MBE Midterm 2 Review

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1. Questions 1-3 are based on the following fact situation. Defendant became intoxicated at a bar. He got into his car and drove away. Within a few blocks, craving another drink, he stopped his car in the middle of the street, picked up a brick, and broke the display window of a liquor store. As he was reaching for a bottle, the night watchman arrived. Startled, Defendant turned and struck the watchman on the head with the bottle, killing him. Only vaguely aware of what was happening, Defendant returned to his car, consumed more liquor, and then drove off at a high speed. He ran a red light and struck and killed a pedestrian who was crossing the street. Relevant statutes define burglary to include "breaking and entering a building not used as a dwelling with the intent to commit a crime therein." Manslaughter is defined as the "killing of a human being in a criminally reckless manner." Criminal recklessness is "consciously disregarding a substantial and unjustifiable risk resulting from the actor's conduct." Murder is defined as "the premeditated and intentional killing of another or the killing of another in the commission of committing rape, robbery, burglary, or arson." Another statute provides that intoxication is not a defense to crime unless it negates an element of the offense. Defendant was charged with the murder of the watchman and manslaughter in the death of the pedestrian. Assume that he is tried separately on each charge. /////////////////////////////////////////////////////////// At Defendant's trial for the murder of the watchman, the court should in substance charge the jury on the issue of the defense of intoxication that A. intoxication is a defense to the underlying crime of burglary if Defendant, due to drunkenness, did not form an intent to commit a crime within the building, in which case there can be no conviction for murder unless Defendant intentionally and with premeditation killed the watchman. B. voluntary intoxication is not a defense to the crime of murder. C. Defendant is guilty of murder despite his intoxication only if the state proves beyond a reasonable doubt that the killing of the watchman was premeditated and intentional. D. voluntary intoxication is a defense to the crime of murder if Defendant would not have killed the watchman but for his intoxication.

1. There is high and persistent unemployment in the industrialized state of Green. Its legislature therefore enacted a statute requiring every business with annual sales in Green of over $1 million to purchase each year goods and/or services in Green equal in value to at least half of its sales in Green. Which of the following parties most clearly has standing to contest the constitutionality of this statute of Green in federal court? A. A business in another state that supplies from that other state 95 percent of the goods and services bought by a corporation that has annual sales in Green of $20 million B. A corporation selling $300,000 worth of goods in Green but presently purchasing only $10,000 in goods and services in Green C. The governor of an adjacent state on behalf of the state and its residents D. The owner of high-grade, secured bonds issued by a corporation with sales in Green of $10 million that currently purchases only $1 million in goods and services in Green

10. A federal statute enacted pursuant to the powers of Congress to enforce the Fourteenth Amendment and to regulate commerce among the states prohibits any state from requiring any of its employees to retire from state employment solely because of their age. The statute expressly authorizes employees required by a state to retire from state employment solely because of their age to sue the state government in federal district court for any damages resulting from that state action. On the basis of this federal statute, Retiree sues State X in federal district court. State X moves to dismiss the suit on the ground that Congress lacks authority to authorize such suits against a state. Which of the following is the strongest argument that Retiree can offer in opposition to the state's motion to dismiss this suit? A. When Congress exercises power vested in it by the Fourteenth Amendment and/or the commerce clause, Congress may enact appropriate remedial legislation expressly subjecting the states to private suits for damages in federal court. B. When Congress exercises power vested in it by any provision of the Constitution, Congress has unlimited authority to authorize private actions for damages against a state. C. While the Eleventh Amendment restrains the federal judiciary, that amendment does not limit the power of Congress to modify the sovereign immunity of the states. D. While the Eleventh Amendment applies to suits in federal court by citizens of one state against another state, it does not apply to such suits by citizens against their own state.

10. Questions 8-10 are based on the following fact situation. As part of a comprehensive federal aid-to-education program, Congress included the following provisions as conditions for state receipt of federal funds: (1) Whenever textbooks are provided to students without charge, they must include no religious instruction and must be made available on the same terms to students in all public and private schools accredited by the state educational authority. (2) Salary supplements can be paid to teachers in public and private schools, up to ten percent of existing salary schedules, where present compensation is less than the average salary for persons of comparable training and experience, provided that no such supplement is paid to any teacher who instructs in religious subjects. (3) Construction grants can be made toward the cost of physical plant at private colleges and universities, provided that no part of the grant is used for buildings in which instruction in religious subject matters is offered. __________________________________________________________________________ Federal taxpayer Bates also challenges the construction grants to church-operated private colleges and universities. The most likely result is that the construction grants will be A. sustained, because aid to one aspect of an institution of higher education not shown to be pervasively sectarian does not necessarily free it to spend its other resources for religious purposes B. sustained, because bricks and mortar do not aid religion in a way forbidden by the establishment clause of the First Amendment. C. held unconstitutional, because any financial aid to a church-operated school strengthens the religious purposes of the institution. D. held unconstitutional, because the grants involve or cause an excessive entanglement with religion.

2. Questions 1-2 are based on the following fact situation. The Federal Automobile Safety Act establishes certain safety and performance standards for all automobiles manufactured in the United States. The Act creates a five-member "Automobile Commission" to investigate automobile safety, to make recommendations to Congress for new laws, to make further rules establishing safety and performance standards, and to prosecute violations of the act. The chairman is appointed by the President, two members are selected by the President pro tempore of the Senate, and two by the Speaker of the House of Representatives. Minicar, Inc., a minor United States car manufacturer, seeks to enjoin enforcement of the Commission's rules. ________________________________________________________ The appropriate decision for the court is to A. allow the Commission to continue investigating automobile safety and making recommendations to Congress. B. allow the Commission to prosecute violations of the act but not allow it to issue rules. C. forbid the Commission to take any action under the act. D. order that all members of the Commission be appointed by the President by and with the advice and consent of the Senate.

2. Questions 1-2 are based on the four case summaries below. For each question, select the case that would be most applicable as a precedent. ///////////////////////////////////////////////////////////////////////////// Harris, a heroin addict, broke into a house and took several cameras and watches, which he promptly pawned to obtain cash with which to obtain a "fix." Harris was later charged with larceny of the cameras and watches. A. Commonwealth v. Mason. Two sisters see a wealthy neighbor's pedigreed dog on the street. They take the dog home, intending to conceal it until the owner offers a reward. Held, guilty of larceny. B. Saferite v. State. Two young men saw a motor car on the street with the keys in the ignition lock. They drove the car to a neighboring town with the intention, they said, of visiting the wife of one of them. The car was wrecked on their way back. Conviction for larceny reversed. C. People v. Noblett. Defendant, a tenant of a city apartment, advertised it for sublease. Will agreed to sublease for three months, and on March 12 paid Defendant $550, the total agreed rental. Will was to receive possession on March 20, but possession was never given him. Held, not guilty of common law larceny. D. King v. Pear. From a stablekeeper, Defendant hired a horse to go to Sutton and back, saying he would be back at 8 p.m. He did not return. Investigation shows that Defendant had given a false address, and that he had sold the horse the same day. Conviction of larceny affirmed.

2. Questions 1-3 are based on the following fact situation. Defendant became intoxicated at a bar. He got into his car and drove away. Within a few blocks, craving another drink, he stopped his car in the middle of the street, picked up a brick, and broke the display window of a liquor store. As he was reaching for a bottle, the night watchman arrived. Startled, Defendant turned and struck the watchman on the head with the bottle, killing him. Only vaguely aware of what was happening, Defendant returned to his car, consumed more liquor, and then drove off at a high speed. He ran a red light and struck and killed a pedestrian who was crossing the street. Relevant statutes define burglary to include "breaking and entering a building not used as a dwelling with the intent to commit a crime therein." Manslaughter is defined as the "killing of a human being in a criminally reckless manner." Criminal recklessness is "consciously disregarding a substantial and unjustifiable risk resulting from the actor's conduct." Murder is defined as "the premeditated and intentional killing of another or the killing of another in the commission of committing rape, robbery, burglary, or arson." Another statute provides that intoxication is not a defense to crime unless it negates an element of the offense. Defendant was charged with the murder of the watchman and manslaughter in the death of the pedestrian. Assume that he is tried separately on each charge. ////////////////////////////////////////////////////////////////// At Defendant's trial on the charge of manslaughter in the death of the pedestrian, his best argument would be that A. he was too intoxicated to realize he was creating a substantial and unjustifiable risk in the manner in which he was operating his car. B. when he got in the car his acts were not voluntary because he was too intoxicated to know where he was or what he was doing. C. the pedestrian was contributorily negligent in failing to see Defendant's car approaching. D. he was too intoxicated to form any intent to voluntarily operate the automobile.

2. The constitution of State X authorizes a five-member state reapportionment board to redraw state legislative districts every ten years. In the last state legislative reapportionment, the board, by a unanimous vote, divided the greater Green metropolitan area, composed of Green City and several contiguous townships, into three equally populated state legislative districts. The result of that districting was that 40% of the area's total black population resided in one of those districts, 45% of the area's total black population resided in the second of those districts, and 15% resided in the third district. Jones is black, is a registered voter, and is a resident of Green City. Jones brings suit in an appropriate court against the members of the state reapportionment board, seeking declaratory and injunctive relief that would require the boundary lines of the state legislative districts in the greater Green metropolitan area to be redrawn. His only claim is that the current apportionment violates the Fifteenth Amendment and the equal protection clause of the Fourteenth Amendment because it improperly dilutes the voting power of the blacks who reside in that area. If no federal statute is applicable, which of the following facts, if proven, would most strongly support the validity of the action of the state reapportionment board? A. In drawing the current district lines, the reapportionment board precisely complied with state constitutional requirements that state legislative districts be compact and follow political subdivision boundaries to the maximum extent feasible. B. The reapportionment board was composed of three white members and two black members and both of the board's black members were satisfied that its plan did not improperly dilute the voting power of the blacks who reside in that area. C. Although the rate of voter registration among blacks is below that of voter registration among whites in the greater Green metropolitan area, two black legislators have been elected from that area during the last 15 years. D. The total black population of the greater Green metropolitan area amounts to only 15% of the population that is required to comprise a single legislative district.

3. A city ordinance makes the city building inspector responsible for ensuring that all buildings in that city are kept up to building code standards, and requires the inspector to refer for prosecution all known building code violations. Another ordinance provides that the city building inspector may be discharged for "good cause." The building inspector took a newspaper reporter through a number of run-down buildings in a slum neighborhood. After using various epithets and slurs to describe the occupants of these buildings, the building inspector stated to the reporter: "I do not even try to get these buildings up to code or to have their owners prosecuted for code violations because if these buildings are repaired, the people who live in them will just wreck them again." The reporter published these statements in a story in the local newspaper. The building inspector admitted he made the statements. On the basis of these statements, the city council discharged the building inspector. Is the action of the city council constitutional? A. Yes, because the statements demonstrate that the building inspector has an attitude toward a certain class of persons that interferes with the proper performance of the obligations of his job. B. Yes, because the building inspector is a government employee and a person holding such a position may not make public comments inconsistent with current governmental policy. C. No, because the statements were lawful comments on a matter of public concern. D. No, because the statements were published in a newspaper that is protected by the First and Fourteenth Amendments.

3. A state statute requires the permanent removal from parental custody of any child who has suffered "child abuse." That term is defined to include "corporal punishment of any sort." Zeller very gently spanks his six-year-old son on the buttocks whenever he believes that spanking is necessary to enforce discipline on him. Such a spanking occurs not more than once a month and has never physically harmed the child. The state files suit under the statute to terminate Zeller's parental rights solely because of these spankings. Zeller defends only on the ground that the statute in question is unconstitutional as applied to his admitted conduct. In light of the nature of the rights involved, which of the following is the most probable burden of persuasion on this constitutional issue? A. The state has the burden of persuading the court that the application of this statute to Zeller is necessary to vindicate an important state interest. B. The state has the burden of persuading the court that the application of this statute to Zeller is rationally related to a legitimate state interest. C. Zeller has the burden of persuading the court that the application of this statute to him is not necessary to vindicate an important state interest. D. Zeller has the burden of persuading the court that the application of this statute to him is not rationally related to a legitimate state interest.

4. Questions 4-5 are based on the following fact situation. Ben was the illegitimate, unacknowledged child of Fred. Fred died intestate, leaving neither spouse nor any children other than Ben. The state's law of intestate succession provides that an unacknowledged illegitimate child may not inherit his father's property. The spouse, all other blood relations, and the state are preferred as heirs over the unacknowledged illegitimate child. Ben filed suit in an appropriate court alleging that the state statute barring an illegitimate child from sharing in a parent's estate is invalid, and that he should be declared lawful heir to his father's estate. ________________________________________________ In challenging the validity of the state statute, [prior to the Supreme Court's decision in 1988 in Clark v. Jeter that held illegitimacy was generally subject to intermediate-level review,] Ben's strongest argument would be that: A. there is no rational basis for preferring as heirs collateral relatives and even the state over unacknowledged children, and, therefore, the law violates the equal protection clause. B. he has been deprived of property without due process because his fundamental right to inherit has been compromised without a compelling state need. C. it violates the privileges and immunities clause of the Fourteenth Amendment. D. it is a denial of procedural due process because it does not give the unacknowledged illegitimate child an opportunity to prove paternity.

4. Questions 4-5 are based on the following fact situation. Kane, a member of the legislature of State, is prosecuted in federal court for a violation of the Federal Securities Act arising out of the activities of a state-owned corporation. Kane's defense includes a claim that the alleged wrongful acts were committed in the course of legislative business and are immune from scrutiny. ____________________________________________________________ Which of the following is the strongest constitutional argument supporting Kane? A. Because of doctrines of federalism, federal law generally cannot be applied to state legislators acting in the course of their official duties. B. State legislators enjoy the protection of the speech and debate clause of the United States Constitution. C. A federal court must follow state law respecting the scope of legislative immunity. D. To apply the Federal Securities Act to state legislators would violate the due process clause.

5. A city ordinance makes the city building inspector responsible for ensuring that all buildings in that city are kept up to building code standards, and requires the inspector to refer for prosecution all known building code violations. Another ordinance provides that the city building inspector may be discharged for "good cause." The building inspector took a newspaper reporter through a number of run-down buildings in a slum neighborhood. After using various epithets and slurs to describe the occupants of these buildings, the building inspector stated to the reporter: "I do not even try to get these buildings up to code or to have their owners prosecuted for code violations because if these buildings are repaired, the people who live in them will just wreck them again." The reporter published these statements in a story in the local newspaper. The building inspector admitted he made the statements. On the basis of these statements, the city council discharged the building inspector. Is the action of the city council constitutional? A. Yes, because the statements demonstrate that the building inspector has an attitude toward a certain class of persons that interferes with the proper performance of the obligations of his job. B. Yes, because the building inspector is a government employee and a person holding such a position may not make public comments inconsistent with current governmental policy. C. No, because the statements were lawful comments on a matter of public concern. D. No, because the statements were published in a newspaper that is protected by the First and Fourteenth Amendments.

5. Congress passes an Energy Conservation Act. The act requires all users of energy in this country to reduce their consumption by a specified percentage, to be set by a presidential executive order. The act sets forth specific standards the President must use in setting the percentage and detailed procedures to be followed. The provision that allows the President to set the exact percentage is probably A. constitutional, because it creates a limited administrative power to implement the statute. B. constitutional, because inherent executive powers permit such action even without statutory authorization. C. unconstitutional as an undue delegation of legislative power to the executive. D. unconstitutional, because it violates the due process clause of the Fifth Amendment.

6. Damson was short of money. He decided to go into Waters' house to take Waters' silverware and then to sell it. That night, while Waters was away, Damson entered by picking the lock on the front door. He picked up a chest of silverware from the dining room and went out the front door of the house to his car. As he was putting the chest of silverware into the trunk, he had second thoughts and decided that he did not wish to become a thief. He reentered the house and replaced the chest of silverware where he had found it. As he came out of the house the second time, he was arrested by the police, who had been called by a neighbor. Damson is

7. Questions 4-7 are based on the following fact situation. Penn sues Duke's Bar for injuries suffered in an automobile accident caused by Chase, who had been a patron of Duke's Bar. Penn claims that Chase was permitted to drink too much liquor at Duke's Bar before the accident. ////////////////////////////////////////////////////////////////////////// Penn offers evidence that, after the accident, the owner of Duke's Bar visited him at the hospital and, offering to pay all of Penn's medical expenses, said, "That's the least I can do after letting Chase leave the bar so drunk last night." The statement that Chase was drunk when he left the bar on the night of the accident is A. admissible as an admission by the owner of Duke's Bar that Chase was drunk when he left the bar. B. admissible as a factual admission made in connection with an offer of compromise. C. inadmissible as hearsay, not within any exception. D. inadmissible as a statement made in connection with an offer to pay medical expenses.

8. Davison was driving through an apartment building area plagued with an unusually high incidence of burglaries and assaults. Acting pursuant to a police department plan to combat crime by the random stopping of automobiles in the area between midnight and 6:00 a.m., a police officer stopped Davison and asked him for identification. As Davison handed the officer his license, the officer directed a flashlight into the automobile and saw what appeared to be the barrel of a shotgun protruding from under the front seat on the passenger side of the car. The officer ordered Davison from the car, searched him, and discovered marijuana cigarettes and a shotgun. At Davison's trial for unlawful possession of narcotics, his motion to suppress the use of the marijuana as evidence should be A. sustained, because the marijuana was discovered as a result of the unlawful stopping of Davison's automobile. B. sustained, because the use of the flashlight constituted a search of the interior of Davison's automobile without probable cause. C. denied, because the officer's conduct was consistent with the established police plan. D. denied, because the discovery of the gun in plain view created the reasonable suspicion necessary to justify the arrest and search of Davison

8. Questions 7-8 are based on the following fact situation. Green is cited for contempt of the House of Representatives after she refused to answer certain questions posed by a House Committee concerning her acts while serving as a United States Ambassador. A federal statute authorizes the Attorney General to prosecute contempts of Congress. Pursuant to this law, the House directs the Attorney General to begin criminal proceedings against Green. A federal grand jury indicts Green, but the Attorney General refuses to sign the indictment. _______________________________________________ If the Attorney General signs the indictment, the strongest argument Green could urge as a defense is that A. Green may refuse to answer the questions if she can demonstrate that they are unrelated to matters upon which Congress may legislate. B. the House may question Green on matters pertaining to the expenditures of funds appropriated by Congress. C. only the Senate may question Green on matters that relate to the performance of her duties. D. Congress may not ask questions relating to the performance of duties executed by an officer of the executive branch.

9. In order to provide funds for a system of new major airports near the ten largest cities in the United States, Congress levies a tax of $25 on each airline ticket issued in the United States. The tax applies to every airline ticket, even those for travel that does not originate in, terminate at, or pass through any of those ten large cities. As applied to the issuance in the United States of an airline ticket for travel between two cities that will not be served by any of the new airports, this tax is A. constitutional, because Congress has broad discretion in choosing the subjects of its taxation and may impose taxes on subjects that have no relation to the purpose for which those tax funds will be expended. B. constitutional, because an exemption for the issuance of tickets for travel between cities that will not be served by the new airports would deny the purchasers of all other tickets the equal protection of the laws. C. unconstitutional, because the burden of the tax outweighs its benefits for passengers whose travel does not originate in, terminate at, or pass through any of the ten largest cities. D. unconstitutional, because the tax adversely affects the fundamental right to travel.

9. Questions 7-10 are based on the following fact situation. John Doe, the owner of a milk container manufacturing firm, sought to focus public attention on the milk packaging law of the State of Clinton in order to have it repealed. On a weekday at 12:00 noon, he delivered an excited, animated, and loud harangue on the steps of the State Capitol in front of the main entryway. An audience of 200 onlookers, who gathered on the steps, heckled him and laughed as he delivered his tirade. Doe repeatedly stated, gesturing expressively and making faces, that "the g-ddamned milk packaging law is stupid," and that "I will strangle every one of those g-ddamned legislators I can get hold of because this law they created proves they are all too dumb to live." After about fifteen minutes, Doe stopped speaking, and the amused crowd dispersed. There are three relevant statutes of the State of Clinton. The first statute prohibits "all speech making, picketing, and public gatherings of every sort on the Capitol steps in front of the main entryway between 7:45 a.m.-8:15 a.m., 11:45 a.m.-12:15 p.m., 12:45 p.m.-l:15 p.m., and 4:45 p.m.-5:15 p.m. on Capitol working days." _____________________________________________________________________ The "Capitol steps" statute is probably A. constitutional both on its face and as applied to Doe. B. constitutional on its face, but unconstitutional as applied to Doe. C. unconstitutional on its face, because it applied to all working days. D. unconstitutional on its face, because it concerns the State Capitol.

A federal law provides that all motor vehicle tires discarded in this country must be disposed of in facilities licensed by the federal Environmental Protection Agency. Pursuant to this federal law and all proper federal procedural requirements, that agency has adopted very strict standards for the licensing of such facilities. As a result, the cost of disposing of tires in licensed facilities is substantial. The state of East Dakota has a very large fleet of motor vehicles, including trucks used to support state-owned commercial activities and police cars. East Dakota disposes of used tires from both kinds of state motor vehicles in a state-owned and operated facility. This state facility is unlicensed, but its operation in actual practice meets most of the standards imposed by the federal Environmental Protection Agency on facilities it licenses to dispose of tires. Consistent with United States Supreme Court precedent, may the state of East Dakota continue to dispose of its used tires in this manner? A. No, because a state must comply with valid federal laws that regulate matters affecting interstate commerce. B. No, because some of the tires come from vehicles that are used by the state solely in its commercial activities. C. Yes, because some of the tires come from vehicles that are used by the state in the performance of core state governmental functions such as law enforcement. D. Yes, because the legitimate needs of the federal government are satisfied by the fact that the unlicensed state disposal scheme meets, in actual practice, most of the federal standards for the licensing of such facilities.

Albert engaged Bertha, an inexperienced actress, to do a small role in a new Broadway play for a period of six months at a salary of $200 a week. Bertha turned down another role in order to accept this engagement. On the third day of the run, Bertha was hospitalized with influenza and Helen was hired to do the part. A week later, Bertha recovered, but Albert refused to accept her services for the remainder of the contract period. Bertha then brought an action against Albert for breach of contract. /////////////////////////////////////////////////////////////////////////////////////////////// Which of the following, if true, would adversely affect Bertha's rights in her action against Albert? A. Albert could not find any substitute except Helen, who demanded a contract for a minimum of six months if she was to perform at all. B. Helen, by general acclaim, was much better in the role than Bertha had been. C. Albert had offered Bertha a position as Helen's understudy at a salary of $100 a week, which Bertha declined. D. Albert had offered Bertha a secretarial position at a salary of $300 a week, which Bertha declined.

Ames had painted Bell's house under a contract which called for payment of $2,000. Bell, contending in good faith that the porch had not been painted properly, refused to pay anything. On June 15, Ames mailed a letter to Bell stating, "I am in serious need of money. Please send the $2,000 to me before July 1." On June 18, Bell replied, "I will settle for $1,800 provided you agree to repaint the porch." Ames did not reply to this letter. Thereafter Bell mailed a check for $1,800 marked "Payment in full on the Ames-Bell painting contract as per letter dated June 18." Ames received the check on June 30. Because he was badly in need of money, Ames cashed the check without objection and spent the proceeds but has refused to repaint the porch. //////////////////////////////////////////////////////////////////////////////////////////////////////////////// In an action by Bell against Ames for any provable damages Bell sustained because the porch was not repainted, Bell probably will A. succeed, because by cashing the check Ames impliedly promised to repaint the porch. B. succeed, because Ames accepted Bell's offer by not replying to the letter of June 18. C. not succeed, because Bell's letter of June 18 was a counter-offer which Ames never accepted. D. not succeed, because there is no consideration to support Ames' promise, if any.

Plaintiff is a construction company. It is incorporated in Idaho and operates in that state and in Colorado. Defendant is an Internet-based company that is incorporated in Delaware. The complaint alleges that Defendant defrauded Plaintiff in violation of a federal statute called the Internet Commercial Fraud Act (ICFA). Section 1 of the ICFA creates a federal private right of action for anyone defrauded in a commercial transaction conducted over the lntemet. Section 2 of the statute authorizes service in an lCFA action "on the defendant wherever the defendant may be found In the United States." The complaint, filed in district court In Idaho, asserts that an employee in Plaintiff's Idaho office purchased a computer on line from Defendant; that Defendant knew the computer was defective; and that Defendant shipped the computer to Plaintiff's Colorado office. The Colorado long-arm statute allows nationwide service of process upon, and personal jurisdiction over, any defendant who "voluntarily and knowingly ships any item of tangible personal property into this state." After Plaintiff files the suit, Plaintiff's sole effort to make service on the Defendant is to have the summons and complaint handed to the CEO of Defendant while the CEO is visiting California to attend a technology conference. Defendant has never sold a computer to a California resident. Has Plaintiff established personal jurisdiction over Defendant? A. Yes, because the statute and the Federal Rules of Civil Procedure taken together, authorize the service that occurred here, and the Idaho federal court's exercise of jurisdiction would not offend due process. B. Yes, because service in federal-question suits may be made anywhere in the U.S. where the defendant may be found, and in this case the Defendant could be found wherever the CEO was at the moment of service. C. Yes, because a federal court will exercise personal jurisdiction where service and personal jurisdiction would be allowed by the long-arm of the state where the federal court sits, and the Colorado long-arm would apply to these facts. D. No, because the Defendant does not have minimum contacts with Idaho, and the exercise of personal jurisdiction over the Defendant in the Idaho federal courts would violate the Defendant's due process rights.

A Corporation: The residence of a corporation for venue purposes matters only if the corporation is a defendant. A corporation is deemed to be a resident of any district as to which the corporation would have the "minimum contacts" necessary to support personal jurisdiction if that district were a separate state. Thus a corporation is a resident of at least the district where it has its principal place of business, any district where it has substantial operations, and probably any district in its state of incorporation. But merely because a corporation does business somewhere in the state, this does not make it a resident of all districts of that state. Example: XYZ Corp. is incorporated in Delaware, and has its only office in San Francisco. XYZ has no contacts with any part of California other than San Francisco. If XYZ is a defendant, it will reside, for venue purposes, in the district of Delaware and in the Northern District of California. XYZ is not a resident of any other districts in California - thus "defendant's residence" venue would not lie against XYZ, for instance, in a suit brought in the Central District of California, located in Los Angeles. B. Territory for service: 1. General rule: As a general rule, in both diversity actions and federal question cases, service of process may be made only: (1) within the territorial limits of the state in which the District Court sits; or (2) anywhere else permitted by the state law of the state where the District Court sits. FRCP 4(k)(1)(A). 3. Nationwide service of process: In several kinds of cases, Congress has provided for nationwide service of process. Suits against federal officials and agencies, and suits based on statutory interpleader, are examples of nationwide service. C. Manner of service: Once you determine that the party to be served lies within the territory described above, you must determine if the service was carried out in the correct manner. 2. Corporation: Service on a corporation may be made by leaving the papers with an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive process for the corporation. FRCP 4(h)(1). B. is incorrect bc not all FQ suits work that way - overbroad answer. C. is incorrect bc this is an Idaho federal court - not going to use the Colorado long-arm to determine PJ. D. is incorrect bc it appears that D does have minimum contacts with Idaho.

6. The federal government has complete jurisdiction over certain park land located within the state of Plains. To conserve the wildlife that inhabits that land the federal government enacts a statute forbidding all hunting of animals in the federal park. That statute also forbids the hunting of animals that have left the federal park and have entered the state of Plains. Hanson has a hunting license from the state of Plains authorizing him to hunt deer anywhere in the state. On land within the state of Plains located adjacent to the federal park, Hanson shoots a deer he knows has recently left the federal land. Hanson is prosecuted for violating the federal hunting law. The strongest ground supporting the constitutionality of the federal law forbidding the hunting of wild animals that wander off federal property is that A. this law is a necessary and proper means of protecting United States property. B. the animals are moving in the stream of interstate commerce. C. the police powers of the federal government encompass protection of wild animals. D. shooting wild animals is a privilege, not a right.

A Federal property: Congress has power to regulate and dispose of federal property [Added] under the Property Clause (Art. IV, Sec. 3). In fact, Congress likely has the power to regulate non-commercial activity slightly outside federal property as a "necessary and proper" means of protecting federal property. If an MBE question involves a federal statute concerning federal property, it is more likely to be justified under the Property Clause of Art. IV than the Commerce Clause. [End Added]

8. Plaintiff is an individual who lives in California. While on vacation in New York, he buys an antique map from Defendant, an art dealer with a sales office in New York. The map turns out to be a counterfeit, and Plaintiff sues Defendant In federal court In California. The action alleges breach of contract, misrepresentation, and fraud and seeks $1 million in damages. Defendant has never set foot in California but he owns a storage facility in that state valued at $25,000. Plaintiff bases jurisdiction on a California statute that provides: "The courts of this state have authority, consistent with the Due Process Clause of the Fourteenth Amendment, to exercise jurisdiction on a quasi in rem basis." Plaintiff serves Defendant in the California action by attaching the storage facility, Defendant moves to dismiss the action for lack of personal jurisdiction. How should the district court resolve the motion? A. The court should grant the motion unless Plaintiff first made reasonable efforts to serve a summons on Defendant before attaching the property and the Defendant has minimum contacts with the California. B. The court should deny the motion because Plaintiff satisfied the clear requirements of the state quasi in rem statute. C. The court should grant the motion because a federal statute does not authorize quasi in rem jurisdiction and the lawsuit was filed in federal court. D. The court should grant the motion because the attached assets are not related to Plaintiff's claim against Defendant.

A Quasi in rem jx is allowed if the state statute authorizes quasi in rem jx You first need to make reasonable efforts to get PJ over D B falls short because it does not say that P needed to make reasonable efforts C is wrong bc not trying to litigate the status of the warehouse facility D this is the rule for in rem jx

1. Congress enacted a statute providing that persons may challenge a state energy law on the ground that it is in conflict with the federal Constitution in either federal or state court. According to this federal statute, any decision by a lower state court upholding a state energy law against a challenge based on the federal Constitution may be appealed directly to the United States Supreme Court. The provisions of this statute that authorize direct United States Supreme Court review of specified decisions rendered by lower state courts are A. constitutional, because congressional control over questions of energy usage is plenary. B. constitutional, because Congress may establish the manner in which the appellate jurisdiction of the United States Supreme Court is exercised. C. unconstitutional, because they infringe on the sovereign right of states to have their supreme courts review decisions of their lower state courts. D. unconstitutional, because under Article III of the Constitution the United States Supreme Court does not have authority to review directly decisions of lower state courts.

1. Dutton, disappointed by his 8-year-old son's failure to do well in school, began systematically depriving the child of food during summer vacation. Although his son became seriously ill from malnutrition, Dutton failed to call a doctor. He believed that as a parent he had the sole right to determine whether the child was fed or received medical treatment. Eventually the child died. An autopsy disclosed that the child had suffered agonizingly as a result of the starvation, that a physician's aid would have alleviated the suffering, and that although the child would have died in a few months from malnutrition, the actual cause of death was an untreatable form of cancer. The father was prosecuted for murder, defined in the jurisdiction as "unlawful killing of a human being with malice aforethought." The father should be A. acquitted, because of the defendant's good faith belief concerning parental rights in supervising children. B. acquitted, because summoning the physician or feeding the child would not have prevented the child's death from cancer. C. convicted, because the father's treatment of his son showed reckless indifference to the value of life. D. convicted, because the child would have died from malnutrition had he not been afflicted with cancer.

1. Leonard was the high priest of a small cult of Satan worshippers living in New Arcadia. As a part of the practice of their religious beliefs, a cat was required to be sacrificed to the glory of Satan after a live dissection of the animal in which it endured frightful pain. In the course of such a religious sacrifice, Leonard was arrested on the complaint of the local Humane Society and charged under a statute punishing cruelty to animals. On appeal, a conviction of Leonard probably will be A. sustained on the grounds that belief in or worship of Satan does not enjoy constitutional protection. B. sustained on the grounds that sincere religious belief is not an adequate defense on these facts. C. overturned on the grounds that the constitutionally guaranteed freedom of religion and its expression was violated. D. overturned on the grounds that the beliefs of the cult members in the need for the sacrifice might be reasonable, and their act was religious.

1. Peter sued Don for breach of contract. The court admitted testimony by Peter that Don and his wife quarreled frequently, a fact of no consequence to the lawsuit. Don seeks to testify in response that he and his wife never quarreled. The court A. must permit Don to answer if he had objected to Peter's testimony. B. may permit Don to answer, whether or not he had objected to Peter's testimony. C. may permit Don to answer only if he had objected to Peter's testimony. D. cannot permit Don to answer, whether or not he had objected to Peter's testimony.

1. Questions 1-2 are based on the following fact situation. Barnes was hired as an assistant professor of mathematics at Reardon State College and is now in his third consecutive one-year contract. Under state law, he cannot acquire tenure until after five consecutive annual contracts. In his third year, Barnes was notified that he was not being re-hired for the following year. Applicable state law and college rules did not require either a statement of reasons or a hearing, and in fact neither was offered to Barnes. ______________________________________________________________ Which of the following, if established, sets forth the strongest constitutional argument Barnes could make to compel the college to furnish him a statement of reasons for the failure to rehire him and an opportunity for a hearing? A. There is no evidence that tenured teachers are any more qualified than he is. B. He leased a home in reliance on an oral promise of reemployment by the college president. C. He was the only teacher at the college whose contract was not renewed that year. D. In the expectation of remaining at the college, he had just moved his elderly parents to the town in which the college is located.

1. Questions 1-2 are based on the four case summaries below. For each question, select the case that would be most applicable as a precedent. ///////////////////////////////////////////////////////////////////////////// Jones, angry at a neighbor with whom he had quarreled, for revenge surreptitiously removed a piece of stone statuary from the neighbor's garden and concealed it in his garage. He intended to return it a day or two later, after giving the neighbor a chance to feel bad over its being stolen. Suspecting who was guilty, the neighbor had Jones arrested and charged with larceny. A. Commonwealth v. Mason. Two sisters see a wealthy neighbor's pedigreed dog on the street. They take the dog home, intending to conceal it until the owner offers a reward. Held, guilty of larceny. B. Saferite v. State. Two young men saw a motor car on the street with the keys in the ignition lock. They drove the car to a neighboring town with the intention, they said, of visiting the wife of one of them. The car was wrecked on their way back. Conviction for larceny reversed. C. People v. Noblett. Defendant, a tenant of a city apartment, advertised it for sublease. Will agreed to sublease for three months, and on March 12 paid Defendant $550, the total agreed rental. Will was to receive possession on March 20, but possession was never given him. Held, not guilty of common law larceny. D. King v. Pear. From a stablekeeper, Defendant hired a horse to go to Sutton and back, saying he would be back at 8 p.m. He did not return. Investigation shows that Defendant had given a false address, and that he had sold the horse the same day. Conviction of larceny affirmed.

10. Questions 7-10 are based on the following fact situation. John Doe, the owner of a milk container manufacturing firm, sought to focus public attention on the milk packaging law of the State of Clinton in order to have it repealed. On a weekday at 12:00 noon, he delivered an excited, animated, and loud harangue on the steps of the State Capitol in front of the main entryway. An audience of 200 onlookers, who gathered on the steps, heckled him and laughed as he delivered his tirade. Doe repeatedly stated, gesturing expressively and making faces, that "the g-ddamned milk packaging law is stupid," and that "I will strangle every one of those g-ddamned legislators I can get hold of because this law they created proves they are all too dumb to live." After about fifteen minutes, Doe stopped speaking, and the amused crowd dispersed. There are three relevant statutes of the State of Clinton. The first statute prohibits "all speech making, picketing, and public gatherings of every sort on the Capitol steps in front of the main entryway between 7:45 a.m.-8:15 a.m., 11:45 a.m.-12:15 p.m., 12:45 p.m.-l:15 p.m., and 4:45 p.m.-5:15 p.m. on Capitol working days." ______________________________________________________________________ A second state statute punishes "any person who shall intentionally threaten the life or safety of any public official for any act which he performed as part of his public office." Which of the following statements is correct concerning the possible punishment of Doe under the second statute? A. The statute is unconstitutional on its face. B. The statute is constitutional on its face, but Doe could not constitutionally be punished under it for this speech. C. Doe could constitutionally be punished under the statute for his speech. D. Doe could constitutionally be punished under the statute for his speech, but only if one or more legislators were actually present when he delivered it.

2. An appropriations act passed by Congress over the President's veto directs that one billion dollars "shall be spent" by the federal government for the development of a new military weapons system, which is available only from the Arms Corporation. On the order of the President, the Secretary of Defense refuses to authorize a contract for purchase of the weapons system. The Arms Corporation sues the Secretary of Defense alleging an unlawful withholding of these federal funds. The strongest constitutional argument for the Arms Corporation is that A. passage of an appropriation over a veto makes the spending mandatory. B. Congress' power to appropriate funds includes the power to require that the funds will be spent as directed. C. the President's independent constitutional powers do not specifically refer to spending. D. the President's power to withhold such funds is limited to cases where foreign affairs are directly involved.

3. Argus Corporation is privately owned and incorporated in the state of Kiowa. It contracted with the United States to construct a dam across the Big Sandy River in the state of Arapaho. The state of Arapaho imposed a gross receipts tax on all business conducted within the state. Arapaho sued Argus Corporation to collect that tax on the receipts Argus received under this federal contract. No federal statutes or administrative rules are applicable, and the contract between the United States and the Argus Corporation does not mention state taxation. The court should hold the state tax, as applied here, to be A. constitutional, because a state has exclusive jurisdiction over all commercial transactions executed wholly within its borders. B. constitutional, because private contractors performing work under a federal contract are not immune in these circumstances from nondiscriminatory state taxation. C. unconstitutional, because it violates the supremacy clause. D. unconstitutional, because it imposes an undue burden on interstate commerce

3. National regulation of predatory wild animals on federal lands is most likely A. constitutional, because the protection of wild animals is important to the general welfare. B. constitutional, because Congress has authority to make regulations respecting federal property. C. unconstitutional, because wild animals as defined by state common law are not federal property. D. unconstitutional, because regulation and control of wild animals is retained by the states under the Tenth Amendment.

4. A state statute provides that persons moving into a community to attend a college on a full-time basis may not vote in any elections for local or state officials that are held in that community. Instead, the statute provides that for voting purposes all such persons shall retain their residence in the community from which they came. In that state the age of majority is eighteen. Which of the following is the strongest argument to demonstrate the unconstitutionality of this state statute? A. A state does not have an interest that is sufficiently compelling to justify the exclusion from voting of an entire class of persons. B. There are less restrictive means by which the state could assure that only actual residents of a community vote in its elections. C. Most persons moving to a community to attend college full-time are likely to have attained the age of majority under the laws of this state. D. On its face this statute impermissibly discriminates against interstate commerce.

4. John was fired from his job. Too proud to apply for unemployment benefits, he used his savings to feed his family. When one of his children became ill, he did not seek medical attention for the child at a state clinic because he did not want to accept what he regarded as charity. Eventually, weakened by malnutrition, the child died as a result of the illness. John has committed A. murder. B. involuntary manslaughter. C. voluntary manslaughter. D. no form of criminal homicide.

5. A state statute divides murder into degrees. First degree murder is defined as murder with premeditation and deliberation or a homicide in the commission of arson, rape, robbery, burglary or kidnapping. Second degree murder is all other murder at common law. In which of the following situations is Defendant most likely to be guilty of first degree murder? A. Immediately after being insulted by Robert, Defendant takes a knife and stabs and kills Robert. B. Angered over having been struck by Sam, Defendant buys rat poison and puts it in Sam's coffee. Sam drinks the coffee and dies as a result. C. Intending to injure Fred, Defendant lies in wait and, as Fred comes by, Defendant strikes him with a broom handle. As a result of the blow, Fred dies. D. Defendant, highly intoxicated, discovers a revolver on a table. He picks it up, points it at Alice, and pulls the trigger. The gun discharges, and Alice is killed.

5. Questions 4-7 are based on the following fact situation. Penn sues Duke's Bar for injuries suffered in an automobile accident caused by Chase, who had been a patron of Duke's Bar. Penn claims that Chase was permitted to drink too much liquor at Duke's Bar before the accident. ///////////////////////////////////////////////////////////// Duke's Bar called Chase to testify and expected him to say that he was sober when he left Duke's Bar; however, on direct examination Chase testified that he may have had a little too much to drink at Duke's Bar. Duke's Bar now seeks to confront Chase with his statement made on deposition that he was sober when he left Duke's Bar. Which of the following is true concerning this statement? A. It may be used only to refresh Chase's recollection. B. It is admissible for impeachment and as substantive evidence that Chase was sober. C. It is inadmissible, because Duke's Bar cannot impeach its own witness. D. It is inadmissible, because it is hearsay, not within any exception.

5. Questions 5-6 are based on the following fact situation. Bill and Chuck hated Vic and agreed to start a fight with Vic and, if the opportunity arose, to kill him. Bill and Chuck met Vic in the street outside a bar and began to push him around. Ray, Sam, and Tom, who also hated Vic, stopped to watch. Ray threw Bill a knife. Sam told Bill, "Kill him." Tom, who made no move and said nothing, hoped that Bill would kill Vic with the knife. Chuck held Vic while Bill stabbed and killed him. ///////////////////////////////////////////////////////////////////////// On a charge of murdering Vic, Sam is A. not guilty, because his words did not create a "clear and present danger" not already existing. B. guilty, because, with the intent to have Bill kill Vic, he shouted encouragement to Bill. C. guilty, because he aided and abetted the murder through his mere presence plus his intent to see Vic killed. D. not guilty, because mere presence and oral encouragement, whether or not he has the requisite intent, will not make him guilty as an accomplice.

6. The High National Grasslands is owned by the United States and is located in the center of a large western state. Acting pursuant to a federal statute authorizing such action, the United States Bureau of Land Management leased the grazing rights in the High National Grasslands to ranchers located nearby. Grazingland Company owns a vast amount of rangeland adjacent to the High National Grasslands and leases its land for livestock grazing purposes to the same ranchers, but at prices higher than those charged by the Bureau. Grazingland Company sued the Bureau in an appropriate federal district court to restrain the Bureau from competing with that company by leasing the High National Grasslands. Which of the following constitutional provisions may most easily and directly be used to justify the federal statute authorizing this leasing program of the Bureau of Land Management? A. The general welfare clause of Article I, §8 B. The federal property clause of Article IV, §3 C. The commerce clause of Article I, §8 D. The supremacy clause of Article VI

6. The city of Newtown adopted an ordinance providing that street demonstrations involving more than 15 persons may not be held in commercial areas during "rush" hours. "Exceptions" may be made to the prohibition "upon 24-hour advance application to an approval by the police department." The ordinance also imposes sanctions on any person "who shall, without provocation, use to or of another, and in his presence, opprobrious words or abusive language tending to cause a breach of the peace." The ordinance has not yet had either judicial or administrative interpretation. Which of the following is the strongest argument for the unconstitutionality of both parts of the ordinance on their face? A. No type of prior restraint may be imposed on speech in public places. B. Laws regulating, by their terms, expressive conduct or speech may not be overbroad or unduly vague. C. The determination as to whether public gatherings may be lawfully held cannot be vested in the police. D. The right of association in public places without interference is assured by the First and Fourteenth Amendments

7. A grand jury was investigating a bank robbery. The only information known to the prosecutor was a rumor that Taylor might have been involved. The grand jury subpoenaed Taylor. He refused to answer questions about the robbery and was granted use immunity. He then testified that he and Simmons had robbed the bank. The grand jury indicted both Taylor and Simmons for the bank robbery. The prosecutor permitted Simmons to enter a plea to a lesser offense in exchange for Simmons' agreement to testify against Taylor. The prosecutor had no evidence as to the identity of the robbers except the testimony of Simmons and Taylor. At Taylor's trial, his objection to Simmons' being permitted to testify should be A. sustained, because the prosecutor may not bargain away the rights of one codefendant in a deal with another. B. sustained, because Simmons' testimony was acquired as a result of Taylor's grand jury testimony. C. overruled, because the police suspected Taylor even before he testified in the grand jury hearing. D. overruled, because a witness cannot be precluded from testifying if his testimony is given voluntarily.

7. Ted frequently visited Janet, his next-door neighbor. Janet was separated from her husband, Howard. Howard resided with his mother but jointly owned the house in which Janet resided. Late one night, Ted and Janet were sitting on the bed in Janet's bedroom drinking when Howard burst through the door and told Ted, "Get out." When Ted refused, Howard challenged him to go outside and "fight it out." Ted again refused. Howard then pulled a knife from his pocket and lunged at Ted. Ted grabbed a lamp, struck Howard on the head, and killed him. Ted is charged with murder. On a charge of murder, Ted should be found A. not guilty, because Ted had as much right as Howard to be in the house. B. not guilty, because Howard attacked Ted with a deadly weapon. C. guilty, because Ted's presence in Janet's bedroom prompted Howard's attack. D. guilty, because Ted's failure to obey Howard's order to leave the house made him a trespasser.

7. Three states, East Winnetka, Midland, and West Hampton, are located next to one another in that order. The states of East Winnetka and West Hampton permit the hunting and trapping of snipe, but the state of Midland strictly forbids it in order to protect snipe, a rare species of animal, from extinction. The state of Midland has a state statute that provides "Possession of snipe traps is prohibited. Any game warden finding a snipe trap within the state shall seize and destroy it." Snipe traps cost about $15 each. Prentis is a resident of West Hampton and an ardent snipe trapper. She drove her car to East Winnetka to purchase a new improved snipe trap from a manufacturer there. In the course of her trip back across Midland with the trap in her car, Prentis stopped in a Midland state park to camp for a few nights. While she was in that park, a Midland game warden saw the trap, which was visible on the front seat of her car. The warden seized the trap and destroyed it in accordance with the Midland statute after Prentis admitted that the seized item was a prohibited snipe trap. No federal statutes or federal administrative regulations apply. For this question only, assume that Prentis demonstrates that common carriers are permitted to transport snipe traps as cargo across Midland for delivery to another state and that in practice the Midland statute is enforced only against private individuals transporting those traps in private vehicles. If Prentis challenges the application of the Midland statute to her on the basis only of a denial of equal protection, the application of the statute will probably be found A. constitutional, because the traps constitute contraband in which Prentis could have no protected property interest. B. constitutional, because there is a rational basis for differentiating between the possession of snipe traps as interstate cargo by common carriers and the possession of snipe traps by private individuals. C. unconstitutional, because the state cannot demonstrate a compelling public purpose for making this differentiation between common carriers and such private individuals. D. unconstitutional, because interstate travel is a fundamental right that may not be burdened by state law.

8. Congress passes an act requiring that all owners of bicycles in the United States register them with a federal bicycle registry. The purpose of the law is to provide reliable evidence of ownership to reduce bicycle theft. No fee is charged for the registration. Although most stolen bicycles are kept or resold by the thieves in the same cities in which the bicycles were stolen, an increasing number of bicycles are being taken to cities in other states for resale. Is this act of Congress constitutional? A. Yes, because Congress has the power to regulate property for the general welfare. B. Yes, because Congress could determine that in inseverable aggregates bicycle thefts affect interstate commerce. C. No, because most stolen bicycles remain within the state in which they were stolen D. No, because the registration of vehicles is a matter reserved to the states by the Tenth Amendment.

8. Questions 7-10 are based on the following fact situation. John Doe, the owner of a milk container manufacturing firm, sought to focus public attention on the milk packaging law of the State of Clinton in order to have it repealed. On a weekday at 12:00 noon, he delivered an excited, animated, and loud harangue on the steps of the State Capitol in front of the main entryway. An audience of 200 onlookers, who gathered on the steps, heckled him and laughed as he delivered his tirade. Doe repeatedly stated, gesturing expressively and making faces, that "the g-ddamned milk packaging law is stupid," and that "I will strangle every one of those g-ddamned legislators I can get hold of because this law they created proves they are all too dumb to live." After about fifteen minutes, Doe stopped speaking, and the amused crowd dispersed. There are three relevant statutes of the State of Clinton. The first statute prohibits "all speech making, picketing, and public gatherings of every sort on the Capitol steps in front of the main entryway between 7:45 a.m.-8:15 a.m., 11:45 a.m.-12:15 p.m., 12:45 p.m.-1:15 p.m., and 4:45 p.m.-5:15 p.m. on Capitol working days." _______________________________________________________________________________ Which of the following possible plaintiffs other than Doe would be most likely to obtain an adjudication in a federal court on the validity of the "Capitol steps" statute? A. A state taxpayer in the highest tax bracket. B. A politician intending to make a campaign speech on the Capitol steps during a prohibited time. C. A legislator who voted against the statute because he thought it unconstitutional. D. An organization whose purpose was "to seek judicial invalidation of unconstitutional laws."

8. Questions 8-10 are based on the following fact situation. As part of a comprehensive federal aid-to-education program, Congress included the following provisions as conditions for state receipt of federal funds: (1) Whenever textbooks are provided to students without charge, they must include no religious instruction and must be made available on the same terms to students in all public and private schools accredited by the state educational authority. (2) Salary supplements can be paid to teachers in public and private schools, up to ten percent of existing salary schedules, where present compensation is less than the average salary for persons of comparable training and experience, provided that no such supplement is paid to any teacher who instructs in religious subjects. (3) Construction grants can be made toward the cost of physical plant at private colleges and universities, provided that no part of the grant is used for buildings in which instruction in religious subject matters is offered. ___________________________________________________________________________________ Federal taxpayer Allen challenges the provision that allows the distribution of free textbooks to students in a private school where religious instruction is included in the curriculum. On the question of the adequacy of Allen's standing to raise the constitutional question, the most likely result is that standing will be A. sustained, because any congressional spending authorization can be challenged by any taxpayer. B. sustained, because the challenge to the exercise of congressional spending power is based on a claimed violation of specific constitutional limitations on the exercise of such power. C. denied, because there is insufficient nexus between the taxpayer and the challenged expenditures. D. denied, because, in the case of private schools, no state action is involved.

8. Questions 8-10 are based on the following fact situation. Congress provides by statute that any state that fails to prohibit automobile speeds of over 55 miles per hour on highways within the state shall be denied all federal highway construction funding. The state of Atlantic, one of the richest and most highway-oriented states in the country, refuses to enact such a statute. _____________________________________________________________________ Which of the following potential plaintiffs is most likely to be able to obtain a judicial determination of the validity of this federal statute? A. A taxpayer of the United States and the state of Atlantic who wants his state to get its fair share of federal tax monies for highways, and fears that, if it does not, his state taxes will be increased to pay for the highway construction in the state of Atlantic that federal funds would have financed. B. Contractors who have been awarded contracts by the state of Atlantic for specific highway construction projects, which contracts are contingent on payment to the state of the federal highway construction funds to which it would otherwise be entitled. C. An automobile owner who lives in the state of Atlantic and regularly uses its highway system. D. An organization dedicated to keeping the federal government within the powers granted it by the Constitution.

9. In which of the following situations is defendant most likely to be guilty of common-law murder? A. During an argument in a bar, Norris punches Defendant. Defendant, mistakenly believing that Norris is about to stab him, shoots and kills Norris. B. While committing a robbery of a liquor store, Defendant accidentally drops his revolver, which goes off. The bullet strikes and kills Johnson, a customer in the store. C. While hunting deer, Defendant notices something moving in the bushes. Believing it to be a deer, Defendant fires into the bushes. The bullet strikes and kills Griggs, another hunter. D. In celebration of the Fourth of July, Defendant discharges a pistol within the city limits in violation of a city ordinance. The bullet ricochets off the street and strikes and kills Abbott.

9. Potts sued Dobbs on a product liability claim. Louis testified for Potts. On cross-examination, which of the following questions is the trial judge most likely to rule improper? A. "Isn't it a fact that you are Potts' close friend?" B. "Isn't it true that you are known in the community as 'Louie the Lush' because of your addiction to alcohol?" C. "Didn't you fail to report some income on your tax return last year?" D. "Weren't you convicted, seven years ago in this court, of obtaining money under false pretenses?"

5. Questions 5-7 are based on the following fact situation. The State of Yuma provides by statute, "No person may be awarded any state construction contract without agreeing to employ only citizens of the state and of the United States in performance of the contract." _________________________________________________________________________________________ In evaluating the constitutionality of this state statute under the supremacy clause, which of the following would be most directly relevant? A. The general unemployment rate in the nation. B. The treaties and immigration laws of the United States. C. The need of the state for this particular statute. D. The number of aliens currently residing in Yuma.

B Need to determine if the law is preempted by federal law (think of direct, implied, and field preemption)

10. Questions 9-11 are based on the following fact situation. Harry met Bill, who was known to him to be a burglar, in a bar. Harry told Bill that he needed money. He promised to pay Bill $500 if Bill would go to Harry's house the following night and take some silverware. Harry explained to Bill that, although the silverware was legally his, his wife would object to his selling it. Harry pointed out his home, one of a group of similar tract houses. He drew a floor plan of the house that showed the location of the silverware. Harry said that his wife usually took several sleeping pills before retiring, and that he would make sure that she took them the next night. He promised to leave a window unlocked. Everything went according to the plan except that Bill, deceived by the similarity of the tract houses, went to the wrong house. He found a window unlocked, climbed in and found silver where Harry had indicated. He took the silver to the cocktail lounge where the payoff was to take place. At that point police arrested the two men. ///////////////////////////////////////////////////////////////// Bill's best argument for acquittal of burglary is that he A. acted under a mistake of law. B. had the consent of the owner. C. reasonably thought he was in Harry's house. D. found the window unlocked.

2. Mary Webb, a physician, called as a witness by the defendant in the case of Parr v. Doan, was asked to testify to statements made by Michael Zadok, her patient, for the purpose of obtaining treatment from Dr. Webb. Which of the following is the best basis for excluding evidence of Zadok's statements in a jurisdiction with a doctor-patient privilege A. An objection by Dr. Webb asserting her privilege against disclosure of confidential communications made by a patient. B. An objection by Parr's attorney on the grounds of the doctor-patient privilege. C. A finding by the trial judge that Zadok had left the office without actually receiving treatment or a diagnosis. D. The assertion of a privilege by Zadok's attorney, present at the trial as a spectator at Zadok's request, and allowed by the trial judge to speak.

3. A leading question is LEAST likely to be permitted over objection when A. asked on cross-examination of an expert witness. B. asked on direct examination of a young child. C. asked on direct examination of a disinterested eyewitness. D. related to preliminary matters such as the name or occupation of the witness.

3. Lender met Borrower on the street, demanded that Borrower pay a debt owed to Lender, and threatened to punch Borrower in the nose. A fight ensued between them. Mann came upon the scene just as Lender was about to kick Borrower in the head. Noting that Lender was getting the better of the fight, Mann pointed a gun at Lender and said, "Stop, or I'll shoot." If Lender asserts a claim against Mann based on assault, will Lender prevail? A. Yes, because Mann threatened to use deadly force. B. Yes, unless Mann was related to Borrower. C. No, if it was apparent that Lender was about to inflict serious bodily harm upon Borrower. D. No, because Lender was the original aggressor by threatening Borrower with a battery.

4. -------------------------------------------------------------------------------- Questions 3-4 are based on the following fact situation. The State of Missoula has enacted a new election code designed to increase voter responsibility in the exercise of the franchise and to enlarge citizen participation in the electoral process. None of its provisions conflicts with federal statutes. ________________________________________________________________________________________ The Missoula election code provides that in a special-purpose election for directors of a state watershed improvement district, the franchise is limited to landowners within the district, because they are the only ones directly affected by the outcome. Each vote is weighted according to the proportion of the holding of that individual in relation to the total affected property. The best argument in support of the statute and against the application of the "one man, one vote" principle in this situation is that the principle A. applies only to elections of individuals to statewide public office. B. does not apply where property rights are involved. C. does not apply, because the actions of such a district principally affect landowners. D. does not apply, because of rights reserved to the states by the Tenth Amendment.

4. On a wholly random basis, a state agency has given a few probationary employees who were not rehired at the end of their probationary period a statement of reasons and an opportunity for a hearing; but the agency has very rarely done so. No statute or rule of the agency required such a statement of reasons or a hearing. The employment of Masters, a probationary employee, was terminated without a statement of reasons or an opportunity for a hearing. The agency did not even consider whether it should give him either. A suit by Masters requesting a statement of reasons and a hearing will probably be A. successful on the grounds that failure to give Masters reasons and an opportunity for a hearing constituted a bill of attainder. B. successful on the grounds that an agency's inconsistent practices, even if unintentional, deny adversely affected persons the equal protection of the laws C. unsuccessful, because Masters does not have a right to be rehired that is protected by procedural due process. D. unsuccessful, because the conditions of state employment are matters reserved to the states by the Tenth Amendment.

4. Questions 1-4 are based on the following fact situation. The State of Aurora requires licenses of persons "who are engaged in the trade of barbering." It will grant such licenses only to those who are graduates of barber schools located in Aurora, who have resided in the state for two years, and who are citizens of the United States. ___________________________________________________ [As of 1975,] which of the following is the strongest ground on which to challenge the requirement that candidates for barber licenses must have been residents of the state for at least two years? A. The privileges and immunities clause of the Fourteenth Amendment B. The due process clause of the Fourteenth Amendment C. The equal protection clause of the Fourteenth Amendment D. The obligation of contracts clause

4. Questions 4-7 are based on the following fact situation. Penn sues Duke's Bar for injuries suffered in an automobile accident caused by Chase, who had been a patron of Duke's Bar. Penn claims that Chase was permitted to drink too much liquor at Duke's Bar before the accident. ///////////////////////////////////////////////////////// Wood, a patron of Duke's Bar, testified that on the night of the accident Chase was drunk. Wood then proposed to testify that he remarked to his companion, "Chase is so drunk he can't even stand up." Wood's remark to his companion is A. admissible as an excited utterance. B. admissible as a prior consistent statement. C. admissible as a statement by Wood regarding a condition he observed, made while he was observing it. D. inadmissible if there was no evidence that Wood had expertise in determining drunkenness.

5. A federally owned and operated office building in the state of West Dakota is heated with a new, pollution-free heating system. However, in the coldest season of the year, this new system is sometimes insufficient to supply adequate heat to the building. The appropriation statute providing the money for construction of the new heating system permitted use of the old, pollution-generating system when necessary to supply additional heat. When the old heating system operates (only about two days in any year), the smokestack of the building emits smoke that exceeds the state of West Dakota's pollution-control standards. May the operators of the federal office building be prosecuted successfully by West Dakota authorities for violating that state's pollution-control standards? May the operators of the federal office building be prosecuted successfully by West Dakota authorities for violating that state's pollution-control standards? A. Yes, because the regulation of pollution is a legitimate state police power concern. B. Yes, because the regulation of pollution is a joint concern of the federal government and the state and, therefore, both of them may regulate conduct causing pollution. C. No, because the operations of the federal government are immune from state regulation in the absence of federal consent. D. No, because the violations of the state pollution-control standards involved here are so deminimized that they are beyond the legitimate reach of state law.

5. Congress enacts a statute punishing "each and every conspiracy entered into by any two or more persons for the purpose of denying Black persons housing, employment, or education, solely because of their race." Under which of the following constitutional provisions is the authority of Congress to pass such a statute most clearly and easily justifiable? A. The obligation of contracts clause B. The general welfare clause of Article I, §8 C. The Thirteenth Amendment D. The Fourteenth Amendment

5. Questions 4-5 are based on the following fact situation. Kane, a member of the legislature of State, is prosecuted in federal court for a violation of the Federal Securities Act arising out of the activities of a state-owned corporation. Kane's defense includes a claim that the alleged wrongful acts were committed in the course of legislative business and are immune from scrutiny. _________________________________________________________________________ Which of the following is the strongest argument against Kane's constitutional defense? A. Congress has plenary power under the commerce clause. B. Congress may impose liability on state legislators as a means of guaranteeing a republican form of government. C. Congress does not significantly interfere with state government by applying this law to state legislators. D. Congress may impose liability on state legislators by virtue of the necessary and proper clause.

6. On a camping trip in a state park, Rose discovered metal signs near a rubbish heap stating, "Natural Wildlife Area-No Hunting." She took two of the signs and used them to decorate her room at home. She is charged with violation of a state statute which provides, "Any person who appropriates to his own use property owned by the state shall be guilty of a crime and shall be punished by a fine of not more than $1,000, or by imprisonment for not more than five years, or by both such fine and imprisonment." At trial, Rose admits taking the signs but says she believed they had been thrown away. In fact, the signs had not been abandoned. Rose should be found A. guilty, because this is a public welfare offense. B. guilty, because she should have inquired whether the signs were abandoned. C. not guilty if the jury finds she honestly believed the signs had been abandoned. D. not guilty unless the jury finds that the state had taken adequate steps to inform the public that the signs had not been abandoned.

6. The strongest constitutional basis for the enactment of a federal statute requiring colleges and universities receiving federal funds to offer student aid solely on the basis of need is the A. police power. B. war and defense power. C. power to tax and spend for the general welfare. D. power to enforce the privileges and immunities clause of the Fourteenth Amendment.

7. A third state statute, enacted in 1880, makes criminal "the utterance in any public place of any blasphemy or sacrilege." Assume that there have been only a few recorded prosecutions under the 1880 statute. Doe is charged with violating its proscriptions. The charge is based wholly on the speech he delivered on the steps of the Clinton State Capitol. Which of the following constitutional defenses to this prosecution under the 1880 statute would be the LEAST likely to succeed? A. This statute is vague and, therefore, violates the due process clause of the Fourteenth Amendment. B. This statute is an establishment of religion and, therefore, violates the due process clause of the Fourteenth Amendment. C. Application of this statute to Doe denies him equal protection of the laws in violation of the Fourteenth Amendment. D. Application of this statute to Doe denies him freedom of speech in violation of the Fourteenth Amendment.

7. Questions 6-7 are based on the following fact situation. The state of Champlain enacts the Young Adult Marriage Counseling Act, which provides that, before any persons less than 30 years of age may be issued a marriage license, they must receive at least five hours of marriage counseling from a state-licensed social worker. This counseling is designed to assure that applicants for marriage licenses know their legal rights and duties in relation to marriage and parenthood, understand the "true nature" of the marriage relationship, and understand the procedures for obtaining divorces. _______________________________________________________________________ In a case in which the constitutionality of the Young Adult Marriage Counseling Act is in issue, the burden of persuasion will probably be on the A. person challenging the law, because there is a strong presumption that elected state legislators acted properly. B. person challenging the law, because the Tenth Amendment authorized states to determine the conditions on which they issue marriage licenses. C. state, because there is a substantial impact on the right to marry, and that right is fundamental. D. state, because there is a substantial impact in the discrete and insular class of young adults.

7. Zall, a resident of the state of Paxico, brought suit in federal district court against Motors, Inc., a Paxico corporation. Zall seeks recovery of $12,000 actual and $12,000 punitive damages arising from Motors' sale to him of a defective automobile. Zall's suit is based only on a common-law contract theory. From a constitutional standpoint, should the federal district court hear this suit on its merits? A. Yes, because Article III vests federal courts with jurisdiction over cases involving the obligation of contracts. B. Yes, because it is an action affecting interstate commerce. C. No, because this suit is not within the jurisdiction of an Article III court. D. No, because there is no case or controversy within the meaning of Article III.

8. A statute of the state of Tuscarora made it a misdemeanor to construct any building of more than five stories without an automatic fire sprinkler system. A local construction company built in Tuscarora a ten-story federal office building. It constructed the building according to the precise specifications of a federal contract authorized by federal statutes. Because the building was built without the automatic fire sprinkler system required by state law, Tuscarora prosecutes the private contractor. Which of the following is the company's strongest defense to that prosecution? A. The state sprinkler requirement denies the company property or liberty without due process. B. The state sprinkler requirement denies the company equal protection of the laws. C. As applied, the state sprinkler requirement violates the supremacy clause. D. As applied, the state sprinkler requirement violates the obligation of contracts clause.

8. In which of the following situations is Defendant most likely to be not guilty of the charge made? A. Police arrested Thief and recovered goods he had stolen. At the direction of the police, Thief took the goods to Defendant. Defendant, believing the goods to be stolen, purchased them. Defendant is charged with attempting to receive stolen property. B. Defendant misrepresented his identity to secure a loan from a bank. The banker was not deceived and refused to grant the loan. Defendant is charged with attempting to obtain property by false pretenses. C. Believing that state law made it a crime to purchase codeine without a prescription, Defendant purchased, without a prescription, cough syrup containing codeine. Unknown to Defendant, the statute had been repealed and codeine could be legally purchased without a prescription. Defendant is charged with attempting to purchase codeine without a prescription. D. Defendant, intending to kill Selma, shot at Selma. Unknown to Defendant, Selma had died of a heart attack minutes before Defendant shot at her. Defendant is charged with attempted murder

9. Questions 8-10 are based on the following fact situation. Congress provides by statute that any state that fails to prohibit automobile speeds of over 55 miles per hour on highways within the state shall be denied all federal highway construction funding. The state of Atlantic, one of the richest and most highway-oriented states in the country, refuses to enact such a statute. ___________________________________________________________________ The strongest argument that can be made in support of the constitutionality of this federal statute is that A. the states ceded their authority over highways to the national government when the states accepted federal grants to help finance their highways. B. the federal government can regulate the use of state highways without limitation because the federal government paid for some of their construction costs. C. Congress could reasonably believe that the 55 mile-an-hour speed limit will assure that the federal money spent on highways results in greater benefit than harm to the public. D. a recent public opinion survey demonstrated that 90 percent of the people in this country support a 55 mile-an-hour speed limit.

A newly-enacted state criminal statute provides, in its entirety, "No person shall utter to another person in a public place any annoying, disturbing or unwelcome language." Smith followed an elderly woman for three blocks down a public street, yelling in her ear offensive four-letter words. The woman repeatedly asked Smith to leave her alone, but he refused. In the subsequent prosecution of Smith, the first under this statute, Smith A. can be convicted. B. cannot be convicted, because speech of the sort described here may not be punished by the state because of the First and Fourteenth Amendments. C. cannot be convicted, because, though his speech here may be punished by the state, the state may not do so under this statute. D. cannot be convicted, because the average user of a public street would think his speech/action here was amusing and ridiculous rather than "annoying," etc.

Questions 4-5 are based on the following fact situation. Dunbar and Balcom went into a drugstore, where Dunbar reached into the cash register and took out $200. Stone, the owner of the store, came out of a back room, saw what had happened, and told Dunbar to put the money back. Balcom then took a revolver from under his coat and shot and killed Stone. Dunbar claims that Stone owed her $200 and that she went to the drugstore to try to collect the debt. She said that she asked Balcom to come along just in case Stone made trouble but that she did not plan on using any force and did not know that Balcom was armed. ////////////////////////////////////////////////////////////////////// If Dunbar is prosecuted for murder on the basis of being an accessory to Balcom in committing a murder and the jury believes her claim, she should be found A. guilty, because in firing the shot Balcom was trying to help her. B. guilty, because she and Balcom were acting in concert in a dangerous under-taking. C. not guilty, because she had no idea that Balcom was armed and she did not plan to use force. D. not guilty, because she was exercising self-help and did not intend to steal.

Defendant, the manufacturer of automobile tires, entered into a long-term sales contract with Plaintiff, a company that distributes used cars. Plaintiff is dissatisfied with the quality of Defendant's tires and files a diversity action in federal court against Defendant and Defendant's Director. The complaint alleges three claims: breach of warranty, strict liability, and breach of contract. The court grants Plaintiff's motion for partial summary judgment on the contract claim against both opposing parties in favor of Plaintiff, but orders trial on the two remaining claims. Defendant and Director seek to appeal the grant of partial summary judgment, and Plaintiff gives its consent to the motion, hoping that by quickly resolving the issue of liability, the parties can reach a settlement on the amount of damages and avoid a trial. Does the appeals court have jurisdiction to hear the appeal? A. Yes, the appeals court has jurisdiction to hear the appeal because the grant of partial summary judgment is a final judgment. B. Yes, the appeals court has jurisdiction to hear the appeal because the grant of partial summary judgment, although an interlocutory order, may be immediately appealed in the discretion of the court. C. No, the appeals court does not have jurisdiction to hear the appeal because the grant of partial summary judgment is an interlocutory order. D. No, the appeals court does not have jurisdiction to hear the appeal because the parties did not file their consent to the appeal within ten days of the court's entry of its order.

C C. The "final judgment" rule, and exceptions to it: The federal system, and the vast majority of state systems, apply some form of the final judgment rule. The basic concept behind the rule is that an appeal is allowed only after all the issues involved in the suit have been finally determined by the trial court. 1. Suit, not just issue, must be finally determined: So even if a particular issue in the case has been finally determined, the loser on that issue cannot generally take an immediate appeal. At least in the standard two-party scenario, the final judgment rule means that ordinarily the loser on one or more issues cannot take an appeal until the entire case has been finished at the trial-court level, and a judgment in the case has been entered. a. "Interlocutory" appeals: As a matter of nomenclature, an appeal that is taken when no final judgment has yet been entered is called an "interlocutory" appeal. b. Federal statute: The federal court system applies the final judgment rule in a fairly rigorous way. 28 U.S.C. § 1291 says that except in a few special situations covered by other statutory provisions, the U.S. Courts of Appeal shall only have jurisdiction over "final decisions of the district courts." A. is incorrect bc this isn't a final order - no order on the amount of damages. No final order on the case. D. is incorrect because it wouldn't matter bc no jx to hear appeal. Consent of the parties doesn't create jx. B. is incorrect - but some interlocutory orders are appealable (like collateral matters) and will do so if it is a collateral order. C is correct bc partial summary judgment is not a collateral order. 3. The "collateral issue" exception: The most important exception to the final judgment rule in federal litigation is the so-called "collateral order" doctrine. This doctrine holds that even where some part of the case remains unresolved, an order may be immediately appealed from, if that order finally determines an important right that is "collateral to" the main issue in the case, and a delay on the appeal would seriously impair the value of that collateral right.

10. To encourage the growth of its population, the state of Axbridge established a program that awarded $1,000 to the parents of each child born within the state, provided that at the time of the child's birth the mother and father of the newborn were citizens of the United States. The Lills are aliens who are permanent residents of the United States and have resided in Axbridge for three years. When their first child was born two months ago, they applied for and were denied the $1,000 award by Axbridge officials on the sole ground that they are not citizens of the United States. The Lills filed suit in federal court contending that their exclusion from the award program was unconstitutional. Assume no federal statute addresses this question. In this case, the court should hold that the exclusion of aliens from the Axbridge award program is A. constitutional, because the Tenth Amendment reserves to the states plenary authority over the spending of state funds. B. constitutional, because Axbridge has a legitimate interest in encouraging the growth of its population, and a rational legislature could believe that families in which both parents are United States citizens are more likely to stay in Axbridge and contribute to its future prosperity than those in which one or both of the parents are aliens. C. unconstitutional, because strict scrutiny governs judicial review of such state classifications based on alienage, and Axbridge cannot demonstrate that this classification is necessary to advance a compelling state interest. D. unconstitutional, because state classifications based on alienage are impermissible unless explicitly authorized by an act of Congress.

C Alienage is a suspect classification that merits strict scrutiny.

2. A state statute requires that all buses which operate as common carriers on the highways of the state shall be equipped with seat belts for passengers. Transport Lines, an interstate carrier, challenges the validity of the statute and the right of the state to make the requirement. What is the best basis for a constitutional challenge by Transport Lines? A. Violation of the due process clause of the Fourteenth Amendment B. Violation of the equal protection clause of the Fourteenth Amendment C. Unreasonable burden on interstate commerce D. Difficulty of enforcement

C Lack of uniformity: A measure that leads to a lack of uniformity is likely to constitute an unduly large burden on interstate commerce. For instance, if various states' regulations are in conflict, the Court will probably strike the minority regulation, on the grounds that it creates a lack of uniformity that substantially burdens commerce without a sufficiently great corresponding benefit to the state. a. Converse: Conversely, a regulation that does not produce a burdensome inconsistency with other states' regulations, and that treats in-staters and out-of-staters the same, is likely to be sustained. For instance, a state's regulation that applies only to corporations incorporated in that state probably won't pose inconsistency problems, because no corporation can be incorporated in more than one state; therefore, a state's regulation of its own corporations is unlikely to be found to be unduly burdensome to commerce.

8. The state of Erehwon has a statute providing that an unsuccessful candidate in a primary election for a party's nomination for elected public office may not become a candidate for the same office at the following general election by nominating petition or by write-in votes. Sabel sought her party's nomination for governor in the May primary election. After losing in the primary, Sabel filed nominating petitions containing the requisite number of signatures to become a candidate for the office of governor in the following general election. The chief elections officer of Erehwon refused to certify Sabel's petitions solely because of the above statute. Sabel then filed suit in federal district court challenging the constitutionality of this Erehwon statute. As a matter of constitutional law, which of the following is the proper burden of persuasion in this suit? A. Sabel must demonstrate that the statute is not necessary to achieve a compelling state interest. B. Sabel must demonstrate that the statute is not rationally related to a legitimate state interest C. The state must demonstrate that the statute is the least restrictive means of achieving a compelling state interest. D. The state must demonstrate that the statute is rationally related to a legitimate state interest.

C The right to vote is a fundamental right that the government cannot infringe upon unless it can show it has a compelling interest that is narrowly tailored to achieve its objective.

Ames had painted Bell's house under a contract which called for payment of $2,000. Bell, contending in good faith that the porch had not been painted properly, refused to pay anything. On June 15, Ames mailed a letter to Bell stating, "I am in serious need of money. Please send the $2,000 to me before July 1." On June 18, Bell replied, "I will settle for $1,800 provided you agree to repaint the porch." Ames did not reply to this letter. Thereafter Bell mailed a check for $1,800 marked "Payment in full on the Ames-Bell painting contract as per letter dated June 18." Ames received the check on June 30. Because he was badly in need of money, Ames cashed the check without objection and spent the proceeds but has refused to repaint the porch. Bell's refusal to pay anything to Ames when he finished painting was a A. partial breach of contract only if Ames had properly or substantially painted the porch. B. partial breach of contract whether or not Ames had properly or substantially painted the porch. C. total breach of contract only if Ames had properly or substantially painted the porch. D. total breach of contract whether or not Ames had properly or substantially painted the porch.

10. Congress enacted a law prohibiting the killing, capture, or removal of any form of wildlife upon or from any federally owned land. Which of the following is the most easily justifiable source of national authority for this federal law? A. The commerce clause of Article I, §8 B. The privileges and immunities clause of Article IV C. The enforcement clause of the Fourteenth Amendment D. The property clause of Article IV, §3

10. Congress passes a law regulating the wholesale retail prices of "every purchase or sale of oil, natural gas, and electric power made in the United States." The strongest argument in support of the constitutionality of this statute is that A. the Constitution expressly empowers Congress to enact laws for "the general welfare." B. Congress has the authority to regulate such products' interstate transportation and importation from abroad. C. Congress may regulate the prices of every purchase and sale of goods and services made in this country, because commerce includes buying and selling. D. in inseverable aggregates, the domestic purchases or sales of such products affect interstate or foreign commerce.

10. In an action to recover for personal injuries arising out of an automobile accident, Plaintiff called Bystander to testify. Claiming the privilege against self-incrimination, Bystander refuses to answer a question as to whether she was at the scene of the accident. Plaintiff moves that Bystander be ordered to answer the question. The judge should allow Bystander to remain silent only if A. the judge is convinced that she will incriminate herself. B. there is clear and convincing evidence that she will incriminate herself. C. there is a preponderance of evidence that she will incriminate herself. D. the judge believes that there is some reasonable possibility that she will incriminate herself.

10. Questions 8-10 are based on the following fact situation. Congress provides by statute that any state that fails to prohibit automobile speeds of over 55 miles per hour on highways within the state shall be denied all federal highway construction funding. The state of Atlantic, one of the richest and most highway-oriented states in the country, refuses to enact such a statute. __________________________________________________________________________ The federal statute relating to disbursement of highway funds conditioned on the 55 mile-an-hour speed limit is probably A. unconstitutional. B. constitutional only on the basis of the spending power. C. constitutional only on the basis of the commerce power. D. constitutional on the basis of both the spending power and the commerce power.

2. A state statute makes fraud for personal financial gain a crime. Jones was convicted of violating this statute on three separate occasions. Following his most recent conviction, he professed to have undergone a religious conversion and proclaimed himself to be the divine minister of "St. Rockport," an alleged messiah who would shortly be making his appearance on earth. Jones solicited cash donations from the public to support his efforts to spread the word of St. Rockport and his coming appearance on earth. Following complaints by several contributors who claimed he defrauded them, Jones was again charged with fraud under this state statute. The charge was that Jones "should have known that his representations about St. Rockport were false and, therefore, that he made them solely to collect cash donations for his personal gain." A witness for the prosecution in Jones' trial stated that Jones had admitted that, at times, he had doubts about the existence of St. Rockport. Jones was the only religious minister prosecuted for fraud under this state statute. The strongest constitutional defense that Jones could assert would be that this prosecution A. deprived him of the equal protection of the laws because other religious ministers have not been charged under this statute. B. denied him procedural due process because it placed upon Jones the burden of rebutting evidence, submitted by the state, of his bad faith in raising this money C. denied him rights conferred by the obligation of contracts clause by preventing him from taking money from persons who wished to contract with him to spread the word of St. Rockport. D. denied him the free exercise of religion in violation of the First and Fourteenth Amendments because it required the state to determine the truth or falsity of the content of his religious beliefs.

2. A state statute requires any person licensed to sell prescription drugs to file with the State Board of Health a report listing the types and amounts of such drugs sold if his sales of such drugs exceed $50,000 during a calendar year. The statute makes it a misdemeanor to "knowingly fail to file" such a report. Nelson, who is licensed to sell prescription drugs, sold $63,000 worth of prescription drugs during 1976 but did not file the report. Charged with committing the misdemeanor, Nelson testifies that he did a very poor job of keeping records and did not realize that his sales of prescription drugs had exceeded $50,000. If the jury believes Nelson he should be found A. guilty, because this is a public welfare offense. B. guilty, because he cannot be excused on the basis of his own failure to keep proper records. C. not guilty, because the statute punishes omissions and he was not given fair warning of his duty to act. D. not guilty, because he was not aware of the value of the drugs he had sold.

2. After several well-publicized deaths caused by fires in products made from highly flammable fabrics, the state of Orange enacted a statute prohibiting "the manufacture or assembly of any product in this state which contains any fabric that has not been tested and approved for flame retardancy by the Zetest Testing Company." The Zetest Testing Company is a privately owned and operated business located in Orange. For many years, Fabric Mill, located in the state of Orange, has had its fabric tested for flame retardancy by the Alpha Testing Company, located in the state of Green. Alpha Testing Company is a reliable organization that uses a process for testing and approving fabrics for flame retardancy identical in all respects to that used by the Zetest Testing Company. Because Fabric Mill wishes to continue to have its fabric tested solely by Alpha Testing Company, Fabric Mill files an action in Orange state court challenging the constitutionality of the Orange statute as applied to its circumstances. In this suit, the court should hold the statute to be A. constitutional, because it is reasonably related to the protection of the reputation of the fabric industry located in the state of Orange. B. constitutional, because it is a legitimate means of protecting the safety of the public. C. unconstitutional, because it denies to Fabric Mill the equal protection of the laws. D. unconstitutional, because it imposes an unreasonable burden on interstate commerce.

2. Questions 1-4 are based on the following fact situation. The State of Aurora requires licenses of persons "who are engaged in the trade of barbering." It will grant such licenses only to those who are graduates of barber schools located in Aurora, who have resided in the state for two years, and who are citizens of the United States. _______________________________________________________________ The requirement that candidates for licenses must be citizens is A. constitutional as an effort to ensure that barbers speak English adequately. B. constitutional as an exercise of the state police power C. unconstitutional as a bill of attainder D. unconstitutional as a denial of equal protection.

3. A federal statute sets up a program of dental education. The statute provides that the Secretary of Health and Human Services "shall, on a current basis, spend all of the money appropriated for this purpose" and "shall distribute the appropriated funds" by a specified formula to state health departments that agree to participate in the program. In the current year Congress has appropriated $100 million for expenditure on this program. In order to ensure a budget surplus in the current fiscal year, the President issued an executive order directing the various cabinet secretaries to cut expenditures in this year by 10 percent in all categories. He also orders certain programs to be cut more drastically because he believes that "they are not as important to the general welfare as other programs." The President identifies the dental education program as such a program and orders it to be cut by 50 percent. Assume that no other federal statutes are relevant. To satisfy constitutional requirements, how much money must the Secretary of Health and Human Services distribute for the dental education program this year? A. $50 million, because the President could reasonably determine that this program is not as important to the general welfare as other programs. B. $50 million, because as chief executive the President has the constitutional authority to control the actions of all of his subordinates by executive order. C. $90 million, because any more drastic cut for the program would be a denial of equal protection to beneficiaries of this program as compared to beneficiaries of other programs. D. $100 million, because the President may not unilaterally suspend the effect of a valid federal statute imposing a duty to spend appropriated monies

3. In 1963 Hobson was appointed to a tribunal established pursuant to a congressional act. The tribunal's duties were to review claims made by veterans and to make recommendations to the Veterans Administration on their merits. Congress later abolished the tribunal and established a different format for review of such claims. Hobson was offered a federal administrative position in the same bureau at a lesser salary. He thereupon sued the government on the ground that Congress may not remove a federal judge from office during good behavior nor diminish his compensation during continuance in office. Government attorneys filed a motion to dismiss the action. The court should A. deny the motion, because of the independence of the federal judiciary constitutionally guaranteed by Article III. B. deny the motion, because Hobson has established a property right to his federal employment on the tribunal. C. grant the motion, because Hobson lacked standing to raise the question. D. grant the motion, because Hobson was not a judge under Article III and is not entitled to life tenure.

3. Questions 1-4 are based on the following fact situation. The State of Aurora requires licenses of persons "who are engaged in the trade of barbering." It will grant such licenses only to those who are graduates of barber schools located in Aurora, who have resided in the state for two years, and who are citizens of the United States. ________________________________________________________ Assume that a resident of the state of Aurora was denied a license because she had been graduated from an out-of-state barber school. Her suit in federal court to enjoin denial of the license on this ground would be A. dismissed, because there is no diversity of citizenship B. dismissed, because of the abstention doctrine C. decided on the merits, because federal jurisdiction extends to controversies between two states D. decided on the merits, because a federal question is involved.

3. Questions 3-4 are based on the following fact situation. Jack and Paul planned to hold up a bank. They drove to the bank in Jack's car. Jack entered while Paul remained as lookout in the car. After a few moments, Paul panicked and drove off. Jack looked over the various tellers, approached one and whispered nervously, "Just hand over the cash. Don't look around, don't make a false move-or it's your life." The teller looked at the fidgeting Jack, laughed, flipped him a dollar bill and said, "Go on, beat it." Flustered, Jack grabbed the dollar and left. Soon after leaving the scene, Paul was stopped by the police for speeding. Noting his nervous condition, the police asked Paul if they might search the car. Paul agreed. The search turned up heroin concealed in the lid of the trunk. /////////////////////////////////////////////////////////////////// Paul's best defense to a charge of robbery would be that A. Jack alone entered the bank. B. Paul withdrew before commission of the crime when he fled the scene. C. Paul had no knowledge of what Jack whispered to the teller. D. the teller was not placed in fear by Jack.

3. Questions 3-4 are based on the following fact situation. The State of Missoula has enacted a new election code designed to increase voter responsibility in the exercise of the franchise and to enlarge citizen participation in the electoral process. None of its provisions conflicts with federal statutes. ______________________________________________________________________________________ Which of the following is the strongest reason for finding unconstitutional a requirement in the Missoula election code that each voter must be literate in English? A. The requirement violates Article I Section 2 of the Constitution, which provides that representatives to Congress be chosen "by the People of the several States." B. The requirement violates Article I, Section 4 of the Constitution, which gives Congress the power to "make or alter" state regulations providing for the "Times" and "Manner" of holding elections for senators and representatives. C. the requirement violates the due process clause of the Fourteenth Amendment. D. The requirement violates the equal protection of the laws clause of the Fourteenth Amendment.

4. The National AIDS Prevention and Control Act is a new, comprehensive federal statute that was enacted to deal with the public health crisis caused by the AIDS virus. Congress and the President were concerned that inconsistent lower court rulings with respect to the constitutionality, interpretation, and application of the statute might adversely affect or delay its enforcement and, thereby, jeopardize the public health. As a result, they included a provision in the statute providing that all legal challenges concerning those matters may be initiated only by filing suit directly in the United States Supreme Court. The provision authorizing direct review of the constitutionality, interpretation, or application of this statute only in the United States Supreme Court is A. constitutional, because it is authorized by the Article I power of Congress to enact all laws that are "necessary and proper" to implement the general welfare. B. constitutional, because Article III provides that the jurisdiction of the United States Supreme Court is subject to such exceptions and such regulations as Congress shall make. C. unconstitutional, because it denies persons who wish to challenge this statute the equal protection of the laws by requiring them to file suit in a court different from that in which persons who wish to challenge other statutes may file suit. D. unconstitutional, because it is inconsistent with the specification in Article III of the original jurisdiction of the United States Supreme Court.

5. A state statute provides that only citizens of the United States may be employed by that state. In an action brought in a federal court, a resident alien who was prevented from obtaining state employment as a garbage collector solely because of his alien status challenged the statute's constitutionality as applied to his circumstances. Which of the following statements concerning the burden of persuasion applicable to this suit is correct? A. The alien must demonstrate that there is no rational relationship between the citizenship requirement and any legitimate state interest. B. The alien must demonstrate that the citizenship requirement is not necessary to advance an important state interest. C. The state must demonstrate that there is a rational relationship between the citizenship requirement and a legitimate state interest. D. The state must demonstrate that the citizenship requirement is necessary to advance an important state interest.

5. Questions 4-5 are based on the following fact situation. Ben was the illegitimate, unacknowledged child of Fred. Fred died intestate, leaving neither spouse nor any children other than Ben. The state's law of intestate succession provides that an unacknowledged illegitimate child may not inherit his father's property. The spouse, all other blood relations, and the state are preferred as heirs over the unacknowledged illegitimate child. Ben filed suit in an appropriate court alleging that the state statute barring an illegitimate child from sharing in a parent's estate is invalid, and that he should be declared lawful heir to his father's estate. _____________________________________________________ The state's strongest defense [prior to the Supreme Court's decision in 1988 in Clark v. Jeter] of the statute would be that A. the authority of a state over the disposition of decedents' property located in the state is not affected by the Constitution of the United States. B. a statute prescribing the means of disposing of the property of intestate decedents does not constitute invidious discrimination. C. inheritance under intestate succession laws is a privilege, not a right, and therefore is not protected as property under the due process clause. D. its interest in promoting family life and in encouraging the formal acknowledgment of paternity gives the law a rational basis.

5. Questions 4-5 are based on the following fact situation. Statutes in the jurisdiction define criminal assault as "an attempt to commit a criminal battery" and criminal battery as "causing an offensive touching." As Edward was walking down the street, a gust of wind blew his hat off. Edward reached out, trying to grab his hat, and narrowly missed striking Margaret in the face with his hand. Margaret, fearful of being struck by Edward, pushed Edward away. ////////////////////////////////////////////////////////////////////// If charged with criminal battery, Margaret should be found A. guilty, because she intentionally pushed Edward. B. guilty, because she caused the touching of Edward whether she meant to do so or not. C. not guilty, because a push is not an offensive touching. D. not guilty, because she was justified in pushing Edward.

5. The State of Rio Grande entered into a contract with Roads, Inc., for construction of a four-lane turnpike. Prior to commencement of construction, the legislature, in order to provide funds for parks, repealed the statute authorizing the turnpike and cancelled the agreement with Roads, Inc. Roads, Inc. sued the state to enforce its original agreement. In ruling on this case, a court should hold that the state statute cancelling the agreement is A. valid, because constitutionally the sovereign is not liable except with its own consent. B. valid, because the legislature is vested with constitutional authority to repeal laws it has enacted. C. invalid, because a state is equitably estopped to disclaim a valid bid once accepted by it. D. invalid, because of the constitutional prohibition against impairment of contracts.

6. Questions 4-7 are based on the following fact situation. Penn sues Duke's Bar for injuries suffered in an automobile accident caused by Chase, who had been a patron of Duke's Bar. Penn claims that Chase was permitted to drink too much liquor at Duke's Bar before the accident. /////////////////////////////////////////////////////////////////////////////// Penn offers evidence that, after the accident the manager of Duke's Bar established house rules limiting all customers to two drinks per hour, with a maximum limit of four drinks per night. This evidence is A. admissible to show that the prior conduct of Duke's Bar was negligent. B. admissible to show that Duke's Bar was aware of the need for taking precautionary measure. C. inadmissible, because subsequent measures by an employee are not binding on Duke's Bar. D. inadmissible, because its admission would discourage the taking of such remedial measures

6. Questions 6-7 are based on the following fact situation. The state of Champlain enacts the Young Adult Marriage Counseling Act, which provides that, before any persons less than 30 years of age may be issued a marriage license, they must receive at least five hours of marriage counseling from a state-licensed social worker. This counseling is designed to assure that applicants for marriage licenses know their legal rights and duties in relation to marriage and parenthood, understand the "true nature" of the marriage relationship, and understand the procedures for obtaining divorces. _______________________________________________________________ Pine, aged 25, contemplated marrying Ross, aged 25. Both are residents of the state of Champlain. Pine has not yet proposed to Ross because he is offended by the counseling requirement. Pine sues in court seeking a declaratory judgment that the Young Adult Marriage Counseling Act is unconstitutional. Which of the following is the clearest ground for dismissal of this action by the court? A. Pine and Ross are residents of the same state. B. No substantial federal question is presented. C. The suit presents a non-justifiable political question. D. The suit is unripe.

7. Dobbs, while intoxicated, drove his car through a playground crowded with children just to watch the children run to get out of his way. His car struck one of the children, killing her instantly. Which of the following is the best theory for finding Dobbs guilty of murder? A. Transferred intent B. Felony murder, with assault with a deadly weapon as the underlying felony C. Intentional killing, since he knew that the children were there and he deliberately drove his car at them D. Commission of an act highly dangerous to life, without an intent to kill but with disregard of the consequences

7. Questions 7-10 are based on the following fact situation. John Doe, the owner of a milk container manufacturing firm, sought to focus public attention on the milk packaging law of the State of Clinton in order to have it repealed. On a weekday at 12:00 noon, he delivered an excited, animated, and loud harangue on the steps of the State Capitol in front of the main entryway. An audience of 200 onlookers, who gathered on the steps, heckled him and laughed as he delivered his tirade. Doe repeatedly stated, gesturing expressively and making faces, that "the g-ddamned milk packaging law is stupid," and that "I will strangle every one of those g-ddamned legislators I can get hold of because this law they created proves they are all too dumb to live." After about fifteen minutes, Doe stopped speaking, and the amused crowd dispersed. There are three relevant statutes of the State of Clinton. The first statute prohibits "all speech making, picketing, and public gatherings of every sort on the Capitol steps in front of the main entryway between 7:45 a.m.-8:15 a.m., 11:45 a.m.-12:15 p.m., 12:45 p.m.-1:15 p.m., and 4:45 p.m.-5:15 p.m. on Capitol working days." _____________________________________________________ If Doe is prosecuted under the "Capitol steps" statute and defends on constitutional grounds, which of the following best describes the proper burden of proof? A. Doe would have to prove that the state did not have a rational basis for enacting this statute. B. Doe would have to prove that the state did not have a compelling need for this statute or that it had less restrictive means by which it could satisfy that need. C. The state would have to prove that it had a rational basis for enacting this statute. D. The state would have to prove that it had a compelling need for this statute and that there were no less restrictive means by which it could satisfy that need.

7. Questions 7-8 are based on the following fact situation. Green is cited for contempt of the House of Representatives after she refused to answer certain questions posed by a House Committee concerning her acts while serving as a United States Ambassador. A federal statute authorizes the Attorney General to prosecute contempts of Congress. Pursuant to this law, the House directs the Attorney General to begin criminal proceedings against Green. A federal grand jury indicts Green, but the Attorney General refuses to sign the indictment. _______________________________________________ Which of the following best describes the constitutionality of the Attorney General's action? A. Illegal, because the Attorney General must prosecute if the House of Representatives directs B. Illegal, because the Attorney General must prosecute those who violate federal law. C. Legal, because ambassadors are immune from prosecution for acts committed in the course of their duties. D. Legal, because the decision to prosecute is an exclusively executive act.

7. The National AIDS Prevention and Control Act is a new, comprehensive federal statute that was enacted to deal with the public health crisis caused by the AIDS virus. Congress and the President were concerned that inconsistent lower court rulings with respect to the constitutionality, interpretation, and application of the statute might adversely affect or delay its enforcement and, thereby, jeopardize the public health. As a result, they included a provision in the statute providing that all legal challenges concerning those matters may be initiated only by filing suit directly in the United States Supreme Court. The provision authorizing direct review of the constitutionality, interpretation, or application of this statute only in the United States Supreme Court is A. constitutional, because it is authorized by the Article I power of Congress to enact all laws that are "necessary and proper" to implement the general welfare. B. constitutional, because Article III provides that the jurisdiction of the United States Supreme Court is subject to such exceptions and such regulations as Congress shall make. C. unconstitutional, because it denies persons who wish to challenge this statute the equal protection of the laws by requiring them to file suit in a court different from that in which persons who wish to challenge other statutes may file suit. D. unconstitutional, because it is inconsistent with the specification in Article III of the original jurisdiction of the United States Supreme Court.

8. A statute authorizes a specified federal administrative agency to issue rules governing the distribution of federal grant funds for scientific research. The statute provides that, in issuing those rules, the agency must follow procedures and substantive standards contained in the statute. In a severable provision, the statute also provides that otherwise valid rules issued by the agency under authority delegated to it by this statute may be set aside by a majority vote of a designated standing joint committee of Congress. The provision of this statute relating to the power of the designated standing joint committee of Congress is A. constitutional, because it is a necessary and proper means of ensuring that the rules issued by this agency are actually consistent with the will of Congress. B. constitutional, because discretionary money grants authorized by statute are privileges, not rights, and, therefore, Congress has greater freedom to intervene in their administration than it has to intervene in the administration of regulatory laws. C. unconstitutional, because it denies equal protection of the laws to members of Congress who are not appointed to the joint legislative committee authorized to set aside rules of this agency. D. unconstitutional, because it authorizes a congressional change of legal rights and obligations by means other than those specified in the Constitution for the enactment of laws.

8. For this question only, assume that a valid federal administrative rule, adopted under a federal consumer product safety act, regulates the design of snipe traps. The rule was issued to prevent traps from causing injury to human beings, e.g., by pinching fingers while persons were setting the traps. No other federal law applies. Which of the following best states the effect of the federal rule on the Midland state statute? A. The federal rule preempts the Midland state statute, because the federal rule regulates the same subject matter, snipe traps. B. The federal rule preempts the Midland state statute, because the federal rule does not contain affirmative authorization for continued state regulation. C. The federal rule does not preempt the Midland state statute, because the Midland state statute regulates wild animals, a field of exclusive state power. D. The federal rule does not preempt the Midland state statute, because the purposes of the federal rule and the Midland state statute are different.

9. Questions 8-10 are based on the following fact situation. As part of a comprehensive federal aid-to-education program, Congress included the following provisions as conditions for state receipt of federal funds: (1) Whenever textbooks are provided to students without charge, they must include no religious instruction and must be made available on the same terms to students in all public and private schools accredited by the state educational authority. (2) Salary supplements can be paid to teachers in public and private schools, up to ten percent of existing salary schedules, where present compensation is less than the average salary for persons of comparable training and experience, provided that no such supplement is paid to any teacher who instructs in religious subjects. (3) Construction grants can be made toward the cost of physical plant at private colleges and universities, provided that no part of the grant is used for buildings in which instruction in religious subject matters is offered. ______________________________________________________________________________ Federal taxpayer Bates challenges the salary supplements for teachers in private schools where religious instruction is included in the curriculum. On the substantive constitutional issue, the most likely result is that the salary supplements will be A. sustained, because the statute provides that no supplements will be made to teachers who are engaged in any religious instruction. B. sustained, because to distinguish between private and public school teachers would violate the religious freedom clause of the First Amendment. C. held unconstitutional, because some religions would benefit disproportionately. D. held unconstitutional, because the policing of the restriction would amount to an excessive entanglement with religion.

9. Questions 9-10 are based on the following fact situation. Until 1954, the state of New Atlantic required segregation in all public and private schools, but all public schools are now desegregated. Other state laws, enacted before 1954 and continuing to the present, provide for free distribution of the same textbooks on secular subjects to students in all public and private schools. In addition, the state accredits schools and certifies teachers. Little White School, a private school that offers elementary and secondary education in the state, denies admission to all non-Caucasians. Stone School is a private school that offers religious instruction. _____________________________________________________________ Which of the following is the strongest argument against the constitutionality of free distribution of textbooks to the students at the Little White School? A. No legitimate educational function is served by the free distribution of textbooks. B. The state may not in any way aid private schools. C. The Constitution forbids private bias of any kind. D. Segregation is furthered by the distribution of textbooks to these students.

9. Questions 9-11 are based on the following fact situation. Harry met Bill, who was known to him to be a burglar, in a bar. Harry told Bill that he needed money. He promised to pay Bill $500 if Bill would go to Harry's house the following night and take some silverware. Harry explained to Bill that, although the silverware was legally his, his wife would object to his selling it. Harry pointed out his home, one of a group of similar tract houses. He drew a floor plan of the house that showed the location of the silverware. Harry said that his wife usually took several sleeping pills before retiring, and that he would make sure that she took them the next night. He promised to leave a window unlocked. Everything went according to the plan except that Bill, deceived by the similarity of the tract houses, went to the wrong house. He found a window unlocked, climbed in and found silver where Harry had indicated. He took the silver to the cocktail lounge where the payoff was to take place. At that point police arrested the two men. /////////////////////////////////////////////////////////////////// If Harry were charged with burglary, his best argument for acquittal would be that A. there was no breaking. B. he consented to the entry. C. no overt act was committed by him. D. there was no intent to commit a felony.

Albert engaged Bertha, an inexperienced actress, to do a small role in a new Broadway play for a period of six months at a salary of $200 a week. Bertha turned down another role in order to accept this engagement. On the third day of the run, Bertha was hospitalized with influenza and Helen was hired to do the part. A week later, Bertha recovered, but Albert refused to accept her services for the remainder of the contract period. Bertha then brought an action against Albert for breach of contract. Which of the following is Bertha's best legal theory? A. Her acting contract with Albert was legally severable into weekly units. B. Her performance of the literal terms of the contract was physically impossible. C. Her reliance on the engagement with Albert by declining another acting role created an estoppel against Albert. D. Her failure to perform for one week was not a material failure so as to discharge Albert's duty to perform.

Congress enacts a law providing that all disagreements between the United States and a state over federal grant-in-aid funds shall be settled by the filing of a suit in the federal district court in the affected state. "The judgment of that federal court shall be transmitted to the head of the federal agency dispensing such funds who, if satisfied that the judgment is fair and lawful, shall execute the judgment according to its terms." This law is A. constitutional, because disagreements over federal grant-in-aid funds necessarily involve federal questions within the judicial power of the United States. B. constitutional, because the spending of federal monies necessarily includes the authority to provide for the effective settlement of disputes involving them. C. unconstitutional, because it vests authority in the federal court to determine a matter prohibited to it by the Eleventh Amendment. D. unconstitutional, because it vests authority in a federal court to render an advisory opinion.

On March 1, Zeller orally agreed to sell his land, Homestead, to Byer for $46,000 to be paid on March 31. Byer orally agreed to pay $25,000 of the purchase price to Quincy in satisfaction of a debt which Zeller said he had promised to pay Quincy. On March 10, Byer dictated the agreement to his secretary but omitted all reference to the payment of the $25,000 to Quincy. In typing the agreement, the secretary mistakenly typed in $45,000 rather than $46,000 as the purchase price. Neither Byer nor Zeller carefully read the writing before signing it on March 15. Neither noticed the error in price and neither raised any question concerning omission of the payment to Quincy. ///////////////////////////////////////////////////////////////////////////////////////////////////////////////// In an action by Quincy against Byer for $25,000, which of the following is (are) correct? I. Byer could successfully raise the Statute of Frauds as a defense because the Byer-Zeller agreement was to answer for the debt of another. II. Byer could successfully raise the Statute of Frauds as a defense because the Byer-Zeller agreement was for the sale of an interest in land. A. I only B. II only C. Both I and II D. Neither I nor II

7. Questions 5-7 are based on the following fact situation. The State of Yuma provides by statute, "No person may be awarded any state construction contract without agreeing to employ only citizens of the state and of the United States in performance of the contract." ___________________________________________________________________________________ Suppose the state supreme court declares the statute to be unconstitutional on the grounds that it violates the privileges and immunities clause of the Fourteenth Amendment to the federal constitution and the equal protection clause of the state constitution. If the state seeks review in the United States Supreme Court, which of the following statements is most accurate? A. The United States Supreme Court may properly review that decision by certiorari only. B. The United States Supreme Court may properly review the decision by appeal only. C. The United States Supreme Court may properly review that decision by appeal or certiorari. D. The United States Supreme Court may not properly review that decision

D Federal judicial power: Article III, Sec. 2, Clause 1, sets out the federal judicial power. This includes, among other things: - cases arising under the Constitution or the "laws of the U.S." (i.e., cases posing a "federal question"); - cases of admiralty; - cases between two or more states; - cases between citizens of different states; and - cases between a state or its citizens and a foreign country or foreign citizen. Note: Notice from this list that the federal judicial power does not include cases where both parties are citizens (i.e., residents) of the same state and no federal question is raised.

9. A federal statute requires United States civil service employees to retire at age 75. However, that statute also states that civil service employees of the armed forces must retire at age 65. Prentis, a 65-year-old service employee of the Department of the Army, seeks a declaratory judgment that would forbid his mandatory retirement until age 75. The strongest argument that Prentis can make to invalidate the requirement that he retire at age 65 is that the law A. denies him a privilege or immunity of national citizenship. B. deprives him of a property right without just compensation. C. is not within the scope of any of the enumerated powers of Congress in Article I, §8. D. invidiously discriminates against him on the basis of age in violation of the Fifth Amendment.

D Invidious: In addition to the requirement that the discrimination be "purposeful," it must also be "invidious," i.e., based on prejudice or tending to denigrate the disfavored class. This requirement is what has caused race, national origin, and (for some purposes) alienage to be the only suspect classes — these involve the only minorities against whom popular prejudice is sufficiently deep. a. Rationale: Why do we give especially close scrutiny to governmental action that disadvantages very unpopular minorities? Because ordinarily, groups will protect themselves through use of the political process, but: (1) these particular groups don't usually have very much political power, because the past discrimination against them has included keeping them out of the voting system; and (2) even if the minority votes in proportion to its numbers, the majority is very likely to vote as a block against it, because of the minority's extreme unpopularity.

7. Assume for the purposes of this question that you are counsel to the state legislative committee that is responsible for real estate laws in your state. /////////////////////////////////////////////////////////////////////////////////////////////////// The committee wants you to draft legislation to make all restrictions on land use imposed by deeds (now or hereafter recorded) unenforceable in the future so that public land-use planning through zoning will have exclusive control in matters of land use. Which of the following is LEAST likely to be a consideration in the drafting of such legislation? A. Compensation for property rights taken by public authority B. Impairment of contract C. Sovereign immunity D. Police power

7. Pursuant to a state statute, Clovis applied for tuition assistance to attend the Institute of Liberal Arts. He was qualified for such assistance in every way except that he was a resident alien who did not intend to become a United States citizen. The state's restriction of such grants to United States citizens or resident aliens seeking such citizenship is probably A. valid, because aliens are not per se "a discrete and insular minority" specially protected by the Fourteenth Amendment. B. valid, because the line drawn by the state for extending aid was reasonably related to a legitimate state interest. C. invalid, because the justifications for this restriction are insufficient to overcome the burden imposed on a state when it uses such an alienage classification. D. invalid, because the privileges and immunities clause of Article IV does not permit such an arbitrary classification.

4. Questions 4-5 are based on the following fact situation. All lawyers practicing in the state of Erewhon must be members of the State Bar Association, by order of the state supreme court. Several state officials serve on the Bar Association's Board of Bar Governors. The Board of Bar Governors authorizes the payment of dues for two staff members to the Cosmopolitan Club, a private dining club licensed to sell alcoholic beverages. The Cosmopolitan Club is frequented by affluent businessmen and professionals and by legislators. It is generally known that the purpose of the membership of the Bar Association staff is to enable them to go where members of the "elite" meet and to lobby for legislation in which the Bar Association is interested. The State Bar Association has numerous committees and subcommittees concerned with family law, real estate law, unauthorized practice, etc., and its recommendations often influence state policy. Some committee meetings are held at the Cosmopolitan Club. The club is known to have rules which restrict membership by race, religion, and sex. Plaintiffs, husband and wife, who are members of the Erewhon Bar Association, petition the Board of Bar Governors to adopt a resolution prohibiting the payment of club dues to and the holding of meetings of the Bar Association or its committees at places which discriminate on the basis of race, religion, or sex. After substantial public discussion, the Board of Bar Governors, by a close vote, fails to pass such a resolution. These events receive extensive coverage in the local newspapers. Plaintiffs bring an action in federal court seeking an injunction against such payments and the holding of meetings in such places as the Cosmopolitan Club. ________________________________________________________________________________ The strongest argument for Plaintiffs is A. private rights to discriminate and associate freely must defer to a public interest against discrimination on the basis of race, religion, or sex. B. the failure of the State Bar Association to pass a resolution forbidding discrimination on the basis of race, religion, or sex constitutes a denial of equal protection. C. the State Bar Association is an agency of the state and its payment of dues to such private clubs promotes discrimination on the basis of race, religion, and sex. D. the State Bar Association's payment of dues to such private clubs promotes discrimination on the basis of race, religion, and sex.

C "Public function" doctrine: Under the "public function" approach to state action, if a private individual (or group) is entrusted by the state to perform functions that are governmental in nature, the private individual becomes an agent of the state, and his acts constitute state action. 1. Political system: The electoral process is a "public function," and is thus state action. Therefore, the carrying out of primary elections is state action, even if the acts are directly carried out by "private" political parties. Example: A state convention of Democrats (in essence, a "private" political party) rules that only whites may vote in the Texas Democratic Primary. Held, this racial restriction is "state action," and therefore violates the Fifteenth Amendment. The primary is an integral part of the election scheme, and the running of elections is traditionally a "public function," so the running of the primary is state action even though it is directly carried out by private groups. [Smith v. Allwright]

6. A federal criminal law makes it a crime for any citizen of the United States not specifically authorized by the President to negotiate with a foreign government for the purpose of influencing the foreign government in relation to a dispute with the United States. The strongest constitutional ground for the validity of this law is that A. under several of its enumerated powers, Congress may legislate to preserve the monopoly of the national government over the conduct of United States foreign affairs. B. the President's inherent power to negotiate for the United States with foreign countries authorizes the President, even in the absence of statutory authorization, to punish citizens who engage in such negotiations without permission. C. the law deals with foreign relations and therefore is not governed by the First Amendment. D. federal criminal laws dealing with international affairs need not be as specific as those dealing with domestic affairs.

6. Questions 5-7 are based on the following fact situation. The State of Yuma provides by statute, "No person may be awarded any state construction contract without agreeing to employ only citizens of the state and of the United States in performance of the contract." ______________________________________________________________________ If the Yuma statute is attacked as violating the commerce clause, which of the following defenses is the WEAKEST? A. The statute will help protect the workers of the State of Yuma from competition by foreign workers. B. The statute will help assure that workers with jobs directly affecting the performance of public contracts are dedicated to their jobs. C. The statute will help assure a continuously available and stable work force for the execution of public contracts. D. The statute will help assure that only the most qualified individuals work on public contracts.

1. Questions 1-4 are based on the following fact situation. The State of Aurora requires licenses of persons "who are engaged in the trade of barbering." It will grant such licenses only to those who are graduates of barber schools located in Aurora, who have resided in the state for two years, and who are citizens of the United States. __________________________________________________ The requirement that candidates for license must be graduates of barber schools in Aurora is probably A. unconstitutional as an undue burden on interstate commerce B. unconstitutional as a violation of the privileges and immunities clause of the Fourteenth Amendment. C. constitutional, because the state does not know the quality of out-of-state barber schools. D. constitutional, because barbering is a privilege and not a right.

3. Which of the following acts by the United States Senate would be constitutionally IMPROPER? A. The Senate decides, with the House of Representatives, that a disputed state ratification of a proposed constitutional amendment is valid. B. The Senate determines the eligibility of a person to serve as a senator. C. The Senate appoints a commission to adjudicate finally a boundary dispute between two states. D. The Senate passes a resolution calling on the President to pursue a certain foreign policy.

1. Questions 1-2 are based on the following fact situation. The Federal Automobile Safety Act establishes certain safety and performance standards for all automobiles manufactured in the United States. The Act creates a five-member "Automobile Commission" to investigate automobile safety, to make recommendations to Congress for new laws, to make further rules establishing safety and performance standards, and to prosecute violations of the act. The chairman is appointed by the President, two members are selected by the President pro tempore of the Senate, and two by the Speaker of the House of Representatives. Minicar, Inc., a minor United States car manufacturer, seeks to enjoin enforcement of the Commission's rules. _______________________________________________________________ The best argument that Minicar can make is that A. legislative power may not be delegated by Congress to an agency in the absence of clear guidelines. B. the commerce power does not extend to the manufacture of automobiles not used in interstate commerce. C. Minicar is denied due process of law because it is not represented on the Commission. D. the Commission lacks authority to enforce its standards because not all of its members were appointed by the President.

6. Congressional legislation authorizing marriages and divorces as a matter of federal law on prescribed terms and conditions could most easily be upheld if it A. applied only to marriages and divorces in which at least one of the parties is a member of the armed forces. B. applied only to marriages performed by federal judges and to divorces granted by federal courts. C. implemented an executive agreement seeking to define basic human rights. D. applied only to marriages and divorces in the District of Columbia.

5. Questions 4-5 are based on the following fact situation. All lawyers practicing in the state of Erewhon must be members of the State Bar Association, by order of the state supreme court. Several state officials serve on the Bar Association's Board of Bar Governors. The Board of Bar Governors authorizes the payment of dues for two staff members to the Cosmopolitan Club, a private dining club licensed to sell alcoholic beverages. The Cosmopolitan Club is frequented by affluent businessmen and professionals and by legislators. It is generally known that the purpose of the membership of the Bar Association staff is to enable them to go where members of the "elite" meet and to lobby for legislation in which the Bar Association is interested. The State Bar Association has numerous committees and subcommittees concerned with family law, real estate law, unauthorized practice, etc., and its recommendations often influence state policy. Some committee meetings are held at the Cosmopolitan Club. The club is known to have rules which restrict membership by race, religion, and sex. Plaintiffs, husband and wife, who are members of the Erewhon Bar Association, petition the Board of Bar Governors to adopt a resolution prohibiting the payment of club dues to and the holding of meetings of the Bar Association or its committees at places which discriminate on the basis of race, religion, or sex. After substantial public discussion, the Board of Bar Governors, by a close vote, fails to pass such a resolution. These events receive extensive coverage in the local newspapers. Plaintiffs bring an action in federal court seeking an injunction against such payments and the holding of meetings in such places as the Cosmopolitan Club. ________________________________________________________________ Which of the following actions should a federal district court take with respect to jurisdiction? A. Hear the case on the merits, because a federal claim is presented. B. Hear the case on the merits, because the expenditure of state funds in support of segregation is forbidden by the Fifth Amendment. C. Abstain from jurisdiction, because the constitutional issue should be litigated first in a state court. D. Dismiss the case for lack of jurisdiction, because the issue of Bar Association activities is solely within the domain of state law.

9. A federal statute prohibits the sale or resale, in any place in this country, of any product intended for human consumption or ingestion into the human body that contains designated chemicals known to cause cancer, unless the product is clearly labeled as dangerous. The constitutionality of this federal statute may most easily be justified on the basis of the power of Congress to A. regulate commerce among the states. B. enforce the Fourteenth Amendment. C. provide for the general welfare. D. promote science and the useful arts.

8. In a narcotics conspiracy prosecution against Daly, the prosecutor offers in evidence a tape recording of a telephone call allegedly made by Daly. A lay witness is called to testify that the voice on the recording is Daly's. Her testimony to which of the following would be the LEAST sufficient basis for admitting the recording? A. She had heard the same voice on a similar tape recording identified to her by Daly's brother. B. She had heard Daly speak many times, but never over the telephone. C. She had, specifically for the purpose of preparing to testify, talked with Daly over the telephone at a time after the recording was made. D. She had been present with Daly when he engaged in the conversation in question but had heard only Daly's side of the conversation.

Plaintiff owns a luncheonette called the Healthy Home. Defendant runs a company that sells "organic" baked goods. Plaintiff entered into a contract with Defendant for the weekly delivery of "organic" oatmeal cookies. It turns out that the "organic" cookies are really repackaged highly-processed cookies that Defendant buys in bulk from a foreign wholesale company. Plaintiff sues Defendant in federal court, alleging diversity jurisdiction. The complaint includes a claim for breach of contract as well a separate tort claim for fraudulent misrepresentation. The complaint includes a proper jurisdictional statement and adequately makes a demand for judgment. It further alleges: (1) Defendant entered into a contract with Plaintiff to weekly deliver thirty pounds of "organic" oatmeal cookies; (2) Defendant instead fraudulently delivered non-organic cookies; (3) Defendant engaged in fraud. No further facts are specified in the complaint. Defendant moves to dismiss the fraudulent misrepresentation claim under Rule 12(b)(6) for failing to state a claim. How should the court resolve the motion? A. The court should grant the motion because the complaint fails to allege special matters. B. The court should deny the motion because Defendant has not shown that Plaintiff can prove no set of facts in support of the fraud claim. C. The court should deny the motion because Defendant was required to move for judgment on the pleadings. D. The court should grant the motion because the complaint improperly joins a contract claim with a tort claim.

A C. Special matters: Certain "special matters" matters" (listed in FRCP 9) must be pleaded with particularity if they are to be raised at trial. (1) denial of a party's legal capacity to sue or be sued; (2) the circumstances giving rise to any allegation of fraud or mistake; (3) any denial of performance or occurrence of a condition precedent; (4) the existence of judgments or official documents on which the pleader plans to rely; (5) material facts of time and place; (6) special damages; and (7) certain aspects of admiralty and maritime jurisdiction. 2. Effect of failure to plead: The pleader takes the full risk of failure to plead any special matter. (Example: P brings a diversity claim for breach of contract against D. P has suffered certain unusual consequential damages, but fails to plead these special damages as required by FRCP 9(g). Even if P proves these items at trial, P may not recover these damages, unless the court agrees to specially permit this "variance" between proof and pleadings.)

On March 1, Zeller orally agreed to sell his land, Homestead, to Byer for $46,000 to be paid on March 31. Byer orally agreed to pay $25,000 of the purchase price to Quincy in satisfaction of a debt which Zeller said he had promised to pay Quincy. On March 10, Byer dictated the agreement to his secretary but omitted all reference to the payment of the $25,000 to Quincy. In typing the agreement, the secretary mistakenly typed in $45,000 rather than $46,000 as the purchase price. Neither Byer nor Zeller carefully read the writing before signing it on March 15. Neither noticed the error in price and neither raised any question concerning omission of the payment to Quincy. ////////////////////////////////////////////////////////////////////////////////////////////// Which of the following would be most important in deciding an action by Quincy against Byer for $25,000? A. Whether the Byer-Zeller agreement was completely integrated. B. Whether Byer was negligent in not having carefully read the written agreement. C. Whether Zeller was negligent in not having carefully read the written agreement. D. Whether Quincy was a party to the contract.

1. Young, believing that Brown suffered from arthritis, told her that for $100 he could cure her with a device he had invented. The device was a large box with a series of electric light bulbs along the sides. Brown, after examining the device, agreed to take the treatment, which consisted of placing her hands inside the box for several ten-minute periods. Brown gave Young $100 and went through the treatment. Young is charged with obtaining money by false pretenses. Each of the following, if true, will absolve Young of guilt for obtaining money by false pretenses EXCEPT: A. Young honestly believed that the device would cure arthritis, but his belief was unreasonable. B. Brown honestly believed that the device would cure arthritis, but her belief was unreasonable. C. Young was playing a practical joke on Brown and intended to return the money. D. Brown was an undercover police officer and did not believe that the device would cure arthritis.

10. Questions 9-10 are based on the following fact situation. Johnson took a diamond ring to a pawnshop and borrowed $20 on it. It was agreed that the loan was to be repaid within 60 days and if it was not, the pawnshop owner, Defendant, could sell the ring. A week before expiration of the 60 days, Defendant had an opportunity to sell the ring to a customer for $125. He did so, thinking it unlikely that Johnson would repay the loan and if he did, Defendant would be able to handle him somehow, even by paying him for the ring if necessary. Two days later, Johnson came in with the money to reclaim his ring. Defendant told him that it had been stolen when his shop was burglarized one night and that therefore he was not responsible for its loss. Larceny, embezzlement, and false pretenses are separate crimes in the jurisdiction. //////////////////////////////////////////////////////////////////// Suppose in the case above, instead of denying liability, Defendant told Johnson the truth-that he sold the ring because he thought Johnson would not reclaim it-and offered to give Johnson $125. Johnson demanded his ring. Defendant said, "Look buddy, that's what I got for it and it's more than it's worth." Johnson reluctantly took the money. Defendant could most appropriately be found guilty of A. Larceny B. Embezzlement C. False pretenses D. None of the above

11. Questions 9-11 are based on the following fact situation. Harry met Bill, who was known to him to be a burglar, in a bar. Harry told Bill that he needed money. He promised to pay Bill $500 if Bill would go to Harry's house the following night and take some silverware. Harry explained to Bill that, although the silverware was legally his, his wife would object to his selling it. Harry pointed out his home, one of a group of similar tract houses. He drew a floor plan of the house that showed the location of the silverware. Harry said that his wife usually took several sleeping pills before retiring, and that he would make sure that she took them the next night. He promised to leave a window unlocked. Everything went according to the plan except that Bill, deceived by the similarity of the tract houses, went to the wrong house. He found a window unlocked, climbed in and found silver where Harry had indicated. He took the silver to the cocktail lounge where the payoff was to take place. At that point police arrested the two men. ////////////////////////////////////////////////////////////////// If Harry and Bill are charged with a conspiracy to commit burglary, their best argument for acquittal is that A. Bill was the alter ego of Harry. B. they did not intend to commit burglary. C. there was no overt act. D. there was no agreement.

On March 1, Zeller orally agreed to sell his land, Homestead, to Byer for $46,000 to be paid on March 31. Byer orally agreed to pay $25,000 of the purchase price to Quincy in satisfaction of a debt which Zeller said he had promised to pay Quincy. On March 10, Byer dictated the agreement to his secretary but omitted all reference to the payment of the $25,000 to Quincy. In typing the agreement, the secretary mistakenly typed in $45,000 rather than $46,000 as the purchase price. Neither Byer nor Zeller carefully read the writing before signing it on March 15. Neither noticed the error in price and neither raised any question concerning omission of the payment to Quincy. ////////////////////////////////////////////////////////// In an action by Quincy against Byer for $25,000, which of the following, if proved, would best serve Byer as a defense? A. There was no consideration to support Zeller's antecedent promise to pay Quincy the $25,000. B. On March 5, before Quincy was aware of the oral agreement between Zeller and Byer, Zeller agreed with Byer not to pay any part of the purchase price to Quincy. C. Whatever action Quincy may have had against Byer was barred by the statute of limitations prior to March 1. D. Before he instituted his action against Byer, Quincy had not notified either Byer or Zeller that he had accepted the Byer-Zeller arrangement for paying Quincy.

3. Dillon held up a gasoline station. During the robbery he shot and killed a customer who attempted to apprehend him. Dillon was prosecuted for premeditated murder and convicted. Thereafter, he was indicted for armed robbery of the station. Before the trial, his attorney moved to dismiss the indictment on the ground that further proceedings were unconstitutional because of Dillon's prior conviction. The motion to dismiss should be A. granted, because once Dillon was convicted on any of the charges arising out of the robbery, the prosecution was constitutionally estopped from proceeding against Dillon on any charge stemming from the same transaction. B. granted, because the double jeopardy clause prohibits a subsequent trial on what is essentially a lesser included offense. C. denied, because there is no constitutional requirement that all known charges against Dillon be brought in the same prosecution. D. denied, because estoppel does not apply when the defendant is charged with violating two different statutes.

9. In which of the following situations is Defendant most likely to be guilty of larceny? A. Defendant took Sue's television set, with the intention of returning it the next day. However, he dropped it and damaged it beyond repair. B. Defendant went into Tom's house and took $100 in the belief that Tom had damaged Defendant's car to that amount. C. Mistakenly believing that larceny does not include the taking of a dog, Defendant took his neighbor's dog and sold it. D. Unreasonably mistaking George's car for his own, Defendant got into George's car in a parking lot and drove it home.

Ames had painted Bell's house under a contract which called for payment of $2,000. Bell, contending in good faith that the porch had not been painted properly, refused to pay anything. On June 15, Ames mailed a letter to Bell stating, "I am in serious need of money. Please send the $2,000 to me before July 1." On June 18, Bell replied, "I will settle for $1,800 provided you agree to repaint the porch." Ames did not reply to this letter. Thereafter Bell mailed a check for $1,800 marked "Payment in full on the Ames-Bell painting contract as per letter dated June 18." Ames received the check on June 30. Because he was badly in need of money, Ames cashed the check without objection and spent the proceeds but has refused to repaint the porch. ///////////////////////////////////////////////////////////////////////////// After cashing the check Ames sued Bell for $200.00. Ames probably will A. succeed if he can prove that he had painted the porch according to specifications. B. succeed, because he cashed the check under economic duress. C. not succeed, because he cashed the check without objection. D. not succeed, because he is entitled to recover only the reasonable value of his services.

On March 1, Zeller orally agreed to sell his land, Homestead, to Byer for $46,000 to be paid on March 31. Byer orally agreed to pay $25,000 of the purchase price to Quincy in satisfaction of a debt which Zeller said he had promised to pay Quincy. On March 10, Byer dictated the agreement to his secretary but omitted all reference to the payment of the $25,000 to Quincy. In typing the agreement, the secretary mistakenly typed in $45,000 rather than $46,000 as the purchase price. Neither Byer nor Zeller carefully read the writing before signing it on March 15. Neither noticed the error in price and neither raised any question concerning omission of the payment to Quincy. /////////////////////////////////////////////////////////////////////////////// If Byer refused to pay more than $45,000 for Homestead, in an action by Zeller against Byer for an additional $1,000, it would be to Zeller's advantage to try to prove that A. the writing was intended only as a sham. B. the writing was only a partial integration. C. there was a mistake in integration. D. there was a misunderstanding between Zeller and Byer concerning the purchase price.

5. Al and Bill are identical twins. Al, angry at David, said, "You'd better stay out of my way. The next time I find you around here, I'll beat you up." Two days later, while in the neighborhood, David saw Bill coming toward him. As Bill came up to David, Bill raised his hand. Thinking Bill was Al and fearing bodily harm, David struck Bill. If Bill asserts a claim against David and David relies on the privilege of self-defense, David will A. not prevail, because Bill was not an aggressor. B. not prevail unless Bill intended his gesture as a threat. C. prevail if David honestly believed that Bill would attack him. D. prevail only if a reasonable person under the circumstances would have believed that Bill would attack him.

7. Questions 7-8 each describe an offense. Select from the choices (A-D) the most serious offense of which the defendant could be properly convicted. //////////////////////////////////////////////////////// Defendant, an avid fan of his home town football team, shot at the leg of a star player for a rival team, intending to injure his leg enough to hospitalize him for a few weeks, but not to kill him. The victim died of loss of blood. A. Involuntary manslaughter B. Voluntary manslaughter C. Murder D. None of the above

8. In which of the following cases is a conviction of the named defendant for robbery LEAST likely to be upheld? A. Johnson forced his way into a woman's home, bound her, and compelled her to tell him that her jewelry was in an adjoining room. Johnson went to the room, took the jewelry and fled. B. A confederate of Brown pushed a man in order to cause him to lose his balance and drop his briefcase. Brown picked up the briefcase and ran off with it. C. Having induced a woman to enter his hotel room, Ritter forced her to telephone her maid to tell the maid to bring certain jewelry to the hotel. Ritter locked the woman in the bathroom while he accepted the jewelry from the maid when she arrived. D. Hayes unbuttoned the vest of a man too drunk to notice and removed his wallet. A minute later, the victim missed his wallet and accused Hayes of taking it. Hayes pretended to be insulted, slapped the victim, and went off with the wallet.

Plaintiff and Partner are co-owners of stock in Defendant's company. The stock has a face value of $200,000. Plaintiff and Partner are both citizens of New York. Defendant is incorporated in New Jersey where it also has its corporate headquarters. Plaintiff has sued Defendant in federal court, alleging diversity jurisdiction, to compel the company to issue the stock certificate in Plaintiff's name alone. Defendant moves to dismiss the action for lack of subject-matter jurisdiction arguing that Partner is a required defendant who was not joined. What is Plaintiff's best argument in opposition to the motion? A. Plaintiff should argue that nonjoinder of an indispensable party is not a ground for dismissing an action for lack of subject-matter jurisdiction. B. Plaintiff should argue that the case should not be dismissed because supplemental jurisdiction may be exercised over Partner. C. Plaintiff should argue that the case should not be dismissed because diversity jurisdiction may be exercised over Partner. D. Plaintiff should argue that although the absence of diversity would not allow the court to hear the case, it should nonetheless do so under the narrow exception it is justified "in equity and good conscience."

Husband and Wife, American citizens, were married in Tennessee and then moved, together with their two children, to West Virginia. After a number of years, Husband relocated to Virginia where he works, insures his car, and votes. He has decided to end his marriage and has sued Wife for divorce in federal court in West Virginia, seeking joint custody of the children and a court order to split the marital assets. Wife moves to dismiss the action for lack of subject-matter jurisdiction. How should the court resolve the motion? A. The court should deny the motion because diversity jurisdiction is present. B. The court should remand the action to a state court in West Virginia. C. The court should sua sponte transfer the action to a family court in West Virginia. D. The court should decline to exercise jurisdiction.

D 2. In rem: In rem jurisdiction, or jurisdiction over a thing, gives the court power to adjudicate a claim made about a piece of property or about a status. (Examples: An action to quiet title to real estate, or an action to pronounce a marriage dissolved.) a. No personal liability: In all of these types of in rem actions, no judgment imposing personal liability on anyone results - all that happens is that the status of a thing is adjudicated. (Example: In a quiet title action, a determination is reached that A, rather than B, is the owner of Blackacre). [Added material] So divorce actions would typically fall under state law and would not present a "federal question." For a variety of reasons, the Supreme Court has held that "domestic relations" actions such as divorce generally do not fall under diversity jurisdiction. [End added material] B can't work because the case wasn't removed to federal court from a state court in West Virginia, and thus it can't be remanded.

Content neutral speech is subject to intermediate scrutiny. This means that the regulation must be narrowly tailored (it may not burden substantially more speech than is necessary to further the significant gov't interest). However, the regulation need not be the _____ ___ ____ of accomplishing the goal.

least restrictive means diff level of review applies - depending on whether you're dealing with a public (must be content-neutral, must be narrowly tailored, and leave open alt channels), private, or non-public forum (RB related + viewpoint neutral).

Unprotected speech: 1. Incitement of illegal activity => gov't may _____ speech that's intended to incite a riot. => to reqs: 1. imminent illegal conduct must be likely and 2. the speaker intended for the conduct to occur. 2. Fighting words => very limited; most laws will be invalid bc over-broad or unconstitutionally _______ 3. Obscenity => 3 part test: 1. material must appeal to the prurient interest; 2. patently offensive 3. must lack serious literary, artistic or scientific _____ => states can't outlaw this material in private keepings - but that doesn't include child pornography 4. Defamation => limits to extent that P can recover tort damages for defamation => gen rule: public figure can't recover unless P shows that the speaker knew was false and acted maliciously in stating this material 5. Commercial speech => protected if truthful - subject to intermediate review If speech falls under these categories, gov't can ban speech based on its content w/no reg at all.

outlaw vague value

4. According to a statute of the state of Kiowa, a candidate for state office may have his name placed on the official election ballot only if he files with the appropriate state official a petition containing a specified number of voter signatures. Roderick failed to get his name placed on the state ballot as an independent candidate for governor, because he failed to file a petition with the number of voter signatures required by state statute. In a suit against the appropriate state officials in federal district court, Roderick sought an injunction against the petition signature requirement on the ground that it was unconstitutional. Which of the following, if established, constitutes the strongest argument for Roderick? A. Compliance with the petition signature requirement is burdensome. B. The objectives of the statute could be satisfactorily achieved by less burdensome means. C. Because of the petition signature requirement, very few independent candidates have ever succeeded in getting on the ballot. D. ballot if they did not have strong support among voters.

B Ballot access: The right to be a political candidate, and to have your name on the ballot, seems to be "quasi-fundamental." 1. Two invalid restrictions: There are two kinds of ballot restrictions to which the Supreme Court does seem to give strict or almost-strict scrutiny: (1) restrictions that substantially and unfairly limit the ballot access of minor parties or independent candidates; and (2) restrictions that are based on wealth. Let's consider each. a. Unfair to new parties: The Court strictly scrutinizes restrictions that are unfair to new, not-yet-established political parties, or to independent candidates. More particularly, ballot restrictions that are so severe that minor-party and independent candidates have no realistic opportunity to get on the ballot are given strict scrutiny, under both the Equal Protection Clause and the First Amendment's freedom of association. Where the new party consists mainly of racial or ethnic minorities that have traditionally not had much success locally getting their preferred candidates nominated by the two traditional parties, strict scrutiny is especially likely. b. Based on wealth: The Court strictly scrutinizes ballot access limits that are based on wealth, and that represent a real impediment to candidacy.

3. Amy Docent, a state college instructor, was discharged because of her refusal to comply with a state statute requiring public employees to swear or affirm that they will (1) "uphold and defend" the state and federal constitutions and (2) "oppose the overthrow" of the state or federal governments "by force, violence, or by any improper method." The statute had previously been held constitutional by the state supreme court. Docent filed a complaint in federal district court alleging the unconstitutionality of the statute and seeking an injunction and damages. Which of the following is the state's strongest argument for sustaining the validity of the statute? A. Government employment is a privilege, not a right. B. The oath as a whole is only a commitment to abide by constitutional processes. C. The First and Fourteenth Amendments permit a state to fix the conditions of state employment. D. The state has a compelling need to keep disloyal persons out of governmental positions of trust.

B Loyalty oath: Government may generally not require an applicant to sign a loyalty oath, unless the things that the applicant is promising in the loyalty oath not to do are things which, if he did them, would be grounds for punishing him or denying him the job. Example: A person cannot be required to sign a loyalty oath that he is not a member of the Communist Party in order to get a teaching job. But he can be required to sign an oath that he will not advocate the forcible overthrow of our government

2. Questions 1-2 are based on the following fact situation. Barnes was hired as an assistant professor of mathematics at Reardon State College and is now in his third consecutive one-year contract. Under state law, he cannot acquire tenure until after five consecutive annual contracts. In his third year, Barnes was notified that he was not being re-hired for the following year. Applicable state law and college rules did not require either a statement of reasons or a hearing, and in fact neither was offered to Barnes. ______________________________________________________ Which of the following, if established, most strongly supports the college in refusing to give Barnes a statement of reasons or an opportunity for a hearing? A. Barnes' academic performance had been substandard. B. A speech he made that was critical of administration policies violated a college regulation concerning teacher behavior. C. Barnes worked at the college for less than five years. D. Barnes could be replaced with a more competent teacher.

10. Questions 9-10 are based on the following fact situation. Until 1954, the state of New Atlantic required segregation in all public and private schools, but all public schools are now desegregated. Other state laws, enacted before 1954 and continuing to the present, provide for free distribution of the same textbooks on secular subjects to students in all public and private schools. In addition, the state accredits schools and certifies teachers. Little White School, a private school that offers elementary and secondary education in the state, denies admission to all non-Caucasians. Stone School is a private school that offers religious instruction. ___________________________________________________________________ Which of the following is the strongest argument in favor of the constitutionality of free distribution of textbooks to the students at Stone School? A. Private religious schools, like public nonsectarian schools, fulfill an important educational function. B. Religious instruction in private schools is not constitutionally objectionable. C. The purpose and effect of the free distribution of these textbooks is secular and does not entangle church and state. D. The free exercise clause requires identical treatment by the state of students in public and private schools.

6. Insurance is provided in the state of Shoshone only by private companies. Although the state insurance commissioner inspects insurance companies for solvency, the state does not regulate their rates or policies. An insurance company charges higher rates for burglary insurance to residents of one part of a county in Shoshone than to residents of another section of the same county because of the different crime rates in those areas. Foster is a resident of that county who was charged the higher rate by the insurance company because of the location of her residence. Foster sues the insurance company, alleging that the differential in insurance rates unconstitutionally denies her the equal protection of the laws. Will Foster's suit succeed? A. Yes, because the higher crime rate in Foster's neighborhood demonstrates that the county police are not giving persons who reside there the equal protection of the laws. B. Yes, because the insurance rate differential is inherently discriminatory. C. No, because the constitutional guarantee of equal protection of the laws is not applicable to the actions of these insurance companies. D. No, because there is a rational basis for the differential in insurance rates.

C You need state action in order for the EPC to apply!

4. The Federal Family Film Enhancement Act assesses an excise tax of 10% on the price of admission to public movie theaters when they show films that contain actual or simulated scenes of human sexual intercourse. Which of the following is the strongest argument against the constitutionality of this federal act? A. The act imposes a prior restraint on the freedom of speech protected by the First Amendment B. The act is not rationally related to any legitimate national interest. C. The act violates the equal protection concepts embodied in the due process clause of the Fifth Amendment because it imposes a tax on the price of admission to view certain films and not on the price of admission to view comparable live performances. D. The act imposes a tax solely on the basis of the content of speech without adequate justification and, therefore, it is prohibited by the freedom of speech clause of the First Amendment.

D 1. Classifying: A governmental action that burdens a person's expression is "content-based" if the government is aiming at the "communicative impact" of the expression. By contrast, if the government is aiming at something other than the communicative impact of the expression, the government action is "content-neutral," even though it may have the effect of burdening the expression. Example 1 (content-based): Virginia forbids pharmacists to advertise the prices of prescription drugs, because it's afraid that the public will buy drugs at the lowest available price and will therefore receive low-quality goods and services. This government ban is "content-based," since the speech is being regulated because of the government's fears about how consumers will respond to its communicative impact. Therefore, the government's ban will be strictly scrutinized, and is in fact violative of the First Amendment. [Virginia Pharmacy Bd. v. Virginia Consumer Council] Example 2 (content-neutral): A city forbids the distribution of all leaflets, because it wishes to prevent littering. This ban is "content neutral" — the government is banning all leaflets, regardless of their content, and the harm sought to be avoided (littering) would exist to the same extent regardless of the message in the leaflets. Therefore, the government action is subject to less rigid review — more or less "intermediate level review" (although it was still struck down on these facts). [Schneider v. State]

2. Congress enacts a criminal statute prohibiting "any person from interfering in any way with any right conferred on another person by the equal protection clause of the Fourteenth Amendment." Application of this statute to Jones, a private citizen, would be most clearly constitutional if Jones, with threats of violence, coerces A. a public school teacher to exclude Black pupils from her class, solely because of their race. B. Black pupils, solely because of their race, to refrain from attending a privately owned and operated school licensed by the state. C. the bus driver operating a free school bus service under the sponsorship of a local church to refuse to allow Black pupils on the bus, solely because of their race. D. the federal official in charge of distributing certain federal benefits directly to students from distributing them to Black pupils, solely because of their race.

In which of the following situations is Defendant most likely to be guilty of common-law murder? A. Angered because his neighbor is having a noisy party, Defendant fires a rifle into the neighbor's house. The bullet strikes and kills a guest at the party. B. During an argument, Harry slaps Defendant. Angered, Defendant responds by shooting and killing Harry. C. Defendant drives his car through a red light and strikes and kills a pedestrian who is crossing the street. D. Using his fist, Defendant punches Walter in the face. As a result of the blow, Walter falls and hits his head on a concrete curb, suffers a concussion, and dies.

1. A state accredits both public and private schools, licenses their teachers, and supplies textbooks on secular subjects to all such schools. Country Schoolhouse, a private school that offers elementary and secondary education in the state, denies admission to all non-Caucasians. In a suit to enjoin as unconstitutional the continued racially exclusionary admissions policy of the Country Schoolhouse, which of the following is the strongest argument AGAINST the school? A. Because education is a public function, the Country Schoolhouse may not discriminate on racial grounds. B. The state is so involved in school regulation and support that the equal protection clause of the Fourteenth Amendment is applicable to the school. C. The state is constitutionally obligated to eliminate segregation in all public and private educational institutions within the state. D. Any school with teachers who are licensed by the state is forbidden to discriminate on racial grounds.

1. Davis decided to kill Adams. He set out for Adams' house. Before he got there he saw Brooks, who resembled Adams. Thinking Brooks was Adams, Davis shot at Brooks. The shot missed Brooks but wounded Case, who was some distance away. Davis had not seen Case. In a prosecution under a statute that proscribes attempt to commit murder, the district attorney should indicate that the intended victim(s) was (were) A. Adams only. B. Brooks only. C. Case only. D. Adams and Brooks.

9. A statute of the state of Lanape flatly bans the sale or distribution of contraceptive devices to minors. Drugs, Inc., a national retailer of drugs and related items, is charged with violating the Lanape statute. Which of the following is the strongest constitutional argument Drugs, Inc., could make in defending itself against prosecution for violation of this statute? A. The statute constitutes an undue burden on interstate commerce. B. The statute denies minors one of their fundamental rights without due process. C. The statute denies Drugs, Inc., a privilege or immunity of state citizenship. D. The statute violates the First Amendment right to freedom of religion because it regulates morals.

5. Plaintiff is an insurance company that is incorporated in Texas and has its corporate headquarters in Delaware. It provides insurance coverage for automobile accidents.Plaintiff receives claims from seven different individuals who were involved in different car accidents with Driver.The face value of Driver's insurance policy with Plaintiff Is $1 million. Four of the claimants are citizens of New Jersey; two of the beneficiaries are citizens of New York; and the seventh is a citizen of Delaware. Plaintiff files a statutory interpleader action in federal district court to determine which of the claimants, if any, should receive payment under Driver's insurance policy and how much each should receive. Should the court dismiss the act on for lack of subject-matter jurisdiction? A. Yes, because complete diversity does not exist between Plaintiff and the claimants. B. No, because two or more claimants are citizens of different states and the amount in controversy exceeds the statutory amount. C. Yes, because although diversity-of-citizenship is present, the amount in controversy is less than $5 million, the statutory amount for high-stakes, multi-state disputes. D. Yes, because the competing claims do not have a common origin or arise out of the same transaction.

B. Statutory Interpleader - where congress has changed the jurisdiction req for these types of actions = YOU DO NOT NEED COMPLETE DIVERSITY. Diversity: Diversity is satisfied as long as some two claimants are citizens of different states. (Example: Two New York residents and a Californian all claim the proceeds of a particular insurance policy. Since either New Yorker and the Californian form a diverse pair, the diversity requirement for statutory interpleader is satisfied. The citizenship of the insurance company is irrelevant.) c. Amount in controversy: The property which is the subject of the suit must merely exceed $500 in value, in contrast to the usual $75,000. C is not correct. Complete diversity is not required in a class action - but C fails because this isn't a class action

Plaintiff, a Connecticut partnership, files suit in federal district court in New York against Defendant, a New Jersey corporation. The complaint alleges that Defendant has violated a federal antitrust statute. The antitrust statute allows a private party to bring a civil damage suit against violators of the statute. The statute also provides that in any such suit, nationwide service-of-process may be made against, and personal jurisdiction exercised over, any defendant found within the United States. If the court is asked by Defendant to decide whether the exercise of in personam jurisdiction against Defendant satisfies constitutional requirements, the court should do this by deciding whether: A. Defendant has minimum contacts with the state of New York, as required by the Due Process Clause of the Fifth Amendment to the United States Constitution. B. Defendant has minimum contacts with the United States, as required by the Fifth Amendment to the United States Constitution. C. Defendant has minimum contacts with the state of New York, as required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution D. Defendant has minimum contacts with the United States, as required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

B. This is a special statute - where you have a statute that allows suit anywhere in the U.S. and can be sued anywhere in the U.S., then you need minimum contacts with the U.S.

Plaintiff, a West Virginia citizen, works in Texas for Defendant, a company that distributes farm equipment and is incorporated in New Mexico. Plaintiff was injured at work while loading boxes into a storage facility. He sues Defendant in a state court in West Virginia. The complaint alleges negligent infliction of harm and seeks damages in excess of $75,000. Defendant removes the action to a federal district court in West Virginia and also answers the complaint. If Plaintiff opposes removal to a federal court In West Virginia, which factor is most relevant to whether the court should remand the action back to state court? A. Defendant conducts its day-to-day operations and maintains its inventory In West Virginia. B. Defendant's corporate officers direct, control, and coordinate the company's activities from an office in Texas. C. Plaintiff is a citizen of West Vlrginia. D. Defendant's answer alleges that Plaintiff was not wearing required safety equipment on the day of his accident and raises an affirmative defense of contributory negligence based on a federal statute, "The Safe Workplace Act," which provides, "No employer shall be liable under this act if the employee Is contributorily negligent for his Injury."

B. You would remand bc there's no diversity & bc D is West Virginia Defendant - A makes you try and think that you can remove because it makes D's PPB in West Virginia. However, this isn't enough bc day-to-day operations won't make D's PPB = West Virginia. B is correct bc if D's core office is in Texas, then there IS diversity of citizenship. Otherwise, we won't know whether there's diversity of citizenship. It's a fact that makes it wrong to remand.

6. In an effort to relieve serious and persistent unemployment in the industrialized state of Onondaga, its legislature enacted a statute requiring every business with annual sales in Onondaga of over one million dollars to purchase goods and/or services in Onondaga equal in value to at least half of the annual sales in Onondaga of the business. Which of the following constitutional provisions is the strongest basis on which to attack this statute? A. The due process clause of the Fourteenth Amendment. B. The equal protection clause. C. The commerce clause. D. The privileges and immunities clause of the Fourteenth Amendment.

2. The President of the United States recognizes the country of Ruritania and undertakes diplomatic relations with its government through the Secretary of State. Ruritania is governed by a repressive totalitarian government. In an appropriate federal court, Dunn brings a suit against the President and Secretary of State to set aside this action on the ground that it is inconsistent with the principles of our constitutional form of government. Dunn has a lucrative contract with the United States Department of Commerce to provide commercial information about Ruritania. The contract expressly terminates, however, "when the President recognizes the country of Ruritania and undertakes diplomatic relations with its government." Which of the following is the most proper disposition of the Dunn suit by the federal court? A. Suit dismissed, because Dunn does not have standing to bring this action. B. Suit dismissed, because there is no adversity between Dunn and the defendants. C. Suit dismissed, because it presents a nonjustifiable political question. D. Suit decided on the merits

C The doctrine generally: The final aspect of justiciability is the requirement is that the case not involve the decision of a "political question." This rule is even more vague than the other justiciability rules we've talked about already. The doctrine does not mean that federal courts will not decide a case that involves politics. It doesn't even mean that courts will refuse to decide cases where political issues are right at the heart of the controversy. Instead, the court will decline to hear a case on political question grounds only if it thinks that the doctrine of separation of powers requires this, or if it thinks that deciding the case would be unwise as a policy matter. 1. Two of the factors used: Two of the factors that seem to be very important in whether a case will be found to involve a non-justiciable political question are: a. Commitment to another branch: First, the fact that the case presents an issue which has been committed by the Constitution to another branch of the federal government, i.e., to Congress or to the President instead of the courts. b. Lack of standards: Second, the fact that there are no manageable standards by which a court could resolve the issue.

1. Public schools in the state of Green are financed, in large part, by revenue derived from real estate taxes imposed by each school district on the taxable real property located in that district. Public schools also receive other revenue from private gifts, federal grants, student fees, and local sales taxes. For many years, Green has distributed additional funds, which come from the state treasury, to local school districts in order to equalize the funds available on a per-student basis for each public school district. These additional funds are distributed on the basis of a state statutory formula that considers only the number of students in each public school district and the real estate tax revenue raised by that district. The formula does not consider other revenue received by a school district from different sources. The school boards of two school districts, together with parents and schoolchildren in those districts, bring suit in federal court to enjoin the state from allocating the additional funds from the state treasury to individual districts pursuant to this formula. They allege that the failure of the state, in allocating this additional money, to take into account a school district's sources of revenue other than revenue derived from taxes levied on real estate located there violates the equal protection clause of the Fourteenth Amendment. The complaint does not allege that the allocation of the additional state funds based on the current statutory formula has resulted in a failure to provide minimally adequate education to any child. Which of the following best describes the appropriate standard by which the court should review the constitutionality of the state statutory funding formula? A. Because classifications based on wealth are inherently suspect, the state must demonstrate that the statutory formula is necessary to vindicate a compelling state interest. B. Because the statutory funding formula burdens the fundamental right to education, the state must demonstrate that the formula is necessary to vindicate a compelling state interest. C. Because no fundamental right or suspect classification is implicated in this case, the plaintiffs must demonstrate that the funding allocation formula bears no rational relationship to any legitimate state interest. D. Because the funding formula inevitably leads to disparities among the school districts in their levels of total funding, the plaintiffs must only demonstrate that the funding formula is not substantially related to the furtherance of an important state interest.

C Example: The Ps claim that Texas' system of financing public education violates equal protection, because districts with a high property tax base per pupil consistently spend more on education than those with a low base are able to do. Held, education is not a fundamental right. Therefore, Texas' scheme merely has to undergo "rational relation" review. Because the use of property taxes to finance education is a rational way of achieving the legitimate state goal of giving each local school district a large measure of control over the education its residents get, this "mere rationality" standard is satisfied. [San Antonio School Dist. v. Rodriguez, supra, p. 61.] a. Complete deprivation: Actually, it's still possible that a complete deprivation of public education might be held to be a violation of a "fundamental" right. If a state simply refused to give any public education at all to some groups of residents, this might be such a large deprivation that it would amount to a violation of a fundamental right, and thus be subject to strict scrutiny.

Plaintiff and Defendant are friends attending their high school reunion. Plaintiff lives in California; Defendant lives in New York. At the end of the evening they get into a heated argument and Defendant punches Plaintiff in the face. The next day, Plaintiff sues Defendant in federal court on the basis of diversity jurisdiction alleging assault and intentional infliction of emotional distress and seeking $1 million in damages. Simultaneous with the filing of the complaint, Plaintiff moves ex parte to attach Defendant's three-bedroom house. Defendant later moves to vacate the attachment as a violation of his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. How is the court likely to decide the motion? A. The court will likely deny the motion if the law of the state in which the federal court sits permits prejudgment attachment of real estate. B. The court will likely deny the motion because the Due Process Clause does not govern private litigants. C. The court will likely grant the motion because it is per se unconstitutional to attach property exparte without the posting of a bond. D. The court will likely grant the motion absent a showing by Plaintiff of exigent circumstances.

D B. is wrong - we have cases where DPC applies to litigation (Volkswagen case). C. is wrong - most of the time, when you attach prop you have to post a bond but per se unconst'l is strong language. A. is possible but overlooks the DPC - only if the const'n doesn't violate the DPC Going to need to show something more that makes it likely that D will squander the property to avoid paying P's damages.

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