SD Bar Multistate Bar 2 — Questions and Answers
Question 1: A defendant is charged with burglary. At common law, which element distinguishes burglary from trespass?
- Breaking and entering a dwelling at nighttime with intent to commit a felony therein (Correct answer)
- Unlawfully entering any structure
- Damaging property during entry
- Remaining on property after being asked to leave
Correct answer: Breaking and entering a dwelling at nighttime with intent to commit a felony therein
Common law burglary requires breaking and entering a dwelling house of another at nighttime with the intent to commit a felony inside.
Question 2: Under the UCC, a merchant's firm offer is irrevocable without consideration for a maximum of:
- 30 days
- 60 days
- 90 days (Correct answer)
- 6 months
Correct answer: 90 days
UCC § 2-205 provides that a firm offer by a merchant is irrevocable for the stated period, but no longer than three months (90 days).
Question 3: In a negligence action, the 'res ipsa loquitur' doctrine permits an inference of negligence when:
- The defendant had exclusive control of the instrumentality and the accident normally would not occur without negligence (Correct answer)
- The plaintiff cannot identify the specific act of negligence
- Multiple defendants each could have caused the harm
- The defendant's conduct was intentional
Correct answer: The defendant had exclusive control of the instrumentality and the accident normally would not occur without negligence
Res ipsa loquitur applies when the instrumentality was under defendant's exclusive control and the accident is of the type that ordinarily does not occur absent negligence.
Question 4: A testator's will is validly executed. She later executes a codicil that expressly revokes one specific bequest. The codicil itself is then destroyed by the testator. What is the effect on the revoked bequest?
- The bequest is revived because the codicil revoking it was destroyed (Correct answer)
- The bequest remains revoked because a codicil cannot be unrevoked by destruction
- The bequest is partially revived at the court's discretion
- The entire will is revoked along with the codicil
Correct answer: The bequest is revived because the codicil revoking it was destroyed
Under the revival doctrine, destroying the codicil that revoked the bequest can revive the original provision if the testator intended revival.
Question 5: Under the Fifth Amendment, the privilege against self-incrimination protects against compelled disclosure of:
- Testimonial or communicative evidence only (Correct answer)
- All physical evidence
- Documents voluntarily prepared
- Blood samples
Correct answer: Testimonial or communicative evidence only
The Fifth Amendment privilege protects only testimonial or communicative evidence, not real or physical evidence such as blood, handwriting exemplars, or voice samples.
Question 6: A landowner grants an easement to a neighbor 'for as long as the neighbor uses the path to reach the highway.' This easement is best classified as:
- An easement subject to a condition subsequent
- An easement determinable (Correct answer)
- An easement appurtenant in fee simple
- A license revocable at will
Correct answer: An easement determinable
An easement that automatically terminates upon the happening of a stated event is an easement determinable (also called an easement on special limitation).
Question 7: Under MBE Constitutional Law, a federal statute that regulates purely intrastate activity may be upheld under the Commerce Clause if:
- The regulated activity, in the aggregate, substantially affects interstate commerce (Correct answer)
- The statute expressly recites a commerce clause basis
- The activity involves any commercial transaction
- Congress has a rational basis for believing commerce is involved
Correct answer: The regulated activity, in the aggregate, substantially affects interstate commerce
Under Wickard v. Filburn and its progeny, Congress may regulate purely local activity if, in the aggregate, that activity substantially affects interstate commerce.
SD Bar Multistate Bar 2
A defendant is charged with burglary.
At common law, which element distinguishes burglary from trespass?