8/29- Simulated 50-Question MBE (Set 1 & 2)

A plaintiff sued the owner of a small clothing store for injuries she sustained when she slipped and fell while shopping in the defendant's store. The defendant wants to introduce into evidence a written record of the event made by one of his employees. The record detailed the fact that the plaintiff slipped on her own drink that she had spilled without reporting to anyone. It also included the plaintiff's threat to sue the store, and the store owner's instructions to the employee to immediately write a report, so that there was a record of what happened in the event that the plaintiff sued. The employee is unavailable to testify. The plaintiff objects to the introduction of the document. Should the court sustain the plaintiff's objection to the introduction of the document? Answer Choices:Yes, because the document violates the best evidence rule.Yes, because the document is hearsay not within any exception.No, because the document is a business record.No, because the employee is unavailable to authenticate the record.

Answer choice B is correct. Hearsay is an out-of-court statement, whether written or oral, offered to prove the truth of the matter asserted. Hearsay is not admissible unless it falls within an exception. The record in this case meets the hearsay definition and should not be admitted unless a specific exception applies. One possible applicable exception to the hearsay rule would be the business record exception, which provides that a record or other writing made in the course of regularly conducted business is admissible. However, records prepared in anticipation of litigation are not admissible as business records. In this case, it does not appear that this report was prepared as part of a regular practice of record-making. The owner only told the employee to make the record so there was a description of what happened in the event that the plaintiff sued. As such, the document is not a business record. Answer choice A is incorrect in part because nothing in the fact pattern indicates that the record is anything other than the original. In any event, assuming the best evidence rule was satisfied, the hearsay issue would still remain. Answer choice C is incorrect because the document is not a business record. In order for a record to qualify as a business record, the custodian of the record or some other qualified witness must establish that the record was made (i) at or near the time of the event, (ii) by a person with knowledge of the event and under a duty to report it, or from information transmitted by such a person, and (iii) as part of a regular practice of making the kind of entry in question during the regular course of business. The record in this case does not qualify as a business record because it was made not in the regular course of business, but in anticipation of litigation. Records prepared in anticipation of litigation are not admissible as business records. Answer choice D is incorrect first because the record is not a business record. If it was, however, the person who made the record is not necessarily required to authenticate it; business records are self-authenticating if they are certified to meet the requirements of the business records exception.

Question Text: An artist who had designed a sculpture to be made out of steel went to the website of a merchant that sold specialized tools. Using the chat feature, the artist explained to an employee of the merchant that the artist wanted to purchase a tool that could cut through steel. The employee suggested that the artist purchase a particular saw. The employee, pointing out that the website's description of the saw indicated that it could cut through most metals, added that the saw "should cut through steel with no problem." The artist purchased the saw from the merchant's website for a total cost of $450. Conspicuously appearing on the page where the artist had to indicate his consent in order to purchase the saw was the following: "There are no implied warranties provided with this product other than the general warranty of merchantability." The tool failed to cut through the steel that the artist intended to use for his sculpture. The artist sued the merchant for damages attributable to breach of the implied warranty of fitness for a particular purpose. Which party is likely to prevail? Answer Choices:The merchant, because the merchant disclaimed the warranty of fitness for a particular purpose.The merchant, because warranties do not apply to goods valued under $500.The artist, because the merchant's employee knew that the artist wanted a saw that would cut steel and relied on his judgment that the saw would do so.The artist, because the implied warranty of fitness for a particular purpose cannot be disclaimed by a merchant.

Answer choice A is correct. A warranty that the goods are fit for a particular purpose may be disclaimed by a conspicuous writing. Such a writing need not refer to this warranty by name. Answer choice B is incorrect because unlike the applicability of the Statute of Frauds to the sale of goods, there is no dollar threshold that a warranty related to goods must exceed in order to be effective. Answer choice C is incorrect because, although a warranty of fitness for a particular purpose was made under these facts, the merchant effectively disclaimed this warranty. Answer choice D is incorrect because any seller may provide a warranty of fitness for a particular purpose and any seller may disclaim such a warranty.

Question Text: An avid runner was diagnosed with a serious heart condition. The runner's doctor advised her to avoid strenuous physical activity, including running, as such activity would create a substantial risk of cardiac arrest. The runner refrained from such activity for a month, but in that time she gained 15 pounds and felt very unhealthy. Deciding that the health benefits of running outweighed the risk involved, one morning she set out on her normal running path—the shoulder of a flat rural road. Five miles into the run, the runner suffered a heart attack, collapsed, and lapsed into a coma. Two minutes later, the runner's feet and legs—which were partially sticking out into the travel lane—were run over by a car. The driver of the car, who had been traveling at a reasonable speed, was aware of the runner but was unable to avoid her due to a locking up of the car's brakes that the driver had negligently failed to have repaired. The runner survived, but suffered serious injuries to both of her legs. The runner sued the driver for those injuries in a jurisdiction that applies traditional contributory negligence rules. Is the runner likely to prevail? Answer Choices:No, because the runner was contributorily negligent.No, because the driver was aware of the runner's predicament before the accident occurred.Yes, because of the runner's helpless peril at the time of the accident.Yes, because the driver was negligent in driving the car with brakes in need of repair.

Answer choice A is correct. In a contributory negligence jurisdiction, the plaintiff's contributory negligence is a complete bar to the plaintiff's recovery. Here, the runner was negligent in running against her doctor's advice. Consequently, despite the driver's negligence in failing to properly maintain his car, which led directly to the accident, the runner cannot recover from the driver. Answer choice B is incorrect because, although the driver was aware of the runner's predicament before the accident, the driver could not avoid hitting the runner by acting reasonably. The driver's negligence (i.e., his failure to repair the car's brakes) occurred prior to his awareness of the runner's predicament and could not be corrected after gaining such awareness before the accident. Answer choice C is incorrect because, although the runner was unable to extricate herself from the situation since she was unconscious, the driver may be liable if he had the last clear chance to avoid the accident. However, as explained with regard to answer choice B, the driver did not have the last clear chance to avoid the accident and is not liable. Answer choice D is incorrect because, in a contributory negligence jurisdiction, the negligence of the defendant is not sufficient to permit the plaintiff to recover where the plaintiff is also negligent.

Question Text: The owner of a lakefront home in a retirement community that greatly restricts access by nonresidents was aware that her dock needed repair, but was unable to afford the considerable expense to do so. The owner placed a large heavy chair at the entrance to the dock with a sign that read, "Please do not enter. Dock in need of repair." Two children, a six-year-old boy and a ten-year-old girl, entered the property without permission from, or knowledge of the owner. The children quickly discovered the dock. The girl read the sign aloud to the boy and advised him, "You shouldn't go out on the dock." The boy, responding "But it's not dangerous," climbed over the chair and walked out onto the dock. As the boy ran to the end of the dock, a rotten plank on which the boy stepped gave way, and he fell into the lake and drowned. As permitted by the applicable jurisdiction, the boy's parents sued the owner in a wrongful death action alleging that her negligence with respect to the dock caused the boy's death. At trial, the boy's parents argued that the dock constituted an attractive nuisance. Which of the following may protect the owner from liability that otherwise would arise under this doctrine? Answer Choices:The owner lives in a retirement community that greatly restricts access by nonresidents.The boy was not attracted to the property by the presence of the dock.The boy was a trespasser.The boy was aware of the owner's warning.

Answer choice A is correct. In order for the attractive nuisance doctrine to apply, the landowner must know or have reason to know that the artificial condition is located in a place that children are likely to trespass. Because the owner lives in a retirement community that greatly restricts access by nonresidents, this requirement is not satisfied. Answer choice B is incorrect because, despite its name, the attractive nuisance doctrine does not require that the child be enticed onto the property by the presence of the condition. Answer choice C is incorrect because the purpose of the attractive nuisance doctrine is to permit a child trespasser to recover for a landowner's negligence. Answer choice D is incorrect because in order for the attractive nuisance doctrine to apply, the child, due to his youth, must not appreciate the danger presented by the condition. A warning will often protect a landowner from the liability by bringing the condition to the attention of the child. In this case, despite the warning, the child, while deciding that he should go on the dock, did not realize that the reason he should not do so was its dangerous condition.

Question Text: In order to finance the purchase of a property, the buyer received a loan and in return gave the lender a promissory note secured by a mortgage on the property. Subsequently, the buyer divided the property into two parcels, retaining one of the parcels and selling the other to a friend. The friend took the parcel subject to the mortgage. The buyer and the friend agreed that each would be liable for one-half of the outstanding mortgage. One year later the buyer disappeared. Since the buyer was no longer paying one-half of the mortgage obligation, the lender threatened to foreclose on the property. The friend paid off the outstanding balance of the loan. The applicable jurisdiction recognizes the lien theory of mortgages. Can the friend bring a foreclosure action against the buyer's parcel? Answer Choices:Yes, because the friend is subrogated to the lender's rights in the parcel.Yes, because the friend obtained ownership rights in his own parcel by purchase.No, because the friend does not have an ownership interest in the parcel since the jurisdiction adheres to the lien theory of mortgages.No, because the friend was not under a legal duty to pay the buyer's portion of the mortgage.

Answer choice A is correct. Since the friend paid the buyer's loan obligation in full in order to protect his own interest, the friend became subrogated to the lender's rights based not only on the personal obligation of the buyer, but also on the mortgage on the land itself. Answer choice B is incorrect because the way in which the friend acquired his interest in his own parcel is irrelevant to the issue of subrogation. Answer choice C is incorrect because, while the friend does not have an ownership interest in the buyer's parcel, the friend may nevertheless seek to foreclose on the mortgage on that parcel, which it holds through its right of subrogation. Answer choice D is incorrect because, although payment of another person's obligation that is secured by a mortgage, by a person who is under a legal duty to do so, can give rise to the right of subrogation, payment of such an obligation by a person in order to protect his property interest is also entitled to subrogation.

Question Text: A state feared abuse of its statute providing for welfare benefits, which was administered by its department of public assistance. The department believed that a particular man who had been receiving welfare payments for the past year was not eligible for them because he had adequate means of support. The department informed the man in writing of its decision to terminate his welfare benefits, effective immediately. The department also informed the man that he could schedule an administrative hearing, which would be held in approximately one month, to contest that decision and to present any evidence on his own behalf. If the man challenges this termination on constitutional grounds, will he likely be successful? Answer Choices:Yes, because the man had a Due Process right to notice and a hearing before his welfare benefits were terminated.Yes, because the department of public assistance has impaired the obligations of its contract with the man in violation of the Contracts Clause.No, because the department has provided the man with notice and a hearing sufficient to satisfy the Due Process Clause.No, because a state can establish the procedures for terminating an interest that the state itself has created, as distinguished from a purely private interest.

Answer choice A is correct. The procedural aspect of the Due Process Clause requires that a state grant notice and a hearing to welfare recipients before terminating their welfare benefits. For this reason, answer choice C is incorrect. Answer choice D is incorrect because the Due Process Clause applies to a property interest created by the state as well as to private property interests. Consequently, while the state can establish procedures for the termination of welfare benefits, such procedures must comport with the constitutional due process requirement. Answer choice B is incorrect because, while the department's action did terminate the man's welfare payments, the action did not modify existing laws or regulations regarding the man's entitlement to such payment, but instead was taken based on the department's determination that the man did not have the right to welfare payments under the existing laws and regulations.

Question Text: Seeking to protect its small wine industry, a state passes a law prohibiting a large out-of-state corporation that engaged in the wine business in the state from entering into any new business deals within the state. The corporation sues in an appropriate federal court to enjoin state officials from enforcing this law. On which of the following grounds would the court hold that the state's law is unconstitutional? Answer Choices:The Dormant Commerce Clause of Article I, Section 8The Privileges and Immunities Clause of Article IV, Section 2The Privileges or Immunities Clause of the Fourteenth AmendmentThe Contracts Clause of Article I, Section 10

Answer choice A is correct. The state's law protects local economic interests at the expense of out-of-state competitors and therefore discriminates against the out-of-state corporation in violation of the Dormant Commerce Clause. Answer choice B is incorrect because the Article IV Privileges and Immunities Clause has been interpreted as not applying to corporations. Answer choice C is incorrect because the Fourteenth Amendment Privileges or Immunities Clause has similarly been restricted; it does not apply to corporations. Answer choice D is incorrect because the Contracts Clause, although it does apply to state legislative actions, only prohibits laws that retroactively impair contractual rights. Here, the corporation is only prohibited from entering into new business deals within the state.

Question Text: A manufacturer entered into a contract with a forklift supplier to purchase 10 new forklifts for use in the manufacturer's warehouse. The contract specified that the forklifts were to be delivered within 45 days of the execution of the contract. The day after entering into the contract, the supplier was told by a reliable source that the manufacturer was in a precarious financial position. That day the supplier, reasonably relying on the information, which was in error, sent a written notice to the manufacturer demanding assurance of the manufacturer's ability to pay. Thirty-five days after receiving the notice, the manufacturer sent the supplier its most recent financial statements, which adequately demonstrated that the manufacturer was not in a precarious financial position and had the funds to pay for the forklifts, along with a statement of its willingness to receive the shipment of the forklifts. Immediately upon receiving the manufacturer's correspondence the following day, the supplier called the manufacturer's CEO and demanded his personal guarantee of payment for the forklifts before the supplier would deliver the forklifts. When the manufacturer's CEO declined, the supplier refused to deliver the forklifts. The manufacturer then purchased forklifts from another distributor at a higher price. The manufacturer sued the forklift supplier for breach of contract. Should the manufacturer prevail? Answer Choices:Yes, because the supplier breached the contract by failing to deliver the forklifts.Yes, because the supplier's information regarding the manufacturer's financial position was in error.No, because the manufacturer failed to provide adequate assurances in a timely manner.No, because the manufacturer's CEO refused to guarantee payment of the forklifts.

Answer choice A is correct. The supplier failed to perform its contractual obligation to deliver the forklifts to the manufacturer. Upon the supplier's breach, the manufacturer sought cover by purchasing the forklifts from another source at a higher price. The manufacturer can recover from the supplier the difference between the cover price and the contract price. Under the UCC, either party can demand assurance of performance if there are reasonable grounds for insecurity about the other party's ability or willingness to perform. Once such assurances are requested, performance may be suspended until they are provided. Failure to give adequate assurances within a reasonable time, not exceeding 30 days, can be treated as repudiation. Here, the manufacturer failed to provide assurances within a reasonable time, so the supplier was within its rights to reject the assurances and repudiate the contract. However, the supplier did not cancel the contract or take any action in reliance on the failure to timely provide assurances. Consequently, when the manufacturer provided the supplier with such assurances and retracted its implied repudiation of the contract by requesting delivery of the forklifts, the supplier was contractually obligated to the deliver the forklifts. Answer choice B is incorrect because, even though the supplier's information regarding the manufacturer's financial position was in error, the supplier was entitled to seek assurances from the manufacturer because the supplier had reasonable grounds for believing that the manufacturer was unable to pay for the forklifts. Answer choice C is incorrect because, as mentioned above, although the manufacturer's failure to provide adequate assurances of its ability to pay within a reasonable time (which by statute cannot exceed 30 days) constituted an anticipatory repudiation of the contract, the supplier did not cancel the contract or take any action in reliance on the repudiation. Consequently, the supplier was contractually obligated to the deliver the forklifts. Answer choice D is incorrect because the supplier, having received adequate assurances from the manufacturer, lacked reasonable grounds upon which to demand that the manufacturer's CEO guarantee payment of the forklifts.

Question Text: For an agreed upon fee, a pest control company properly treated a residence for termites. In addition, the company entered into an agreement with the homeowner that, in exchange for an additional annual fee, the company would repair any damage to the residence caused by termites for four years. The day after the homeowner paid the final annual fee at the beginning of the fourth year of the agreement, he discovered a termite infestation in the home while changing a light bulb in his basement. The homeowner took no action until the final month of the agreement, when he notified the pest control company of the infestation. The pest control company refused to repair the termite damage. The homeowner then hired a contractor to repair the termite damage at a cost of $25,000. Had the homeowner notified the pest control company when he first discovered the termite infestation, the cost to repair the termite damage to the residence would have been $3,000. The homeowner sued the pest control company for breach of their annual repair agreement. What damages should the court award to the homeowner? Answer Choices:$25,000, because this was the cost to repair the termite damage to the residence that occurred within the four-year term of the contract.$3,000, because the homeowner failed to timely notify the company of the termite infestation.$3,000, because the company was entitled to damages of $22,000 due to the homeowner's breach of his duty to mitigate damages.Nothing, because the contractor performed the repairs, relieving the company of its duty to perform.

Answer choice B is correct. A party to a contract must avoid or mitigate damages to the extent possible by taking steps that do not involve undue risk, expense, or inconvenience. The nonbreaching party is held to a standard of reasonable conduct in preventing loss. Here, the homeowner could have easily avoided the costs of the repairs that resulted from the homeowner's delay in notifying the pest control company of the termite infestation. Therefore, the homeowner's damages are limited to those that arose before the homeowner was aware of the infestation. Answer choice A is incorrect. Although the damages caused by termites during the contract's four-year period amounted to $25,000, the homeowner is not entitled to damages for loss that the homeowner could have avoided without undue risk or burden. Here, the homeowner could have avoided $22,000 of the loss by promptly notifying the company of the termite infestation upon the homeowner's discovery of that infestation. Answer choice C is incorrect because, although often referred to as a duty to mitigate damages, a breaching party is not entitled to damages for a loss that results from the other party's failure to act in a way that avoids the loss. Instead, the failure to mitigate damages merely reduces the damages owed to the nonbreaching party to the extent that those damages could have been avoided without undue risk or burden. Answer choice D is incorrect. The pest control company refused to repair the termite damage. Thus, the homeowner could seek substitute performance from the contractor without losing the right to recover damages from the pest control company under the contract.

Question Text: A driver was speeding through a town's business district. The driver swerved suddenly to avoid hitting a car that was double parked in the middle of a traffic lane, and hit a pedestrian who was crossing the street. The pedestrian filed a complaint in federal district court in the state where the accident occurred against the owner of the car that was double parked. The pedestrian argued that the owner's negligence in leaving his car in the middle of a traffic lane caused the pedestrian to sustain physical injuries, and asserted $100,000 in damages. The plaintiff-pedestrian is a citizen of the state where the accident occurred, and the defendant is a citizen of a neighboring state. The driver of the speeding car is a citizen of the state where the accident occurred and is in the midst of a personal bankruptcy action. The defendant filed a motion to dismiss, arguing that the driver of the speeding car was an indispensable party. Applicable state law provides that tortfeasors may be jointly and severally liable for a plaintiff's injuries. Is the court likely to grant the defendant's motion to dismiss? Answer Choices:No, because the driver is judgment-proof due to his bankruptcy.No, because the driver is not subject to compulsory joinder.Yes, because joining the driver would defeat the court's jurisdiction.Yes, because the driver's participation is necessary for a just adjudication.

Answer choice B is correct. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction or destroy venue must be joined as a party if the party's participation in the lawsuit is necessary for a just adjudication. Tortfeasors facing joint and several liability are not considered necessary parties. In this case, the driver was a joint tortfeasor and thus was not a necessary party, so the court was correct to allow the case to proceed without the driver. Answer choice A is incorrect because a joint tortfeasor is not a necessary party regardless of whether the individual is judgment-proof. Answer choice C is incorrect because the driver is not a necessary party, and thus the issue of jurisdiction is not relevant. Under certain circumstances, an action may be dismissed if compulsory joinder cannot occur because it would destroy diversity. Because the driver is not a necessary party, however, that analysis is not necessary in this case. Answer choice D is incorrect because a joint tortfeasor is not a necessary party.

Question Text: During a severe storm, a horse came onto a rancher's property. The rancher discovered the horse the next morning, and saw a serious wound on one of its legs. The rancher paid a veterinarian to examine and treat the horse, and the rancher then provided the horse with food and shelter. Two weeks later, the horse's owner arrived at the rancher's home and asked for the return of his horse. The rancher returned the horse to its owner, and asked the owner for reimbursement for the veterinary visit and for the expenses incurred in feeding and sheltering the horse. The horse's owner refused to pay. The rancher sued the horse's owner for the costs of veterinary care, food, and shelter. Is he likely to prevail? Answer Choices:Yes, because the rancher's conduct created an implied-in-fact contract.Yes, because the horse's owner would be unjustly enriched if he is not forced to pay the rancher's expenses.No, because a valid contract was never formed between the rancher and the horse's owner.No, because the horse's owner never engaged in any conduct to signify that he assented to the rancher's expenditures.

Answer choice B is correct. Courts recognize the existence of an implied-in-law contract ("quasi-contract") when one party confers a benefit on another and has a reasonable expectation of compensation. Otherwise, the benefited party would be unjustly enriched. Such situations occur when: (i) the plaintiff has conferred a "measurable benefit" on the defendant; (ii) the plaintiff acted without gratuitous intent; and (iii) it would be unfair to let the defendant retain the benefit because either the defendant had an opportunity to decline the benefit but knowingly accepted it, or the plaintiff had a reasonable excuse for not giving the defendant such opportunity, usually because of an emergency. This is such a situation. Answer choice A is incorrect because an implied-in-fact contract is created only when conduct indicates assent or agreement (note the difference between implied-in-law and implied-in-fact contracts). Answer choice C is incorrect because when an emergency situation occurs, an actual contract is not always required for a plaintiff to recover. Answer choice D is incorrect because it describes why an implied-in-fact contract was not created. Conduct signifying assent is not required for the formation of a quasi-contract, as was the situation here.

Question Text: A retail furniture store ordered ten sofas from a manufacturer at $1,000 each, plus shipping, to be delivered and paid for in five equal monthly installments. With the first shipment of two sofas, the manufacturer sent an invoice to the retailer, billing the retailer $2,000 plus shipping. The invoice also noted that the manufacturer retained a security interest in all sofas shipped until the purchase price for all sofas ordered was paid in full. Not happy with the security interest term, the retailer immediately notified the manufacturer that this term was unacceptable. After sending payment for the first two sofas, the retailer told the manufacturer not to send any more sofas. The manufacturer sued the retailer for breach of contract. In the breach of contract action by the manufacturer against the retailer, what will be the result? Answer Choices:The manufacturer will prevail, because both parties are merchants.The manufacturer will prevail, but can only enforce the terms of the original offer.The retailer will prevail, because the knock-out rule voids the contract.The retailer will prevail, because the additional terms materially affected the bargain.

Answer choice B is correct. Even if the manufacturer included an additional term in its acceptance and the retailer objected to that term, a contract was still formed on the terms of the original offer. Answer choice A is incorrect because, regardless of whether both parties are merchants, the retailer did not have a right to refuse to perform the contract; a contract was formed based on the original terms. The fact that the retailer objected to the term means that it would not be part of the contract regardless of the parties' status as merchants. Answer choice C is incorrect because the knock-out rule, which applies to conflicting terms proposed by merchant parties, does not itself serve as a basis to void a contract. Under the knock-out rule, different terms in the offer and acceptance nullify each other and are "knocked out" of the contract. Answer choice D is incorrect because, even though the security interest term materially affected the bargain by altering the remedies available to the manufacturer if the store failed to pay, the retailer nonetheless was required to perform the contract per the original terms.

Question Text: An expert witness was called by the defendant to testify in a murder trial. The expert was to testify that the defendant was not responsible for his actions due to a specific mental defect. On cross-examination, the prosecutor brought to the expert witness's attention an authoritative book on psychological conditions, judicially noted to be a reliable authority in the field. The book described the symptoms of the mental defect at issue differently than the expert witness had described them, and the prosecutor read the book's description into evidence. The prosecutor wanted the jury to be able to consider the book's description as substantive evidence, but the defendant objected that the description could be used for impeachment purposes only, and not as substantive evidence. The prosecutor further wanted to introduce the book itself into evidence; the defendant objected to this as well. Should the court allow the jury to consider the description in the book as substantive evidence, and should the book itself be introduced as evidence? Answer Choices:The description should be considered for impeachment purposes only, and the book should not be introduced into evidence.The description should be considered as substantive evidence, and the book should not be introduced into evidence.The description should be considered as substantive evidence, and the book should be introduced into evidence.The book should be introduced into evidence, though the description may be used only for impeachment purposes.

Answer choice B is correct. Evidence such as this book, while technically hearsay, is admissible under the learned treatise exception to the hearsay rule. A statement contained in published treatises or periodicals on a subject of history, medicine, or other science or art is admissible if (i) the treatise is established as a reliable authority by the testimony of a witness, expert, or by judicial notice, and (ii) an expert relied on it during direct examination or it was brought to the expert's attention on cross-examination. If these requirements are met, the statement contained in the treatise may be read into evidence, and may be used as substantive evidence and for impeachment purposes. The treatise itself, however, is not admitted into evidence. Answer choice A is incorrect because it states that the description may be used for impeachment purposes only. Answer choices C and D are incorrect because they both indicate that the treatise may be introduced into evidence. Answer choice D is also incorrect because it states that the description may be used for impeachment purposes only.

Question Text: A defendant was charged with fraud in a state-law civil proceeding. During cross-examination, he was asked to state whether a note being entered into evidence was in his handwriting. Since the note contained a material false statement on which the plaintiff had relied, the defendant invoked his Fifth Amendment privilege against self-incrimination to avoid answering the question. The judge upheld the defendant's assertion of the privilege. Was the judge correct in permitting the defendant to invoke his Fifth Amendment privilege against self-incrimination? Answer Choices:Yes, because handwriting evidence is always testimonial in nature.Yes, because the defendant's answer is testimonial evidence.No, because the defendant may not invoke his Fifth Amendment privilege in a civil proceeding.No, because the Fifth Amendment privilege against self-incrimination is not applicable in state-law proceedings.

Answer choice B is correct. Only testimonial evidence is covered by the Fifth Amendment privilege; physical or real evidence is not. While defendant's handwriting in itself is not testimonial, the defendant's answer to the question would be, because he would be identifying himself as the person who wrote the note. Answer choice A is incorrect because, as mentioned above, handwriting is not necessarily testimonial. For example, requiring a defendant to give a sample of his handwriting (i.e., a handwriting exemplar) does not violate the privilege against self-incrimination because it is not testimonial. Answer choice C is incorrect because the Fifth Amendment privilege can be invoked in civil proceedings if the witness's testimony can be used against him in a future criminal proceeding. Answer choice D is incorrect because the Due Process Clause of the Fourteenth Amendment applies the Fifth Amendment to the states.

Question Text: A buyer who was not a merchant entered into a written contract to purchase a new car from a dealer at a cost of $35,000. Since the buyer desired a particular combination of features on the car and the dealer did not have a car with such features in its inventory, the dealer ordered the car from the manufacturer. When the car arrived, the dealer discovered that the manufacturer had increased the dealer's price for the car by five percent. Acting in good faith, the dealer sought to increase the buyer's price of the new car by a similar percentage. Reluctantly, the buyer orally agreed to the price increase, then had a change of heart and refused to complete the purchase. The car dealer eventually sold the car to another customer for $35,000. The dealer sued the buyer to recover damages for breach of contract. Will the dealer be entitled to damages? Answer Choices:No, because the dealer had a preexisting duty to sell the car for the original contract price.No, because the price increase was not in writing.Yes, because the dealer sought the price increase in good faith.Yes, because the car was specially manufactured for the buyer.

Answer choice B is correct. The UCC Statute of Frauds generally requires that a modified contract be in writing where the value of the goods is $500 or more. There is an exception for specially manufactured goods, but for this exception to apply, the goods cannot be suitable for sale to others in the ordinary course of the seller's business. Because the dealer sold the car to another customer, this exception would not apply. Since the written evidence of the parties' agreement fixed the price of the car at $35,000 and the dealer received this amount from another customer, the dealer would not be entitled to damages. Answer choice A is incorrect because the preexisting duty rule does not apply to a sale of goods governed by the UCC. Answer choice C is incorrect because, although the UCC permits a good faith modification of a contract without consideration, the Statute of Frauds prevents the enforcement of an oral modification. Answer choice D is incorrect because, as noted with respect to answer choice B, the exception to the Statute of Frauds for specially manufactured goods does not apply where the seller can sell the goods in the ordinary course of business.

Question Text: A retail store that specialized in glass objects entered into a written contract to purchase 100 hand-blown glass ornaments from an artisan. Because of the artisan's popularity, the store paid in full for the ornaments at the time that the contract was executed. The contract specified that the store would pick up the ornaments after notification that they were ready. The contract contained no other terms related to delivery of the ornaments and did not allocate the risk of loss. When the ornaments were ready, the artisan notified the store. The parties arranged for the store to pick up the packaged ornaments no later than 2:00 pm the next day. The employee assigned by the store to make the pickup did not arrive until 6:00 pm. In the late afternoon just before the store employee arrived, a short but intense storm caused a large, healthy tree on the artisan's property to fall over and destroy all the ornaments. Neither party had insured the ornaments against such a loss. Who bears the risk of the loss with respect to the ornaments? Answer Choices:The store, because the artisan had tendered delivery of the ornaments to the store prior to the loss.The store, because the artisan's insurance did not cover the loss.The artisan, because the store had not taken possession of the ornaments.The artisan, because the store was a merchant.

Answer choice B is correct. The UCC provides that a merchant seller generally retains the risk of loss in the absence of a contract term to the contrary until the buyer receives the goods. However, if the buyer is in breach of the contract, the risk of loss passes to the buyer to the extent of any deficiency in the seller's insurance coverage. Here, the store, as buyer, was in breach of the contract by failing to pick up the ornaments by 2:00 pm. Although the UCC only requires that the delivery time be "reasonable" in the absence of a specific contract term, the parties here modified the contract in that regard by agreeing that the seller should pick up the ornaments by 2:00 pm. Consequently, answer choice B is correct and answer choice C is incorrect. Answer choice A is incorrect because, although the risk of loss passes to the buyer upon tender of delivery of the goods when the seller is not a merchant, the artisan here is a merchant (he has specialized knowledge or skill peculiar to glass ornaments). Consequently, the risk of loss does not pass until the buyer receives the goods unless the buyer is in breach of the contract (as was the case here). Answer choice D is incorrect because, although the store, as buyer, was a merchant with respect to the ornaments, this status is irrelevant to the issue of risk of loss. It is the seller's status as a merchant that can delay the shift in the risk of loss from the tender of delivery by the seller to the buyer's actual receipt of the goods.

Question Text: The plaintiff and the defendant were involved in a physical altercation, and the plaintiff sustained serious injuries to his hand. Several weeks later, the defendant inherited a valuable piece of real estate from a distant relative in a state several thousand miles away. The defendant had never been to the state where the property was located. The plaintiff heard about the defendant's inheritance, and filed suit against the defendant in the state where the property was located. In his complaint, the plaintiff asserted a claim of battery against the defendant, alleging $100,000 in damages. Before filing a responsive pleading, the defendant, who was properly served, filed a motion to dismiss, arguing that the court lacked jurisdiction over both parties. The forum state has adopted a long-arm statute that extends jurisdiction up to the constitutional limits. Is the court likely to grant the motion to dismiss? Answer Choices:Yes, because personal jurisdiction is improper over both parties.Yes, because personal jurisdiction is improper over the defendant.No, because personal jurisdiction is proper under the doctrine of in rem jurisdiction.No, because personal jurisdiction is proper under the doctrine of attachment jurisdiction.

Answer choice B is correct. The court may not exercise personal jurisdiction over this defendant unless the long-arm statute applies and the defendant has "minimum contacts" with the state in which the court sits (the forum state), and the exercise of jurisdiction would be fair and reasonable. Any attempt to gain in personam jurisdiction, under whatever basis, is subject to the requirement of minimum contacts. In this case, the defendant's only contact with the forum state was his ownership of inherited land; otherwise he had no contacts with that state. The subject of the litigation involved an altercation that did not take place in the forum state. Accordingly, the court would likely find that the defendant lacked minimum contacts with the state. Answer choice A is incorrect because the plaintiff consented to personal jurisdiction when he filed the complaint in the forum state. Answer choice C is incorrect because in rem jurisdiction, which is the authority of a court to determine issues concerning rights in property, is applicable only when the suit concerns the property, which is not the case here. Answer choice D is incorrect because the defendant did not have sufficient minimum contacts with the forum state. Under "attachment jurisdiction," which was historically a type of quasi-in-rem jurisdiction, a plaintiff could use attachment of property in the forum state to obtain jurisdiction. Under current precedent, however, there must be minimum contacts between the defendant and forum state to establish jurisdiction.

Question Text: A car was parked in front of a man's house for a week without being moved. The man honestly but unreasonably believed that the car had been abandoned. He found a spare key attached to the underside of the car and, using that key, drove the car into his driveway, intending to make it his own. Several days later, the car's owner returned. Seeing his car in the man's driveway, the owner notified the police. The man was charged with larceny. Taking abandoned property is not a crime under the laws of the jurisdiction. Should the man be convicted of larceny? Answer Choices:No, because taking abandoned property is not a crime.No, because the man's mistake was honestly made.Yes, because an honest mistake of law does not negate the man's mens rea.Yes, because the man's mistake was unreasonable.

Answer choice B is correct. The man's mistake was connected with the ownership status of the car, and not the law of larceny in the jurisdiction. Thus, his mistake was one of fact and not of law. Larceny is a specific intent crime, and an honest mistake of fact, whether reasonable or not, serves as a defense to a specific intent crime because such an honest mistake negates the required mens rea. Consequently, the man should not be convicted of larceny. Answer choice A is incorrect because, although taking abandoned property is not a crime, the car had not been abandoned. Answer choice C is incorrect because the mistake was of fact, not of law. Answer choice D is incorrect because an honest but unreasonable mistake of fact serves as a defense to a specific intent crime.

Question Text: During a trial for injuries a plaintiff sustained in a car accident with the defendant, the plaintiff's attorney called a witness to the stand to testify that the witness, a 25-year-old woman, saw the defendant run a stop sign and crash into the plaintiff's car. The witness was not associated with the defendant in any way. The plaintiff's attorney questioned the witness in an attempt to get her to testify that she saw the defendant run the stop sign, but she would not do so, and seemed to be deliberately avoiding the topic. Finally, the plaintiff's attorney asked that the witness be treated as hostile, and asked her, "Did you see the defendant run the stop sign on the day in question?" The defendant's attorney objected to the form of the question. How is the court likely to rule on the defendant's objection? Answer Choices:Overrule it, because a party may generally ask leading questions of his own witnesses.Overrule it, because a leading question was necessary to develop the witness's testimony.Sustain it, because a party may not treat his own witness as hostile.Sustain it, because leading questions are not appropriate for this witness.

Answer choice B is correct. The question at issue is a leading question, which is a question that suggests its answer. Leading questions generally are inadmissible on direct examination. However, the federal rules allow leading questions on direct examination in certain situations when it is necessary to develop testimony, such as when the witness is a child, has difficulty communicating due to age or a physical or mental problem, is hostile, is an adverse party, or is associated with an adverse party. In this case, the witness was hostile, so leading questions were an appropriate way to elicit testimony, making answer choice D incorrect. Answer choice A is incorrect because it is too broad; a party generally may not ask leading questions of his witnesses unless the testimony is purely related to uncontested or incidental matters or when it is necessary to develop the witness's testimony for one of the reasons mentioned above. Answer choice C is incorrect because it is possible for a party's own witness to become hostile or for a party to call a witness he knows is hostile.

In a bicycle race with a $5,000 prize for the winner, a cyclist was leading by a significant margin. A spectator at the race was married to the second place rider. Sensing that her husband would not win unless she took action, the spectator drove to a point two miles ahead on the course, scattered several nails in the middle of the course, and then left the area. Soon thereafter, the cyclist approached the area and noticed the nails. He attempted to swerve around the obstruction but a nail punctured his tire. He fell off his bike, suffered significant physical injuries, and was unable to complete the race. If the cyclist sues the spectator, under what theory is the cyclist least likely to recover maximum punitive damages? Answer Choices:AssaultIntentional infliction of emotional distressTrespass to chattelsBattery

Answer choice B is correct. To sustain a claim of intentional infliction of emotional distress, a plaintiff must prove that the defendant intended to cause severe emotional distress, or acted with recklessness as to the risk of causing such distress. The claimed conduct must be extreme and outrageous, and the plaintiff must suffer severe emotional distress. Here, there is no factual evidence that the bicyclist suffered severe emotional distress. A plaintiff can recover punitive damages in assault, battery, and trespass to chattels claims, if the defendant's behavior is willful and wanton, reckless, or if the defendant acted with malice. Here, the facts suggest such a situation, as the spectator was attempting to knock the cyclist out of the race. For these reasons, answers A, C, and D are incorrect.

Question Text: A surgeon was operating on a patient using a new device she invented. Unfortunately, the patient died. The patient's husband has filed a wrongful death lawsuit against the surgeon in federal court. The husband retained an expert witness who will testify at trial that the device used by the surgeon was defective and the cause of the patient's death. The husband disclosed the identity of this expert witness and provided the expert's report to the surgeon 30 days before the date set for trial, although the husband could have made the disclosure several months earlier. At that time, the surgeon had already hired her own expert witness to testify as to the safety of the new device. The disclosure of the husband's expert witness had no impact on the surgeon's pre-trial preparation. Can the husband's expert testify at trial? Answer Choices:Yes, because the disclosures related to this expert were made in a timely manner.Yes, because the failure to timely make the expert disclosures was harmless.No, because the disclosures related to this expert were not made in a timely manner.No, because the timing of the disclosures was not substantially justified.

Answer choice B is correct. Under Rule 37(c)(1), if a party fails to make or supplement its automatic disclosures as required by Rules 26(a) and (e), then the party will not be permitted to use the documents or witnesses that were not disclosed unless the nondisclosure was substantially justified or was harmless. Here, the husband's expert witness disclosure was not timely. Expert witness disclosures must occur at least 90 days before the date set for trial. However, because the failure to disclose in a timely manner was harmless to the surgeon, the husband can use the testimony at trial. For this reason, answer choice C is incorrect. Answer choice A is incorrect because expert witness disclosures must occur at least 90 days before the date set for trial. Answer choice D is incorrect. Although the disclosures could have been made several months earlier and thus nondisclosure was not substantially justified, it was harmless. Therefore, the testimony could be used at trial.

Question Text: In a civil action properly removed from state court to federal district court based on diversity jurisdiction, a jury of eight persons was empanelled. During the trial, the court excused a juror for good cause. The case was submitted to the jury and the remaining jurors returned a verdict for the plaintiff by a vote of 6-to-1. The law of the state in which the court is located requires a verdict to be rendered by a jury of at least six persons in a civil lawsuit and permits a verdict to be reached by a vote of 5-to-1. Can the defendant successfully challenge this verdict? Answer Choices:Yes, because the verdict was returned by a jury with seven members.Yes, because the verdict was not unanimous.No, because at least six members of the jury voted in favor of the verdict.No, because this is a diversity action and state law permits a verdict by a lesser majority.

Answer choice B is correct. Under the Federal Rules of Civil Procedure, a jury verdict must be unanimous, unless the parties stipulate otherwise. Here, the verdict, while rendered by a substantial majority, does not satisfy the unanimity requirement. Answer choice A is incorrect. Under the federal rules, a jury verdict must be returned by a jury of at least six members. Here, the jury had seven members and thus meets the required number. Therefore, the defendant would not be able to successfully challenge the verdict on the ground that there were seven jury members. Answer choice C is incorrect. Although the federal rules do permit a six-member jury to render a verdict, the rules require that regardless of the size of the jury, the verdict be unanimous. Answer choice D is incorrect because there is a direct conflict between the state law and the federal rule regarding the unanimity requirement with regard to a jury verdict. This issue is governed by the federal rule rather than state law because the action is in federal district court, even though the federal district court's jurisdiction is based on diversity and the action was initiated in state court and removed to federal court.

Question Text: On a winter day, a youth, seeking refuge from the cold, entered a small neighborhood grocery store without the knowledge of the store's owner, who was standing at the cash register. Shortly thereafter, the only other person in the store approached the register and requested an item located on a shelf behind the owner. As the owner turned to retrieve the requested item, the individual drew a gun and commanded the owner to give him the money in the register. As the owner turned back toward the customer, the customer fired the gun at her and missed. The owner grappled with the customer and succeeded in knocking the gun out of the customer's hand. As the customer retrieved his gun, the owner grabbed her own gun, for which she had a valid license. They fired at each other, each missing the other. Although the owner's actions did not create an unreasonable risk of harm to the youth, the bullet from the owner's gun nevertheless struck and killed the youth. The estate of the youth filed a wrongful death action against the store owner. Who will prevail? Answer Choices:The store owner, because the owner acted in self-defense.The store owner, because the owner's shooting of the youth was not negligent.The estate of the youth, because the youth was an invitee.The estate of the youth, because the youth was not a co-conspirator with the robber.

Answer choice B is correct. When a person using force in self-defense unintentionally harms an innocent third party, the person is not liable for injuries to the third party that occur while the person is acting in self-defense, so long as those injuries were accidental, rather than deliberate, and the person was not negligent with respect to the third party. Because this was the case here, answer choice B is correct, and answer choice A is incorrect. Answer choice C is incorrect because, even though the youth was an invitee, the owner's duty towards the youth was to act with reasonable care. As the owner's shooting of the youth was accidental and not negligent in light of the circumstances, the owner did not breach his duty towards the youth. Answer choice D is incorrect because the mere fact that the youth was not a co-conspirator with the robber is not enough to impose liability on the store owner; rather, the estate of the youth would have to prove that the store owner was negligent with respect to the youth while acting in self-defense or that the store owner intentionally shot the youth.

Question Text: A series of burglaries was committed while the inhabitants were away from their homes. A police officer, relying in good faith on a valid search warrant for evidence related to these burglaries, knocked on the door of the residence specified in the warrant but did not identify himself as a police officer. Without waiting for the door to be opened by the inhabitants, the officer pried it open with a crowbar, even though he had no specific reason to believe that evidence would be destroyed or that he was in danger. The officer did not find any evidence related to the burglaries, but did find a cache of illegal drugs in plain view. The applicable statute provides that an officer can break into a house "if, after notice of his authority and purpose, he is refused admittance." Prior to the trial of the homeowner for possession of the illegal drugs found during the search, the homeowner moved to exclude the drugs as evidence. Should the court grant this motion? Answer Choices:No, because the officer relied in good faith on the search warrant.No, because the officer had a valid search warrant and the drugs were in plain view.Yes, because the drugs were not covered by the search warrant.Yes, because the search was illegal.

Answer choice B is correct. When a police officer executing a valid search warrant fails to adhere to a "knock and announce" statute, evidence seized is not subject to the exclusionary rule, despite that failure. Answer choice A is incorrect because the police officer's good faith reliance on a valid warrant is irrelevant. The fact that the warrant itself is valid is sufficient to constitutionally justify the search or arrest authorized by the warrant. Answer choice C is incorrect because items that are in plain view, such as the illegal drugs, may be seized by an officer who is executing a valid warrant. Answer choice D is incorrect because, although the officer violated the "knock and announce" statute, such a violation does not require the exclusion of evidence seized pursuant to a valid search warrant.

Question Text: An organization against drunk driving sought permission from the owner of a mall to pass out leaflets in favor of tougher drunk driving laws in front of a liquor store. The mall owner denied the organization permission. The organization, filing an action in an appropriate court, sought an injunction permitting the organization to pass out its leaflets in accord with its free speech rights. The state's highest court, interpreting the state constitution, permits the exercise of free speech rights on private property that is regularly held open to the public. Of the following reasons, which is the best argument for granting the injunction? Answer Choices:Leafleting is a form of speech that is protected by the First Amendment of the United States Constitution.The reason for leafleting was related to the place where the organization sought to leaflet.The leafleting was permitted by the state constitution.By admitting members of the general public, the mall constituted a limited public forum.

Answer choice C is correct. Although, for the reasons discussed below, the First Amendment to the United State Constitution does not require the mall owner to permit leafleting in this instance, the state constitution as interpreted by the state's highest court does. A state may expand, but cannot contract, individual rights, such as free speech, granted by the United States Constitution. Answer choice A is incorrect because, although leafleting is a form of speech that enjoys First Amendment protection, such protection does not extend to leafleting on private property, even private property that is open to the public such as a mall. Answer choice B is incorrect because the fact that the purpose for leafleting has a logical relationship to the location where the leafleting is to be conducted does not trigger First Amendment protection of the leafleting, where that location is private property. Answer choice D is incorrect because, as noted with respect to answer choice A, the opening of private property to the public does not convert it into a public or limited public forum at which leafleting must be permitted despite the objection of the owner of the property.

Question Text: A defendant was charged with the sale of narcotics. At his trial, the prosecution planned on calling as witnesses the police officer who investigated the crime, an eyewitness to the crime, a desk officer to testify regarding chain of custody, and a former co-defendant who had reached a plea agreement with the prosecution. The defendant demanded, as a matter of right, that each of these individuals be excluded from the courtroom to prevent them from hearing the testimony of the other witnesses. The prosecution objected to removing any of these individuals from the courtroom. Which of the following individuals should the judge order be removed from the courtroom? Answer Choices:The eyewitness only.The eyewitness and the former co-defendant only.The eyewitness, the former co-defendant, and the desk officer, but not the investigating officer.The eyewitness, the former co-defendant, the desk officer, and the investigating officer.

Answer choice C is correct. At a party's request, the court must order the exclusion of a witness from the courtroom so that the party cannot hear the testimony of the other witnesses, unless an exception applies. There is an exception for a person whose presence is essential to the presentation of a party's case, such as the police officer in charge of investigating a criminal case. Answer choices A and B are incorrect because there is no exception for an eyewitness, a former co-defendant, or an officer who testifies as to chain of custody. Accordingly, these individuals must be removed from the courtroom if so requested by the defendant. Answer choice D is incorrect because it would wrongfully exclude the investigating officer, whose presence is essential to the presentation of the prosecution's case.

Question Text: Concerned with protecting the use of federal funds from the deleterious effects of bribery, Congress enacted a statute criminalizing the acceptance of a bribe by a state or local official where the state or local government received at least $10,000 in federal funds. A county government, in exchange for its agreement to permit the housing of federal prisoners in the county's jail, received a payment of federal funds for each prisoner. The total amount received by the county government for housing federal prisoners exceeded $100,000 annually. A federal prisoner housed in the county jail agreed to transfer title to a pickup truck to a prison guard in exchange for the guard permitting the prisoner to receive illegal conjugal visits. The prison guard was charged with violating the statute. Is the application of the statute to the guard's taking title to the prisoner's truck constitutional? Answer Choices:No, because the bribe did not directly relate to the federal funds.No, because a federal statute that criminalizes noneconomic behavior must have a significant impact on interstate commerce.Yes, because the statute was a valid congressional exercise, pursuant to the Necessary and Proper Clause, of ensuring that its power to appropriate money for the general welfare was not thwarted.Yes, because the statute was a valid congressional exercise of its inherent police powers.

Answer choice C is correct. Congress may enact legislation that is necessary and proper to execute its spending power. Here the criminalization of the taking of bribes by an official of an entity that receives substantial federal funds is necessary and proper to ensure that such funds are properly spent. Such funds are provided to the state and local governments pursuant to the Spending Clause. Answer choice A is incorrect because the Constitution does not require that the bribe directly relates to the federal funds. The preferential treatment given the prisoner was a threat to the integrity and proper operation of the federal program, and hence justified imposition of criminal sanctions on the guard. Answer choice B is incorrect because the congressional authority for this criminal statute was based on the Spending Clause, not the Commerce Clause. While the Commerce Clause requires a link to interstate commerce, the Spending Clause permits Congress to act for the general welfare. Answer choice D is incorrect because Congress, unlike state legislatures, does not possess a general police power.

Question Text: A developer purchased a 60-acre parcel of wooded land and divided the parcel into 20 three-acre lots. The developer advertised the rustic character of the lots and the intent to sell the lots for development as single-family residences. This was in conformity with the zoning restrictions on the land, which required that the land be used for residential purposes and that the size of each lot not be less than two acres. Over a period of several years, the developer sold 15 of the lots. The deed for each of these lots contained the following provision: This deed is subject to the condition that the property may only be used for residential purposes and may not be subdivided but must be sold in its entirety. This condition shall be a covenant running with the land and shall be binding on all owners, their heirs, devisees, successors, and assignees. The deed for each lot was promptly and properly recorded. The developer, facing financial difficulty, sold the remaining five lots to a land speculator. The deeds to these lots did not contain the character and size provision that the developer had inserted into the other deeds, nor did the speculator have actual knowledge of the developer's advertising related to the character and size of the lots. The land speculator, acting in response to a zoning change that reduced the minimum permissible size of a lot to only one acre, has obtained governmental approval to divide each of the five remaining lots in thirds and is now offering the 15 lots for sale. An owner of one of the three-acre lots has brought suit against the speculator seeking an injunction to prevent him from selling the lots in less than three-acre parcels. Can the speculator successfully defend against this lawsuit? Answer Choices:Yes, because the speculator's deeds did not contain the character and size provision.Yes, because the speculator has obtained governmental approval to subdivide the lots.No, because the lots purchased by the speculator are subject to an implied servitude.No, because the speculator purchased the lots for commercial rather than residential purposes.

Answer choice C is correct. Each of the speculator's lots is subject to an implied reciprocal servitude. Although normally an equitable servitude must be in writing, the existence of a common scheme is evidenced by the developer's advertising and the insertion of the character and size provision into the deeds for the other 75% of lots. In addition, although the speculator had neither actual nor record notice of the size restrictions, the speculator had inquiry notice based on the uniformity in size of each of the other lots that had been sold. Answer choice A is incorrect because, as the name suggests, an implied reciprocal servitude does not require record notice, but is implied from the existence of a common scheme. Answer choice B is incorrect because obtaining governmental approval by complying with the applicable zoning ordinance does not protect an owner from also having to adhere to a private land use restriction. Answer choice D is incorrect because, although the speculator did not purchase the lots for the purpose of constructing a residence on each lot, the speculator did not use the property for nonresidential purposes.

Question Text: A law makes it a crime to "knowingly sell, distribute, or barter a sexually explicit film featuring actors younger than the age of majority." The owner of an adult video store sold explicit videos in her store that featured 18-year-old actors, but she took reasonable steps to ensure that no videos featuring younger actors were sold in her store. The video store owner, however, incorrectly believed that the age of majority in the jurisdiction was 18; in fact, the age of majority was 19 years old. The owner was arrested and charged with violating the statute in a jurisdiction that has adopted the Model Penal Code. The prosecution does not contest that her error was made honestly. Should she nonetheless be convicted? Answer Choices:Yes, because the owner's error was a mistake of law, which is not a valid defense.Yes, because the owner knowingly sold the illegal videos.No, because the owner's error negated the requisite mens rea.No, because the owner's conscious objective was not to engage in selling the illicit videos.

Answer choice C is correct. If a statute does not state the culpable mind applicable to all material elements of the crime, then the mens rea applicable to one material element is applicable to all material elements unless a contrary purpose plainly appears. Consequently, the "knowingly" state of mind is applied to both the "sell, distribute, or barter a sexually explicit film" element and the "featuring actors younger than the age of majority" element. Here, the store owner subjectively did not know that the videos she was selling featured performers below the age of majority; thus, she cannot be convicted under the statute. For the foregoing reasons, answer choice B is incorrect. Answer choice A is incorrect because an honest mistake of law can be a valid defense when the mistake negates the required intent. Answer choice D is incorrect because it applies the "purposely" mental state, when "knowingly," a lesser mental state, is the mens rea required by the statute.

Question Text: Following an accident in which a pedestrian was struck and killed by a bus, the pedestrian's children filed a wrongful death action against the bus company. In the complaint, the plaintiffs asserted that the bus company was vicariously liable for the bus driver's negligence, and also liable for its own negligence in hiring the bus driver. In support of both theories of liability, the plaintiffs moved to admit into evidence the bus driver's driving record prior to the driver's employment with the bus company. The driving record included several misdemeanor moving violations and prior suspension of the bus driver's license. The defendant objected, arguing that the evidence constituted improper character evidence. How should the court rule? Answer Choices:The court may admit the driving record to support both the vicarious liability and negligent hiring theories.The court may admit the driving record, but only to support the vicarious liability theory.The court may admit the driving record, but only to support the negligent hiring theory.The court must exclude the driving record.

Answer choice C is correct. In a civil case, evidence of a person's character trait generally is inadmissible to prove that the person acted in accordance with that character trait on a particular occasion. Character evidence is admissible, however, when character is an essential element of a claim or defense, rather than a means of proving a person's conduct. Here, the bus driver's driving record cannot be used to show that the bus driver had a propensity to drive negligently and did so on this occasion, but it can be admitted for the purpose of showing that the bus company knew or should have known about the driving history of its employee and therefore acted negligently in hiring the bus driver. Answer choice A is incorrect because the court may not properly admit the driving record to support the vicarious liability theory, as it would constitute improper character evidence. Answer choice B is incorrect because character evidence may be used when character is an essential element of a claim or defense, such as in negligent hiring actions, but may not be used to prove character. Answer choice D is incorrect because, although character evidence may not be used to prove character in most civil actions, it may be used in cases where character is an essential element of the claim.

Question Text: A car dealership sued a car manufacturer in the federal court for State A for breach of contract, alleging that the cars provided by the manufacturer to the dealership were defective. The car dealership is incorporated in State A where its principal place of business is located. The car manufacturer is incorporated in State B where its principal place of business is located. The federal court for State A has personal jurisdiction over the car manufacturer. The contract that formed the basis of the action contains a forum-selection provision that designated the federal court for State B as the only appropriate venue in which litigation of disputes arising under the contract could be pursued. The car manufacturer has moved to dismiss this action for improper venue. Under the law of State A, a forum selection clause is unenforceable. How should the court rule on this motion? Answer Choices:Grant this motion, because of the forum selection clause.Grant this motion, because, under federal law, a forum selection clause generally is enforceable.Deny this motion, because the federal court for State A had personal jurisdiction over the car manufacturer.Deny the motion, because a forum selection clause is unenforceable under the law of the forum state.

Answer choice C is correct. In general, venue in a federal civil action is proper in (i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or (ii) a judicial district in which a "substantial part of the events or omissions" on which the claim is based occurred, or where a "substantial part of the property" that is the subject of the action is located. A defendant that is an entity with the capacity to sue and be sued, regardless of whether incorporated, is deemed to reside in any judicial district in which the entity is subject to personal jurisdiction with respect to the civil action in question. Since the federal court for State A has personal jurisdiction over the car manufacturer, venue is proper in State A. Answer choice A is incorrect because, while the contract in question contains a forum-selection clause and this clause could be given effect by the federal court if the car manufacturer sought to transfer the case to a federal court for the State B, this clause does not affect whether venue is proper. Answer choice B is incorrect because, although the enforceability of the forum selection clause under federal law would permit the federal court for State A to transfer this case to the federal court for State B, it is not relevant to the question of whether venue is proper in the federal court for State A. Answer choice D is incorrect because (i) the issue of proper venue in a federal diversity jurisdiction case is a procedural issue that is governed by federal law, not state law; and (ii) the enforceability of the forum selection clause, regardless of the applicable law, is not relevant to the question of whether venue is proper in the federal court in State A. Note, however, that if the defendant had moved to transfer to the federal court for State B based on the contract's forum selection provision (rather than to dismiss the action for improper venue), the court most likely would transfer the case to the federal court for State B. The Supreme Court has held that although a forum selection clause does not render venue improper in other districts, a motion to transfer to the forum state agreed to by the parties should be granted in "all but the most unusual cases."

Question Text: A telephone company was removing wooden utility poles on a residential street and replacing them with new steel poles. The old poles were approximately 25 feet tall, and weighed several tons each. One morning, telephone company employees were removing an old pole. As a 10-year-old boy walked past the construction site, the old utility pole fell and crushed him to death. When the news was conveyed to the boy's mother, who was at work several miles away, she immediately fainted. For the next 48 hours, the mother was unable to function due to shock over the event. In the following months, the mother had difficulty sleeping due to nightmares as a result of the incident. The mother sued the telephone company for negligent infliction of emotional distress stemming from her son's death. She produced evidence at trial conclusively establishing that the telephone company was negligent in allowing the old utility pole to fall. The applicable jurisdiction has abandoned the zone of danger requirement for this type of action. Which party is likely to prevail? Answer Choices:The mother, because she was closely related to the boy.The mother, because she suffered severe emotional distress.The telephone company, because the mother was not present at the scene of the accident.The telephone company, because its actions were not extreme and outrageous.

Answer choice C is correct. In order for a person who is not within the zone of danger to recover under a theory of negligent infliction of emotional distress, she must (i) be closely related to the person injured by the defendant, (ii) be present at the scene of the injury, and (iii) personally observe (or otherwise perceive) the injury. In the instant case, the mother was not present at the scene of the accident. Thus, the mother's claim cannot succeed. Answer choice A is incorrect because although a bystander must be closely related to the person directly harmed in order to recover, the existence of this relationship is not the sole requirement for recovery. Similarly, answer choice B is incorrect because, although the mother's fainting, shock, and sleeping problems are sufficient indicia of severe emotional distress, the existence of such distress is not the sole requirement for recovery. Answer choice D is incorrect because "extreme and outrageous conduct" is an element of intentional infliction of emotional distress, not negligent infliction of emotional distress.

Question Text: In the Labor Management Relations Act, Congress expressly authorized the president to seize plants to avert a labor shutdown if the president determined that a shutdown would threaten national security. In response to a threatened national strike by America's steel workers, the president ordered the government to seize and operate steel mills to ensure steel production that the president deemed vital to the War on Terrorism and hence to national security. Subsequent to the order, Congress did not explicitly approve or disapprove of the president's action. One of the companies affected by the president's order filed a suit in an appropriate federal court claiming that the order violated the Constitution. What is the most likely ruling? Answer Choices:Congress unconstitutionally delegated its legislative power to the president because the statutory standard—that a shutdown would "threaten national security"—does not provide a specific, intelligible standard.The president lacked power as Commander-in-Chief to take this action because it involved domestic affairs, not military decisions in the foreign theater of war.The president had Article II power to take this action.The president's action would be lawful only if Congress explicitly approved it.

Answer choice C is correct. Presidential power under Article II is greatest when the president acts pursuant to Congressional authorization. Here, Congress expressly authorized the president to seize plants to prevent a shutdown that would threaten national security. Answer choice A is incorrect because, although the delegation of legislative power to the executive is subject to the requirement that the exercise of such power must be subject to a specific, intelligible standard, the Supreme Court has so loosely interpreted this requirement that almost any standard has satisfied this requirement. Answer choice B is incorrect because the President generally can take domestic action to protect national security where Congress has authorized him to do so. Answer choice D is incorrect because where (as here) Congress has broadly authorized the President to take an action (seizing domestic plants) if he determines that national security is at stake, the action is valid and does not need any later congressional approval.

Question Text: An employee at a toy store intervened in a dispute between two unrelated customers, a mother and a grandfather, over who was entitled to a particular hard-to-come-by doll, which was the only remaining one at the store. The employee arbitrarily determined that the mother had possession of the doll first and awarded her the right to purchase the doll. When the grandfather protested the employee's decision, the mother threatened to inflict physical harm on the grandfather and raised her arm to strike him. Fearful that the mother would do so, the grandfather looked to the employee for help. The employee, who because of his size could easily have forestalled the mother's attack, simply shrugged his shoulders. Before the mother made contact with the grandfather, he crumpled to floor, the victim of a stroke caused by the mother's threat. The grandfather initiates a lawsuit against the mother, the employee, and the owner of the store on the grounds of assault for damages attributable to his stroke. The owner of the store moves to dismiss the complaint against herself for failure to state a cause of action. How should the court rule? Answer Choices:Deny the motion, because the grandfather was reasonably apprehensive of an immediate battery.Deny the motion, because the employee failed to act to protect the grandfather.Grant the motion, because the owner is not vicariously liable for assault by one customer upon another.Grant the motion, because respondeat superior does not apply to an employee's intentional torts.

Answer choice C is correct. The store owner is not vicariously liable for an assault committed by one customer upon another. Any liability that the owner might have from the incident would arise from her employee's negligence for failure to prevent the assault. Answer choice D is incorrect because, while an employer is generally not liable for an employee's intentional torts, an employer may be liable for such a tort if the employer authorizes the employee's use of force or force is inherent in the nature of the employment. Moreover, it was the mother, not the employee, who committed an assault against the grandfather. Answer choice A is incorrect because, while the grandfather was reasonably apprehensive of an imminent battery by the mother, neither the employee, nor vicariously the owner, committed an assault with respect to the grandfather. Answer choice B is incorrect because neither the employee nor the owner is liable for the grandfather's injuries on the basis of assault.

uestion Text: The United States Supreme Court, overruling Roe v. Wade and Planned Parenthood v. Casey, held that women do not have a constitutional right to abortion. Congress responded by passing the Abortion Rights Restoration Act (ARRA), which restored the essential holdings of Roe and Casey by prohibiting any government from unduly burdening a woman's exercise of the constitutional right to abortion. In a constitutional challenge to the validity of ARRA, is a federal court likely to strike down the act? Answer Choices:No, because Congress had a rational basis for concluding that abortions are a commercial activity that, considered in the aggregate, substantially affect interstate commerce.No, because Congress is defining constitutional rights more expansively than the Supreme Court, not restricting them.Yes, because Congress is not remedying the violation of a judicially recognized constitutional right, but rather is attempting to create a new constitutional right.Yes, because it violates the constitutional principle of federalism.

Answer choice C is correct. Under Section 5 of the Fourteenth Amendment, Congress can only enforce constitutional rights as declared by the Supreme Court—not create new rights. In this case, Congress is attempting to create a constitutional right to an abortion, which has not been recognized by the Supreme Court. Answer choice A is incorrect because Congress in ARRA is not regulating the commercial or economic aspects of abortion and has set forth no facts indicating any connection of ARRA to interstate commerce. Rather, Congress is simply trying to overturn the Supreme Court's interpretation of the Constitution as not establishing a right to abortion. Answer choice B is incorrect because, under principles of separation of powers, Congress can neither expand nor contract constitutional rights as defined by the Supreme Court. Answer choice D is incorrect because, acting pursuant to Section 5 of the Fourteenth Amendment, Congress has the power to enforce rights created by the Fourteenth Amendment (as interpreted by the Supreme Court) against the states.

Question Text: The owner of a chain of retail stores built a warehouse that was financed by a loan from a bank. In exchange for the loan, the bank took a mortgage on the warehouse. Several years later, a thief broke into the warehouse by cutting a hole in the roof. The owner hired a contractor to repair the roof but, due to the contractor's shoddy work, the roof leaks whenever it rains, making a large portion of the warehouse unusable. Due to a contraction in the owner's business, the remaining usable space of the warehouse is sufficient for the owner's needs, but the unusable space impairs the bank's security interest. Learning of the condition of the warehouse, the bank requested that the owner repair the warehouse roof. The owner refused. The bank brought an action to compel the owner to properly repair the roof. The mortgage provides that it was made with recourse to the personal liability of the owner. Neither the mortgage nor the deed contains a covenant requiring the owner to maintain or repair the premises. The owner is not in default with respect to the mortgage payments. The jurisdiction follows a lien theory with regard to ownership of a mortgage and does not have an anti-deficiency statute. Will the bank succeed? Answer Choices:No, because the owner is not liable for waste.No, because the owner is not in default with respect to the required mortgage payments.Yes, because the mortgaged property is not residential.Yes, because the condition of the roof impairs the bank's security interest.

Answer choice D is correct. A mortgagor has a duty not to commit waste with respect to the mortgaged property when such waste impairs the mortgagee's security interest in that property. Answer choice A is incorrect because, even if the mortgagor is not bound by the terms of the mortgage to maintain or repair the mortgaged property, the mortgagor has a duty not to commit waste, at least to the extent that it impairs the mortgagee's security interest in the property. Answer choice B is incorrect because the mortgagor's duty not to commit waste is independent of the mortgagor's specific contractual obligations. Answer choice C is incorrect because the mortgagor's duty not to commit waste is not confined to residential mortgages.

uestion Text: A 15-year-old male was being tried in state court as an adult for murder. At voir dire, the prosecutor exercised all of his peremptory challenges to exclude persons under the age of 30 from the jury. The defendant's attorney timely raised the issue as to whether the prosecutor had utilized his peremptory challenges in an unconstitutional manner. In response to questioning by the court, the prosecutor stated that it was his intent to exclude persons who, because of their age, would be sympathetic to the defendant. The judge found that the prosecutor's reason was genuine and not pretextual. Should the judge sustain the defendant's objection? Answer Choices:Yes, because the prosecutor's use of peremptory challenges violates the defendant's Sixth Amendment right to trial by an impartial jury.Yes, because the defendant was a member of the affected class.No, because the prosecutor is permitted to exercise peremptory challenges for any rational reason.No, because the prosecutor's use of peremptory challenges does not violate the Equal Protection Clause.

Answer choice D is correct. A prosecutor is free to exercise peremptory challenges in any manner he sees fit unless such exercise violates the Equal Protection Clause. The Equal Protection Clause prevents the use of peremptory challenges for racially or gender motivated reasons. Since the prosecutor did not use peremptory challenges for either of these reasons, the judge should overrule the defendant's objection. Answer choice A is incorrect because a defendant's right to an impartial jury does not require that the jury be a fair cross-section of the community, and therefore does not protect the defendant from the prosecutor's use of peremptory challenges to exclude a distinctive group in the community. Answer choice B is incorrect because a defendant may raise the issue of the prosecution's violation of the Equal Protection Clause without being a member of the protected class. Answer choice C is incorrect because the prosecution, as well as the defense, is constrained by the Equal Protection Clause in its use of peremptory challenges.

Question Text: A uniformed police officer learned about a possible burglary of a home and went to investigate. When the officer arrived, she attempted to get into the home through the front door, but found it locked. Going to the back of the home, the officer found a door slightly open. Drawing her gun, she entered the home and announced that she was a police officer. The homeowner, honestly but unreasonably fearing that the officer was the person who had broken into the home earlier, shot and killed the officer. The homeowner was charged with murder of the police officer. The jurisdiction recognizes "imperfect" self-defense. Can the homeowner be convicted of this crime? Answer Choices:Yes, because the homeowner killed the police officer.Yes, because the homeowner's use of deadly force was unreasonable.No, because the homeowner had no duty to retreat before using deadly force.No, because the homeowner honestly believed that the police officer threatened him with death or serious bodily injury.

Answer choice D is correct. Although a defendant who is not the aggressor is justified in using reasonable force in self-defense against another person to prevent immediate unlawful harm to himself, the defendant's belief that the other person's actions represent an immediate threat must be reasonable. When such belief is unreasonable but honest, the defendant is entitled to assert "imperfect self-defense," which reduces his crime from murder to voluntary manslaughter. Consequently, the homeowner cannot be convicted of murder, since he acted in self-defense on his honest but unreasonable belief that the officer threatened him with death or serious bodily harm. Answer choice A is incorrect because, although the homeowner did kill the officer, his imperfect self-defense reduces the charge from murder to voluntary manslaughter. Answer choice B is incorrect because, while the homeowner's unreasonable belief of the need to use deadly force prevents him from successfully asserting self-defense, his honest belief of the need to use deadly force permits him to successfully lay claim to the imperfect self-defense. Answer choice C is incorrect because, although an accurate statement of the law, the absence of a duty to retreat protects the homeowner from criminal liability for the use of deadly force only when the homeowner's belief as to the need to use deadly force was reasonable.

Question Text: A high school teacher played on a hockey team in a local recreational league. During a league game, the teacher was involved in a fight with another hockey player. That player sued the teacher in a battery action to recover for injuries inflicted during the fight. The teacher contended that he had acted in self-defense. The teacher called his principal to testify that the teacher had a reputation within the school community for peacefulness. The plaintiff, who had not introduced evidence of the teacher's character for violence, objected to this testimony. Should the court admit this testimony? Answer Choices:Yes, because the defendant is entitled to introduce evidence of a pertinent good character trait.Yes, because character evidence may be introduced through reputation testimony.No, because the plaintiff had not introduced evidence of the teacher's character for violence.No, because such evidence is not admissible in a civil action.

Answer choice D is correct. Evidence of a defendant's character is inadmissible in a civil case to prove that the defendant acted in conformity with that character trait unless the defendant's character is an essential element of a claim or defense. Since the defendant's character for peacefulness is not an element of either battery or self-defense, the principal's testimony is not admissible. Answer choice A is incorrect because, although a defendant is permitted to introduce evidence of a pertinent good character trait in a criminal case, such evidence is not admissible in a civil case. Answer choice B is incorrect because, although reputation testimony is an acceptable form of presenting character evidence when such evidence is permitted, character evidence is generally not admissible in a civil action. Answer choice C is incorrect because it is not relevant that the plaintiff has not introduced such evidence. Such evidence is not permitted in a civil case, whether introduced by the plaintiff or the defendant.

Question Text: A recidivism statute calls for a mandatory life sentence for a defendant who is convicted of three felonies. The defendant was convicted of felony theft three separate times and was sentenced to life in prison after his conviction for the third theft. In each case, the defendant stole the items from stores when nobody was watching. He did not use any weapons, nor was he violent. The defendant challenges the sentence on constitutional grounds. Will the defendant succeed? Answer Choices:Yes, because the sentence violates the Eighth Amendment prohibition on cruel and unusual punishment because the defendant's crimes were non-violent.Yes, because the sentence violates the Double Jeopardy Clause.No, because the Eighth Amendment prohibition on cruel and unusual punishment only applies to degrading or painful sentences involving the use of force.No, because the recidivism statute is constitutional even when applied to non-violent offenders.

Answer choice D is correct. The Eighth Amendment prohibition does not prohibit life sentences for three-time repeat felony offenders, even if they are non-violent, making answer choice A incorrect. Answer choice B is incorrect because this type of recidivism statute has been judged not to violate the Double Jeopardy Clause. Answer choice C is incorrect because the Eighth Amendment applies to all cruel and unusual punishment, not just that which involves the use of force. Some sentences that are not proportional to the crime have been held to violate the Eighth Amendment even if the sentences do not involve the use of force.

Question Text: A publishing company entered into a contract to purchase a newspaper company. The contract specified that "it shall be a condition precedent to buyer's obligation to pay that the newspaper shall have 200,000 subscribers by December 31 of this year." In anticipation of the purchase, the publishing company purchased $200,000 of new equipment to be used in printing the newspaper; the newspaper was aware of the investment. At the end of the business day on December 31, the newspaper had only 199,750 subscribers, and had no justification for the shortfall. The publishing company immediately redirected $100,000 of the new equipment to print one of its magazines, but the other $100,000 of equipment was custom-made for the newspaper and could not be used elsewhere. The publishing company refused to go through with the sale, and then sued the newspaper company for $100,000. Is the publishing company likely to prevail? Answer Choices:Yes, because the newspaper company did not comply with the condition precedent.Yes, because the publishing company mitigated its damages to the maximum extent reasonably possible.No, because the newspaper company substantially complied with the condition precedent.No, because failure of a condition precedent does not give rise to damages.

Answer choice D is correct. The claim for $100,000 is a claim for reliance damages, which may be recovered if the nonbreaching party incurs expenses in reasonable reliance upon the promise that the other would perform. Here, however, there is no breach, because the 200,000 subscriber requirement was a condition precedent, and not a promise. The failure of a promise is a breach, and gives rise to damages, while the failure of a condition merely relieves a party of the obligation to perform. Consequently, the publishing company need not perform by meeting its obligation to pay, but it is not entitled to damages. Answer choice A is incorrect because, while it correctly describes the condition and the failure of the newspaper company, it reaches the wrong conclusion. Answer choice B is incorrect because the mitigation of damages is irrelevant, given that the failure to satisfy a condition does not generally give rise to damages. Answer choice C is incorrect because, since the condition precedent was express, it must be complied with fully; substantial compliance is not sufficient.

Question Text: A large clothing retailer contracted with a firm that specialized in custom printing to print the logo of a major sporting event onto 5,000 jerseys. The logo was coupled with an identifying landmark of the city in which the event was to take place. The retailer planned to sell the jerseys as souvenirs at the event. As called for in the contract, the retailer supplied the firm with the jerseys and paid half the contract price. Shortly before the event and before any shirts had been printed, the stadium where the game was to be held was damaged by an earthquake. As a consequence, the event was moved to another city. The retailer demanded the return of its payment and the jerseys. The supplier, claiming that it was entitled to the benefit of its bargain, kept its anticipated profit of $2,000 but returned the jerseys and the remainder of the payment to the retailer. The retailer filed a lawsuit seeking rescission of the contract and return of the $2,000. What is the retailer's best argument in support of its suit? Answer Choices:Performance of the contract has become impracticable because the relocation of the sporting event was an unforeseeable occurrence.The relocation of the sporting event has made enforcement of the contract on its original terms unconscionable.The contract is void due to mutual mistake, as both parties were mistaken as to an essential element of the contract.The retailer's contractual duties are discharged because the game's relocation frustrated the purpose of the contract.

Answer choice D is correct. The doctrine of frustration of purpose applies when an unexpected event arises that destroys one party's purpose in entering into the contract, even if performance of the contract is not rendered impossible. The event that arises must not be the fault of the frustrated party, and its nonoccurrence must have been a basic assumption of the contract. The frustrated party is entitled to rescind the contract without paying damages. Here, relocation of the sporting event was not a foreseeable prospect, and only occurred because of an improbable event—an earthquake that damaged the stadium. Consequently, the contract should be rescinded and the $2,000 returned to the retailer. Answer choice A is incorrect because impracticability applies when the specific subject matter of the contract is destroyed, or when performance becomes impracticable. Here, the shirts have not been destroyed and could be printed in the manner called for in the contract. Answer choice B is incorrect because in order for the doctrine of unconscionability to be applied, all or part of the contract must have been unconscionable at the time of contract formation. Here, that was not the case. Answer choice C is incorrect because relocation of the game was not a mutual mistake among the parties; rather, it was an unforeseen event that was not reasonably foreseeable by the parties.

Question Text: The defendant declined to enter into a contract to sell her house for $200,000 to the plaintiff. The next day, the defendant executed a contract to sell her house to another individual for $201,000. The plaintiff sued the defendant in the appropriate federal court and claimed that the defendant's decision was based on the plaintiff's ethnicity and thus violated a federal statute. The court granted summary judgment for the defendant. The plaintiff then sued in the same federal court, claiming that the defendant's decision was based on the plaintiff's disability, in violation of another federal statute. Can the plaintiff pursue this action if challenged by the defendant? Answer Choices:Yes, because the second claim of disability discrimination was based on a different federal statute than the first claim.Yes, because the court decided the prior claim of discrimination based on ethnicity through summary judgment, rather than upon a full consideration of the merits.No, because the doctrine of collateral estoppel precludes the second case.No, because the claim of disability discrimination was precluded, as it arose out of the same transaction as the prior claim of discrimination based on ethnicity.

Answer choice D is correct. The federal court's final judgment in the first case precludes the plaintiff from litigating the identical claim in the second action against the same defendant. Here the two actions are deemed to be identical because they arose out of the same transaction: the defendant's decision not to sell her house to the plaintiff. Answer choice A is incorrect because the inquiry focuses on whether the two actions arose out of the same transaction, not on whether different federal statutes may have been violated. Here, the plaintiff could have made the claim of disability discrimination against the defendant in the first action, and is barred from doing so in a subsequent litigation. Answer choice B is incorrect because a summary judgment constitutes a final judgment on the merits. Answer choice C is incorrect because collateral estoppel does not apply, as the court never determined the disability discrimination issue in the first case.

A man decided to master the art of throwing knives. He practiced for several years, until he had perfected his skills and was able to hit a spot no larger than a dime with confidence. After demonstrating his prowess to a friend, the man convinced the friend to stand against a wall while the man threw knives at her. The man threw three knives extremely close to the friend, but the fourth knife struck the friend, injuring her slightly. Although the friend's injury was minor, unbeknownst to the man, she had a rare blood disorder that caused her to bleed to death. The crimes below are listed in ascending order of seriousness. What is the most serious common law crime for which the man can be convicted? Answer Choices:BatteryInvoluntary manslaughterVoluntary manslaughterMurder

Answer choice D is correct. The man may be convicted of depraved heart murder. Depraved heart murder is a killing that results when the defendant acts with reckless indifference to a known and unjustifiably high risk. For this type of murder, the man need not have had the intent to cause either death or serious bodily injury. The woman's consent to the act that led to her death is not a defense. Nor is the fact that the woman's death would not have happened but for her rare medical condition, or the man's lack of awareness of that condition. Because the man may be convicted of murder, the less serious crimes listed in answer choices A, B, and C are incorrect.

Question Text: A plaintiff brought an action in federal court based on diversity jurisdiction to rescind a contract to transfer real property to the defendant. The plaintiff contended that the defendant's conduct with regard to the contract constituted duress. Upon the death of the plaintiff, the personal representative of the plaintiff's estate continued the action. The applicable state law, which otherwise follows the Federal Rules of Evidence, contains a Dead Man's statute, which reads: In any civil proceeding, where any party to a contract in action is dead and his right thereto has passed to a party who represents his interest in the subject in controversy, any surviving party to the contract shall not be a competent witness to any matter occurring before the death of said party. As part of the case-in-chief, the personal representative introduced an email written by the defendant and sent to the decedent that was relevant to the issue of duress. Immediately thereafter, the defendant, noting that the email was written in response to a letter written by the decedent to the defendant, sought to introduce that letter into evidence. The personal representative objected. Which of the following is the strongest ground upon which the personal representative can base this objection? Answer Choices:The introduction of the letter violates the state's Dead Man's statute.The letter constitutes inadmissible hearsay.The rule of completeness does not apply because the letter was a separate writing.Fairness does not require introduction of the letter during the presentation of the personal representative's case-in-chief.

Answer choice D is correct. The rule of completeness (i.e., Federal Rule 106) permits a party to compel the introduction of a statement that in fairness should be considered at the same time as an admitted writing or recorded statement. Consequently, if fairness does not require the immediate introduction of the prior letter, the defendant will have to wait until the defendant can present evidence in order to introduce this letter. Answer choice A is incorrect. While the Dead Man's Statute prevents a surviving party to a contract from serving as a witness regarding any matter occurring before the death of another party to the contract, the defendant is not seeking to testify regarding that contract, but instead is seeking to introduce into evidence a written statement made by the decedent. Answer choice B is incorrect because, since the letter was written by the decedent whose estate is the subject of the litigation, the letter would be non-hearsay as a statement by a party-opponent. Answer choice C is incorrect because, while the rule of completeness generally is applied to the introduction of an omitted portion of an admitted writing or recorded statement, this rule can also apply to separate related writing or recorded statement.

Question Text: A testator who was estranged from her immediate family properly executed a will. Under the terms of the will, the testator devised various items of personal property to her daughter. The terms of the will left the remainder of the testator's estate to an unrelated friend who was living at that time. At the time of the testator's death, the friend had died intestate, but the friend's wife and their only child, a son, were alive. The testator was unmarried at the time of her death, survived solely by her only child, a daughter. The applicable jurisdiction has the following two statutes: If a devisee related by blood to the testator in any degree of kinship is dead at the time of execution of the will, fails to survive the testator, or is treated as if the devisee predeceased the testator, the issue of the deceased devisee who survive the testator take in place of the deceased devisee. When a decedent dies without a will or possesses property that is not devised under the terms of the decedent's will, and the decedent is survived by a spouse and any child, the spouse shall share the decedent's property equally with the children. If the decedent is not survived by a spouse but is survived by any child, each surviving child shall share equally the decedent's property. The testator died owning her residence in fee simple absolute. Who is entitled to her residence? Answer Choices:Both the friend's wife and son, under the intestacy statute.The friend's son only, under the anti-lapse statute.The testator's daughter, because the testator's will did not specifically devise the residence to anyone.The testator's daughter, under the intestacy statute.

Answer choice D is correct. The testator, through the residuary clause of her will, left her residence to her friend. However, this devise lapsed because the friend predeceased the testator. The anti-lapse statute provided does not save this devise because it only applies to a devise to a person who is related by blood to the testator, which the friend is not. Because the testator's residence does not pass by the terms of her will, it passes in accord with the intestacy statute. Under this statute, because the testator was not married at the time of her death, her only child, a daughter, is entitled to the testator's property that does not pass under the terms of her will, which includes the testator's residence. Answer choice A is incorrect because, while the friend's wife and son are entitled to share equally whatever property the friend died owning, the friend had no property rights in the testator's property at the time his death, only a mere expectancy that lapsed upon his death. While an anti-lapse statute can operate to "save" a devise, the terms of this anti-lapse statute do not protect a gift to an unrelated devisee. Answer choice B is incorrect. The anti-lapse statute does not apply to this situation, and even if it did, the friend's wife and son would share the gift under intestate succession. Answer choice C is incorrect because the residuary clause of the will would have been effective to pass the residence to the testator's friend if it had not lapsed.

Question Text: A man whose terminally ill aunt had promised to devise an undeveloped parcel of land to him sold the parcel to a friend. The friend purchased the property based on the nephew's false assertion that he owned the parcel; the friend was unaware of the aunt's ownership of the parcel. The friend did not perform a title search and did not record the deed, which was a general warranty deed. Subsequently, the aunt died. As promised, she devised the parcel to her nephew. The personal representative of the estate executed and recorded a deed transferring title to the parcel to the nephew. After the aunt's death, no one paid the property taxes on the parcel. Eventually, the state seized the parcel and sold it through a tax sale. Before expiration of the redemption period that is statutorily permitted to the owner of the real property, the friend learned of the sale of the parcel for delinquent taxes. Claiming ownership of the parcel, the friend sought to pay the delinquent taxes and other costs and fees associated with the sale and thereby redeem the parcel. The buyer of the parcel at the tax sale, who had no prior knowledge of the friend's claim with respect to the parcel, objected. In an action to determine ownership of the parcel, if the court finds for the friend, what is the likely reason? Answer Choices:The friend was record owner of the parcel.The friend purchased the parcel for value and without notice.Under the doctrine of equitable conversion, the friend is the owner of the parcel.Title to the parcel vested in the friend upon the nephew's acquisition of the parcel.

Answer choice D is correct. When a person who attempts to transfer real property that he does not own subsequently becomes owner of that property, the after-acquired title doctrine provides that title to the property automatically vests in the transferee. Answer choice A is incorrect because, while the nephew did record his deed, the friend did not. Consequently, the nephew, not the friend, was owner of record of the parcel. Answer choice B is incorrect because although the friend presumably did not have actual knowledge that the aunt owned the parcel, the friend was on constructive notice that the nephew did not own the property. Moreover, even assuming the friend's status was that of a good faith purchaser, this status is irrelevant in ascertaining the friend's rights in relationship to the subsequent buyer. Answer choice C is incorrect because the doctrine of equitable conversion, which treats a buyer as the equitable owner of property during the period between execution of the contract and delivery of the deed, is irrelevant.