question 117: Police have probable cause to believe a vehicle contains stolen weapons. The car is parked in a public lot. Under the automobile exception:

Police may search the vehicle and any containers within it that could contain the weapons (Correct answer)
Police may search only the trunk and locked compartments
Police may search only areas visible through the windows
Police must obtain a warrant before searching because the car is stationary

Correct answer: Police may search the vehicle and any containers within it that could contain the weapons

The automobile exception, established in Carroll v. United States and refined in California v. Acevedo, allows a warrantless search of a vehicle and any containers within it when police have probable cause to believe it contains contraband, regardless of whether the vehicle is moving.

Question 118: Seller contracts to deliver custom software by August 1 for $50,000. The contract is silent as to whether payment is due before or after delivery. Under the UCC or common law, when is payment due?

Payment is due simultaneously with delivery as concurrent conditions (Correct answer)
Payment is due when the buyer signs the acceptance certificate
Payment is due 30 days after delivery by industry custom
Payment is due before delivery because seller bears creation risk

Correct answer: Payment is due simultaneously with delivery as concurrent conditions

Under common law and the UCC, where the order of performance is not specified, duties are treated as concurrent conditions — each party must tender performance at the same time.

Question 119: A plaintiff introduces the defendant's apology letter stating 'I'm sorry for what happened, it was my fault.' Under FRE 801(d)(2), this is:

Admissible only for impeachment
Hearsay not subject to any exception
Inadmissible under the subsequent remedial measures rule
Admissible as an opposing party's statement (admission) (Correct answer)

Correct answer: Admissible as an opposing party's statement (admission)

Under FRE 801(d)(2), a statement made by the opposing party and offered against that party is defined as non-hearsay.

Question 120: 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 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.
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)
There is no settlement because both parties were mutually mistaken in believing that a motion for summary judgment had not yet been decided.
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.

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.

A contract will not be rescinded for mutual mistake if one party bears the risk of that mistake. Here, the insurer was aware of its pending summary judgment motion when it agreed to the settlement. By entering into the settlement, the insurer implicitly assumed the risk that the motion might be decided in its favor or against it, and therefore cannot now claim mutual mistake regarding the motion's status. The settlement agreement is binding.

Question 121: A plaintiff wins at trial and is awarded damages. The defendant files a notice of appeal. To prevent enforcement of the judgment during the appeal, what must the defendant typically do?

Demonstrate a likelihood of success on the merits
File the appeal within 14 days of the judgment
File an automatic stay request with the trial court
Post a supersedeas bond in the amount of the judgment (Correct answer)

Correct answer: Post a supersedeas bond in the amount of the judgment

Under FRCP 62(b), a party may obtain a stay of judgment enforcement pending appeal by posting a supersedeas bond, typically in the amount of the judgment plus anticipated costs.

Question 122: A group of high school teenagers attended an all-night rave party at a local dance hall. The driver of the group purchased and took several ecstasy pills while there. When she attempted to drive home the next morning, she fell asleep and crashed into a tree, killing one passenger. She tested positive for ecstasy. The owner had rented the facility for the evening to a private group of college students. The owner kept its employees on the premises for security. The owner took numerous steps to prevent drug use, including searching attendees, confiscating drugs, and evicting drug dealers. The estate of the deceased teen sued the owner of the dance hall. The owner filed a motion to dismiss because it asserted no legal duty owed to the decedent. The plaintiff argued that the owner should not be allowed to use its facility for an all-night party, and that it was highly foreseeable that teen drivers and passengers would be put at risk. Will the court likely grant the motion to dismiss?

Yes, because a property owner is never liable to groups or individuals who rent the property for short periods.
Yes, because the owner did not actively run the party and did not distribute drugs to the attendees. (Correct answer)
No, because rave parties are inherently dangerous and the foreseeability factor creates a duty owed by the owner to the attendees.
No, because the owner did owe a duty to protect the users of its facility from danger.

Correct answer: Yes, because the owner did not actively run the party and did not distribute drugs to the attendees.

A property owner generally owes a duty to keep their premises reasonably safe for invitees. However, when a facility is rented to a private group, the owner's duty may be limited, especially if they are not actively involved in running the event or promoting the dangerous activity. Here, the owner took reasonable steps to prevent drug use and did not actively participate in or promote the party, thus limiting their liability for the actions of the private group's attendees. The owner's efforts to prevent drug use further demonstrate a lack of direct culpability for the specific incident.

Question 123: A city enacts an ordinance banning panhandling in all public parks. A homeless man challenges the ordinance. The court should evaluate this law under:

Rational basis review because it regulates economic conduct
The O'Brien test because panhandling is expressive conduct
Intermediate scrutiny because it discriminates against the poor
Strict scrutiny because it restricts speech in a traditional public forum (Correct answer)

Correct answer: Strict scrutiny because it restricts speech in a traditional public forum

Public parks are traditional public forums; content-based or overbroad restrictions on speech (including solicitation) in such forums receive strict scrutiny.

Question 124: 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?

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.
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.
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)

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's action of signing a contract with another team constitutes an anticipatory repudiation of his valid three-year contract. Injunctive relief is appropriate because money damages are inadequate to compensate for the loss of a highly unique and special service, such as that of a professional athlete. Courts often grant injunctions to prevent such unique individuals from performing for a competitor when they have breached a valid contract.

Question 125: Under the equitable mortgage doctrine, a deed absolute on its face will be treated as a mortgage when:

The grantee fails to record the deed
The grantor retains possession
The parties intended the deed as security for a debt (Correct answer)
The deed lacks consideration

Correct answer: The parties intended the deed as security for a debt

Courts apply the equitable mortgage doctrine when evidence shows the parties intended a conveyance to function as security for repayment of a debt.

Question 126: The police interrogated a suspect regarding a series of burglaries. The suspect had attention deficit disorder, dyslexia and an IQ of 72. Prior to beginning they read a list of Miranda rights to him on a form that the suspect had in front of him. After the reading, he initialed each paragraph indicating he understood. At the bottom of the form was an express written waiver of the Miranda rights, which he signed. He had been interrogated in the past and was familiar with the procedure. During the four hours of interrogation he was given bathroom breaks, coffee, and a sandwich. At the end of the process, he made a logical and seemingly cogent confession to all of the burglaries in a taped statement. The defendant later moved to suppress the confession, arguing that he was coming down from drugs at the time and was intellectually unable to understand and comprehend the nature of the warnings or the waiver. What is the most likely decision of the court under the totality of the circumstances?

The signing of a written waiver of Miranda rights is always proof that the suspect gave a voluntary confession.
The outward signs all indicate that the suspect understood the procedure and gave a voluntary confession despite his disabilities. (Correct answer)
There are too many questionable deficiencies in the suspect’s ability to understand what was going on and the confession must be suppressed.
He was too confused to understand what was going on and the confession was coerced by the persistence of the police.

Correct answer: The outward signs all indicate that the suspect understood the procedure and gave a voluntary confession despite his disabilities.

The facts state that he gave a “cogent” and logical statement confessing to the burglaries. There are no facts indicating that his disabilities got in the way of giving a voluntary confession. His prior experience weighs against his claims. Taking drugs is not a defense to a waiver of rights where the suspect appears to be lucid and appears to know what he’s doing. There is no evidence of police coercion, making his decision a voluntary one, under the totality of the circumstances.

Question 127: An employer promises a long-time employee a pension upon retirement. The employee retires in reliance on that promise. The employer then refuses to pay. The best theory for enforcing the promise is:

Unilateral contract accepted by continued employment
Quasi-contract for unjust enrichment
Bilateral contract based on past service
Promissory estoppel based on detrimental reliance (Correct answer)

Correct answer: Promissory estoppel based on detrimental reliance

Promissory estoppel applies when a party detrimentally relies on a promise and injustice can only be avoided by enforcement, even without bargained-for consideration.

Question 128: A state statute provides that any public official found guilty of misconduct in office by his superiors should be permanently banned from holding any state employment or being appointed to any state office at any time in the future. Would the statute pass constitutional muster and why?

The statute is a constitutional exercise of the police power.
The statute is a constitutional statement of public policy.
The statute is unconstitutional as a bill of attainder. (Correct answer)
The statute is unconstitutional because it is void-for-vagueness.

Correct answer: The statute is unconstitutional as a bill of attainder.

A bill of attainder is a legislative act which inflicts punishment without a judicial trial. It applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial. Example: U.S. v. Brown, 381 U.S. 437 (1965).

Question 129: In a medical malpractice case, the plaintiff's attorney sends a notice to the defending doctor to appear for her oral deposition. Because the doctor did not appear the first time it was scheduled, the plaintiff sends a subpoena ordering the doctor to attend and to bring her medical file with her. The respective lawyers discussed the matter but did not stipulate to the deposition, although the doctor's counsel have not objected to the scheduling notice. Does the doctor have to attend and bring her records?

No, because the parties never stipulated to holding the deposition.
No, because in this case the deponent was already sent a notice and did not appear the first time; therefore, leave of court is required.
Yes, under Rule 30(a)(1) it may be scheduled without leave of court, and under Rule 45, she may be compelled to appear by a subpoena served on her. (Correct answer)
Yes, she must appear because she is a party to the case and she will automatically be held in contempt if she does not comply.

Correct answer: Yes, under Rule 30(a)(1) it may be scheduled without leave of court, and under Rule 45, she may be compelled to appear by a subpoena served on her.

Under Federal Rule of Civil Procedure 30(a)(1), a party may depose any person without leave of court. While a notice is sufficient for a party's attendance, a subpoena (Rule 45) is necessary to compel the production of documents from any deponent, including a party. Since the doctor is a party and was served with a subpoena, she is legally obligated to attend and bring the requested records.

Question 130: A man and woman lived together unmarried for 19 years. He assured her that they would live together as husband and wife but without the restriction of an official marriage license. She relied on those promises when giving up plans for a career in business. She assisted him in many substantial ways over the years as he progressed to becoming a successful neurosurgeon. During the years they displayed all of the trappings of being a married couple. When they split up, he refused to give her anything, saying that it was a meretricious relationship. She sued in state court claiming an interest in his income, profits and property. She claimed an express contract or an implied-in-fact agreement to share the economic wealth that was accumulated. The trial court dismissed, saying there could be no claim if there was no marriage. What is the most likely decision of the appellate court?

The rights and benefits claimed by the woman are based on a marital union under state law and there being no official marriage, her claims fail to have legal validity.
The couple had an implied-in-fact contract, in which the woman had relied in good faith to her detriment, and she was entitled to damages. (Correct answer)
This was a meretricious relationship in which the woman had been compensated for her services quite sufficiently over the years, but she had no residual legal claims that could be asserted.
There was a right to collect damages based on the massive, lengthy fraudulent scheme that the man perpetrated to keep her within his consuming web but without any economic benefit.

Correct answer: The couple had an implied-in-fact contract, in which the woman had relied in good faith to her detriment, and she was entitled to damages.

An implied-in-fact contract arises from the conduct of the parties, demonstrating a mutual agreement and intent to contract. Here, the man's promises, the woman's substantial contributions to his career, and her detrimental reliance on those promises create an implied agreement to share accumulated wealth. Many jurisdictions recognize such agreements between unmarried cohabitants, provided they are not based solely on sexual services.

Question 131: A contract for the sale of 1,000 custom uniforms is silent on the delivery schedule. Under the UCC, delivery is due:

Immediately upon contract formation
Only after buyer provides 30 days' written notice
On the first of the month following contract formation
Within a commercially reasonable time after formation (Correct answer)

Correct answer: Within a commercially reasonable time after formation

UCC § 2-309 provides that if no time for delivery is stated, delivery must occur within a commercially reasonable time after contract formation.

Question 132: The police were called to a domestic dispute. The wife told police that her husband was abusive and that he was a heavy cocaine user. The husband was present and denied the allegation. Police asked for permission to search the premises for drugs, which was consented to by the wife. The husband, however, refused to consent to the search. The police went ahead anyway and found drugs in the husband’s belongings. After being arrested on drug charges, the husband filed a motion for suppression of the evidence based on lack of consent. What should be the likely decision of the trial court?

The search was valid because the wife’s statement established probable cause that a crime was being committed – this created exigent circumstances for the search.
The search was valid because the cases say that one occupant’s consent to the search overrules the other occupant’s refusal to consent.
The search was invalid because, even though consent was given, the police must first attempt to get a search warrant to enter a home.
The search was invalid and the evidence must be suppressed because the co-occupant of the premises was present and specifically refused to give consent to the search. (Correct answer)

Correct answer: The search was invalid and the evidence must be suppressed because the co-occupant of the premises was present and specifically refused to give consent to the search.

The Supreme Court has ruled that when both occupants are present and one of them consents but the other refuses consent, the refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him. See Georgia v. Randolph, 547 U.S. 103 (2006).

Question 133: A plaintiff files a federal diversity action in the Southern District of Texas. The defendant moves to transfer venue to the Northern District of California for convenience. Under 28 U.S.C. § 1404(a), what standard governs the transfer?

Transfer is available for the convenience of parties and witnesses and in the interest of justice, but only to a district where the case could have been brought (Correct answer)
The transferee district must be the only proper venue for the case
Transfer requires that the plaintiff's choice of venue be improper
Transfer is available whenever the defendant requests it in good faith

Correct answer: Transfer is available for the convenience of parties and witnesses and in the interest of justice, but only to a district where the case could have been brought

Section 1404(a) authorizes transfer to any district where the action could have been brought originally, based on the convenience of parties and witnesses and the interest of justice.

Question 134: Under the doctrine of merger, an easement is extinguished when:

The same person acquires ownership of both the dominant and servient estates (Correct answer)
The easement is not used for the statutory period
The dominant estate owner sells the property
The servient owner erects a fence blocking the easement

Correct answer: The same person acquires ownership of both the dominant and servient estates

Merger extinguishes an easement when the same person comes to own both the dominant and servient estates, eliminating the need for the easement.

Question 135: In a personal injury case, plaintiff's counsel asks the defendant on cross-examination, 'Isn't it true you offered to pay the plaintiff's medical bills?' Defendant objects. The court should:

Sustain the objection under the attorney-client privilege
Overrule the objection as the defendant opened the door
Sustain the objection under FRE 409 barring offers to pay medical expenses (Correct answer)
Overrule the objection because admissions are always admissible

Correct answer: Sustain the objection under FRE 409 barring offers to pay medical expenses

FRE 409 excludes evidence of offers to pay medical or similar expenses as proof of liability for the underlying injury.

Question 136: A security guard sued his former employer for terminating his employment in violation of age discrimination laws under the state law where guard resided and the termination took place. The defendant files to remove the case to federal court based on the primacy of the federal Age Discrimination Enforcement Act. Will the district court allow the removal or remand the case back?

If a plaintiff has a viable state law claim, he may depend on it alone and thereby defeat attempts at removal. (Correct answer)
Federal law preempts state law and therefore removal is always preferred when there is a federal law on the precise issue sued on.
The court will allow the removal because the relief granted by federal law is broader and more complete than what is provided in the state law.
The court wil exercise federal jurisdiction because the federal civil rights legislation always supercedes and preempts state law.

Correct answer: If a plaintiff has a viable state law claim, he may depend on it alone and thereby defeat attempts at removal.

Under the well-pleaded complaint rule, federal question jurisdiction exists only when a federal question appears on the face of the plaintiff's complaint. A plaintiff is the master of their complaint and can choose to assert only state law claims, even if a federal claim is also available. Unless the federal law completely preempts the state law cause of action, the mere existence of a federal defense, such as federal preemption, does not create federal question jurisdiction and thus does not allow for removal.

Question 137: Police execute a search pursuant to a warrant later discovered to contain a material misstatement by the affiant officer, but the executing officers had no knowledge of the misstatement. Under United States v. Leon, the seized evidence is:

Admissible under the good-faith exception to the exclusionary rule (Correct answer)
Excluded because the warrant was ultimately invalid
Admissible only if the misstatement was not about an essential element of probable cause
Excluded because the exclusionary rule applies whenever a warrant is defective

Correct answer: Admissible under the good-faith exception to the exclusionary rule

United States v. Leon (1984) established the good-faith exception: evidence obtained by officers who reasonably relied on a facially valid warrant is admissible even if the warrant is later found to be unsupported by probable cause.

Question 138: An elderly man died with a will that had the following clause: “After payment of such debts and funeral expenses, I give and bequeath to my beloved wife the farm on which we now reside and all my personal property, so long as she remains my widow; the remainder on her remarriage or death to go to my son John..” Which one of the following estates in real property most closely reflects the wife’s interest upon her husband’s death?

It is a life estate that ends on her remarriage or death, with a remainder over to the son. (Correct answer)
It is a fee simple with a precedent condition.
It is a vested and contingent remainder;
It is a devise of a fee simple absolute.

Correct answer: It is a life estate that ends on her remarriage or death, with a remainder over to the son.

The clause "so long as she remains my widow" creates a determinable life estate for the wife. This means her interest in the property will automatically terminate upon the occurrence of either her death or her remarriage. The subsequent phrase "the remainder on her remarriage or death to go to my son John" clearly establishes a vested remainder interest in fee simple for John, which will become possessory upon the termination of the wife's life estate.

Question 139: Homeowner owns a property in its natural condition with a house on it. There was no fill of any kind on the property. Neighbor, who owns the adjacent property to the East, built a driveway whose western boundary is along the border of homeowner's property. The excavator dug the driveway five feet deep. The land began to subside along the line of excavation and about three feet of homeowner's land fell off into the driveway, making that part of her property useless. Homeowner demanded that neighbor fill in the property to buttress the erosion created. That was not done and the erosion continued to occur. Homeowner sued and asked for an injunction compelling the neighbor to build and maintain a retaining wall. Will the court rule for the plaintiff/homeowner?

Yes, because excavation is an abnormally dangerous activity and neighbor is absolutely liable for any damages caused by the violation.
No, the right to lateral support is a common law right that has been abrogated by statute in virtually all states so that the right no longer exists.
No, because the neighbor did not go onto the adjacent land and confined all excavation to his own land.
Yes, because every landowner has a right to the lateral support of the soil in its natural state. (Correct answer)

Correct answer: Yes, because every landowner has a right to the lateral support of the soil in its natural state.

A landowner has a common law right to the lateral support of their land in its natural state from adjoining land. If an adjacent landowner excavates their property and causes the neighbor's land to subside, they are strictly liable for the damage to the land itself. This right exists regardless of negligence, and the neighbor has a duty to provide support, often through a retaining wall, to prevent further subsidence.

Question 140: A negative easement prevents a servient estate owner from doing something on their land. Which of the following is a recognized traditional negative easement?

Blocking a neighbor's view of a scenic mountain
Preventing the servient owner from playing loud music
Obstructing light and air reaching the dominant estate (Correct answer)
Parking vehicles on a shared driveway

Correct answer: Obstructing light and air reaching the dominant estate

Traditional negative easements include light, air, support, and streamflow — courts historically refused to expand this list to include view easements.

Question 141: A woman employed by a federally funded educational institution filed an employment discrimination and retaliation complaint under Title IX of the Education Amendments of 1972, rather than under Title VII of the Civil Rights Act. The defendant moved for dismissal under Fed. Rule 12(b)(6). The plaintiff moved to amend her complaint. The court ignored the request for amendment and dismissed the case outright. Will that decision of the district court survive appeal?

Yes, the plaintiff cannot eat up the resources of the trial court by not knowing which law to file under.
No, the decision cannot survive because Title IX guarantees the right to amend under similar circumstances.
Yes, because the motion to dismiss was filed prior to the motion to amend.
No, the right to amend is to be granted liberally and must be given in this instance. (Correct answer)

Correct answer: No, the right to amend is to be granted liberally and must be given in this instance.

Under Federal Rule of Civil Procedure 15(a), courts should freely grant leave to amend pleadings when justice so requires. This liberal policy allows parties to correct errors or add claims, especially when no undue prejudice to the opposing party, bad faith, or futility of amendment is apparent. Dismissing the case outright without allowing an amendment to correct the statutory basis, particularly when requested, is generally an abuse of discretion.

Question 142: A painting was stolen collectively from an art gallery. One of them—the driver—was apprehended while committing another crime. "I didn't even get any money from the art museum," he admitted to the cops. Is the driver's statement admissible in court when the first and second guy stand trial for the theft of the art painting?

No, because the statement was not made in the course of or in furtherance of the conspiracy and thus it is hearsay. (Correct answer)
No, because it was made while in custody and therefore is unreliable.
Yes, as a statement against the interests of the other defendants.
Yes, as an admission by a party opponent.

Correct answer: No, because the statement was not made in the course of or in furtherance of the conspiracy and thus it is hearsay.

Explanation: To establish a basis for admission of evidence under the co-conspirator exception to the hearsay rule, the government must demonstrate that (1) there was a conspiracy, (2) the statement was made by a co-conspirator of a party, (3) it was made during the course of the conspiracy, and (4) it was made in furtherance of the conspiracy. The statement cannot be admitted as evidence by itself. El-Mezain v. United States, 664 F.3d 467, 502 (5th Cir. 2011). See U.S. v. Gigante, 166 F.3d 75 (2d Cir. 1999), which discusses the co-conspirator exception to the hearsay rule in more detail.

Question 143: A defendant was charged and convicted of felony murder as a participant in a robbery in which the store clerk was murdered by his accomplice. The authorities then indicted and convicted him of robbery with a firearm. The two prosecutions were not the same offense because felony murder could be proved by proof of any felony, not just robbery, and robbery with a firearm did not require proof of a death. However, the prosecution acknowledged that it was necessary for all the ingredients of the underlying felony of robbery with a firearm to be proved in the felony-murder trial. Will the defendant prevail on appeal in getting the robbery with a firearm conviction dismissed with prejudice on the basis of a double jeopardy violation?

Yes, because it was necessary for all the ingredients of robbery with a firearm to be proved in the felony-murder trial, the second prosecution was barred by the double jeopardy constitutional prohibition. (Correct answer)
No, because the two offenses were different and required different elements of proof, the second prosecution was valid.
No, because the second prosecution was for a status crime of using a firearm in a robbery and as such it was totally different from the first prosecution.
Yes, because the second prosecution of using a firearm in a robbery was based on the same firearm already proved in the earlier case, and when the same firearm is raised twice, double jeopardy applies.

The Double Jeopardy Clause prohibits multiple prosecutions for the 'same offense.' Under the *Blockburger* test, two offenses are the same if one is a lesser-included offense of the other, meaning all elements of one offense are included within the elements of the other. Here, the prosecution acknowledged that 'it was necessary for all the ingredients of the underlying felony of robbery with a firearm to be proved in the felony-murder trial.' This means robbery with a firearm was a lesser-included offense of the felony murder as charged, making the second prosecution a double jeopardy violation.

Question 144: A spouse is called to testify against her husband in a federal criminal case. Regarding the adverse spousal testimony privilege:

The testifying spouse holds the privilege and may refuse to testify (Correct answer)
Both spouses must jointly invoke the privilege
Neither spouse holds the privilege in federal criminal cases
The defendant spouse holds the privilege and may bar the testimony

Correct answer: The testifying spouse holds the privilege and may refuse to testify

Under Trammel v. United States, in federal courts the witness-spouse holds the adverse spousal testimony privilege and may choose to testify or refuse.

Question 145: A defendant kills his terminally ill spouse at her repeated request to end her suffering. Which crime is he most likely guilty of under common law?

No crime, because consent negates criminal liability for homicide
Voluntary manslaughter
Murder (Correct answer)
Involuntary manslaughter

Correct answer: Murder

At common law, consent is not a defense to homicide; an intentional killing is murder regardless of the victim's request.

Question 146: 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?

No, the host was grossly negligent in allowing a group of drunk men to play a dangerous game of hardball, which precluded him from the benefit of the defense.
Yes, criminal battery is a specific intent crime to which voluntary intoxication may be asserted as a defense.
Yes, voluntary intoxication is always at least a partial defense to any crime that requires mens rea.
No, criminal battery in this case is a general intent crime and the defense of voluntary intoxication is not available. (Correct answer)

Correct answer: No, criminal battery in this case is a general intent crime and the defense of voluntary intoxication is not available.

Voluntary intoxication is generally a defense only to specific intent crimes, where it can negate the required mental state. Criminal battery is typically a general intent crime, meaning the prosecution only needs to prove the defendant intended the act that caused the harm, not a specific result or purpose beyond that act. Therefore, voluntary intoxication cannot negate the general intent required for battery.

Question 147: A developer signed a contract to purchase 100 acres of land for construction of single-family dwellings. The land price was $100,000. The contract was contingent on approval of a subdivision plan being accepted by the township for 70 one-acre homes and 30 acres of open space. The subdivision plan was filed with the township but shortly thereafter, the township passed a zoning ordinance that increased the minimum size of building lots in rural areas to five acres per home, in order to preserve the rural nature of the countryside and prevent too much population growth. There was known to be little or no market for five-acre homes. The developer sued the township on the basis that the ordinance was not a reasonable use of the police powers and the property should revert to the original one-acre limitation. The county court denied the developer’s request for injunctive relief against the zoning board. Will the appellate court reverse the county court and issue an order declaring the new 5 acre rule to be an unreasonable and arbitrary use of the police power?

Yes, because the new rule imposes too much of an arbitrary, unreasonable, and exclusionary burden on the use of the land, and is therefore an abuse of the reasonable use of the police power. (Correct answer)
Yes, the reasonable limit for the size of lots is generally held to be 1 acre and anything above that is automatically prohibited in modern zoning laws.
No, because courts cannot interfere with the rights of local communities to set the minimum size of the lots that they prescribe.
No, it is proper for a municipality to regulate the flow of growth and maintain certain areas as strictly rural, and they can usually go up to ten acres without any concern.

Correct answer: Yes, because the new rule imposes too much of an arbitrary, unreasonable, and exclusionary burden on the use of the land, and is therefore an abuse of the reasonable use of the police power.

While municipalities have broad zoning authority under their police power, ordinances must be reasonable and not arbitrary or confiscatory. A drastic increase in minimum lot size from one to five acres, especially with little market for such large homes, can be deemed an unreasonable and exclusionary burden on property use. Such a change, if not supported by a clear and substantial public welfare justification, may exceed the legitimate bounds of the police power.

Question 148: In a case for sexual harassment, the jury entered a monetary verdict in favor of the plaintiff. She alleged that her supervisor persistently demanded sexual favors in return for promotions, that he had sent her lascivious text messages and semi-nude photos of himself on several occasions. Her complaints were ignored by the employer. The jury believed the plaintiff and returned a verdict for her. The defendants, i.e., the supervisor and the employer company, filed a motion under Rule 59(a) asking for a new trial. Without alleging specifics, the defendants asked the court to recognize that the verdict was against the manifest weight of the evidence. Under these facts, which of the following is the most likely decision and reasoning of the court?

The motion will be granted because the plaintiff's testimony was insufficient evidence in itself to support the verdict.
The motion will be denied because the defendants cannot get a new trial unless they prove that the plaintiff was lying about what happened.
The motion will be granted because it specifically demonstrates that the jury's verdict was against the manifest weight of the evidence.
The motion will be rejected because there was sufficient evidence to support the verdict and the movants alleged only conclusions. (Correct answer)

Correct answer: The motion will be rejected because there was sufficient evidence to support the verdict and the movants alleged only conclusions.

A court may only order a new trial if the jury's "`verdict is against the manifest weight of the evidence, ... or if for other reasons the trial was not fair to the moving party.'" Marcus & Millichap Inv. Servs. v. Sekulovski, 639 F.3d 301, 313 (7th Cir.2011). The moving party cannot just allege a manifest weight of the evidence argument without giving the court specific reasons. Willis v. Lepine, 687 F. 3d 826, 836 (7th Cir. 2012). Here, defendants make only a bald allegation and give nothing to back it up. A motion for new trial should not be granted "simply because the court would have arrived at a different verdict." Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002); U.S. v. 40 Acres, 175 F.3d 1133, 1139 (9th Cir. 1999). A motion based on insufficiency of the evidence can only be granted if the verdict is against the great weight of the evidence or if the jury has reached a seriously erroneous result. Digidyne Corp. v. Data Gen. Corp., 734 F.2d 1336, 1347 (9th Cir. 1984).

Question 149: An investor filed a federal securities fraud complaint against a large public corporation. The defendant filed a motion to dismiss under Rule 12(b)(6) alleging that the complaint failed to state a claim upon which relief could be granted. Due to the need to plead fraud with specificity under Rule 9(b), the district court granted the the dismissal and entered final judgment. Instead of filing an amended complaint as a matter of right under Rule 15(a), the plaintiff had answered the motion by stating that it had “filed all of the facts" that it knew. The plaintiff duly filed a notice of appeal. On appeal, the plaintiff stated that it found the detailed facts that it needed and requested permission to file an amended complaint. Will the court grant the request to amend and what will be its reason?

Yes, because amendments must be granted freely under Rule 15(a).
No, the plaintiff failed to first file to alter or set aside the judgment in the district court under Rule 59 or Rule 60; it is too late to ask for leave to amend on appeal. (Correct answer)
Yes, because the interests of justice require that the appellate court honor substance over form.
No, the plaintiff will be held to its original position that it had pleaded all of the facts that it knew, thus making an amendment futile.

Correct answer: No, the plaintiff failed to first file to alter or set aside the judgment in the district court under Rule 59 or Rule 60; it is too late to ask for leave to amend on appeal.

After a district court enters a final judgment, a plaintiff cannot simply amend their complaint as a matter of right under Rule 15(a) or request leave to amend for the first time on appeal. To amend after judgment, the plaintiff must first move in the district court to alter or set aside the judgment under Rule 59(e) or Rule 60(b). Since the plaintiff failed to take this necessary procedural step, the appellate court will not grant the request to amend.

Question 150: Oscar conveys land 'to Alice for life, then to Bob if Bob survives Alice.' Bob dies before Alice. What happens to Bob's interest?

The interest passes to Alice's heirs
Alice receives a fee simple absolute
The interest fails and the land reverts to Oscar's estate (Correct answer)
The interest passes to Bob's heirs

Correct answer: The interest fails and the land reverts to Oscar's estate

Bob held a contingent remainder that failed when he predeceased Alice, causing a reversion to Oscar's estate because no other remainderman was named.

Question 151: Plaintiff and Defendant are involved in federal litigation. Plaintiff serves Defendant with interrogatories. Under FRCP 33, Defendant must respond within:

30 days (Correct answer)
14 days
21 days
45 days

Correct answer: 30 days

Under FRCP 33(b)(2), the responding party must serve answers and any objections to interrogatories within 30 days after being served, unless the court orders otherwise.

Question 152: An employer agrees to employ a worker 'for life.' The employee works for two years and is then fired without cause. Under the majority common law view, the employment agreement is:

Enforceable only if the employee gave independent consideration beyond services
Terminable at will because lifetime contracts lack mutuality (Correct answer)
Void under the Statute of Frauds as impossible to perform within one year
Enforceable as a lifetime contract with full expectation damages

Correct answer: Terminable at will because lifetime contracts lack mutuality

Under the majority view, 'employment for life' is terminable at will because it lacks mutuality — courts treat such agreements as indefinite employment absent extraordinary consideration.

Question 153: A lay witness testifies that in her opinion, the defendant 'seemed intoxicated.' This opinion testimony is:

Admissible only if the witness first describes all observed behaviors
Inadmissible because only experts may give opinion testimony
Inadmissible unless the witness is trained in detecting intoxication
Admissible under FRE 701 as rationally based on personal perception (Correct answer)

Correct answer: Admissible under FRE 701 as rationally based on personal perception

FRE 701 permits lay witness opinion testimony that is rationally based on the witness's own perception and helpful to understanding the testimony.

Question 154: An auto retailer started a marketing promotion on a new hybrid model sedan. It advertised that anyone who purchased the car in 2013 and did not get at least 50 miles per gallon average gas mileage during the first 60 days, would receive a payment of $10,000 cash from the company. Record-keeping and inspection procedures were required to assure accurate reporting by the vehicle owner. The promotion was widely publicized. A female customer purchased a hybrid model during the promotion period, followed all the rules, and recorded only 42 mpg in the first 60 days. She demanded the rebate but the company stalled for months and then stopped responding to her inquiries. Does she have a contractual right to collect the $10,000?

No, because she did not formally notify the company that she was accepting the offer before she started performing.
Yes, because this is a classic bilateral contract, making it necessary that the company live up to its set of promises made to her.
No, this was merely puffing, was not an offer to contract with any particular person and was without consideration.
Yes, this was a unilateral contract in which the offeree acted upon the offer by performing the terms of the offer, thus creating a binding contract. (Correct answer)

Correct answer: Yes, this was a unilateral contract in which the offeree acted upon the offer by performing the terms of the offer, thus creating a binding contract.

This scenario describes a unilateral contract, where an offer invites acceptance by performance rather than a promise. The auto retailer made a clear offer promising $10,000 for a specific performance: purchasing the car, following the rules, and achieving less than 50 mpg. The customer's actions of purchasing the car, adhering to the rules, and recording the mileage constituted the requested performance, thereby accepting the offer and creating a binding contract.

Question 155: A non-compete agreement prevents an employee from working in the industry for 10 years nationwide. A court finds the restriction unreasonably broad. Under the 'blue pencil' doctrine, the court may:

Enforce only the geographic restriction but not the time limit
Void the entire non-compete agreement
Modify the agreement to make it reasonable and enforceable (Correct answer)
Enforce the agreement exactly as written

Correct answer: Modify the agreement to make it reasonable and enforceable

The blue pencil (or reformation) doctrine allows courts to modify an unreasonably broad restrictive covenant to the extent necessary to make it reasonable rather than voiding it entirely.

Question 156: A state’s voters approved an amendment to the state’s constitution that prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to recognize gay and lesbian individuals as a protected class. The state’s highest court ruled that the measure could not pass strict scrutiny, and was a denial of equal protection for gays and lesbians. The proponents of the act appealed to the U.S. Supreme Court. What will the Court decide with respect to the validity of the law?

The law is unconstitutional because it lacks a rational relation to any legitimate government purpose and the denial of the right to seek protection is unprecedented in our jurisprudence. (Correct answer)
The law is unconstitutional because it was not appropriately ratified by the executive and judicial branches of the government.
The law is an appropriate measure because it merely denies preferential treatment to homosexuals and has no substantive effect on them.
The law was passed by a referendum majority vote of the people of the state and is thus constitutional and valid under state law.

Correct answer: The law is unconstitutional because it lacks a rational relation to any legitimate government purpose and the denial of the right to seek protection is unprecedented in our jurisprudence.

Although strict scrutiny is an appropriate test, the preliminary question to answer is whether the the amendment consists of any rational purpose that furthers a legitimate government interest. If the amendment or statute does not further a legitimate government interest because it has no rational basis, then you don't need to go to next step and analyze it from the perspective of "strict scrutiny." The first test to apply is the rational basis inquiry: the law is so outrageous that it does NOT have a legitimate government interest. It is based solely on malicious animosity toward a class of people. This law was born of the bare desire to harm an unpopular group of people. This cannot constitute a legitimate government purpose. See Romer v. Evans, 517 U.S. 620 (1996).

Question 157: A seller conveys property with a general warranty deed. A subsequent claimant asserts a superior title through an interest created before the seller ever owned the property. The covenant that protects the buyer is:

Covenant of further assurances
Covenant against encumbrances
Covenant of seisin
Covenant of warranty (general warranty) (Correct answer)

Correct answer: Covenant of warranty (general warranty)

The general warranty covenant obligates the grantor to defend the grantee's title against all claims, including those arising from defects that predate the grantor's ownership.

Question 158: A covenant to maintain a party wall will bind successors when it is found to:

Appear in a title insurance policy
Be independently recorded in the county zoning records
Be ratified by both local governments
Touch and concern the land and be supported by privity of estate (Correct answer)

Correct answer: Touch and concern the land and be supported by privity of estate

Real covenants run with the land at law when the parties intend to bind successors, there is privity of estate, and the covenant touches and concerns the land.

Question 159: Under Illinois v. Gates, the standard used to determine whether probable cause exists to issue a search warrant based on an informant's tip is:

A preponderance of the evidence standard applied to each tip element
The two-prong Aguilar-Spinelli test requiring veracity and basis of knowledge
The totality of the circumstances test (Correct answer)
Clear and convincing evidence that the informant is reliable

Correct answer: The totality of the circumstances test

Illinois v. Gates (1983) replaced the rigid Aguilar-Spinelli two-prong test with a flexible totality of the circumstances approach to assessing probable cause from informant tips.

Question 160: A young woman signed up for a social media platform that allowed for networking with other businesspeople and organizations around the country. The woman found out that the site was selling her and thousands of other members' personal profile information to outside buyers so they could follow their online activities and purchasing patterns. She asserted two grounds of damages in the class action breach of contract lawsuit she filed against the service. She argued that the publication caused "embarrassment and humiliation" for her and the other members of the class, and that they should be reimbursed for the market worth of the data taken. Will the court likely find that these claims are sufficient to establish a claim of contract breach?

No, because humiliation is not an item of damages in a breach of contract case, and the unauthorized collection of personal data does not establish an economic loss. (Correct answer)
Yes, because the service breached the duty of good faith inherent in every contract.
Yes, because these are common types of damages that are authorized in breach of contract cases.
No, because Internet laws protect absolutely all communications and downloads of this nature as part of the service's guaranteed scope of free speech rights.

Correct answer: No, because humiliation is not an item of damages in a breach of contract case, and the unauthorized collection of personal data does not establish an economic loss.

Explanation: In general, damages for mental or bodily anguish are not recoverable in cases of contract breach. LinkedIn Corp. v. Low, 900 F. Supp. (Dist. Court, ND California, 2012) 2d 1010, 1028–29. Additionally, under breach of contract case law, the illegal collecting of a third party's personal information is not regarded as a """"economic loss"""". See also In re JetBlue Airways Corp., Privacy Litig., 379 F.Supp.2d 299, 327 (E.D.N.Y.2005) (airline's disclosure of passenger data to third party in violation of airline's privacy policy had no compensable value). In re DoubleClick, Inc., Privacy Litig., 154 F.Supp.2d 497, 525 (S.D.N.Y. 2001).

Question 161: A forensic expert testifies about DNA evidence in a murder trial. The judge must determine if the expert's methodology is admissible under:

The Daubert standard, requiring reliability and relevance (Correct answer)
The Frye general acceptance test only
FRE 403 balancing alone
The plain view doctrine

Correct answer: The Daubert standard, requiring reliability and relevance

Under Daubert v. Merrell Dow Pharmaceuticals and FRE 702, the judge acts as gatekeeper to ensure expert testimony is based on reliable methodology.

Question 162: A defendant honestly and reasonably believed he was about to be attacked and killed a person who turned out to be an innocent bystander. Under the MPC, is imperfect self-defense available?

No, because the victim was innocent
No, because self-defense requires the threat to be real
Yes, the honest belief is a complete defense under the MPC (Correct answer)
Yes, the defendant may be convicted of a lesser offense due to the honest but unreasonable belief

Correct answer: Yes, the honest belief is a complete defense under the MPC

Under the MPC, an honest but mistaken belief in the need for self-defense is a complete defense if the belief was reasonable; if unreasonable, it may reduce but not eliminate liability.

Question 163: Plaintiff was a lifeguard at a summer day camp. The camp maintenance crew placed the lifeguard chair at the shallow end of the pool. They also carelessly set the water level slightly below its normal capacity. Plaintiff decided to help a swimmer by recklessly jumping from the lifeguard chair into the most shallow point of the pool. He suffered spinal cord damage and paralysis. He sued the camp owners for negligence and substantial damages. Plaintiff admitted that he knew the relative depths of the water at all points in the pool, and that he was an experienced and knowledgeable swimmer and diver, when he engaged in the unwise action of jumping into the shallow end. The camp proved through forensic engineering testimony that the lower water level caused by the maintenance crew was not a key factor in the accident or the injury. The camp filed a motion for summary judgment, claiming that the claim was precluded as a matter of law, and thus nothing for the jury to decide. What is the likely decision of the court on the motion?

The court will likely deny the motion because it was foreseeable that the lifeguard would jump into the shallow water nearest to the negligently placed lifeguard chair.
The court will likely grant the motion because the plaintiff’s act was highly extraordinary, and not foreseeable; thus, it was a superseding act that cut off the camp’s liability. (Correct answer)
The court will likely deny the motion because the maintenance crew did not put enough water into the pool.
The court will likely grant the motion because a lifeguard assumes the risk of all dangers encountered in that risky job.

Correct answer: The court will likely grant the motion because the plaintiff’s act was highly extraordinary, and not foreseeable; thus, it was a superseding act that cut off the camp’s liability.

A superseding cause is an unforeseeable intervening act that breaks the chain of causation between the defendant's negligence and the plaintiff's injury, relieving the defendant of liability. Here, the lifeguard, an experienced swimmer who knew the pool's depths, 'recklessly jumping from the lifeguard chair into the most shallow point' is a highly extraordinary and unforeseeable act. This independent, reckless action by the plaintiff would likely be deemed a superseding cause, cutting off the camp's liability for its prior negligence.

Question 164: A broker and a seller of residential real estate entered into an “exclusive right to sell” contract (an exclusive listing agreement) in which the broker had the exclusive right to sell the property for the period of nine months and would receive 6% of the sales price if the property was put under agreement during that nine-month period. The agreement also stated that “if the property is withdrawn from sale, transferred, conveyed, leased without the consent of Broker, or made unmarketable by the owner's voluntary act during the term hereof or any extension thereof," the broker would receive 6% of the selling price of the property as set forth in the listing agreement.” The broker began performing all of its duties in aggressively trying to sell the property, but shortly after the agreement, the seller advised that it didn’t want to sell anymore, and it thwarted all efforts of the broker to take further action to sell the property. The broker demanded the 6% amount set forth in the withdrawal of sale provision, but the seller claimed a right to change his mind. Will the court likely enforce the broker’s claim for 6% of the listed price?

Yes, because this is a typical enforceable contractual provision that the courts have upheld, and which reflected the intent of the parties in case of a premature rejection of the agreement by the seller. (Correct answer)
No, the clause is unconstitutional because a person cannot be forced to pay for a service that it decides it doesn’t want.
Yes, because the broker is entitled to an amount in restitution to repay it for the value of the time it spent trying to sell the home.
No, the clause is unconstitutional because a person cannot be forced to pay for a service that it decides it doesn’t want.

Correct answer: Yes, because this is a typical enforceable contractual provision that the courts have upheld, and which reflected the intent of the parties in case of a premature rejection of the agreement by the seller.

'Exclusive right to sell' agreements often include clauses that entitle the broker to a commission if the seller withdraws the property from the market during the contract term. These clauses are generally enforceable as they compensate the broker for their efforts and the lost opportunity to earn a commission, reflecting the bargained-for exchange and the intent of the parties. The seller's unilateral decision to withdraw the property triggers this contractual obligation.

Question 165: A federal statute makes it a crime for anyone to “knowingly” use, transfer, acquire, alter, or possess food stamps in any manner not authorized by statute or federal regulations. A restaurant owner purchased food stamps from a undercover federal agent several times for a price below face value. At trial, the judge refused to charge the jury that this was a specific intent crime requiring proof that the defendant knew that he was acting illegally. The government urged that no mens rea, or "evil-meaning mind” had to be proved. The court simply told the jury that “knowingly” means that the Defendant realized what he was doing, and did not act through ignorance, mistake, or accident. The owner was convicted and appealed. What will the federal appellate court likely decide regarding the lower court’s interpretation of the criminal intent required under the statute?

This is a strict liability crime that requires no proof of criminal knowledge or specific criminal intent.
Some statutes are written without the need to prove any particular mens rea, and this statute appears to be one of them, making the court’s instructions appropriate.
Where all that is available regarding intent is the use of the word “knowingly”, the prosecution must at least prove that the defendant knew his conduct to be unauthorized by statute or regulations. (Correct answer)
The prosecution must prove that the defendant had specific knowledge of the precise provisions of the federal food stamp law and the specific actions that were prohibited. Hint

Correct answer: Where all that is available regarding intent is the use of the word “knowingly”, the prosecution must at least prove that the defendant knew his conduct to be unauthorized by statute or regulations.

The government must prove knowledge of illegality to get a conviction. It must prove that the defendant knew that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulations. The government does not have to show that he had knowledge of specific food stamp regulations. The government does not have to prove the defendant’s personal state of mind. Rather, as in any other criminal prosecution requiring mens rea, the proof is found, if any, in the facts and circumstances surrounding the case. See Liparota v. United States, 471 US 419 (1985).

Question 166: A cotenant in a tenancy in common exclusively possesses the entire property and excludes the other cotenant. The excluded cotenant may bring an action for:

Ejectment only
Partition only
Quiet title
Ouster and recover a proportionate share of rental value (Correct answer)

Correct answer: Ouster and recover a proportionate share of rental value

When one cotenant ousts another by exclusive possession, the ousted cotenant may recover their proportionate share of fair rental value.

Question 167: During trial, the plaintiff calls an expert witness who testifies about the cause of the plaintiff's injuries. The defendant challenges the expert's methodology. Under Daubert, the trial court acts as:

A gatekeeper who must assess whether the expert's testimony is based on sufficient facts, reliable methodology, and reliably applied to the facts (Correct answer)
A passive gatekeeper that defers to the jury on expert credibility
A reviewer limited to examining the expert's qualifications only
An arbiter who must exclude any testimony not accepted by a majority of scientists in the field

Correct answer: A gatekeeper who must assess whether the expert's testimony is based on sufficient facts, reliable methodology, and reliably applied to the facts

Under Daubert v. Merrell Dow Pharmaceuticals, the trial judge serves as a gatekeeper, examining whether expert testimony rests on sufficient facts, a reliable methodology, and reliable application of that methodology to the facts.

Question 168: A state law requires all public school teachers to lead students in a daily moment of silent meditation 'for prayer or reflection.' A parent challenges this law. How should a court rule?

Constitutional as it only mandates silence, not prayer
Constitutional because teachers retain discretion in how they describe the moment
Unconstitutional only if teachers suggest students pray
Unconstitutional because it endorses religion under the Establishment Clause (Correct answer)

Correct answer: Unconstitutional because it endorses religion under the Establishment Clause

In Wallace v. Jaffree, the Supreme Court struck down a similar Alabama law because its legislative history revealed a religious purpose, violating the Establishment Clause.

Question 169: An owner signed papers and a deed to sell a piece of property to buyer one, who held his deed and did not record it. The next month the original owner sold the same property to a second buyer. Buyer two had information that buyer one had bought the property, but he knew that buyer one had not yet recorded a deed. Buyer two recorded five days later. The next day after the deed was executed and delivered to the second buyer, the original owner conveyed a deed to the same property to a third buyer, who was a good faith purchaser for value and who recorded his deed the very same day. Which buyer has superior title under a race-notice recording statute?

The first buyer has superior title because he innocently purchased the property for value, and was not aware of any other transactions.
Buyer three has better title because he had no notice of any prior transactions and recorded first. (Correct answer)
Buyer two has superior title because he was defrauded by the seller and the courts will enforce his purchase to avoid injustice.
Buyer one has superior title because he is the only one who acted in good faith without knowledge of prior transactions.

Correct answer: Buyer three has better title because he had no notice of any prior transactions and recorded first.

Under a race-notice recording statute, a subsequent purchaser for value takes priority over a prior unrecorded interest only if they (1) take without notice of the prior interest AND (2) record their deed first. Buyer 1 did not record. Buyer 2 had notice of Buyer 1, so B2 cannot prevail against B1. Buyer 3 is a good faith purchaser for value without notice and recorded first among those without notice, thus Buyer 3 prevails.

Question 170: Which of the following is NOT a required component of Miranda warnings that must be given before a custodial interrogation?

The right to a speedy trial (Correct answer)
The right to have counsel present during questioning
The right to remain silent
That statements can be used against the suspect in court

Correct answer: The right to a speedy trial

Miranda warnings must inform suspects of the right to silence, that statements may be used against them, the right to counsel during questioning, and the right to appointed counsel; the right to a speedy trial is a separate Sixth Amendment guarantee not part of Miranda.

Question 171: A defendant, acting as an accessory before the fact, helps plan a robbery but is not present when it occurs. Under modern law, what is his liability?

He is only liable for conspiracy, not robbery
He cannot be convicted because he was absent
He is liable as a principal to the same extent as those who committed the robbery (Correct answer)
He is liable only if the robbery was completed

Correct answer: He is liable as a principal to the same extent as those who committed the robbery

Modern law abolishes the distinction between principals and accessories before the fact; all who aid, abet, or counsel are liable as principals.

Question 172: During trial, a plaintiff attempts to introduce evidence that the defendant repaired a hazardous staircase after the plaintiff fell. Under FRE 407, this evidence is:

Inadmissible unless the repair was done within 30 days
Inadmissible to prove negligence or culpable conduct (Correct answer)
Admissible to prove negligence
Admissible to prove the defendant owned the property

Correct answer: Inadmissible to prove negligence or culpable conduct

FRE 407 bars subsequent remedial measures to prove negligence, culpable conduct, or product defect, but permits such evidence for other purposes.

Question 173: A police officer stops a car at a sobriety checkpoint and, without any individualized suspicion, detains the driver for two minutes to check for signs of intoxication. Under Michigan Dept. of State Police v. Sitz, this stop is:

Unconstitutional because it lacks individualized reasonable suspicion required by the Fourth Amendment
Constitutional because the minimal intrusion is outweighed by the state's strong interest in highway safety (Correct answer)
Unconstitutional because the driver's Fifth Amendment right against self-incrimination is implicated
Constitutional only if the checkpoint is publicized in advance

Correct answer: Constitutional because the minimal intrusion is outweighed by the state's strong interest in highway safety

In Michigan v. Sitz, the Court applied balancing analysis and upheld sobriety checkpoints as constitutionally permissible despite the absence of individualized suspicion given the state's compelling highway safety interest.

Question 174: A husband applied for a life insurance policy for $50,000 on his life, listing his wife as the beneficiary. He paid the insurance company an initial amount of $100 at the time of submitting the application. The agent accepted the down payment, which represented two months of the premium payment. In exchange for this payment, the agent gave the husband a "conditional receipt." A few days later the husband died in an auto accident. The wife as beneficiary demanded payment despite the fact that the insurance company had not officially issued a policy and the husband had not taken a required medical examination required in the wording of the application. The company denied liability, asserting that certain conditions contained in the application and in the conditional receipt (namely the taking of the medical examination) had not been fulfilled by the applicant. The insurer claimed that the condition precedent (the medical examination) was never performed and the contract was not formed. What is the most likely decision of the court?

A contract existed because public policy forbids the requirement of a medical examination for simple term insurance policies under the face amount of $100,000.
No contract of insurance exists until the insurer is satisfied as to an applicant's acceptability.
The conditional receipt stood as the temporary formation of a contract of insurance until the company made a final decision on whether to issue a policy. (Correct answer)
There is no such thing as a temporary insurance contract – nothing can exist until the condition precedent is performed.

Correct answer: The conditional receipt stood as the temporary formation of a contract of insurance until the company made a final decision on whether to issue a policy.

A conditional receipt in life insurance often provides temporary coverage from the date of application, provided the initial premium is paid. This protects the applicant during the underwriting process, even if certain conditions like a medical examination are pending. Courts interpret these receipts to create a temporary contract of insurance, ensuring the insurer does not collect premiums without providing some form of immediate coverage, unless the applicant was clearly uninsurable at the time of application.

Question 175: A city park accepted a limited number of privately funded and donated monuments. One of them was a monument displaying the Ten Commandments, which the Kiwanis International donated in a campaign against juvenile delinquency 50 years ago. A non-denominational church organization recently demanded that the city provide space in the park for the church to erect a monument giving the seven precepts of the church. The city rejected the request, and the church sued the city requesting injunctive action to compel the city to provide space for its religious display. The church argued that the city was in violation of the religious establishment clause of the First Amendment by allowing the Ten Commandments. The church said that the monument was an establishment of religion and that all religions should be allowed to display equally or none should be allowed. Based on modern precedent, what will the court decide?

The city must allow a fair selection of monuments from all religions or be guilty of establishing a religion by appearing to favor one religious heritage only.
The First Amendment requires that every expression and form of speech be allowed by a government agency and thus the new monument must be allowed.
The placing of a monument that has any religious significance at all is always a violation of the establishment clause, and the Ten Commandments must be removed.
The city can accept a monument that also has historical, non-sectarian interest without violating the establishment clause and without having to accept other monuments. (Correct answer)

Correct answer: The city can accept a monument that also has historical, non-sectarian interest without violating the establishment clause and without having to accept other monuments.

Under the Establishment Clause, a government display with religious content is permissible if it has a secular purpose, its primary effect neither advances nor inhibits religion, and it avoids excessive government entanglement. A monument like the Ten Commandments, especially one present for 50 years and donated for a secular purpose (anti-juvenile delinquency), can acquire historical and non-sectarian significance over time. Therefore, the city can allow such a monument without violating the Establishment Clause or being compelled to accept all other religious displays, as it does not constitute an endorsement of religion but rather acknowledges a historical artifact with dual meaning.

Question 176: A plaintiff in a negligence case introduces evidence that the defendant's employee had multiple prior accidents on the job. The relevance of this evidence is BEST characterized as:

Proving the employee's propensity for carelessness
Proving the employee was independently negligent
Showing the employer had notice of the employee's dangerous tendencies (Correct answer)
Establishing strict liability for the employer

Correct answer: Showing the employer had notice of the employee's dangerous tendencies

Prior incidents by an employee are relevant to show the employer had notice of the dangerous propensity, supporting a negligent retention or supervision claim.

Question 177: A defendant is charged with conversion after taking the plaintiff's rare coin collection and selling it. The plaintiff seeks damages. What is the proper measure of damages for conversion?

Rental value of the chattel during dispossession
Fair market value of the chattel at the time of conversion (Correct answer)
Nominal damages only
Cost of repair

Correct answer: Fair market value of the chattel at the time of conversion

Conversion damages equal the fair market value of the chattel at the time of conversion, effectively forcing a judicial sale.

Question 178: A state started conducting random vehicle stops at highway roadblocks to look for drugs. A young man was driving alone when he was pulled over with 12 other cars for a narcotics detection search. About 30 officers were involved in conducting the drug searches. After the stop, officers walked drug-sniffing dogs around the young man’s car and the other cars. An officer advised each motorist that this was a brief stop for a drug checkpoint, and asked the young man and the other drivers to produce a license and registration. The officer looked over the young man for signs of drug impairment and conducted an open -view examination of the car from the driver’s side window and the other windows. The young man was not arrested but he later filed an injunctive action in a United States District Court, demanding the police be prohibited from continuing the random drug searches. The lawsuit claimed Fourth Amendment violations based on unreasonable searches and seizures. The district court dismissed the case, but on appeal, the U.S. Circuit Court of Appeals reversed and ordered issuance of an injunction. On appeal to the U.S. Supreme Court, did the plaintiff prevail in his assertion that the procedure was unconstitutional?

No, because this was a highway safety stop similar to drunk driving checkpoints, which were already declared constitutional by the Supreme Court.
Yes, because the stops were pursued for general crime investigation rather than highway safety, which is an unreasonable purpose not based on individualized suspicion of wrongdoing. (Correct answer)
Yes, because these roadblocks used dogs to sniff to see if there were narcotics inside the car, which is always an unreasonable search under the Fourth Amendment.
No, because the dogs would indicate immediately whether there were drugs inside the car, which made the search reasonable within the Fourth Amendment.

Correct answer: Yes, because the stops were pursued for general crime investigation rather than highway safety, which is an unreasonable purpose not based on individualized suspicion of wrongdoing.

This hypothetical is modeled after Indianapolis v. Edmond, 531 US 32, 41-42 (2000). A general-purpose roadblock for detecting narcotics violates the rule that searches and seizures be reasonable under the Fourth Amendment. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. See Chandler v. Miller, 520 U. S. 305, 308 (1997). The Edmond Court held that there were only limited exceptions to the general rule that a seizure must be accompanied by some measure of reasonable suspicion or probable cause against an individual motorist. The Court said it would not credit the "general interest in crime control" as justification for a regime of suspicionless stops. Because the primary purpose of these narcotics checkpoints was to uncover evidence of ordinary criminal wrongdoing, and not to assure highway safety or for border patrol purposes, the program contravenes the Fourth Amendment. If the court did not draw the line at roadblocks designed primarily to serve the general interest in crime control, such intrusions would become a routine part of American life. 520 U.S. at 42.

Question 179: A private organization applied annually for a parade permit to march in the Italian section of the city to celebrate Italian-American Immigration Day. A group of gay, lesbian and bisexual Italian-Americans applied for a permit to join in the parade. The state, pursuant to its public accommodations law, ordered the organization to allow the group in the parade. The organization filed suit, arguing that its right to free speech and expression would be interfered with by having a group with a message different from its own. Because the group was formed to celebrate the members’ sexual orientation, the organization objected to having that message included. What is the most likely decision of the court based on U.S. Supreme Court precedent?

Because the parade took place under government permission, discrimination against a group due to sexual orientation was impermissible.
A parade is a form of free speech and the state’s use of its power violates the First Amendment’s rule that the speaker has the right to choose the content of his own message. (Correct answer)
Because the group identified itself as Italian-Americans of certain sexual persuasions, the same ethnic identity gave them a right to participate equally in the parade.
A parade is not a form of free speech and, as such, it can be regulated by government intrusion.

Correct answer: A parade is a form of free speech and the state’s use of its power violates the First Amendment’s rule that the speaker has the right to choose the content of his own message.

A parade is a form of free speech. This use of the State's power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message. The government does not have the power to compel the speaker to alter the message by including one more acceptable to others. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. - 515 U.S. 557 (1995).

Question 180: A man entered a half-opened window to a neighbor's trailer and waited in the dark bedroom inside. After a while, he got in bed and had sexual relations with the woman while she slept. At trial, he claimed that he believed that the woman had consented because he had dated her many times and had consensual sexual relations with her many times in the past. He hadn’t seen her in about one week but assumed her consent. He denied specific intent to rape and claimed a desire to surprise her with a “romantic” variation of their usual activities. The woman admitted to prior consensual relations but denied consent on this occasion. Has he stated a viable defense to rape?

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

Correct answer: No, his belief that she consented in advance was unreasonable and impermissible.

For a mistake of fact regarding consent to be a viable defense to rape, the defendant's belief that the victim consented must be both honest and reasonable. Having sexual relations with a sleeping person, even with a history of consensual encounters, is inherently unreasonable to assume consent. A person cannot consent while unconscious, and prior consent does not equate to present consent.

Question 181: Which of the following is NOT a required element of common law larceny?

Trespassory taking
Use of force or threat (Correct answer)
Intent to permanently deprive
Carrying away (asportation)

Correct answer: Use of force or threat

Common law larceny does not require force or threat; robbery requires force or threat, but larceny is a taking without force.

Question 182: An owner signed papers and a deed to sell a piece of property to buyer one, who held his deed and did not record it. The next month the original owner sold the same property to a second buyer. Buyer two had information that buyer one had bought the property, but he knew that buyer one had not yet recorded a deed. Buyer two recorded five days later. The next day after the deed was executed and delivered to the second buyer, the original owner conveyed a deed to the same property to a third buyer, who was a good faith purchaser for value and who recorded his deed the very same day. Which buyer has superior title under a race-notice recording statute?

Buyer one has superior title because he is the only one who acted in good faith without knowledge of prior transactions.
Buyer two has superior title because he was defrauded by the seller and the courts will enforce his purchase to avoid injustice.
The first buyer has superior title because he innocently purchased the property for value, and was not aware of any other transactions.
Buyer three has better title because he had no notice of any prior transactions and recorded first. (Correct answer)

Correct answer: Buyer three has better title because he had no notice of any prior transactions and recorded first.

Under a race-notice recording statute, a subsequent purchaser for value takes title over a prior unrecorded interest if they record first AND had no notice of the prior interest. Buyer one did not record. Buyer two had actual notice of buyer one's purchase, disqualifying him. Buyer three was a good faith purchaser for value (no notice) and recorded first among those without notice, thus acquiring superior title.

Question 183: 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 not moot because there was always the possibility that the defendant could return to its old ways without a judicial determination. (Correct answer)
The case was moot because there was no activity that could be enjoined anymore.
The case was moot because there was no longer a “case or controversy” before the court.
The case was not moot because the propriety of granting them a new permit had to be reviewed by the court.

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 might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. In this case that possibility of a resumption of illegal activities still existed. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (1999).

Question 184: A distributor agrees to sell 100 tubes of growth hormone to a medical treatment center in exchange for $30,000. The contract has many clauses, including one that prohibits generally the assignment of the contract or any of its terms. The distributor assigns its right to receive the funds anyway. Will a court enforce the bar against assignment under these circumstances?

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

Correct answer: No, a bar of assignment does not apply to the right to receive the funds unless specifically stated.

Contractual provisions prohibiting assignment are generally construed narrowly. A clause that generally prohibits 'assignment of the contract or any of its terms' is typically interpreted as prohibiting the delegation of duties, but not the assignment of the right to receive payments (money). To prohibit the assignment of the right to receive funds, the clause must specifically and clearly state that such assignments are barred.

Question 185: A grand jury subpoenas a journalist to testify about the identity of a confidential source. The journalist refuses, claiming a First Amendment privilege. Under Branzburg v. Hayes, the journalist:

Has a qualified privilege that can be overcome only by proof of bad faith by prosecutors
Has no First Amendment privilege to refuse to testify before a grand jury about criminal conduct (Correct answer)
Has a privilege if the information sought is not essential to the investigation
Has an absolute First Amendment privilege not to reveal confidential sources to grand juries

Correct answer: Has no First Amendment privilege to refuse to testify before a grand jury about criminal conduct

In Branzburg v. Hayes, the Court held that the First Amendment does not give journalists a privilege to withhold the identity of confidential sources from grand jury investigations.

Question 186: A young woman incurred credit card and medical debts that were overwhelming. She filed bankruptcy and discharged the debts. After receiving her final discharge, she contacted her dentist who had been listed in the bankruptcy for a debt of $10,000. That debt was now discharged and not owed. She said to the dentist, “I know I owe you $10,000 and I’m going to pay it off in the future. Can the dentist successfully sue the young woman for the $10,000 after she fails to perform on her new promise?

No, because there can never be a new contract based on a prior obligation that is no longer owed under the law.
Yes, because a promise to pay a debt discharged in bankruptcy can support a new contract based on moral obligation. (Correct answer)
No, because moral obligation in itself never rises to the level of establishing new consideration to form an enforceable contract.
Yes, because a promise to pay based on a prior debt that is now a moral obligation is always treated as new consideration sufficient to form a binding and enforceable contract.

Correct answer: Yes, because a promise to pay a debt discharged in bankruptcy can support a new contract based on moral obligation.

A promise to pay a debt that has been discharged in bankruptcy is an exception to the general rule that past consideration is not sufficient to support a new contract. The moral obligation to pay the prior debt is considered sufficient consideration to make a new, express promise to pay that debt enforceable, even without new consideration from the creditor. This principle allows the dentist to successfully sue on the new promise.

Question 187: A 35-year-old married man who worked for many years as a roofing and siding installer for a contractor was rear-ended by an 18-wheeler while stopped at a stop light. He sustained multiple fractures and lesions along his spinal cord and was declared by his doctors and the trucking company’s doctors to be totally and permanently disabled. In his suit against the trucking company, the damages include a demand for compensation for the permanent loss of earnings of the plaintiff for the remainder of his work life. How does the plaintiff best prove what amount he is entitled to receive for future lost wages, i.e., permanent and total loss of earning capacity?

By presenting a tax specialist and certified financial planner to compute the average annual wage less all annual taxes and average expenses of living, and multiplying that net figure by the estimated remaining years of work life, reduced to present value.
He must have his employer verify how much he was making and then present a disability expert to multiply that by the number of years until retirement and add a growth rate for future inflation.
There are official tables published by the government that provide the amount of lost earnings that a person suffers, for purposes of a tort recovery, for a specified period of years.
By presenting an economist or actuarial witness who in general computes lost wages and benefits for the estimated remainder of his work life, adding for inflation, and then applying a discount rate to reduce that amount to present value. (Correct answer)

Correct answer: By presenting an economist or actuarial witness who in general computes lost wages and benefits for the estimated remainder of his work life, adding for inflation, and then applying a discount rate to reduce that amount to present value.

To prove future lost earning capacity in a personal injury case, a plaintiff typically relies on expert testimony from an economist or actuary. This expert calculates the projected earnings and benefits the plaintiff would have received over their remaining work life, accounting for factors like inflation. Crucially, this total future amount is then reduced to its 'present value' to reflect the time value of money, ensuring the plaintiff receives a lump sum that, if invested, would yield the equivalent of their future losses.

Question 188: Plaintiff was injured in an accident on an interstate highway in his county of residence. The accident involved a truck and three cars in addition to plaintiff's car. Plaintiff brought suit in the federal district court in his district pursuant to diversity jurisdiction. He sued the truck driver and the truck owner, who were from another state. He also included a driver of one of the cars who resided in another state, and the driver of another car who resided in the same state as plaintiff. The amount in damages demanded by plaintiff was over $100,000. The truck company filed a motion to dismiss, claiming that plaintiff did not have diversity jurisdiction. Will the district court judge likely dismiss the complaint, and why or why not?

No, diversity is perfectly proper as long as the amount in controversy is over $75,000 and the plaintiff and at least one defendant are from different states.
Yes, because there is no federal subject matter jurisdiction, which must also be present in diversity cases.
Yes, the plaintiff and one of the defendants are from the same state, which destroys federal diversity jurisdiction. (Correct answer)
No, because the plaintiff and most of the defendants are from different states, thus conferring proper diversity jurisdiction.

Correct answer: Yes, the plaintiff and one of the defendants are from the same state, which destroys federal diversity jurisdiction.

Federal diversity jurisdiction requires complete diversity, meaning no plaintiff can be a citizen of the same state as any defendant. In this case, the plaintiff and one of the car drivers are both residents of the same state. This lack of complete diversity, despite the amount in controversy being met and other parties being diverse, destroys federal subject matter jurisdiction, requiring dismissal.

Question 189: A wife told her husband that she had extramarital relations with one of his friends, who was also his co-worker. The husband was enraged but “cooled off” by the next day when he went to work. At work, he approached the adulterous friend and asked why he did it. The so-called friend replied that the husband was a cuckold, the laughing stock of the office, and that he should open his eyes to the many sexual encounters that his wife had had behind his back. In a fit of rage, the husband returned home and violently strangled his wife to death. The stories of widespread infidelity were not true. The state prosecuted the husband for first degree murder but he defended on the basis that he acted in a heat of passion. Which of the following best describes the criminal liability of the defendant?

Felony murder.
Involuntary manslaughter.
Voluntary manslaughter. (Correct answer)
Depraved heart second degree murder.

Correct answer: Voluntary manslaughter.

Although the husband’s heat-of-passion cooled down by the time he went to work, the statements at work by the adulterer himself triggered another heat of passion. A reasonable husband in the same circumstances would have been similarly triggered, so that this is voluntary manslaughter and not murder.

Question 190: A seller conveys Blackacre to A, then subsequently conveys Blackacre to B, who has no notice of the prior conveyance and records first. The jurisdiction has a notice-race recording act. Who prevails?

B, because B recorded first and had no notice (Correct answer)
A, because the first conveyance is valid
A, because recording acts do not affect the first grantee
B, only if A had actual notice of B's intention to purchase

Correct answer: B, because B recorded first and had no notice

Under a race-notice recording act, a subsequent bona fide purchaser who takes without notice of a prior conveyance and records before the prior grantee prevails.

Question 191: A man works as an engineer in a small building. He uses a candle to meditate when he is stressed on the job, which then calms him down. He has been mulling an idea in his mind to take a lot of money from his employer using his computer skills, and he has worked out a general plan in his mind. Once he obtains the money, he thinks it might be good to let a candle drop and have the whole building burn down. While he is out at lunch, the janitorial staff came through his office. While cleaning the area, one person lit a candle on the man's desk. When they left, he forgot to blow it out. They slammed the door on the way out, causing the lit candle to fall. It started a fire that burned the building down. What crime, if any, is the man most likely to be convicted of?

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

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

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

Question 192: 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 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 painter had a duty to stop work and thus mitigate damages when he received a written repudiation of the contract. (Correct answer)
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 a clear and unequivocal repudiation of the contract, the non-breaching party has a duty to stop performance and mitigate their damages. The painter, by continuing to work after the owner repudiated the agreement, failed to mitigate his damages. Therefore, he can only recover for the work completed up to the point of repudiation, as the law does not allow recovery for damages that could have been reasonably avoided.

Question 193: A plaintiff files suit in State X federal court. The defendant is incorporated in State Y but has its principal place of business in State X. The plaintiff is a citizen of State X. Is diversity jurisdiction available?

Yes, because the defendant is incorporated in State Y
Yes, because incorporation and principal place of business are considered separately
No, because corporations cannot be sued in federal court under diversity
No, because the defendant is deemed a citizen of both State Y and State X, destroying complete diversity (Correct answer)

Correct answer: No, because the defendant is deemed a citizen of both State Y and State X, destroying complete diversity

Under 28 U.S.C. § 1332(c)(1), a corporation is deemed a citizen of every state where it is incorporated and the state where it has its principal place of business; since the defendant is a citizen of State X, complete diversity with the plaintiff (also State X) is destroyed.

Question 194: During discovery, a party receives documents from the opposing side that are clearly subject to attorney-client privilege but were inadvertently produced. Under FRCP 26(b)(5)(B), what must the receiving party do?

Immediately use the documents before they can be clawed back
File a motion with the court to determine if privilege applies
Destroy the documents immediately
Notify the producing party and sequester the documents pending resolution (Correct answer)

Correct answer: Notify the producing party and sequester the documents pending resolution

Upon receiving notice of inadvertent production of privileged material, the receiving party must promptly return, sequester, or destroy the specified information and may not use it until the privilege claim is resolved.

Question 195: A retail store runs an advertisement in the local newspaper stating: “Only 3 cashmere sweaters remaining; highest quality; real Polo; one grey, one maroon and one beige; on closeout, starting 9 a.m. Saturday, $5.00 each, first-come, first-served.” A store customer was the first to arrive on Saturday morning. He located the three advertised sweaters, picked them up, handed $15.00 to the clerk, and demanded all three sweaters at $5 each. The clerk stated that the store’s price on each sweater was actually $50 each. The customer demanded the advertised price. Who has the superior legal position?

The retail store, because the terms of the advertisement were merely an invitation to make an offer, and the offer made was duly rejected by the store.
The customer, because this was a contract of adhesion favoring one party only, and as such, the store could not enforce it.
The customer, because the terms of the advertisement were definite enough to constitute an offer and the offer was duly accepted. (Correct answer)
The store, in that a contract was made at $50 each, which was the store’s actual intended price for the sweaters.

Correct answer: The customer, because the terms of the advertisement were definite enough to constitute an offer and the offer was duly accepted.

While advertisements are typically invitations to negotiate, this specific advertisement was sufficiently definite and explicit to constitute a binding offer. It clearly specified the exact items, quantity ("Only 3"), price, and terms of acceptance ("first-come, first-served"). By being the first to arrive and tendering the advertised price for the specified items, the customer accepted this unilateral offer, forming a valid contract.

Question 196: A plaintiff files suit in federal court based solely on diversity jurisdiction. The defendant moves to dismiss for lack of subject matter jurisdiction, arguing the amount in controversy does not exceed $75,000. Who bears the burden of proof on this issue?

The defendant, as the moving party
The party challenging jurisdiction always bears the burden
The plaintiff, as the party invoking federal jurisdiction (Correct answer)
Neither party; the court determines jurisdiction sua sponte

Correct answer: The plaintiff, as the party invoking federal jurisdiction

The party invoking federal jurisdiction bears the burden of establishing that subject matter jurisdiction requirements, including the amount in controversy, are satisfied.

Question 197: A witness in a criminal case testified to observing the defendant engaging in certain incriminating activities tending to show guilt of the charged crime. The defense tried to establish on cross-examination that the witness was the member of a street gang, and that he was probably trying to protect other, higher-up members of the gang. The defense attempted to detail the witness’ gang activities, the gang’s rules about protecting and lying for each other, and other in-depth descriptions of gang values and practices. The purpose of the line of questioning was to show the motives for the witness to slant or fabricate testimony against the defendant. The prosecution objected vehemently to the line of questioning and the judge sustained the objections. After the defendant was convicted, he appealed and argued as one of his issues the erroneous decision of the trial judge to preclude necessary cross-examination of the witness. What was the most likely decision and reasoning of the appellate court on that issue?

The witness’ separate activities in a gang are completely irrelevant to the charges in the case.
Questioning the witness’ potential motive to be biased against the defendant should always be allowed even if the testimony will have great likelihood for prejudicial effect.
The right to show a witness’ motivation to lie is sufficiently important to justify constitutional protection in criminal cases, and the impeachment examination of the witness should have been allowed. (Correct answer)
The witness’ possible motive for being biased against the defendant is a collateral issue that was totally a matter of the discretion of the trial judge.

Correct answer: The right to show a witness’ motivation to lie is sufficiently important to justify constitutional protection in criminal cases, and the impeachment examination of the witness should have been allowed.

The Sixth Amendment's Confrontation Clause guarantees a criminal defendant the right to cross-examine witnesses to expose their potential biases or motives to lie. This right is paramount for ensuring a fair trial and testing the credibility of testimony. Precluding a line of questioning designed to reveal a witness's motivation to fabricate, such as gang affiliation and its associated loyalties, is a significant infringement on this constitutional right, even if it might have a prejudicial effect.

Question 198: A patient sues a doctor for malpractice. The doctor seeks to introduce the patient's medical records to prove the standard of care was met. These records are likely admissible under:

The dying declaration exception
The prior consistent statement rule
The present sense impression exception
The business records exception to the hearsay rule (Correct answer)

Correct answer: The business records exception to the hearsay rule

Medical records kept in the regular course of business qualify under the business records exception under FRE 803(6).

Question 199: Police conduct a warrantless search of a friend's apartment and find evidence used to prosecute a defendant who was not present. Under Rakas v. Illinois, the defendant's motion to suppress the evidence will:

Succeed because the search violated the Fourth Amendment regardless of who asserts it
Fail because the defendant lacks standing — he had no personal reasonable expectation of privacy in the apartment (Correct answer)
Fail only if he was not an overnight guest in the apartment
Succeed because the evidence is being used against him at trial

Correct answer: Fail because the defendant lacks standing — he had no personal reasonable expectation of privacy in the apartment

Under Rakas v. Illinois (1978), Fourth Amendment rights are personal; a defendant may only challenge a search if he had a personal reasonable expectation of privacy in the place searched or the item seized, not merely because the evidence is used against him.

Question 200: A retail store runs an advertisement in the local newspaper stating: “Only 3 cashmere sweaters remaining; highest quality; real Polo; one grey, one maroon and one beige; on closeout, starting 9 a.m. Saturday, $5.00 each, first-come, first-served.” A store customer was the first to arrive on Saturday morning. He located the three advertised sweaters, picked them up, handed $15.00 to the clerk, and demanded all three sweaters at $5 each. The clerk stated that the store’s price on each sweater was actually $50 each. The customer demanded the advertised price. Who has the superior legal position?

The store, in that a contract was made at $50 each, which was the store’s actual intended price for the sweaters.
The customer, because the terms of the advertisement were definite enough to constitute an offer and the offer was duly accepted. (Correct answer)
The retail store, because the terms of the advertisement were merely an invitation to make an offer, and the offer made was duly rejected by the store.
The customer, because this was a contract of adhesion favoring one party only, and as such, the store could not enforce it.

Correct answer: The customer, because the terms of the advertisement were definite enough to constitute an offer and the offer was duly accepted.

While advertisements are usually invitations to make an offer, this advertisement was sufficiently definite and specific to constitute a binding offer. It specified the exact items, quantity ('Only 3'), price ('$5.00 each'), and method of acceptance ('first-come, first-served'). By being the first to arrive and tendering the exact price for the specified items, the customer duly accepted the offer, forming a valid contract.

Multistate Bar Examination (MBE)

The MBE is a 200-question, multiple-choice examination administered over six hours on one day of the bar examination. It covers fundamental legal principles.

200

Questions

360 min

Time Limit

67%

To Pass

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