8/23-24-MBE Practice Exam #1 & 2

Question Text: While waiting at a bus stop after work, an office worker witnessed a man force a student to give him her backpack. Because no one else who witnessed the event reacted to it, the office worker gave chase, tackled the man, and held him until police arrived. The office worker has been charged with battery of the man. Which of the following is the office worker's best defense to this charge? Answer Choices:Defense of arrestDefense of propertyDefense of othersNecessity

Answer choice A is correct. A civilian can assert the defense of arrest. Here, the office worker witnessed a robbery—the man's taking of the student's backpack through force. The office worker used reasonable force to stop the man from escaping with the student's backpack and to hold him until police arrived. Therefore, the office worker can assert the defense of arrest. Answer choice B is incorrect. The property (i.e., the backpack) was not in the lawful possession of the office worker at the time that it was stolen. Therefore, the office worker did not have the right to use force to prevent the man from taking it on that basis. Answer choice C is incorrect because defense of others applies to actions to protect another's person from harm. Here, although the office worker did act on behalf of the student, the office worker did not act in defense of the student's person, but instead of the student's property. Answer choice D is incorrect. Although the office worker responded to the robbery because no one else did, the defense of necessity is limited to actions taken in response to natural forces. Here, the office worker tackled the man because of the robbery committed by the man.

Question Text: A hotel developer was attempting to build a vacation resort upon a peninsula above sea level that was known for its landslides. The primary cause of these landslides was the erosive effect of the waves below it. The developer had already acquired a loan for the predicted cost of the development. In exchange for the necessary construction permits to build the resort on the peninsula, the city told the developer to build a concrete foundation at the foot of the peninsula below the planned resort where the erosion was taking place. The city had determined that a concrete foundation would reinforce the sedimentary rock below the resort, preventing future landslides along the entire peninsula. The cost of building the concrete foundation would add approximately 5% to the total cost of the planned development. The developer has challenged the constitutionality of imposing this condition on the construction permits, calling the requirement an unconstitutional taking. Is the city's requirement that the developer build this concrete foundation an unconstitutional taking? Answer Choices:No, because the condition has an essential nexus with a legitimate state interest of preventing landslides, and the burden is roughly proportional to its impact.No, because the requirements for a regulatory taking have been met.Yes, because the condition will result in the permanent physical occupation of the land by the required concrete foundation.Yes, because this requirement increases the cost of the planned development, interfering with the developer's reasonable, investment-backed expectations regarding use of the property.

Answer choice A is correct. A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a particular use or a demand for an additional expenditure, in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if there is an essential nexus between legitimate state interests and the conditions imposed on the property owner, and a rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development. Here, there is an essential nexus between the legitimate state interest of preventing landslides and the requirement of building a concrete foundation to prevent erosion. In addition, there is a rough proportionality between the burden on the developer for building the foundation and the impact of the resort. The resort will benefit from the concrete foundation's protection, and the foundation will only add 5% to the total cost of the resort. Answer choice B is incorrect because this is an exaction as a taking, not a regulatory taking. Therefore, different elements apply, and merely meeting the requirements of a regulatory taking will not ensure that the condition is constitutional. Answer choice C is incorrect because, as discussed above, this is a taking by an exaction of a promise, not a regulatory taking. Therefore, the permanent physical occupation of the property by a required concrete foundation is not a per se taking. Answer choice D is incorrect because it states an element of determining whether a regulatory taking is unconstitutional. A different test applies to takings by an exaction of a promise. Therefore, because this exaction passes the relevant test, this is not an unconstitutional taking.

Question Text: In response to a phone query by a manufacturer of fans, a supplier of motors offered to sell the manufacturer up to 10,000 motors at the price of $15 each. The supplier assured the manufacturer before ending the call that this price was good for 60 days. One month later, the manufacturer ordered 5,000 motors from the supplier. The supplier informed the manufacturer that the price was now $20 per motor. Of the following, which is the manufacturer's weakest argument that the price is $15 per motor? Answer Choices:The supplier's assurance of the $15 price was irrevocable for 60 days.A month is a reasonable time in which to accept the offer.The supplier could reasonably foresee that the manufacturer would rely on the supplier's offer.The supplier had not revoked its offer.

Answer choice A is correct. Although an offeror can generally withdraw an offer, even one that the offeror has promised to hold open, there is an exception for a firm offer given by a merchant of goods, such as the supplier of motors in the case. However, in order for this exception to apply, the offer must be contained in a signed writing from the merchant. Here, the motor supplier made its firm offer orally. Consequently, this exception does not apply. Answer choice B is incorrect. An offer is deemed to be held open for a reasonable time unless the offeror specifies a time limit. If the parties bargain in person or via telephone, the reasonable time for acceptance does not ordinarily extend beyond the end of the conversation unless the parties agree otherwise. Here, there is a strong argument that the supplier's assurance that the offer would be good for 60 days will extend the reasonable time for acceptance beyond the end of their telephone conversation. While the supplier did not specify the date on which its offer of $15 per motor would expire, the supplier's assurance that this price was good for 60 days strongly indicates that the fan manufacturer's acceptance a month later was made within a reasonable time. Answer choice C is incorrect because, since the supplier stated that it would hold its offer open for 60 days, it is reasonable for the manufacturer to have relied on this promise. Answer choice D is incorrect because, although an offeror can generally withdraw an offer, even one that the offeror has promised to hold open, the supplier had not done so in this case before the manufacturer placed its order. Consequently, the manufacturer can assert that it accepted the supplier's offer of $15 per motor before the supplier revoked this offer.

Question Text: A manufacturer entered into a 30-year lease with the owner of a building zoned for commercial use. The lease contained a term that gave the manufacturer the right of first refusal if the owner ever decided to sell the building. Ten years later, the owner entered into a contract to sell the building to a third party. The owner has refused to honor the manufacturer's right of first refusal, contending that it violates the Rule Against Perpetuities. The jurisdiction recognizes the common-law Rule Against Perpetuities and its application to rights of first refusal. Which of the following is the manufacturer's best argument that the Rule Against Perpetuities does not apply to the manufacturer's right of first refusal? Answer Choices:The right of first refusal was granted in conjunction with a lease.The right of first refusal was granted as part of a commercial transaction.There is no life in being against which the right of first refusal is measured.The manufacturer exercised the right of first refusal before the expiration of the 21-year period.

Answer choice A is correct. Although the jurisdiction follows the common-law Rule Against Perpetuities and treats a right of first refusal as subject to the Rule Against Perpetuities, there is an exception where the right is given in conjunction with a lease. Accordingly, the Rule Against Perpetuities would not apply in this case. Answer choice B is incorrect because there is no commercial transaction exception to the common-law Rule Against Perpetuities, which applies here. Note that there is a commercial transaction exception under the Uniform Statutory Rule Against Perpetuities. Answer choice C is incorrect because it is actually an argument in favor of applying the Rule Against Perpetuities in this case. If the rule applies, then the fact that there is no life in being against which the right of refusal can be measured would mean that the applicable Rule Against Perpetuities period in this case would have been 21 years; the right of first refusal would therefore have failed under the Rule. Answer choice D is incorrect because the Rule Against Perpetuities applies if the right of first refusal could have been exercised after the expiration of the 21-year period, even if the right was exercised prior to that time.

uestion Text: A man borrowed his friend's truck in order to move to a new apartment and promised to return the truck two days later, following the completion of the move. After finishing the move, the man instead sold the truck to a used car dealer in order to pay off the back rent he owed to his landlord on his former apartment, which was his intention at the time he borrowed the truck. With which of the following crimes should the man be charged? Answer Choices:Larceny by trick.Embezzlement.False pretenses.No crime.

Answer choice A is correct. At common law, larceny by trick is the taking of personal property known to be owned by another that results in conversion of the property, with the intent to permanently deprive the victim of that property, by fraudulently inducing the victim to deliver possession of such property. A person who obtains possession of, but not title to property owned by another by lies, with the intent to permanently deprive the victim of that property and resulting in the conversion of the property, is guilty of larceny by trick. The defendant obtained consent to use the truck, but that consent was induced by a misrepresentation. Answer choice B is incorrect. Embezzlement requires that the embezzler have been in lawful possession of the property at the time the intent to defraud occurs. Because the man intended to sell the truck at the time he borrowed it from the friend (i.e., he was not in lawful possession of it), the crime is larceny, not embezzlement. Answer choice C is incorrect, as the crime of false pretenses requires title to the property to pass from the victim to the defendant. Here no title passed, merely possession. Answer choice D is incorrect. The man committed larceny by trick.

Question Text: A university ordered scientific equipment from a manufacturer for prompt shipment. The manufacturer accepted the order. Several days later, prior to identification of the equipment, the manufacturer became insolvent. Upon learning of the manufacturer's insolvency, the university did not seek reasonable assurances of performance from the manufacturer. Although the university could have placed an order with another company for the same equipment, the university chose instead to tender the purchase price to the manufacturer. When the manufacturer refused to accept the tendered price and ship the equipment, the university filed an action to force the manufacturer to fill the order. Is it likely that the university can compel the manufacturer to supply the scientific equipment? Answer Choices:No, because the equipment was neither identified nor unique.No, because the university did not seek reasonable assurances of performance from the manufacturer.Yes, because the manufacturer is insolvent.Yes, because the university is a buyer and the manufacturer is in breach of the contract.

Answer choice A is correct. Generally, a buyer's primary remedy is expectation damages. A buyer may gain possession of goods under contract that are in the seller's possession through an action such as replevin, but in order to do so the goods must be identified. Alternatively, a buyer can seek to compel the seller to supply the goods under an action for specific performance, but generally the goods must be unique. While an action for specific performance may be had in "other proper circumstances," this option is typically keyed to an inability to cover. Here, the university could have but did not make an attempt to order the equipment from another manufacturer. Answer choice B is incorrect. Although a buyer may seek reasonable assurances of performance when a seller is insolvent, such an action is not a prerequisite for pursuing other remedies. Answer choice C is incorrect. In limited circumstances, a buyer may be able to gain possession of goods that are the subject of a contract when the seller becomes insolvent. However, this option is only available when the goods have been identified. Answer choice D is incorrect. Although the manufacturer may be in breach of the contract for its failure to promptly ship the good, a buyer's primary remedy is expectation damages. As noted in regard to answer choice A, the avenues by which a buyer can gain the goods themselves from a seller are foreclosed to the university under these circumstances.

Question Text: After the defendant murdered his neighbor, the victim's family members lined the street when the defendant was taken away by police and screamed, "Murderer! Murderer!'' At the trial for wrongful death, the plaintiffs' attorney sought to have the evidence of the family's statements admitted to show the initial impact the crime had on these family members, who had always been quiet and private members of the community. He intended to provide even more evidence to demonstrate increasing the damages suffered by the victim's family. Is the evidence admissible for these purposes? Answer Choices:Yes, because the statements are not being used to establish that the defendant murdered the neighbor.Yes, because the statements are relevant to the plaintiffs' argument.Yes, because the statements are being used in a civil trial.No, because the statements are hearsay.

Answer choice A is correct. Statements offered to prove something other than the truth of the matter asserted are not hearsay. Here, the statements are not being used to prove the truth of the matter asserted, i.e., that the defendant is actually the murderer. Rather, the statements are being used to show the effect that the murder had on the victim's family members. Answer choice B is incorrect because relevance alone is not the only consideration when a hearsay statement—or any evidence for that matter—is involved. Answer choice C is incorrect because most of the hearsay rules apply to civil and criminal cases in the same way. Here, because the statement is not being offered for the truth of the matter asserted, the statement does not constitute hearsay, regardless of whether the trial is criminal or civil. Answer choice D is incorrect because, although the statement refers to the defendant as a murderer and whether the defendant is the murderer is relevant to the outcome of the trial, that alone does not make the statement hearsay. Here, the statement is not being used to establish that the defendant is actually a murderer.

Question Text: A federal statute makes it a crime to distribute or possess with the intent to distribute an illegal drug within 1000 feet of a public or private elementary or secondary school. Various other federal laws make it a crime to buy, sell, grow, manufacture, or possess illegal drugs. Through which of the following constitutional provisions may this statute be most easily justified? Answer Choices:The Commerce Clause of Article I, Section 8 of the U.S. ConstitutionThe General Welfare Clause of Article I, Section 8 of the U.S. ConstitutionThe Enabling Clause, Section 5 of the Fourteenth AmendmentThe Dormant Commerce Clause

Answer choice A is correct. The Commerce Clause gives Congress the power to regulate any activity, intrastate or interstate, that is itself "commercial" or is an essential part of regulation of a larger commercial activity and that, when considered in the aggregate, has a "substantial economic effect upon" or "effect on movement in" interstate commerce. If intrastate activity is not itself sufficiently commercial, as long as there is a rational basis for concluding that the "total incidence" of the activity in the aggregate substantially affects interstate commerce, Congress may regulate even a minute amount of that total activity. Answer choice B is incorrect because, while the General Welfare Clause gives Congress broad power in exercising its taxing and spending powers, it does not give Congress the specific power to legislate for the public welfare in general. Such "police power" is reserved for the states. Answer choice C is incorrect because the Enabling Clause of the Fourteenth Amendment permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the amendment. The statute at issue does not address the enforcement of these rights. Answer choice D is incorrect because the Dormant Commerce Clause restricts the power of the states to act with regard to interstate commerce. It does not serve as justification for Congress to enact legislation dealing with interstate commerce.

Question Text: A state enacts a statute prohibiting semi-truck drivers from using cellular phones while operating their vehicles. There is no general statute applying the same prohibition to regular drivers in the state. A truck driver in the state sues in federal court after he receives a citation for using his cellular phone while operating his vehicle. He claims he is being unfairly targeted. Which of the following would govern the analysis of the driver's claim? Answer Choices:Substantive Due Process.Privileges and Immunities Clause.Dormant Commerce Clause.Procedural Due Process.

Answer choice A is correct. The guarantee of substantive due process is based upon the idea that laws should be reasonable and not arbitrary. The analysis here would involve whether the state action infringes upon any protected interest. Note that a rational basis test would apply to these facts, as the right to use a cellular phone while driving is not a fundamental right, and the truck driver does not appear to be a member of any protected class. Therefore, the rational basis test would apply: the law must be rationally related to a legitimate state interest. Answer choice B is incorrect because the Privileges and Immunities Clause prohibits one state from discriminating against the citizens of another state. Here, the cellular phone prohibition applies to both residents and nonresidents of the state, and no discrimination occurs. The clause would therefore not apply. Answer choice C is incorrect because states are free to regulate commerce if the statute does not discriminate against out-of-state commerce. Here, the statute applies to all drivers currently within the state—whether those drivers are from the state or another state. Answer choice D is incorrect because the Due Process Clause of the Fourteenth Amendment, which applies against the states, prohibits the state from depriving a person of life, liberty, or property, without due process of the law. Here, the state does not deprive the driver of life, liberty, or property, and there is no need for any notice or hearing.

Question Text: A security guard was charged with criminal battery of a student. The prosecution alleged that the security guard used excessive force when he removed the student from a campus event after the student became disruptive. The security guard's only argument in his defense was that he exerted lawful force to remove the disruptive student from the event pursuant to his duties as a security guard. The security guard testified that the student had a reputation on campus for disrupting campus events by starting physical fights with other students. Is the security guard's testimony regarding the student's reputation admissible? Answer Choices:No, because the prosecution has not presented evidence of the security guard's bad character.No, because the security guard has not asserted a theory of self-defense.Yes, because the security guard has personal knowledge of the student's reputation for violence.Yes, because the student's reputation for violence is relevant to whether the student was the initial aggressor.

Answer choice B is correct. A criminal defendant may introduce reputation or opinion evidence of the alleged victim's character when it is relevant to the defense asserted. Here, the student's reputation for starting physical fights at campus events might have been relevant if the security guard had argued that he acted in self-defense, but it is not relevant to the security guard's defense that he was using lawful force pursuant to his duties as a campus security guard. Therefore, this character evidence is not admissible. Answer choice A is incorrect. Evidence of the security guard's bad character, by itself, would not have justified the admission of evidence of the student's reputation for violence. The evidence of the student's reputation must be relevant to the defense asserted. Therefore, this is not determinative of the admissibility of the security guard's testimony. Answer choice C is incorrect. A non-expert witness must have personal knowledge of a matter in order to testify about that matter. However, personal knowledge of a victim's reputation is not sufficient to make testimony as to that reputation admissible. Answer choice D is incorrect because the security guard has not asserted a theory of self-defense against the battery charge. Therefore, the security guard's testimony regarding the student's reputation for violence is not relevant to the defense asserted and is inadmissible.

Question Text: A state government official was murdered by the defendant. In response to the murder, the state legislature passed and the governor signed into law a statute that made it a crime to use a handgun to inflict serious bodily injury or death on a state government official. Subsequently, the defendant was arrested, prosecuted, and convicted of common-law murder and violation of the handgun statute. The defendant was sentenced to 20 years in prison for the murder and five years in prison for the handgun offense, to be served concurrently. On appeal, the defendant argued that his conviction for the handgun offense was unconstitutional. This argument had been rejected by the trial court. Should the appellate court affirm the defendant's conviction for this offense? Answer Choices:No, because it constitutes a bill of attainder in violation of Article 1, section 10.No, because it constitutes an ex post facto law in violation of Article 1, section 10.Yes, because the defendant's sentence for the handgun offense ran concurrently with his sentence for common-law murder.Yes, because the law was in existence before the defendant's arrest.

Answer choice B is correct. A federal or state statute will be struck down as being ex post facto if it criminalizes an act that was not a crime when it was originally committed. Although murder was a crime when the state official was killed, the handgun statute, which required proof that the person injured or killed was a state official, created a new criminal offense that did not exist at the time of the killing. Consequently, the statute violated the constitutional prohibition on an ex post facto law. Answer choice A is incorrect because the statute was not a bill of attainder, or a legislative act that declares a person guilty of a crime and punishes him without a trial. The statute did not directly punish the defendant for the murder, but instead merely made it a crime. In addition, the defendant was given a trial. Answer choice C is incorrect because the prohibition on an ex post facto law applies when the law authorizes the imposition of a sentence that could not have been imposed at the time that the act occurred. The fact that the defendant's sentence for this crime ran concurrently with his longer sentence for murder is not relevant. Answer choice D is incorrect because the definition of an ex post facto law focuses on the time that the conduct occurred, and not the defendant's arrest for the crime.

uestion Text: A state law authorizes the state department of education to conduct an audit and to assign ratings to all public schools in the state based on graduation rates, test scores, and teacher attrition. The law also prohibits students from transferring to another school until at least the following school year in order to maintain the accuracy of statistics related to each school. The only exception allows the transfer of students whose families relocate to communities in other school districts, but requires that even students who relocate to other communities must continue to attend a public school in the new district. Three students in a single family relocated to another public school district; the public schools in that district were known to be struggling with high dropout rates and low test scores. The parents of these students applied to a local parochial school, and their children were accepted by the school, but the school was forced to deny the children admission based on the state law. The school then filed suit in federal court and asserted that the students have a right to attend the parochial school. Neither the students nor their parents were joined as plaintiffs in the suit. How should the court proceed? Answer Choices:Hear the merits of the case and rule in favor of the state.Hear the merits of the case and rule in favor of the school.Dismiss the case, because the school does not have standing to sue.Dismiss the case, because only the students would have standing to sue.

Answer choice B is correct. A litigant generally has no standing to bring a lawsuit on behalf of a third party that is not in court. However, a notable exception occurs when there is a special relationship between the plaintiff and the third parties, such as a private school asserting its students' rights to attend despite a statute requiring attendance at public schools. Consequently, the court should rule in favor of the school because the bill violates the students' liberties and their parents' right to select a school for their children to attend. Answer choice C is incorrect because the school would have third-party standing to sue. Answer choice A is incorrect because the state cannot deprive students and their parents of the protected liberties associated with school choice. Answer choice D is incorrect because the parents and the school itself would also have standing to sue.

Question Text: The defendant was arrested for the murder of his wife. Following his arrest, the defendant was handcuffed and placed in a police car by two police officers. The officers did not provide the defendant with Miranda warnings. During the drive to the police station, the officers began questioning the defendant about his whereabouts the night of the murder. The defendant stated that he was home alone all night waiting for his wife, who never arrived home. At trial, the prosecution offered evidence showing that the wife was murdered in the home she shared with the defendant. The defendant took the stand in his own defense and testified that, on the night of the murder, he was at his brother's house watching a movie, and that he spent the night there. The prosecution seeks to introduce the defendant's earlier statement to the police that he was home alone. Is the defendant's statement to the police admissible? Answer Choices:No, because the defendant was not advised of his Miranda rights.Yes, but only to impeach the defendant's credibility.Yes, but only to prove that the defendant was home on the night of the murder.Yes, both to impeach the defendant's credibility and to prove that he was home on the night of the murder.

Answer choice B is correct. A statement taken in violation of Miranda may be used to impeach the credibility of a criminal defendant if he takes the witness stand and gives testimony at variance with his previous admissions. Answer choice A is incorrect because, although the defendant was entitled to Miranda warnings prior to the questioning that occurred in the police car, statements taken in violation of Miranda, as long as they are not coerced, may be used to impeach the credibility of the defendant in this case. Answer choices C and D are incorrect because statements taken in violation of Miranda may only be used in determining the defendant's veracity, and not directly in deciding ultimate issues of guilt or innocence. Although the prosecution could use the defendant's statement to show that the defendant was not a credible witness, it could not use the statement to show that the defendant was home the night of the murder, and thus likely was the perpetrator of the crime.

Question Text: A child was playing mini-golf at a recreation center when she went into an artificial creek to retrieve a lost ball. A high fence with a childproof lock surrounded the creek, but the child's mother opened the lock to let her daughter into the creek area to quickly retrieve the ball. When the girl reached into the creek, she was electrically shocked by a live wire from a motorized windmill that had fallen in the creek. She suffered long-term disability because of the electric shock. The family of the child filed a claim against the recreation center. The recreation center filed a response claiming it was not liable for the accident because it posted warnings that the creek was dangerous and surrounded it with a high fence that could not be opened without the intervention of an adult. Under the traditional approach, is the recreation center likely to be successful in defending the suit? Answer Choices:Yes, because the child entered the prohibited area.Yes, because the creek was surrounded by a locked fence with warnings.No, because the creek was abnormally dangerous.No, because the creek was an attractive nuisance.

Answer choice B is correct. Because this jurisdiction follows the traditional approach, the analysis hinges on whether the child is an invitee or a trespasser, and what duties are accordingly owed to her. The rec center owes an invitee the duty of reasonable care to inspect the property and to protect the invitee from unreasonably dangerous conditions (such as the live wire touching the water). Here, the rec center did protect invitees from the area, as evidenced by the locks, fence, and warnings. Further, the girl was a trespasser because she exceeded the scope of her invitation. The duty of reasonable care owed to an invitee does not generally extend to trespassers, but because the creek would qualify as an attractive nuisance, the center did have to exercise reasonable care in protecting children from the danger. It did so by including the childproof locked fence and warnings. Answer choice A is incorrect because while the center does not generally have a duty to trespassers, it would have to exercise reasonable care in protecting children from harm under these circumstances because the creek was an attractive nuisance. Answer choice C is incorrect because the creek is not abnormally dangerous. Abnormally dangerous activities are those that create a risk of foreseeable harm even when reasonable care is exercised. Here, the creek, even with a live wire that could have been discovered with reasonable care, does not meet that definition. Answer choice D is incorrect because although the creek may be an attractive nuisance, the center exercised reasonable care in protecting children from harm.

Question Text: Congress enacted a statute called the "Anti-Sweatshop Law" (ASL) making it a federal felony punishable by fines or imprisonment for an individual or private business to knowingly employ two or more workers and keep them in involuntary employment based on physical or legal threats made by the employer. The ASL's text and legislative history indicated that in enacting the ASL, Congress intended to regulate purely private behavior regardless of whether the behavior affected interstate commerce. If the Supreme Court upholds the statute against a constitutional challenge, which of the following amendments, taken alone, would be sufficient to support the holding? Answer Choices:The Twelfth Amendment.The Thirteenth Amendment.The Fourteenth Amendment.The Fifteenth Amendment.

Answer choice B is correct. Each of the Thirteenth, Fourteenth, and Fifteenth Amendments contains a provision that authorizes Congress to pass "appropriate legislation" to enforce the rights guaranteed by those amendments. Under the Thirteenth Amendment, Congress has the power to adopt legislation rationally related to eliminating involuntary servitude. The Thirteenth Amendment is the only amendment that authorizes Congress to regulate purely private conduct. Therefore, the Court may rely solely on the Thirteenth Amendment to uphold a congressional law punishing involuntary servitude committed by private actors. Answer choice A is incorrect as the Twelfth Amendment delineates the process by which the President and Vice President are elected to office. Answer choice C is incorrect because the Fourteenth Amendment addresses state government infringement upon equal protection and due process rights, and it does not give Congress the power to regulate wholly private conduct. Answer choice D is incorrect because the Fifteenth Amendment prohibits denying any citizen the right to vote based on that citizen's race, color, or previous condition of servitude.

Question Text: A homeowner mortgaged her home with a bank ten years ago and turned it into an inn. The bank recorded the mortgage at that time. She subsequently incurred obligations with a contractor for work on the inn to create two large, high-end suites for guests. This involved tearing down walls and thereby reducing the number of bedrooms at the inn. A year later, she was forced to undergo a foreclosure action after failing to make six months of mortgage payments. She then realized that if she reinstated the walls and increased the number of bedrooms in the inn, she could turn a higher profit. She further hoped that making these improvements might negate the need to follow through with the foreclosure action. She therefore refinanced the mortgage with the bank to make these improvements after a family member helped her to get current with her mortgage obligations. The bank accordingly adjusted the existing mortgage so that its payments were decreased for three years but ballooned to a much higher interest rate if the homeowner missed more than three payments in a row. Two years later, the inn had seen no profit, and the homeowner again defaulted on her mortgage for four months. After giving the homeowner an additional four months to catch up on her obligations, the bank again initiated a foreclosure action, which resulted in a sale of the home. At the time of the sale, the existing secured creditors included not only those associated with the foreclosure action but, by virtue of a lien that took effect prior to the refinancing, also the contractor who had performed the work on the two suites at the inn. How did the refinance impact the bank's rights as a mortgagee? Answer Choices:The bank is not impacted by the action.The bank subordinated its interest as to only the increased rate.The bank subordinated its interest.The bank will be treated as the most senior mortgagee at the increased rate.

Answer choice B is correct. Generally, the money from a foreclosure sale is applied first to the costs associated with the sale, second to the mortgage obligation being foreclosed, and finally to the mortgage obligations owed to all junior interest holders. However, a senior mortgagee who enters into an agreement with the mortgagor to modify the mortgage or the obligation it secures subordinates his interest to a junior mortgagee's interest to the extent that the modification is materially prejudicial to the junior mortgagee's interest. The senior mortgagee's interest otherwise remains superior to the junior mortgagee's interest. Here, the bank is the senior mortgagee, with the contractor being a junior mortgagee. The bank subordinates its interest as to the increased rate but otherwise remains superior to the contractor's interest. Answer choice A is incorrect because the bank does subordinate the interest as to the modification. Answer choice C is incorrect because the bank only subordinates its interest as to the modification. Answer choice D is incorrect because as the increased rate is materially prejudicial to the contractor's interest, the bank subordinates its interest in the modification, even though the original mortgage remains senior.

Question Text: After violence against a specific religious minority becomes an epidemic in the United States, Congress enacts hate crime legislation pertaining to those of that religious faith and also establishes that no public entity may discriminate against this group unless such discrimination is the least restrictive means to achieve a compelling interest. What is the most likely reason for the invalidity of this law? Answer Choices:Congress is improperly creating hate crime legislation coupled with civil rights legislation.Congress is improperly creating new equal protection rights.The law should apply intermediate scrutiny to discrimination by a public entity to a group.Congress does not have a sufficiently compelling state interest in enacting the legislation.

Answer choice B is correct. The Fourteenth Amendment, Section 5 Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the Amendment, but not to expand those rights or create new ones. Under the separation of powers doctrine, the job of defining such rights falls to the Supreme Court. Here, Congress is attempting to create new equal protection rights by creating an entirely new and specific protected class. Only the Supreme Court can define such rights. Answer choice A is incorrect because Congress may enact hate crime legislation independent of or coupled with other forms of legislation, including civil rights laws. Answer choice C is incorrect because Congress cannot create a new protected class in any form, so even if intermediate rather than strict scrutiny had been applied, the regulation would still be improper. Answer choice D is incorrect because Congress needs no compelling interest to pass legislation. Such a standard applies when there is state action resulting in discrimination against a protected class.

Question Text: The defendant, the owner of a paving company, paid the mayor of a city $5,000. The defendant made this payment with the purpose of securing the mayor's agreement to award the defendant's paving company a lucrative city contract. A state statute makes it a felony for a public official to receive anything of value in return for being influenced in the performance of any official act. The mayor was charged with violating this statute and the paving company owner was charged as an accomplice. The mayor was tried first and found guilty. If the defendant is found not guilty at his subsequent trial, which of the following is the most likely reason? Answer Choices:The defendant was not tried first.The defendant lacked the requisite mental state required for the crime.The crime required the defendant's participation.The defendant was a member of a protected class.

Answer choice C is correct. A defendant is not guilty as an accomplice when that person's action is itself an essential element of the crime. The statutory crime for which the defendant was charged as an accomplice, receipt of a bribe by a public official, requires a person who bribes the public official. Consequently, the fact that the crime required the defendant's participation is the most likely reason that the defendant was found not guilty. Answer choice A is incorrect because there is no requirement that an accomplice be tried before the principal. In fact, at common law, an accomplice could be convicted of a crime only if the principal was also previously convicted of the crime. In the majority of jurisdictions today, an accomplice may be convicted of a crime even if the principal is not tried, is not convicted, has been given immunity from prosecution, or is acquitted. Answer choice B is incorrect. Because the defendant made the payment for the purpose of influencing the mayor in awarding the city contract, he has satisfied the requisite mental state. Answer choice D is incorrect because it is highly unlikely that a court would find that a person who bribes a public official would be a member of the class the statute was designed to protect.

Question Text: As part of a divorce decree, a father was ordered to make monthly child support payments to his son's mother. The father failed to make such payments. At a criminal contempt hearing regarding the father's failure to comply with the child support order, the father's attorney presented evidence as to the father's inability to make such payments, which evidence was disputed by the mother. Under state law, there is a presumption that, with regard to enforcement of a child support order, the parent obligated to make child support payments has the ability to make such payments, since such ability was determined by the court at the time that the order was issued. In addition, the highest state court has ruled that, with regard to imposition of criminal contempt for a failure to make child support payments, the burden of proof as to the inability to make such payments is placed on the father. The court, finding that the father had not met this burden, held the father in criminal contempt and sentenced him to six months in prison. The father has appealed this decision as unconstitutional. Which of the following is the father's best argument in support of his challenge to the constitutionality of this decision? Answer Choices:A presumption in a criminal trial violates the Due Process Clause of the Fourteenth Amendment.The Due Process Clause of the Fourteenth Amendment does not permit the burden of proof to be placed on the person on whom the criminal penalty would be imposed.The ability to make child support payments is an element of criminal contempt.The father's right to trial by jury was violated.

Answer choice C is correct. A state (or the federal government) may not require a person on whom a criminal penalty would be imposed (e.g., a defendant) to disprove an element of the offense. If the ability to make child support payments is an element of criminal contempt, rather than the inability to pay being an affirmative defense, the state cannot require the father to prove his inability to pay. Rather, the state is required to prove the father's ability beyond a reasonable doubt. Answer choice A is incorrect because a presumption does not automatically violate the Due Process Clause. In order to have such effect, the presumption could be either a conclusive presumption that cannot be rebutted (which would relieve the prosecution of having to prove an element of their case), or a rebuttable mandatory presumption (which shifts the burden of proof regarding the element of the offense). To the extent that these presumptions require the trier of fact to accept a fact as proving an element of the crime and disallow the trier of fact from rejecting it, or shift the burden of an element to the defense, they are unconstitutional. Answer choice B is incorrect because the burden of proof with regard to an affirmative defense may be placed on the person on whom the criminal penalty may be imposed (e.g., the defendant). Answer choice D is incorrect because, with regard to criminal contempt, there is a right to trial by jury only if the imprisonment imposed exceeds six months. Here, the father's sentence was six months.

Question Text: A police officer saw a man who was a convicted drug dealer walking down the street. The officer temporarily detained the man based on a reasonable suspicion that the man was illegally carrying a weapon. The officer conducted a pat-down of the man and felt an indeterminate lump in the man's jacket pocket. The officer removed the object, which turned out to be a pocket Bible. Protruding from the Bible was a plastic bag containing a white powder. The officer recognized the powder as heroin, and immediately arrested the man. Later tests confirmed that the powder was heroin. At trial, the man's attorney moved to exclude evidence of the heroin. How should the judge rule? Answer Choices:Deny the motion, because the evidence was discovered during a valid Terry stop.Deny the motion, because the officer had reasonable suspicion that the man was carrying a weapon.Grant the motion, because the pocket Bible did not immediately resemble a weapon or contraband.Grant the motion, because the officer did not have probable cause to stop the man and conduct a pat-down.

Answer choice C is correct. A stop (also known as a "Terry stop") is a limited and temporary intrusion on an individual's freedom of movement short of a full custodial arrest. A stop is justified on the reasonable suspicion that the detainee is or was involved in criminal activity. An officer who does not have probable cause to arrest may make a limited search of the person, such as a pat-down of the outer clothing, if she has reasonable suspicion that the suspect was or is involved in criminal activity and that the frisk is necessary for the preservation of her safety or the safety of others. Under the "plain feel" exception, if an officer conducting a valid frisk feels with an open hand an object that has physical characteristics that make its identity immediately obvious as a weapon, contraband, or evidence of a crime, then the officer may seize the object. Here, the object in the man's pocket was an indeterminate lump; consequently it was not immediately identifiable as a weapon, contraband or other evidence of a crime. Accordingly, the "plain feel" exception does not apply. Answer choice A is incorrect because evidence discovered during a valid Terry stop must satisfy the "plain feel" exception. Answer choice B is incorrect because, although the officer's reasonable suspicion that the man was carrying a weapon justified the pat-down, the object discovered during the frisk could not be exposed or seized because it was an indeterminate lump. Answer choice D is incorrect because it misstates the law; probable cause to arrest the suspect is not necessary to conduct a limited frisk of the suspect during a Terry stop.

Question Text: A property owner constructed a fence along what he thought was the boundary to his property. A year later, a neighbor who was selling adjoining property had a survey conducted. As a consequence of the survey, the neighbor brought an action against the property owner seeking removal of the fence. At trial, the neighbor testified that he had orally objected to the property owner about the placement of the fence at the time it was constructed. After the neighbor left the witness stand, the property owner sought to introduce into evidence a certified copy of the official judgment and conviction of the neighbor for perjury. The neighbor was convicted 11 years ago and released from prison nine years ago. The property owner had not asked the neighbor about the conviction while the neighbor was on the stand. Should the court permit the introduction of the judgment for the purpose of impeaching the neighbor's testimony? Answer Choices:No, because the neighbor was convicted of perjury more than 10 years ago.No, because the neighbor was not questioned about the conviction while the neighbor was on the witness stand.Yes, because a conviction used to impeach a witness's character for truthfulness may be proved by extrinsic evidence.Yes, because a witness in a civil case may not be impeached with a previous conviction.

Answer choice C is correct. A witness's character for truthfulness may be impeached by evidence of the witness's conviction of the crime in this instance. The conviction may be proved by extrinsic evidence. Answer choice A is incorrect. Generally, a witness may be impeached by a conviction for a crime that requires as an element of the crime proof or admission of an act of dishonesty or false statement, such as perjury, without weighing the probative value of the conviction against its prejudicial effect, if the conviction is no more than 10 years old. In measuring the 10-year period, the later of the date of conviction or release from imprisonment is used. Consequently, even though the neighbor's conviction occurred more than 10 year prior to his testimony, since the date of his release was less than 10 years prior to his testimony his perjury conviction may be used to impeach him. Answer choice B is incorrect because when a conviction used for impeachment purposes is proved by extrinsic evidence, there is no requirement that the party introducing the conviction first ask the witness about the conviction. Answer choice D is incorrect because a witness may be impeached with a crime that involves dishonesty or false statement in both civil and criminal cases.

Question Text: Two siblings own real property located in State A as tenants in common. The brother was a citizen of State B; his sister was a citizen of Canada who was domiciled in State C. The oil and mineral rights to the property had been leased to a citizen of State C. The siblings initiated a breach-of-lease action against the lessee in a State A federal district court. In the complaint, each sibling asserted in good faith that damages suffered individually as a lessor of a half-interest in the mineral rights equaled $40,000. Shortly after the case was filed, the brother died. His property interests passed by will to his son who was a citizen of State C. Upon receiving title to the property and prior to trial, the son's motion to substitute himself as a party was granted. At trial, the defendant-lessee moved to dismiss the case for lack of subject-matter jurisdiction. For which of the following reasons should the court grant the defendant's motion? Answer Choices:Diversity jurisdiction does not exist because the amount-in-controversy requirement has not been met.Diversity jurisdiction does not exist because an alien cannot bring a federal action against an American citizen.Diversity jurisdiction does not exist because the sister and the lessee are both domiciled in State C.Diversity jurisdiction does not exist because the son and the lessee are both citizens of State C.

Answer choice C is correct. Although generally the presence of an alien as a party in an action does not prevent the existence of subject-matter jurisdiction based on diversity of citizenship or alienage, a lawful resident alien who is domiciled in the same state as an opposing party serves to defeat alienage jurisdiction. Consequently, the common State C domicile for both the plaintiff-sister-lessor and the defendant-lessee precluded the federal court from having subject-matter jurisdiction over this case. Answer choice A is incorrect because, although generally two or more plaintiffs cannot aggregate their claims for purposes of meeting the amount-in-controversy requirement, when the multiple plaintiffs are enforcing a single title or right in which they have a common or undivided interest, such as tenants-in-common, they may aggregate their claims. Since the total of both siblings' claims exceeds $75,000 ($40,000 + $40,000 = $80,000), the amount-in-controversy requirement is satisfied. Answer choice B is incorrect because, in most cases, an alien may sue as well as be sued in federal court based on diversity or alienage jurisdiction. Answer choice D is incorrect because the existence of diversity jurisdiction is tested at the time that the complaint is filed. The subsequent substitution of a party due to death is not considered for purposes of diversity jurisdiction.

Question Text: The owner of a tract of vacant land granted a power-line easement over the land to the electric company. The easement, which was granted in a properly executed written agreement, was never recorded. Several years later, the owner sold the tract of land. The buyer, who planned to sell hot air balloon rides on the property, bought the property sight unseen. After the buyer purchased the property, he discovered the power lines, which would make hot air balloon rides on the property prohibitively dangerous. The applicable jurisdiction has the following recording statute: "No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law." Can the buyer successfully challenge the easement? Answer Choices:Yes, because the buyer had no actual notice of the easement.Yes, because the easement was not recorded.No, because the buyer had inquiry notice of the easement.No, because with the easements, the land is not suited for the buyer's purpose.

Answer choice C is correct. An easement not recorded against the servient estate is not enforceable against a bona fide purchaser, that is, a purchaser without notice of the easement, because the statute is a notice statute. In this case, the buyer did have notice of the easement. Even though the buyer did not have actual or record notice, he did have inquiry notice. If reasonable investigation would have disclosed the existence of prior claims, including easements, the buyer will be subject to those claims. Here, if the buyer had visited the land, he would have seen the power lines. Answer choice A is incorrect because, while it is true that he had no actual notice, record notice and inquiry notice would also suffice to make him take subject to the easement. Answer choice B is incorrect because recording an easement is only required if the subsequent purchaser did not have actual or inquiry notice of the easement. Here, the buyer was on inquiry notice. Answer choice D is incorrect because it is irrelevant to whether the land is subject to the easement.

Question Text: As part of a fraternity dare, a college student stood in the middle of a road while drinking a beer. The driver of a car, tired of the fraternity pranks throughout the town, saw the student standing in the road, and reduced his speed but decided not to stop or swerve, saying to himself, "Well, he shouldn't be in the road anyway. He had better get out of the way, and if I hit him, it's his own fault." The intoxicated student could not get out of the way quickly enough, and the driver ran over his foot. If the student sues the driver for negligence in a contributory-negligence jurisdiction, is the driver liable for the injuries that the student sustained to his foot? Answer Choices:The driver would be liable only for part of the student's damages.The driver would not be liable for the student's damages due to the student's contributory negligence.The driver would be liable for all of the student's damages.The driver would be liable only if he intended to cause injury to the student.

Answer choice C is correct. Even in jurisdictions that follow the common-law contributory negligence rules, such as this one, a plaintiff can mitigate his own negligence by proving that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so. Here, even though the student was negligently standing in the middle of the road, which would otherwise prevent him from recovering, the driver was actually aware of the student's peril, yet did not attempt to avoid hitting the student, even though he had the last clear chance to do so. Answer choice A is incorrect because that would be the result in a comparative-negligence jurisdiction, not a contributory-negligence jurisdiction. Answer choice B is incorrect because, while the plaintiff's own negligence would be a complete bar to recovery in a contributory-negligence jurisdiction, the plaintiff can mitigate the consequences of her own negligence by proving that the defendant had the last clear chance to avoid the injury and failed to do so. Answer choice D is incorrect because the intent to cause injury is not a required element of a negligence claim (even an intentional tort claim does not require the intent to cause injury).

Question Text: An unscrupulous landowner sold undeveloped land to two different buyers and then disappeared with the proceeds. Each buyer paid fair market value for the land and neither buyer was aware of the landowner's transaction with the other buyer. Subsequently, the first buyer, upon learning of the second conveyance, recorded her deed. The second buyer did not record his deed. The applicable recording act reads: "A conveyance of any interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded." In action brought by the first buyer against the second buyer, who is entitled to ownership of the land? Answer Choices:The first buyer, pursuant to the "first in time, first in right" rule, because the recording act does not apply since the second buyer did not record his deed.The first buyer, pursuant to the recording act, because she alone recorded her deed.The second buyer, pursuant to the recording act, because he paid fair market value for the land without notice of the first conveyance.The second buyer, pursuant to the recording act, because the first buyer knew of the second conveyance prior to recording her deed.

Answer choice C is correct. The second buyer is protected by the recording act, which is a notice statute. The second buyer was a purchaser for value and, at the time of the sale, did not have actual or constructive knowledge of the prior transaction. Answer choice A is incorrect because a notice statute, unlike a race or race-notice statute, does not require that the subsequent purchaser record the conveyance. Answer choice B is incorrect because the first buyer is not automatically protected by recording her deed under a notice statute, even when she is the only party to record her deed. If the first buyer had recorded her deed prior to the second transaction, she would have given the second buyer constructive notice of the prior sale, and would have enjoyed the protection of the recording act. Answer choice D is incorrect because, under a notice statute, the key is whether the subsequent purchaser, at the time of purchase, has knowledge of the prior conveyance. The first transferee's knowledge at the time that the first transferee records is irrelevant.

Question Text: On August 1, the plaintiff properly filed a complaint in federal court against the defendant for violating federal water pollution laws in a way that damaged the plaintiff's waterfront property. The defendant did not waive service of process. On August 7, the plaintiff properly served the defendant with the summons and complaint. On August 16, the plaintiff amended her complaint to add a claim under state nuisance law and, that same day, properly served the amended complaint on the defendant. When is the latest date that the defendant can submit his answer? Answer Choices:21 days after the complaint was filed (August 22).21 days after the complaint and summons were served (August 28).14 days after the amended complaint was served (August 30).21 days after the amended complaint was served (September 6).

Answer choice C is correct. Under Rule 15(a)(3), the defendant must respond to the amended complaint within 14 days after its service on August 16 (i.e., August 30) since this date is later than the time remaining for response to the original complaint (i.e., August 28, which is 21 days after it was served). Answer choice A is incorrect because the 21-day clock starts ticking when the complaint is served, not when it is filed. Answer choice B would have been correct if the plaintiff had not amended her complaint, but she did, which extended the defendant's time to answer. Answer choice D erroneously states the time period to respond to an amended complaint as 21 rather than 14 days.

Question Text: An automobile dealer filed suit in federal court based on diversity jurisdiction against an automobile manufacturer for breach of contract, seeking damages in the amount of $500,000. After the manufacturer answered the dealer's complaint, both parties moved for summary judgment. The court granted the dealer's motion with regard to liability, but denied it as to the matter of damages. The court also denied the manufacturer's motion. The court determined that there was no just reason for delaying an appeal. Thirty-five days after the entry of the court order with regard to these motions, the manufacturer filed a notice of appeal of this order with the district court clerk. Can the dealer successfully prevent this appeal? Answer Choices:No, because the court determined that there was no just reason for delaying the appeal.No, because the court partially granted the dealer's summary judgment motion.Yes, because of the final judgment rule.Yes, because the manufacturer's notice of appeal was not timely filed.

Answer choice C is correct. Under the final judgment rule, a federal appellate court has jurisdiction over an appeal of a final judgment of the trial court. A final judgment is a decision on the merits that leaves nothing for the court to do but execute the judgment. Here, although the trial court granted the dealer's motion for summary judgment with regard to the issue of liability, it denied the motion as to the matter of damages and thus the issue of damages remained. Consequently, the trial court's order was not a final judgment. Answer choice A is incorrect. Even though the court determined that there was no just reason for delaying the appeal, the court lacked the ability to direct entry of an appealable final judgment. Rule 54(b), which permits a trial court to make such a determination, only applies to cases in which there are multiple claims or parties, neither of which is present in this case. Answer choice B is incorrect. Although the trial court did grant the dealer's motion as to liability, the court did not decide the issue of damages. Consequently, the court's order was not a final judgment. Answer choice D is incorrect. Although under the Federal Rules of Appellate Procedure, a notice of appeal in a civil case must be filed with the district clerk within 30 days after the judgment or order appealed from is entered, here there was no appealable court order. Consequently, the timing of the filing is irrelevant; there was no order to appeal.

Question Text: A defendant is on trial for soliciting a hit man to kill her father. During the investigation, the police visited the defendant's bank to demand any financial records maintained by the bank regarding the defendant's cash withdrawals. Even though the police did not have a warrant, the bank consented and provided the police with the requested information. The police discovered that the defendant made a large cash withdrawal an hour before meeting with the suspected hit man. At trial, the prosecution seeks to introduce the defendant's bank records, and the defendant moves to suppress the records under the exclusionary rule. Should the court grant the defendant's motion to suppress this evidence? Answer Choices:Yes, because the police did not have a warrant to seize the defendant's bank records.Yes, because the Fourth Amendment protects papers and effects in addition to places.No, because the defendant did not have a reasonable expectation of privacy in these records.No, because the bank consented to the seizure of the defendant's bank records.

Answer choice C is correct. Unreasonable searches and seizures by government actors are prohibited by the general warrant requirement. Generally, however, a reasonable expectation of privacy must exist in places or property for such a right to attach. Financial statements maintained by a bank are bank records in which the customer has no reasonable expectation of privacy. Therefore, the police did not require a warrant or a warrant exception to obtain this evidence, and the records are admissible at the defendant's trial. Answer choice A is incorrect because the police did not need a warrant to seize records to which the defendant did not have a reasonable expectation of privacy. Answer choice B is incorrect because, although the Fourth Amendment does protect papers and effects, it does not protect these items if the defendant does not have a reasonable expectation of privacy in those items. Answer choice D is incorrect because, although consent can eliminate the need for police to have probable cause or a warrant in order to conduct a search, the bank's consent is not determinative to the admissibility of these financial records.

Question Text: On January 15, the plaintiff, a citizen of one state, sued the defendant, a citizen of another state, in the federal district court in the defendant's home state. The plaintiff's complaint credibly alleges that (1) the defendant breached a contract with the plaintiff that resulted in $150,000 in damages, and (2) the court has diversity jurisdiction. On April 1, the plaintiff served process on the defendant by sending the summons and complaint to the defendant's residence via Overnight Express Mail, a form of service authorized by the law of the forum state. The defendant moves to dismiss the complaint based on insufficient service of process. Should the court grant this motion? Answer Choices:Yes, because the Federal Rules authorize service only on a defendant personally, on a person of suitable age and discretion at defendant's usual abode, or on an agent authorized by a defendant or by law to receive service.Yes, because the service of process was not timely.No, because under the Erie doctrine, the federal court must apply state law.No, because the Federal Rules allow service that follows state law governing courts in the state where the federal district court is located.

Answer choice D is correct. In diversity jurisdiction, federal courts follow federal procedural rules. Although FRCP4(e) sets forth the three methods of service described in answer choice A as permissible methods, service may also be effected by following state law in an action brought in courts in a state where the federal district court is located. Plaintiff's mail service here is sufficient because it follows the forum state's law. Answer A is incorrect because those three methods of service, while permitted, are not exclusive. Answer B is incorrect because service was timely, made within the 90-day requirement. Answer C is incorrect because the Erie doctrine does not require federal courts to apply state procedural law. Rather, the mail service here is sufficient because the Federal Rules allow service in accord with state procedural law.

Question Text: Two individuals entered into a written contract for the sale of a moped for $475. The contract required delivery of the moped on July 1 and provided that oral modification of the contract was prohibited. On June 25, the seller called the buyer and asked if the seller could deliver the moped on July 2, explaining that the seller was overseas and could not return until July 2 due to work commitments that he could not change. The buyer agreed. On June 30 the buyer called the seller, informing him that he was disregarding the modification and demanding delivery of the moped on July 1. The seller delivered the moped on July 2, but the buyer refused to accept or pay for it. Has the buyer breached the contract? Answer Choices:Yes, because the buyer agreed to the modification.Yes, because the buyer waived the July 1 delivery requirement.No, because the buyer did not receive consideration for the modification.No, because the modification was not in writing.

Answer choice D is correct. Under the Uniform Commercial Code (UCC), a clause in a written contract that prohibits oral modification of the contract is enforceable. Consequently, the oral agreement between the seller and the buyer to delay the delivery date of the moped is not given effect. Since the seller failed to deliver the moped on July 1 as called for in the written contract, the seller breached the contract and the buyer was excused from performance. (Note: The oral modification did not run afoul of the Statute of Frauds since the contract as modified was for the sale of goods of less than $500.) Answer choice A is incorrect because, even though the buyer agreed to the modification, the contract prohibited an oral modification of the contract. Answer choice B is incorrect. Although the oral modification itself cannot be given effect, the buyer's agreement can act as a waiver of the provision in the written contract that required delivery on July 1. However, a party is permitted to retract a waiver so long as the other party has not materially changed position in reliance on the waiver. Since the seller told the buyer that he could not return before July 2, the seller did not delay his return in reliance on the buyer's waiver. Consequently, the buyer was free to retract his waiver. Answer choice C is incorrect because, under the UCC, a good faith modification of a contract is permitted without consideration.

Question Text: A woman underwent gall bladder surgery, which was performed by the hospital's head surgeon. An intern observed the surgery and provided time updates to the surgical team, since the team had a limited time in which to complete the operation. The woman experienced significant pain following the surgery, and returned to her doctor. An x-ray revealed that a hemostat, which is an instrument typically used in gall bladder surgery, had been left in the woman's gall bladder. After the hemostat was removed, the woman continued to experience pain due to permanent injuries caused by the hemostat. The woman sued the head surgeon and the intern involved in her surgery. At trial, the woman did not provide any direct evidence that the surgeon or the intern had left the hemostat in her gall bladder. At the close of evidence, the intern moved for a directed verdict. The judge granted the motion. What is the most likely reason that the judge granted the intern's motion? Answer Choices:A negligence plaintiff must provide direct evidence of negligence.The doctrine of res ipsa loquitur is inapplicable to medical malpractice claims.The head surgeon was vicariously responsible for the intern's actions.The intern did not have exclusive control over the hemostat.

Answer choice D is correct. Under the traditional standard for res ipsa loquitur, the plaintiff must prove that the accident was caused by an agent or instrumentality within the exclusive control of the defendant. If the intern was only observing and providing time updates to the surgical team, the plaintiff could not show that the hemostat was under the intern's exclusive control. Accordingly, res ipsa loquitur would not apply, and the intern would be entitled to a directed verdict in the absence of direct evidence of negligence. Answer choice A is incorrect because a plaintiff may succeed under a theory of res ipsa loquitur in the absence of direct evidence in some cases. Answer choice B is incorrect because res ipsa loquitur is applicable to medical malpractice cases. Answer choice C is incorrect because it is an incorrect statement regarding vicarious liability. An individual that performs a negligent action may be personally liable even when vicarious liability applies. Moreover, the issue is whether the woman can prove that negligence occurred, rather than whether vicarious liability applies.

Question Text: A retailer incorporated in State A sued the publisher of a newsletter for libel in a State C state court. The retailer's complaint sought $1 million in damages in good faith. The retailer, which had its headquarters in State B, did business throughout the United States but had its largest warehouse in State C, where it also operated more stores than any other state. The publisher of the newsletter, which had subscribers in every state, was an individual who lived most of the year abroad but continued to be domiciled in State C. The publisher timely filed a petition to remove the libel action to a State C federal district court. Should the federal court deny this petition? Answer Choices:No, because diversity jurisdiction exists.No, because the newsletter is published nationwide.Yes, because the retailer and publisher are citizens of the same state for diversity purposes.Yes, because the publisher is a citizen of the forum state.

Answer choice D is correct. When removal is based solely on diversity jurisdiction, the action may not be removed if the defendant is a citizen of the state in which the action is filed. Here, the publisher is a citizen of the state of the publisher's domicile, State C; the publisher is not treated as an alien, even though the publisher lives most of the year abroad. Consequently, the case cannot be removed from State C state court to federal court. Answer choice A is incorrect. Although the action could have been initiated in State C federal court by the retailer-plaintiff, the publisher-defendant may not remove the action to a State C federal court because the publisher-defendant is a citizen of State C as discussed with respect to answer choice D, above. The action could have been initiated in State C federal court because the retailer-plaintiff is not a citizen of State C, but of State A and State B. Answer choice B is incorrect because, although the nationwide scope of the newsletter may be relevant in assessing the amount of damages, if any, it is not relevant in determining whether subject-matter jurisdiction exists. Answer choice C is incorrect. Although the publisher is a citizen of State C by virtue of continued domicile there, the retailer is not a citizen of State C. The retailer was incorporated in State A and its principal place of business for diversity jurisdiction purposes is in State B where it maintains its headquarters.