July 21 MBE

A plaintiff has sued a defendant in federal court, alleging that the defendant knowingly pursued the plaintiff for payment of debts in violation of an automatic bankruptcy stay. The defendant has moved for summary judgment, arguing that he had no notice of the plaintiff's bankruptcy. In opposing the defendant's motion for summary judgment, the plaintiff offers a copy of the local newspaper that contains a front-page story about the plaintiff's petition for bankruptcy, along with evidence that the defendant is a daily subscriber to the newspaper. The defendant objects to admission of the newspaper story. Is the newspaper story admissible?

Yes, because the newspaper is self- authenticating and the story is not offered for its truth. The newspaper story is not hearsay b/c it is not offered for its truth but rather to show that the defendant was on notice of the plaintiff's bankruptcy.

A woman agreed to purchase 1,000 tablets of a prescription drug from undercover narcotics agents. The agents told the woman that they would steal the drugs from a pharmacy. The next day, the agents met the woman and told her that they had the tablets in a bag. The bag did in fact contain tablets of the drug, but the agents had not stolen the tablets. The woman paid the agents. She told them that she did not want to take possession of the bag and that instead they should deliver it to her friend waiting in a car across the street. The agents, after delivering the bag to the woman's friend, arrested both the woman and her friend. Can the woman properly be convicted of attempting to receive stolen property?

Yes. On the facts presented, a jury could rationally find that the woman intended to possess stolen drugs and that she took substantial steps to complete that offense.

A landowner hired a tree specialist to cut down four trees, which he pointed out to the specialist before the specialist began work. Although the landowner reasonably believed that all the trees were on his property, three of the trees that were cut down were in fact on a neighbor's property. Who, if anyone, is liable to the landowner's neighbor for conversion?

Both the tree specialist and the land owner. Conversion occurs when an actor intentionally interacts with an item that is the personal property of another so as to permanently deprive the other of possession. This is true regardless of whether the actor knows that the item is in another's possession. Thus, the landowner's reasonable belief that the trees were his does not defeat liability for either the landowner or the tree specialist.

Pursuant to an arrest warrant issued by a federal judge, FBI agents arrested a state governor for an alleged violation of federal law. The governor was then placed in a federal lockup facility. A state judge has issued a writ of habeas corpus against the director of the lockup facility on the ground that the federal law in question violates the 10th amend. Is the writ valid?

No, b/c only federal courts can issue habeas writs for individuals in federal custody.

A man rented a beach house for a weeklong vacation. On the day he arrived, just after sunset, he took his bag upstairs to a second-floor bedroom and unpacked. As he was about to head back downstairs, he realized that the stairwell had become too dark to navigate without a light. The man spent about 30 seconds feeling the walls at the top of the stairwell but could not find a light switch. In fact, the switch was located in an awkward position not reachable without descending to the second step. Although he recognized the danger of descending an unfamiliar staircase in darkness, the man started down the stairs. He lost his footing halfway down, fell, and was seriously injured. The man has sued the owner of the beach house for negligence. The jurisdiction recognizes the traditional common law defense of assumption of risk. If the action proceeds to trial, which of the following would be an appropriate (paraphrased) instruction for the court to give to the jury?

"If you conclude that the owner failed to provide reasonably safe premises, but that the man knowingly and voluntarily chose to encounter the risk of falling on the darkened stairs, then you must find for the owner." The traditional assumption-of-risk defense is a complete defense, so if the jury finds that the man knowingly and voluntarily chose to encounter the risk of falling down the darkened stairs, the owner will not be liable.

A general contractor and a subcontractor signed a contract under which the subcontractor agreed to pour a cement foundation for a building project for $12,000. Before the subcontractor performed, it discovered that it had made an error in computing the size of the foundation and should have quoted the general contractor $18,000 for the work. The subcontractor informed the general contractor of the mistake and asked whether the general contractor would agree to pay $15,000 for the foundation, which would cover the subcontractor's costs. After determining that other subcontractors would charge at least $18,000 for the work, the general contractor agreed in writing. When the work was completed, the general contractor tendered the subcontractor $12,000. The subcontractor refused to accept the payment. If the subcontractor prevails in a suit against the general contractor, how much will the subcontractor be likely to recover?

$15,000, because the contract modification was fair and equitable under the circumstances. Although there was no consideration for the modification, under the modern rule of Restatement (Second) of Contracts § 89, a modification is binding "if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made."

A carpenter owed a bank $22,000 on an outstanding personal loan. The carpenter and a homeowner entered into a contract under which the carpenter agreed to perform work for the homeowner and the homeowner agreed to pay $22,000 to the bank within 30 days of completion of the work. The carpenter completed the work, but the homeowner incurred costs of $2,000 to correct minor deficiencies in the work. What amount, if any, is the homeowner obligated to pay the bank?

$20,000, because the bank, as an intended beneficiary of the homeowner's contract with the carpenter, stands in the position of the carpenter. The bank is an intended beneficiary of the contract between the carpenter and the homeowner. An intended beneficiary can enforce a contract to which it is not a party, because the parties intended the contract to benefit that beneficiary. Restatement (Second) of Contracts § 302. However, one party to the contract can assert, against the beneficiary, claims for breach by the other party to the contract. Here, the homeowner, as promisee of the carpenter's promise to perform the work, can assert the $2,000 claim for breach of that promise against the bank.

In a diversity action in federal court, the plaintiff seeks to have a drug abuse counselor from an employee assistance program testify about her communications with the defendant. The communications are privileged against disclosure under the relevant law of the state where the plaintiff's cause of action arose. What should govern the court's determination of the admissibility of the counselor's testimony?

The state's privilege law. Under FRE 501, state law governs privilege in a

An employee was fired after working for a state agency for 29 years. The employee sued the agency in federal court for employment discrimination. The employee agreed with the agency to settle the action in return for 12 monthly settlement payments. The agreement, however, was based on the employee's mistaken assumption that the settlement payments would constitute "earnable salary" under state law, entitling the employee to retire with 30 years of service at a higher pension rate. Fifteen months after the court entered a judgment dismissing the employee's claim with prejudice, the employee learned that the payments did not constitute earnable salary under state law. The employee promptly moved to reopen the judgment on the ground of mistake. Should the court grant the motion?

A motion under Federal Rule of Civil Procedure 60(b)(1) must be made within one year from the entry of judgment. The employee's motion was untimely because it was made 15 months after entry of judgment. No, because the employee did not file the motion within one year of the court's entry of judgment.

A contractor agreed in writing to build a house for a man for $200,000. The contract stated that the man would pay the contractor $60,000 when the foundation was laid, $60,000 when the house was framed, $60,000 when the walls were completed, and $20,000 when the house was finished. After the contractor laid the foundation and expended $50,000, but before the man paid the contractor anything, the contractor quit the project to take a higher-paying job. Subject to the man's claim for damages for breach, how much is the contractor likely to recover for the work he performed?

A party that materially breaches a contract is nevertheless entitled to recover under a theory of restitution the amount of the value of the benefit that the breaching party's part performance conferred on the victim of the breach. The value of the benefit conferred, on a theory of restitution.

The seller of a vacant building listed it for sale with a licensed real estate broker at a price of $500,000. When the six-month listing period was about to expire, the broker presented an offer to purchase for the full listing price. The broker did not disclose to the seller that the offer came from the broker's daughter, who planned to resell the building for $600,000 to a company with which she had been negotiating. The seller accepted the daughter's offer, conveyed the building to the daughter, and paid the broker a commission. After discovering that the purchaser was the broker's daughter, the seller commenced an action against the broker for return of the commission. Who is likely to prevail in this action?

A real estate broker has a duty to make full disclosure of any interest the broker or a family member of the broker may have in the purchase of the property. The broker had a duty to disclose that the purchaser was a family member. Failure to make this disclosure breaches a fiduciary duty and results in the broker's losing the commission. The seller, because the broker's failure to make full disclosure breached a fiduciary duty to the seller.

A married couple bought a new recreational vehicle (RV) to travel in. After the couple brought the RV home, but before they had moved any personal property into it, the RV spontaneously caught fire and was completely destroyed. Does the couple have a viable strict products liability claim against the manufacturer of the RV?

A rule of products liability law states that there is no recovery if a defect in a product causes damage only to the product itself (as opposed to personal injury, or injury to other property). This rule is sometimes referred to as the "economic loss rule." In such cases, the owner of the damaged product is limited to contract remedies. No, b/c the damage was only to the RV itself.

While attending an amusement park's fireworks display, a spectator was struck and injured by a rocket set off as part of the display. The rocket unexpectedly failed to shoot upward but instead followed a trajectory parallel to the ground and struck the spectator. The spectator has sued the amusement park for damages. On which of the following theories is the spectator most likely to be able to obtain a summary judgment as to liability?

Abnormally dangerous activity. Even though the spectator might not obtain summary judgment on a claim of liability for an abnormally dangerous activity, that claim—which imposes strict liability for injuries caused by an activity that is not commonplace and that remains dangerous to bystanders even when the actor uses reasonable care to avoid causing injuries—provides the spectator with the best chance of doing so.

A man purchased two warehouses on the same parcel of land and financed the purchase with a mortgage loan from a bank. Among other terms, the mortgage required the man to make all monthly payments of principal and interest on time, to pay all property taxes and assessments when due, to keep the property insured, and to not damage or impair the property or commit waste on the property. The man used the warehouses to store inventory for his business. A few years later, the man changed the nature of his business. His business plan indicated that he would need only one of the two warehouses and that the warehouse to be used would need renovation. The man renovated one of the warehouses and tore the other one down and did not replace it. When the bank learned of the man's actions, it accelerated the note and sent the man a letter containing a notice of default and intention to commence foreclosure proceedings. At the time the letter was sent, the man was current on his monthly mortgage payments and property insurance premiums. After the man failed to pay the accelerated amount, the bank filed a foreclosure action. In that action, the man defended by offering into evidence an appraisal showing that the then-current value of the property was more than the balance due on the mortgage and more than the value of the property before the man renovated the one warehouse and tore down the other. Which party is likely to prevail?

Acceleration clauses are valid and can be triggered solely by nonpayment of the mortgage debt but also by other conditions in the mortgage. Here, the breached condition was waste, which occurred when the man tore down the one warehouse without the bank's permission. The bank, because the man violated the terms of the mortgage.

Two women decided to rob a bank. They asked a friend to drive them to the bank without telling him that they intended to rob it. The friend waited in his car outside the bank while the women went in. Suddenly, the two women rushed from the bank holding bags of money as alarms sounded. The friend drove the woman back to their apartment. What crime, if any, has the friend committed?

Accessory after the fact to the bank robbery. Although the friend was not informed of the women's plan, he would reasonably have become aware of the robbery when they emerged running from the bank, bags in hand, with alarms sounding. The friend's subsequent act—driving the women away from the bank to their apartment—would support a guilty verdict on the crime of accessory after the fact.

A farmer has sued a neighbor for starting a fire that burned down the farmer's barn. At trial, the farmer offers, under the public records exception, a properly authenticated copy of the fire marshal's official report, which found that the neighbor started the fire. The report states that this conclusion is based on the fire marshal's extensive training in fire investigation, on the fire marshal's examination of the scene, and on interviews with numerous witnesses. The report quotes one witness as saying, "I saw [the neighbor] light the match that started the fire." The neighbor objects to the admission of the report. How should the court rule on the report's admissibility?

Admit the report containing the fire marshal's conclusion as a public record but exclude the witness's statement. Because the fire marshal is a public official and his conclusion about the cause of the fire is a factual finding based upon an official investigation, the report isadmissible under the public recordsexception to the hearsay rule. Thewitness's statement quoted in the report isnot admissible under the public recordsexception, however, because the witness isnot a public official reporting mattersobserved under a legal duty, and so thatstatement must be excised from thereport.

A defendant is charged with murder after allegedly shooting a victim during an argument in a crowded nightclub. At trial, the defendant claims self-defense, testifying that he shot the victim only after the victim lunged at him with a knife. In rebuttal, the prosecutor calls an eyewitness to testify that she observed the argument from a short distance away and that she heard a gunshot before the victim lunged at the defendant. Thereafter, the defendant seeks to call the bartender from the nightclub to testify that the eyewitness had consumed a large amount of alcohol before the shooting and that the music in the nightclub at the time of the shooting was extremely loud. The prosecutor objects that the bartender's testimony would be improper impeachment. How should the judge rule on the prosecutor's objection?

Allow the bartender's testimony about both the eyewitness's alcohol consumption and the music. Extrinsic evidence may be admitted to impeach a witness's ability to perceive the events that transpired. Both the loud music and the witness's alcohol consumption at the time of the incident would undermine the eyewitness's ability to perceive.

To express their disagreement with a city ordinance prohibiting public nudity, a group of demonstrators performed a dance in the nude in a city park. The demonstrators were convicted of violating the ordinance. Do the convictions violate the First Amendment?

Although the Supreme Court has held that nude dancing is expressive conduct protected by the First Amendment, the Court nevertheless has upheld bans on nude dancing in particular and public nudity more generally. The ordinance here is a content-neutral prohibition because it does not target any message conveyed by public nudity. No, because the demonstrators' protected expression may be validly subject to content-neutral regulation such as the public nudity ordinance

A developer conveyed a three-acre tract of land to a man by a warranty deed containing a covenant specifying that the land could be used for residential purposes only. The applicable zoning law required that any home in the community be surrounded by at least two acres of vacant land. The man built a home on the land that fully complied with the zoning law and moved into it. Subsequently, the man was diagnosed with a chronic debilitating disease. He told his daughter that he might have to sell his home, go to a nursing home, and after exhausting his assets paying for nursing home care, go on Medicaid for the rest of his life. His daughter offered to take care of him for the rest of his life if he would build her a small home on the westerly portion of his land. The man agreed, but because there was no way to site a home on the westerly portion of the land so that it was surrounded by two acres of vacant land, he applied to the local zoning board for a variance. Should the variance be granted?

An area variance may be granted when the owner suffers a hardship as the land is currently zoned and the variance will protect the public interest. The man purchased a three-acre tract of land knowing that the applicable zoning law required any home to be surrounded by least two acres of vacant land. The man created the hardship by building the home on his land in a location that left an insufficient amount of land to satisfy the zoning law if he built a second home. The man cannot take advantage of the hardship he created. No, because the man is not entitled to a hardship variance.

At the close of a two-week federal jury trial, the court asked the parties to submit proposed jury instructions. The court selected some of the proposed instructions, reformulated others, and charged the jury accordingly. The parties made no objections. The jury returned a verdict for the plaintiff, and the court entered judgment on the verdict. The defendant appealed, arguing that several of the court's instructions were plain error. What is the plaintiff's best argument in response?

Any errors in the instructions did not affect the defendant's substantial rights. Because the defendant did not object to any of the instructions, Federal Rule of Civil Procedure 51(d)(2) provides that the defendant's appeal can only be successful if the instruction affected the defendant's substantial rights, which is the standard for plain error.

A school bus driver reported to a middle school principal that a student had harassed other children on the bus. The principal informed the student's parents of the bus driver's report and told them that, because of the student's behavior, the student could not ride the bus for the next week and would have to be driven to school by a parent. The following Monday morning, after the bus driver had let the children off the bus in front of the school, but before she could close the door and drive away, the student's father pulled his car directly in front of her bus, blocking the driver's path. Because there was another bus right behind hers, the driver was unable to move her bus. The father got out of his car and strode toward the open door of the bus, screaming at the driver: "You messed with the wrong family! I am going to get you!" Feeling threatened, the bus driver quickly closed the door. The father pounded on the door with enough force to dent it, screaming obscenities at the driver, until a school security guard intervened. If the driver were to sue the father, which cause of action would give her the best chance of recovery?

Assault.

A man and his friend decided to commit a robbery. They agreed that the friend would hide in the bushes along a dark street and jump in front of the intended victim, and the man would block the victim from behind. Unbeknownst to the man, his friend had a gun. A short time later, a woman walked down the street and the friend jumped in front of her. Before the man could approach the woman, the friend lifted his shirt and showed a gun in his waistband. The woman ran away. What conspiracy offense, if any, can the man properly be convicted of having committed?

Conspiracy to commit robbery. The man can be convicted of conspiracy to commit robbery because he and his friend agreed to commit that offense.

A driver was stopped in traffic when he noticed a bicyclist riding quickly between the lanes of cars. To deter the bicyclist from continuing such dangerous behavior, the driver opened his car door as the bicyclist neared. The bicyclist, unable to stop, hit the door and fell, sustaining serious injuries. In a jurisdiction that follows the common law definition of crimes, which is the most serious crime of which the driver can properly be convicted?

Battery. Although his method was unusual, the driver committed a battery. Acting with the intent to cause offensive or harmful contact, the driver caused an offensive or harmful contact.

A racetrack held a motorcycle race, which was sponsored by a local motorcycle dealership. Under the sponsorship agreement, the dealership was required to arrange for licensed and trained emergency medical technicians (EMTs) to be present during the race. The dealership contracted with a licensed and reputable emergency medical services (EMS) firm that supplied EMTs for events such as these. A motorcyclist participating in the race was injured when he lost control of his motorcycle. The motorcyclist was treated at the scene by the EMTs. In removing the motorcyclist's helmet, one of the EMTs twisted the motorcyclist's neck, causing him to become permanently paralyzed. The motorcyclist has sued both the EMS firm and the dealership, alleging that the EMT's careless conduct caused his paralysis. Assuming the validity of the motorcyclist's negligence claim against the EMS firm, which of the following best characterizes the dealership's potential liability?

Because the dealership's duty of care was delegable, because the dealership was not negligent in hiring the EMS firm, and because the EMT was not an employee of the dealership, there is no basis for holding the dealership liable, whether directly or vicariously. The dealership is neither directly liable nor vicariously liable.

In a contract drafted by the owner of a commercial fishing company, the company agreed to provide a specified quantity of fresh tuna to a seafood cannery each week during the "summer season" at an agreed- upon rate. The owner of the fishing company honestly understood "summer season" to mean June 15 to September 15. The cannery's president honestly understood the term to mean May 15 to September 15, as it is understood according to trade usage in the parties' industry. The parties have now discovered that they attach different meanings to the term "summer season." How would a court likely resolve the different meanings attached to the term by the parties?

Because the fishing company works in the industry, it will be bound by the meaning supplied by trade usage.

A homeowner hired a building contractor to rebuild her front porch. The contractor told her that he planned to first rip out the old floorboards and pile them in the front yard. Because she thought that would look unsightly, the homeowner insisted that the contractor loosen each board individually and leave them all in place until he was ready to start replacing them with new boards. The contractor loosened the boards and left them in place while he went out for lunch. While the contractor was away, a friend of the homeowner's stepped onto the porch to return a borrowed rake. As the friend crossed the porch, the loosened boards shifted and the friend fell, breaking her leg. If the friend sues to recover for her injury, who is likely to be found liable to her?

Both the contractor and the homeowner, because neither posted a warning that the porch boards had been loosened. A person who hires an independent contractor ordinarily is not liable for injury to a third party caused by the contractor's negligence. However, there is an exception to this rule when the person directly influences the manner in which the contractor performs the work so as to contribute to the creation of the danger that causes the third party's injury. That exception applies in this case and provides a basis for imposing liability on the homeowner. The contractor, meanwhile, is likely to be held liable under ordinary negligence principles for causing injury to the friend by failing to warn of the hidden danger posed by the seemingly safe porch floor.

A homeowner brought a federal diversity action against a manufacturer of gas grills, asserting products liability claims and seeking damages for injuries she had suffered when her grill exploded as she was lighting it. The manufacturer timely demanded a jury trial, and the court informed the parties that it would seat a seven-person jury. The parties agreed to a non-unanimous jury verdict. The jury returned a verdict for the homeowner. The manufacturer asked the court to poll the jury, and the poll revealed a 4 to 3 vote in favor of the homeowner. The manufacturer objected to the verdict and has moved for a new trial. How should the court proceed?

Deny a new trial, because the manufacturer agreed to a non-unanimous verdict. Federal Rule of Civil Procedure 48 permits a non- unanimous verdict if the parties so stipulate, which happened here.

A homeowner visited the websites of numerous local plumbers for service and hourly rate information. The homeowner called one of the plumbers, told him she had found him through his website, and asked him to unclog a floor drain in her basement. The plumber responded, "Okay, I'll be there tomorrow at three." The plumber unclogged the drain and gave the homeowner an invoice that reflected the hourly rate for his services as posted on his website. The homeowner refused to pay the full invoice amount, asserting that his hourly rate was higher than that charged by other local plumbers. The homeowner offered to pay him the average of those rates. The plumber demanded payment of the invoiced amount. Which of the following describes the compensation the plumber is entitled to receive from the homeowner?

Compensation at the invoiced price, because the hourly rate posted on the plumber's website supplied the price term for the parties' agreement.

Congress amended the federal bankruptcy statute to allow states to exempt a debtor's home from judgment creditors, so long as the debtor had established permanent residency in the state at least two years before entry of the judgment. The two-year residency requirement was intended to prevent debtors from defrauding creditors by moving to a state solely to take advantage of a favorable home-exemption law. A state's law prohibited the execution of a judgment against a debtor's home. After the federal amendment, the state amended its law "to conform with the federal bankruptcy amendments," making the debtor's home exemption unavailable to any person who had established permanent residency in the state less than two years before entry of the judgment. Following these amendments, a man moved to the state and purchased a home. Six months later, a creditor obtained a judgment against the man for negligently causing a car accident. The creditor now seeks to execute the judgment against the man's home, but the man has responded that he is entitled to the generally applicable debtor's home exemption under state law. Which of the following is the man's best argument?

Congress lacks the power to authorize the states to enact such restrictions based on the length of a person's residence within a state. The Supreme Court has held that durational residency requirements such as the state law here generally violate the right to travel protected through the privileges and immunities clause of the Fourteenth Amendment. Congress does not have the power to contravene the Court's holding.

A woman was charged with stealing from her employer. Her lawyer advised her to plead guilty, citing overwhelming evidence that included a video recording of her confession and multiple witnesses. The woman repeatedly asked whether a guilty plea might lead to her deportation because she had come to the United States as a child and had lawful permanent resident status but not citizenship. The lawyer assured the woman that the charge would not result in deportation and emphasized the unusually favorable terms of the plea bargain. The woman accepted the plea offer. At the end of the woman's short prison term, immigration authorities informed her that the conviction required her deportation. The woman filed a motion to vacate the plea, citing ineffective assistance of counsel. How is the court likely to rule?

Counsel was ineffective, and under the circumstances, the woman suffered prejudice even though there was only a remote chance of success at trial. To establish a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), a defendant must show two things: (1) that defense counsel's performance was deficient and (2) that the deficiency was prejudicial. In Padilla v. Kentucky, 559 U.S. 356 (2010), the Court held that defense counsel must inform a defendant of the possibility that a guilty plea will affect immigration status. Here, defense counsel failed to properly inform the client that her guilty plea could lead to deportation. Indeed, counsel affirmatively misled the client by assuring her that there would be no such consequence. In so doing, counsel rendered deficient performance that was prejudicial because it led the client to accept a plea when she otherwise would have chosen to go to trial.

A plaintiff domiciled in State A sued a defendant domiciled in State B, alleging that the defendant had failed to deliver products to the plaintiff under an ongoing contract. The plaintiff attached to the complaint an invoice for the products marked "paid" and a receipt for a wire transfer to the defendant in the amount of $80,000. The defendant answered the complaint, denying that the plaintiff had suffered any losses and asserting a counterclaim for nonpayment of $90,000 for an earlier delivery of products. In response to the counterclaim, the plaintiff has moved for judgment on the pleadings. How is the court likely to rule?

Deny the motion as premature, because the plaintiff has not yet answered the counterclaim. Under Federal Rule of Civil Procedure 12(c), a judgment on the pleadings may be made after the pleadings are closed. However, because the defendant in this case has asserted a counterclaim in its answer, the plaintiff must file an answer to the counterclaim under Rule 7(a)(3) before making any motions.

For many years, a city owned and operated a reservoir that supplied the city's residents with water. Based on a finding that private entities were more efficient operators of such facilities than public entities, the city sold the reservoir to a privately owned company. The city council granted the company a non-exclusive franchise to supply water to residents of the city. After it had operated the water system for a year, the company determined that a city resident had fallen three months behind in the payment of his water bill. The company terminated the resident's water service on the basis of a company policy that provides for the summary termination of service to customers who fall more than two months behind in the payment of their bills. The policy does not provide customers an opportunity for a hearing before the termination of service. The resident sued the company in an appropriate court, asking for injunctive relief and damages. The resident claimed only that he had been deprived of property without due process of law in violation of the Fourteenth Amendment. How should the court rule?

Dismiss the action, because the company is not a state actor for purposes of the Fourteenth Amendment. The fact that the company supplies a very important good to the public is not sufficient to make it a state actor, nor is the non-exclusive franchise from the city.

A federal agency solicited bids to build a bridge on an interstate highway. In evaluating the bids, the agency took into account the cost of the bridge and other specified factors. A construction company submitted a bid that was lowest in cost, but the agency chose another bidder that offered more advantages on the other factors. The company that submitted the lowest bid sued the federal agency in federal district court. The only relief that the company sought was to enjoin the issuance of a contract to the prevailing bidder. The company was unable to obtain a temporary restraining order or preliminary injunction. The agency awarded the contract to the bidder it had originally selected. Just as the new bridge was completed and opened, the suit came to trial. How should the court handle this case?

Dismiss the suit, because it is now moot. The only relief sought by the company was an injunction against awarding the contract to another firm. That relief is no longer available, so the case is moot.

A woman was the trustee of a trust fund. The corpus of the fund was invested in certificates of deposit and high-grade bonds. When one of the certificates of deposit, in the amount of $100,000, matured, the woman cashed the certificate and invested the proceeds under her own name in a speculative stock. In three months, the value of the stock had soared, and the woman sold the stock for $200,000. With the proceeds of the sale, the woman purchased a $120,000 certificate of deposit in the name of the trust. She gave the remaining $80,000 to charity. The woman is charged with embezzlement. Under the applicable statute, the degree of the crime (and, hence, the severity of the authorized punishment) depends upon the value of the property embezzled. Of what crime, if any, could the woman properly be convicted?

Embezzlement of the $100k. Answer B is correct. This problem poses two related questions: (1) Did the woman commit an embezzlement; and (2) if so, what amount did she unlawfully take? The answer to the first question is yes. As a trustee, the woman had lawful possession of property that belonged to the trust fund. Instead of honoring her fiduciary obligation to the fund, the woman converted the property to her own use. It does not matter that her motives were arguably charitable. The answer to the second question, how much the woman took, turns on the value of the property at the time of the commission of the offense. Answer B is correct because the certificate of deposit was worth $100,000 when the woman converted it to her own use.

A seller agreed in writing to specially manufacture a machine for a buyer for $100,000, with payment due on delivery. The seller expected to make a profit of $10,000 on the sale. After the seller had spent $30,000 on production of the machine and before the machine was complete, the buyer repudiated the contract. After the repudiation, the seller reasonably believed that if it completed the manufacture of the machine, it would be able to sell the machine to a third party. The seller completed the machine and sold it to a third party for $92,000. If the seller sues the buyer for breach of contract, how much, if anything, should the seller recover as damages?

If a buyer repudiates a contract for unfinished goods, the seller may in the exercise of reasonable commercial judgment proceed in any reasonable manner, including finishing the goods for resale. $8,000, the amount of the seller's lost profit after selling the completed machine to the third party.

At a defendant's trial for bank robbery, the prosecutor has presented evidence showing that the robbery was committed at 9:10 a.m. During the defense case, the defendant's girlfriend testifies on direct examination that the defendant was at home with her until approximately noon on the day of the robbery. The prosecutor's first question during her cross-examination is, "On the day of the robbery, you were questioned by an investigator and told him that [the defendant] had left the house by 8 a.m., didn't you?" The girlfriend denies having made the statement and says that the investigator must have misunderstood her. In rebuttal, the prosecutor proposes to call the investigator, who would testify that the girlfriend told him in their interview that the defendant had left the house by 8 a.m. on the day of the robbery. The defendant objects to the investigator's proposed testimony about the girlfriend's prior statement. Should the court allow the investigator's testimony about the girlfriend's prior statement?

Extrinsic evidence of the girlfriend's earlier statement may be admitted for the purpose of impeaching her direct testimony that the defendant was at home with her during the entire morning, since she was given an opportunity to explain or deny the statement. The statement is admissible for impeachment purposes only, though, because it would be hearsay not within any exception if offered to prove the truth of the statement concerning the time the defendant left home. Yes, but only to impeach the girlfriend's direct testimony.

After a fire burned down a house that a tenant was renting, the tenant brought a federal diversity action against the landlord. The complaint alleged that the fire had been caused by the landlord's negligent failure to maintain the house's electrical system in accordance with the applicable housing code. The landlord's own investigation indicated that the fire had been caused by the tenant's leaving a soup pot unattended on a hot stove. The landlord has moved to dismiss the action on the ground that the tenant failed to comply with a state law that requires plaintiffs suing for negligence to plead that they were not contributorily negligent. In opposition to that motion, the tenant argues that under federal law, contributory negligence is an affirmative defense that a defendant who wishes to assert the defense must plead in an answer or other responsive pleading. Which law governs how the court should rule on the motion to dismiss?

Federal law, because the Federal Rules ofCivil Procedure control pleading in federal court. When a Federal Rule of Civil Procedure is valid and on point, it controls over a conflicting state rule. Rule 8(c)(1) is on point because it specifically provides that contributory negligence is an affirmative defense that a defending party must assert in its answer to the complaint. The rule is a valid exercise of the US Supreme Court's rulemaking power, because the manner of pleading defenses is an issue that can rationally be classified as procedure and the rule itself regulates the manner and means by which the parties' rights are enforced.

A consumer brought a federal diversity action in State A against a manufacturer, asserting products liability claims under State A law. The consumer sought to bring the action on behalf of a nationwide class. State A law prohibits such class actions. Which law applies to determine whether the action may proceed as a class action?

Federal law, because the issue of whether the action may proceed as a class action is governed by the Federal Rules of Civil Procedure. When a federal rule is valid and on point in a federal court action, it controls over a conflicting state rule. The US Supreme Court has held that FRCP 23 is valid and that it, and not state law, controls whether an action may proceed as a class action in federal court.

A woman brought a federal diversity action against a doctor and a hospital for medical malpractice. After both defendants answered, the doctor filed a motion for summary judgment, attaching numerous exhibits that contradicted the facts alleged in the complaint. The woman has decided that she is not ready to proceed with the action. She would like to dismiss the action, with the intent to refile at a later date. Which option best achieves the woman's goal?

File a motion for voluntary dismissal without prejudice. Federal Rule of Civil Procedure 41(a)(2) permits a plaintiff to obtain a voluntary dismissal by filing a motion with the court, and a dismissal order under Rule 41(a)(2) is presumptively without prejudice, consistent with the woman's goal of refiling the action at a later date.

A man decided to kill his neighbor, with whom he had been feuding for years. The man took a handgun and followed his neighbor to the county fairgrounds. When he had a clear shot, he aimed the gun and fired, but at the last second the neighbor moved. The shot missed the neighbor but struck and killed a police officer at the fairgrounds. The jurisdiction defines murder as at common law but creates three degrees of murder:(a) Capital murder, punishable by death, is the intentional murder of a police officer. (b) First-degree murder, punishable by life in prison, is premeditated and deliberate murder. (c) Second-degree murder, punishable by up to 40 years in prison, is all other murders. What is the most serious crime of which the man can properly be convicted?

First-degree murder of the police officer. The man is guilty of first-degree murder because, while acting with the intent to kill the neighbor, he inadvertently killed the police officer. In this situation, the doctrine of transferred intent applies to hold him liable for the intentional killing of the officer.

The owner of a residence advertised it for sale in various media. A buyer who lived in another state decided to purchase it. The buyer neither visited the residence prior to the purchase nor personally spoke with the seller. All of their communication was by mail. The buyer never asked the seller about the condition of the residence, nor did the seller say anything about it except to ask if the buyer wanted to inspect the property because he intended to sell it "as is." The buyer did not inspect the residence because, as she told the seller, she was an experienced land buyer, and also because privately she felt that the seller, being relatively inexperienced in real estate matters, was selling the residence below its fair market value. Both parties signed a contract that was silent concerning the condition of the residence except to note that the sale was "as is." Two weeks later, the buyer sent the seller a check and the seller sent the buyer a warranty deed. After receiving the deed, the buyer visited the residence for the first time and discovered termite infestation that had caused substantial damage. The seller had not known of the termites. There is no applicable statute. The buyer sued the seller for damages and/or rescission of the contract. For whom will the court find?

For the seller, because he breached no duty. This house is not new construction where a seller may have a duty of disclosure. There are no applicable statutes that may require disclosure. The seller asked the buyer whether she wanted to inspect the property, but the buyer declined. An "as is" clause will be enforced when there is no positive misrepresentation or fraudulent concealment.

A trucking company employed nine salaried dispatchers to ensure that its truck fleet operated according to schedule. Two years ago, as a cost-saving measure, the company reduced the number of dispatches to six, and each of the remaining dispatches to six, and each of the remaining dispatchers had to work substantially longer hours. One of the remaining dispatches complained to his supervisor that the stress and fatigue associated with the new working conditions were too much for him to handle. The supervisor told the dispatcher that he should quit if he couldn't handle the increased hours. Over the next three months, the dispatcher continued to complain about the working conditions, to no effect. The dispatcher suffered severe emotional distress from the working conditions, but no physical injury. He eventually was hospitalized and had to miss several months of work as a result of the emotional distress. The dispatcher sued the trucking company for negligence. The company has moved for summary judgment, based on the undisputed facts set out above. Assume that there is no applicable workers' compensation statute. How should the court rule on the motion?

Grant the motion b/c the dispatches suffered no physical injury. Negligently caused emotional distress is ordinarily not actionable unless connected to a physical injury.

A buyer and a seller signed a written contract for the sale of a house. The contract was silent regarding which items would stay with the house. Before the closing, the buyer learned that the seller planned to remove several items that the buyer thought should stay with the house: a garbage disposal, a dining room ceiling fan, and a power lawn mower. Which of these three items, if any, may the seller remove?

He may remove the power lawnmower. When a real estate contract does not mention which items will stay with the house, the law of fixtures applies. A fixture is an item that has been attached to the land, is appropriate to be so attached, and is intended to be part of the land. The garbage disposal and the ceiling fan qualify as fixtures. The power lawn mower is not a fixture but is considered personal property, which may be removed.

A woman became extremely intoxicated after a night of heavy drinking at a party. After the party was over, she got into her car and sped off. While driving 70 mph in a 30- mph zone, she struck and killed a pedestrian. Blood tests revealed that her blood alcohol content had been more than twice the legal limit at the time of the accident. The woman was tried for murder. At the close of the evidence, the court refused to dismiss the murder charge but offered to give a lesser-offense instruction. What lesser-offense instruction should the defense attorney request?

Involuntary Manslaughter. Defense counsel should request an instruction on the lesser included offense of involuntary manslaughter. On the facts described, a jury could potentially conclude that the woman did not act with the sort of aggravated recklessness necessary to constitute depraved-heart homicide or extreme-indifference murder, even though she was intoxicated and driving in an unlawful manner.

One evening, a woman was driving above the speed limit on a country road. As she rounded a sharp curve, she lost control of the car and crossed over to the shoulder on the other side of the road. Her car hit a truck that was parked on the shoulder with its hood up while its driver waited for a tow truck. The force of the collision threw the driver out of the truck and down an embankment. The driver died from his injuries. Driving above the speed limit and causing an accident can be charged as reckless driving, a misdemeanor in the jurisdiction. What is the most serious homicide offense, if any, of which the woman can properly be convicted?

Involuntary manslaughter, based on the misdemeanor of reckless driving. On these facts, a jury could rationally find both that the woman was guilty of reckless driving and that her illegal conduct caused the truck driver's death. The woman's conduct constitutes involuntary manslaughter under a theory of "misdemeanor-manslaughter."

A franchise agreement between a franchisor and a franchisee was drafted by the franchisor. The franchisor, which had the greater bargaining power, drafted the majority of the agreement's terms in its own favor. Two years into the franchise agreement, a dispute has arisen regarding an aspect of the franchisee's operations that the agreement does not address. If the parties take their dispute to court and both ask the court to supply the missing term, how will the court likely proceed?

It will supply a term that is reasonable for both parties under the circumstances. When the parties have left gaps in an agreement that is otherwise enforceable, a court may supply a term that is reasonable in the circumstances.

A new federal statute establishes a five- member commission on cultural heritage sites. The statute directs the commission to develop regulations to protect such sites on federal public lands and to implement the regulations through specified fact-finding and adjudicatory functions. The commission is not under the supervision or control of any federal agency. Which, if any, of the following methods of appointing the commission members would be constitutional?

Members are appointed by the President, with the advice and consent of the Senate. The commission exercises significant legal authority. For that reason, the commissioners are officers of the United States. Because they are not under any other federal agency, they are not considered inferior officers and must therefore be appointed by the President with the advice and consent of the Senate. U.S. Const., Art. II, Sec. 2; Edmond v. United States, 520 U.S. 651 (1997); Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991).

A federal statute provides that the President must expend all funds appropriated by Congress, and that appropriated funds must be used only for the purposes named in the relevant appropriations act. An appropriations statute directs that $300 million be spent on planting wildflowers along public highways. Considering the statute to be a waste of money, the President has announced two decisions. First, he will spend half of the money to train troops. Second, he will retain the remaining funds in the federal treasury and not spend them at all. Are the President's decisions constitutional?

Neither decision is constitutional. The Take Care Clause requires the President to take care that the laws be faithfully executed, and one of those laws is the requirement that all the funds in question be spent on planting flowers. Keeping the funds in the federal treasury violates the legal mandate that all the funds be spent. The President cannot use the money to train troops, because the Appropriations Clause of Article I provides that federal spending must be authorized by Congress.

Congress recently enacted a statute that provides the US Supreme Court with original jurisdiction over any cause of action against a military officer for official misconduct. The stated intent of the statute is to ensure the prompt disposition of such actions by eliminating the need for appeals. Is the statute constitutional?

No, b/c Article III fixes the Supreme Court's original jurisdiction. Marbury v. Madison, 5 U.S. 137 (1803), held that Congress lacks the constitutional power to add to the Supreme Court's original jurisdiction.

A defendant was charged with manufacturing methamphetamine with intent to distribute. At the defendant's trial, the prosecutor calls the defendant's college roommate. The roommate will testify that when he and the defendant eight years before the trial, he saw the defendant use cocaine on several occasions while studying for finals. The defendant objects to the roommate's testimony. Is the roommate's testimony admissible?

No, b/c it is improper character evidence. This evidence is inadmissible under FRE 404(b). It is evidence of an uncharged crime (possession of cocaine) offered to show that the defendant is a bad person and is therefore more likely to have manufactured methamphetamine. The evidence may not be admitted for that purpose.

A consulting firm orally agreed to employ an executive as its president for the executive's lifetime. The parties negotiated and have agreed to all aspects of the employment except for the executive's salary, on which they remain several thousand dollars apart. The executive has sent a signed letter to the firm confirming the terms to which the parties have orally agreed while acknowledging that the salary has yet to be set. The firm has not responded to the confirmation letter. Do the parties now have an enforceable contract?

No, b/c the agreement is too indefinite to be enforced. The absence of agreement on a material term—the executive's salary—makes the agreement too indefinite to be enforceable.

A woman has sued a man for defamation, alleging that he sent a letter to her employer making false and injurious statements about her. At trial, she proposes to testify about the statements in the letter but does not produce the letter itself or show that it is unavailable. Should the court allow the woman's testimony about the statements in the letter?

No, b/c the best evidence rule requires an original or duplicate of the letter to prove the letter's contents. Under the best evidence rule, the woman cannot testify to the contents of the letter unless the original is lost and did not become so by her in bad faith. See FRE 1004(a). Because a showing of the letter's unavailability has not been made, the woman's testimony is inadmissible.

After reading a description of a person who had committed a rape, a parole officer noted that the description resembled one of his parolees. The officer called the parolee and asked him to drop by his office. The parolee came to the office and, after about 30 minutes of questioning, admitted having committed the rape. At no time did the officer give the parolee Miranda warnings. The parolee was charged with rape and has moved to suppress his statement to the parole officer. Should the court grant the motion to suppress?

No, b/c the parolee was not in custody.

A defendant was charged with two counts of murder. One trial witness was a child who had seen one of the killings. Before calling the child to testify, the prosecution moved to remove the defendant from the courtroom, arguing that the child would be intimidated by seeing the defendant. The court denied the motion. When the child entered the courtroom to testify, the defendant became unruly, moving as though he was about to lunge from his chair toward the child. The judge warned the defendant to stop the behavior. After a second warning, the judge told the defendant that he would be removed from the courtroom if he continued to behave inappropriately. The defendant then shouted a threat at the child. At that point, the court ordered the defendant removed from the courtroom. When the child finished testifying, subject to full cross-examination by defense counsel, the defendant was allowed back into the courtroom. The trial concluded, and the jury convicted the defendant. The defendant appealed the conviction, challenging only his exclusion from the courtroom. Should the court of appeals reverse the conviction?

No, b/c the right to be present can be forfeited by disruptive behavior. The Sixth Amendment right to confront witnesses, although presumptive and powerful, is not absolute. The Supreme Court in Illinois v. Allen, 397 U.S. 337 (1970), held that a defendant can forfeit that right by behaving in an unruly and disruptive manner, and by refusing to heed a warning to abide by the court rules. In such a case, held the Court, defense counsel can adequately safeguard the defendant's rights. Here, the defendant's disruptive and threatening behavior compromised both the order in the courtroom and the witness's ability to testify, and the defendant's refusal to heed the court's warning justified the extreme step of temporarily removing him from the courtroom.

woman listed her house for sale with a real estate broker. The woman and the broker signed a listing agreement, under which the woman agreed that the broker was to be the woman's sole agent during the six-month period of the listing agreement. The listing agreement was not recorded. The list price for the house was $250,000. The broker produced a prospective buyer who offered to purchase the house for $249,000 and who was prequalified to purchase at that price. The woman rejected the offer, giving no reason for her rejection, and the listing agreement expired the next day. Three months later, the woman sold the house to a corporation for $249,000. The broker never had any contact with the corporation. Is the broker owed a commission?

No, b/c the woman sold to a buyer found without the broker's help and after the expiration of the listing agreement. The broker found a prospective buyer who made an offer to purchase the house, but the woman had a right to reject the offer. The fact that the woman later sold the house to a corporation for the same price offered by the prospective buyer is irrelevant because it was after the listing agreement had expired and the broker did not help find the corporation.

A scientist domiciled in State A brought a federal civil action against his former employer, a company incorporated and headquartered in State A, alleging retaliatory discharge under federal and state law and seeking damages under federal and state law. The company moved to dismiss the federal claim, and the court granted the motion. The court's written order read in its entirety: "[The company's] motion to dismiss the federal claim is granted." The scientist immediately appealed this decision to the court of appeals. Is the appeal proper?

No, b/c there is no final judgment. As the state-law claim remains to be decided in the action, there is not yet a final judgment on the merits of the entire action, and thus an appeal is not allowed under the final judgment rule.

After a car buyer failed to make timely payments on her auto loan and failed to respond to notices of default properly sent to her home address, the loan company hired a collection agency to repossess the car. An employee of the agency went to the buyer's home and knocked on the front door. When the buyer answered, the employee explained that he was there to repossess the car and asked for the car keys. The buyer handed the employee the keys but then asked the employee to allow her to retrieve her laptop computer from the car. The employee declined the request, explaining to the buyer that any possessions in the car could be reclaimed from the company after the car was repossessed. After pleading unsuccessfully with the employee, the buyer shoved the employee away from the door with such force that the employee fell and suffered a broken wrist. The buyer then ran to the car, which was unlocked, and retrieved the laptop. The employee has sued the buyer for battery. The buyer has moved for summary judgment, arguing that she was privileged to act as she did. Should the trial court grant the buyer's motion?

No, because a fact-finder could reasonably conclude that the buyer used excessive force in attempting to defend her property. The buyer intentionally shoved the employee, which satisfies the prima facie case for battery. As an affirmative defense, the buyer could claim that she was privileged to use force against the employee in order to maintain possession of her laptop. However, this defense will be established only if the jury reasonably concludes that the buyer's use of force was reasonable under the circumstances (rather than excessive). Thus, the trial court should deny the buyer's motion for summary judgment.

A woman brought a wrongful death action against a car driver who hit and killed her husband while her husband was crossing a street. In settlement negotiations, the driver told the woman that he was sorry for what had happened and that he had been too drunk to drive when he ran into her husband with his car. The woman and the driver settled the wrongful death action for $1 million. Subsequently, the driver was charged with reckless homicide of the husband. At the driver's criminal trial, the prosecutor offered, as evidence of the driver's guilt, the driver's statement to the woman during settlement negotiations. Is the driver's statement to the woman admissible in the subsequent criminal prosecution?

No, because a statement made in civil settlement negotiations between private parties is not admissible to prove the validity of a claim in a subsequent criminal prosecution. Under FRE 408(a)(2), statements made during settlement negotiations in a private civil action—negotiations not involving a public office—are inadmissible in a subsequent criminal case arising out of the same incident.

A buyer contracted to purchase grain from a broker. The parties' written agreement provided for delivery and payment on March 19 at the broker's warehouse and stated that time was of the essence due to the volatility in market prices for grain. On March 19, neither party appeared at the warehouse. On March 21, the buyer called the broker and asked if he would come to the warehouse so that the buyer could take delivery of the grain and make payment. The broker refused the buyer's request. Does the buyer have a viable breach of contract claim against the broker?

No, because both parties' performance obligations under the contract were discharged. In contracts for the sale of goods, unless otherwise agreed, the seller's tender of delivery is a condition to the buyer's duty to accept and pay for goods, and the buyer's tender of payment is a condition to the seller's duty to tender delivery. UCC §§ 2-507 & 2-511. Here both parties' obligations were discharged, because neither condition for performance was satisfied.

A stockholder sued a corporation for losses he allegedly suffered when the price of the corporation's publicly traded stock dropped. The price drop occurred shortly after it was publicly revealed that the corporation had released false earnings reports. At trial, the stockholder seeks to testify that, in his opinion, the drop in the corporation's stock price was directly attributable to the public revelation about the false earnings reports. The stockholder has conceded that he has no formal education or training in economics or the stock market. Should the stockholder be permitted to testify to his opinion?

No, because he is not qualified to offer opinion testimony based on scientific, technical, or other specialized knowledge relating to stock price changes. The stockholder is a lay witness seeking to give testimony on causation that requires the specialized knowledge of an expert witness. Under FRE 701, the stockholder's testimony is inadmissible.

A defendant is on trial as one of the armed robbers of a liquor store. The defendant testifies that he robbed the store involuntarily because his fellow gang members threatened to kill him right then if he backed out, as he wanted to do. Thereafter, the defense seeks to call a witness who would testify that six months after the defendant was arrested in connection with the robbery, the defendant told him that he had been threatened when he wanted to pull out of the robbery. The prosecution objects to the witness's testimony. Is the witness's testimony admissible?

No, because it includes the defendant's own hearsay statement that is not within any exception. The witness would testify about the defendant's out-of-court statement, and the defense is offering that statement for the truth of the matter asserted: that the defendant wanted to pull out of the robbery. There is no hearsay exception that applies to admit the statement.

A defendant has been charged with selling cocaine. On the night of the alleged sale, a police officer arrested a woman and found a large package of cocaine in her car. The woman was brought to the police station for questioning. During her interrogation, she admitted to a police officer that she had sold cocaine and said that she had obtained the cocaine from the defendant, who was a local supplier. By the time of the defendant's trial, the woman has left the country. The prosecutor calls the police officer to testify that the woman told him that the defendant was her cocaine supplier. The defendant's attorney objects. Is the woman's statement to the police officer admissible to prove that the defendant sold cocaine?

No, because it is hearsay not within any exception. The woman's statement is hearsay if offered to prove its truth—that the defendant sold cocaine. There is no hearsay exception that would apply to admit her statement against the defendant.

A dairy farmer bought a milking system for his cows from an independent distributor. The farmer did not communicate with the manufacturer of the milking system or any of its agents before purchasing the system. The distributor knew that the farmer had several lucrative contracts with milk wholesalers, but the manufacturer was unaware of these contracts. The system never operated properly because of a manufacturing defect, and as a result the dairy farmer lost much of the wholesale contract revenue. Does the farmer have a viable strict products liability claim against the manufacturer for recovery of his lost revenue?

No, because of the economic loss doctrine. In this case, the only harm suffered by the farmer was lost revenue, and strict products liability does not apply when a defective product causes only economic loss, as opposed to personal injury or property damage.

Two men agreed to rob a bank. In the course of the robbery, the first man shot and killed a teller. The police arrived and arrested both men as they were leaving the bank. The men were charged with felony murder and tried separately. The first man (the actual shooter) was tried and convicted, but the jury refused to sentence him to death, so he was sentenced to life imprisonment. The second man was also tried and convicted. The prosecution agreed, based on medical records, that he was intellectually disabled with an IQ of only 60. The jury nonetheless sentenced the second man to death. Is the second man's death sentence constitutional?

No, because of the second man's intellectual disability. because the cruel and unusual punishment clause, as held in Atkins v. Virginia, 536 U.S. 304 (2002), prohibits imposition of the death penalty on a person with a severe intellectual disability. Atkins suggested that an IQ of 70 is an appropriate threshold, although Hall v. Florida, 572 U.S. 701 (2014), later clarified that borderline cases require individualized determination. Here, the IQ of 60 clearly indicates a qualifying intellectual disability that precludes execution.

A weed often found growing in vacant lots contains a stimulant that can be extracted by boiling the weed in water. Someone drinking the resulting "tea" can remain awake for long periods of time. However, drinking the tea can also cause paralysis and even death. Because the weed is so readily available, there is no commercial market for it. Congress has enacted a statute that makes possession of the tea a misdemeanor. The statute has no other provisions and is not part of a broader federal statutory scheme. Is the statute constitutional?

No, because possession of the tea is a noncommercial activity with no link to interstate commerce. United States v. Lopez, 514 U.S. 549 (1995), holds that Congress does not have the power under the Commerce Clause to regulate a noncommercial activity with no link to interstate commerce. Unlike in Gonzales v. Raich, 545 U.S. 1 (2005), the facts here do not involve a comprehensive regulation of commerce that incidentally covers some intrastate activities.

A reporter writing an article about a politician offered the politician's estranged daughter $10,000 for information about the politician. The daughter agreed and provided the reporter with the information he sought. Subsequently, the daughter's information appeared in a newspaper article by the reporter, but the reporter refused to pay the daughter. The daughter sued the reporter in state court for breach of contract on the basis of generally applicable state contract law. The reporter has moved to dismiss the action solely on the ground that the daughter's lawsuit violates the freedom of the press clause of the First Amendment. Is the court likely to grant the reporter's motion to dismiss?

No, because the First Amendment does not shield reporters from generally applicable state-law claims. The Supreme Court has consistently rejected claims that the freedom of the press protected by the First Amendment exempts press activities from laws of general application such as contract law.

A federal statute bans trade with any foreign country if the United States does not recognize the government of that country. For many years, the United States refused to recognize a particular country's government because it deemed the government repressive. The President recently extended diplomatic recognition to the country, but Congress passed a second statute withdrawing that recognition. A US company has sued the appropriate federal agency, seeking to enjoin enforcement of the second statute. The government has moved to dismiss the action on the ground that it involves a nonjusticiable political question. Should the court grant the motion?

No, because the action concerns the validity of a federal statute. Inter-branch disputes involving foreign affairs are not subject to the political question doctrine when they concern the validity of a federal statute.

On December 2, an employer called a job applicant who had interviewed and offered her a position paying $65,000 per year. The employer told the applicant that she could accept the offer by showing up for work on January 2 and that the term of employment would be one year from when she started. The applicant showed up for and began work on January 2. Two weeks later, the employer discharged her without cause. The applicant has sued for breach of contract. Would the statute of frauds be an effective defense for the employer in that action?

No, because the agreement could have been fully performed within a year from the time that it was made. An oral agreement is within the statute of frauds and is unenforceable if by its terms it cannot be performed within a year from the making. Here, however, the agreement was made on January 2 and would be fully performed a year later.

A day before the applicable statutory limitations period expired, a worker filed afederal diversity action for defamationagainst her former employer, alleging thatthe employer had falsely and publicly him. accused her of stealing trade secrets. In describing the events that led to the false accusations, the complaint quoted a statement of a competitor made to the employer about the worker's alleged theft. During discovery, the worker deposed the competitor. One week after discovery closed, the worker moved to amend the complaint to add the competitor as a defendant. The competitor opposed the motion on the ground that the statutory limitations period had expired. Is the court likely to grant the motion?

No, because the amendment would not relate back and thus would be futile. Courts may deny leave to amend when the claim to be added is futile. Here, the claim is futile on limitations grounds unless relation back applies. Relation back does not apply here because the worker's failure to name the competitor in the original complaint was not due to a mistake of identity, which is the standard that Federal Rule of Civil Procedure 15 imposes to permit relation back of amendments adding a party.

After conferring with the parties' attorneys in a federal civil action, the court entered a scheduling order with deadlines for completing discovery and filing dispositive motions. The order set a jury- selection and trial date for two months after the motions deadline. After the motions deadline expired, and a month before jury selection and trial, the plaintiff's attorney moved for a six-month extension of the discovery, motions, and jury-trial deadlines. The attorney explained that she had been so busy that she had been unable to depose key witnesses or discuss settlement options with her client. The defendant objected to the extension on the ground that there had been ample time to prepare and that the delay would result in increased costs. Is the court likely to grant the motion?

No, because the attorney has not shown good cause for the delay. Federal Rule of Civil Procedure 16(b)(4) states that in order to have a scheduling order modified, the moving party must show "good cause." This requires a showing that the party acted diligently to try to meet the original deadline.

An 11-year-old boy was driving a full-size motorcycle on a private road, where the boy was a trespasser. The motorcycle hit a tire that had fallen off a truck driven by a delivery company employee who was making a delivery to an address on the private road. The boy was injured when his motorcycle went out of control after striking the tire. In a negligence action brought on behalf of the boy against the delivery company, the company contends that the boy was contributorily negligent and that his damages, if any, should be reduced in conformance with the jurisdiction's comparative negligence statute. The boy argues that his conduct should be judged according to the standard of a reasonable child of like age, intelligence, and experience under the circumstances. Is the boy entitled to be judged according to the standard of care that he has argued for?

No, because the boy was driving a motorcycle. Because he was driving a motorcycle—an adult activity—the boy will be held to the adult standard of care.

An intoxicated man who was standing on a fifth-floor apartment balcony threatened to jump off the building. A bystander pulled the man back into the building, pushed him into a bedroom, and locked the bedroom door from the outside. When the man became sober, the bystander released him from the bedroom. Does the man have a claim against the bystander?

No, because the bystander was privileged to act as he did. A person is privileged to use reasonable force to protect another against imminent harm, including self-inflicted harm. Given that the intoxicated man appears to have been on the verge of harming or killing himself, it was reasonable for the bystander to push the man and lock him in the bedroom until the danger had passed.

A father whose only living relatives were a daughter and a nephew owned land worth $500,000. In return for his daughter's promise to pay $300,000 to his nephew at the time of the father's death, the father executed and delivered to his daughter a quitclaim deed to the land. The daughter took possession of the land. Two years later, in a signed writing, the father directed his daughter to pay to a neighbor, at the father's death, $50,000 of the $300,000 that was to go to the nephew. The daughter, who had long disliked the neighbor, told her father that she did not plan to honor his request. The father died, and his daughter has since refused to pay anything to either the nephew or the neighbor. The neighbor has sued the daughter for the $50,000. Is the neighbor likely to prevail?

No, because the daughter did not consent to any modification of the contract she had made with her father. Modification of a contract governed by common law requires mutual assent and consideration. Here, the daughter did not agree to the modification and the father provided no consideration.

After a lengthy federal trial, the defendant moved for judgment as a matter of law (JMOL). The court denied the motion and sent the case to the jury, which returned a verdict for the plaintiff and awarded damages. Five weeks after the court entered judgment on the verdict, the defendant filed a renewed motion for JMOL. One week after that motion was filed, the parties filed a stipulation agreeing to extend the time to file and respond to posttrial motions. In the stipulation, the defendant acknowledged that it had filed its JMOL motion late, citing computer difficulties relating to an office move. The plaintiff has acknowledged that it suffered no prejudice as a result of the late renewal motion but opposes it. Is the court likely to consider the renewed JMOL motion on the merits?

No, because the deadline for filing a renewed JMOL motion cannot be extended. Federal Rule of Civil Procedure 6(b)(2) provides that a court "must not extend the time to act" under Rule 50(b), governing renewed motions for judgment as a matter of law.

A defendant was charged with murder. At trial, the prosecutor called a witness who testified that a friend had told him that there was "bad blood" between the defendant and the victim. After the witness was excused, the defense attorney moved to strike the portion of the testimony that included the friend's statement, arguing that the statement was inadmissible. Has the issue of admissibility been preserved for appeal?

No, because the defense failed to make a timely objection stating the specific ground for objection. The defense attorney should have immediately objected when the witness related inadmissible hearsay. An objection raised only after the witness has left the stand is not timely under FRE 103. In addition, the delayed objection failed to preserve the right to appeal, because the defense attorney did not state a specific basis for the objection under FRE 103.

An experienced construction company purchased sand in bulk from a distributor. The construction company mixed the sand with water and cement to make concrete. The distributor knew that an improper ratio of sand, water, and cement would result in defective concrete, but the distributor played no role in determining the ratio used by the construction company in mixing the concrete. The construction company used the concrete to form supporting columns for a building. A year later, the building collapsed during a minor earthquake, causing injury to the occupants. Although the sand was not defective, the concrete forming the columns was defective because the mixture ratio of the sand, water, and cement was not proper. The defective concrete was a cause in fact of the collapse. Do the injured building occupants have viable strict liability claims against the sand distributor?

No, because the distributor neither advised nor participated with the construction company in determining the mixture of sand, water, and cement. A commercial seller of a nondefective component part that is incorporated into a finished product by the product's manufacturer is not strictly liable for injuries caused by the product unless the seller substantially participated in the integration of the part into the design of the finished product, and the integration of the component is what rendered the finished product defective.

Three employees sued their employer in federal court for failing to pay overtime wages, in violation of both federal and state law. The employer moved for summary judgment on the federal-law claims but not on the state-law claims, which closely paralleled the federal-law claims. The court granted the employer's motion. The employees have moved in the district court for an order certifying an immediate appeal of the grant of summary judgment on the federal-law claims because there is no just reason for delay. Is the court likely to grant the motion?

No, because the federal-law claims are not separate and distinct from the state-law claims. If an action includes claims based on federal law and state law, and if those claims involve overlapping facts and evidence, rather than being separate and distinct, typically the court will not enter a final judgment under Federal Rule of Civil Procedure 54(b) on the claim that has been resolved. This practice is to avoid duplication of effort in the appellate and trial courts.

An established cemetery sells "pre- need" funeral plans, which include funeral services, a casket, and a burial plot, in exchange for advance payment. By state statute, any purchaser of a funeral plan of this sort can cancel the purchase at any time, subject to a penalty imposed by the seller of up to 15% of the purchase price. A former high-level employee of the cemetery, who knew of the limitations specified in the state statute, recently built a new cemetery near the established cemetery. To promote the new cemetery, the former employee sent postcards to local residents asserting that anyone who had already purchased a pre-need funeral plan had "an unlimited right to cancel that plan at any time, for any reason, without penalty." The postcard also offered a $100 rebate on a pre-need funeral plan with the new cemetery to anyone who canceled an existing plan elsewhere. Shortly after the promotion began, several purchasers of funeral plans with the established cemetery canceled their plans and purchased plans from the new cemetery. When the established cemetery withheld penalties from the refund amounts, the purchasers objected and threatened to notify the state consumer protection bureau. The established cemetery has sued the former employee for tortious interference with contract. The former employee has moved for summary judgment, based on the foregoing facts. Should the court grant the motion?

No, because the former employee could be found by a jury to have intentionally and improperly interfered with the established cemetery's contracts. A jury could find that the former employee intentionally and improperly interfered with the established cemetery's contracts by intentionally misrepresenting to the established cemetery's customers that they could cancel their existing contracts without penalty.

An heir hired an appraiser to appraise various items of personal property that she had inherited, including an original oil painting. The appraiser told the heir that he had no expertise in appraising art and recommended that she hire an art appraiser to value the painting. The heir, doubting that the painting was valuable, declined to follow the appraiser's advice and decided to sell the painting at a yard sale. She set the price at $100, assuming that this price reflected the painting's approximate value. A neighbor, who knew nothing about art, purchased the painting from the heir at the asking price. The neighbor and the heir later discovered that the painting was worth over $900,000. Would the heir be likely to prevail in an action to rescind the contract?

No, because the heir bore the risk of any mistake as to the true value of the painting. A person cannot avoid a K for mistake where that person bears the risk of mistake. Here, the heir bore the risk of mistake b/c she was aware that she had only limited knowledge with respect to the facts but treated her limited knowledge as sufficient.

A defendant was tried on a charge of first-degree premeditated murder. At the end of trial, the court granted the defendant's request to have the jury also instructed on the lesser included offense of second-degree murder. After being instructed on the elements of both first- and second-degree murder, the jury found the defendant guilty of second-degree murder. The defendant appealed. The appellate court reversed the conviction based on an erroneous evidentiary ruling. May the defendant properly be retried on the original charge of first-degree murder?

No, because the jury effectively acquitted the defendant of first-degree murder. because a jury's conviction on a lesser charge constitutes an implied acquittal of a greater charge, thus barring retrial on that greater charge.

A woman was charged with a felony. After charges were filed but before the woman's trial, the state passed a law requiring any convicted felon to make a payment to the victim of the crime. Under the law, the payment "shall be such amount as the court may find appropriate at the time of sentencing, taking into account the gravity of the offense, but shall not exceed $25,000." The law applies to all defendants whose trials or guilty pleas take place after the law's passage. Is the law valid as applied to the woman?

No, because the law cannot be applied retroactively to crimes committed before its passage. A law that increases the punishment for a crime after the crime was committed violates the ex post facto clause. The law here was passed after the woman committed the crime, so the law may not be applied to her.

Under a state law, oil and gas rights can pass by will or through intestate succession. Some oil and gas rights in the state have been divided into very small interests after several generations of passing by intestate succession. It therefore is difficult to enter into extraction contracts in the state because of the need to include large numbers of heirs for any given tract of land. To remedy this problem, the state has enacted a law that provides that, at the death of an owner of less than 1% of the oil and gas interests in a tract of land, that owner's oil and gas rights are extinguished and his or her interests are transferred pro rata to the remaining owners. Is this law constitutional?

No, because the law effects a taking of property without just compensation.

In order to ensure the high quality of tutors in state public schools, a state law requires public schools to hire only tutors licensed by the state. To obtain a license, a tutor is required to achieve a passing score on a state-administered exam in the tutor's area of specialty. On several occasions, an organization representing tutors licensed in the state has successfully lobbied against proposed legislation that would have eased the licensing requirement. An out-of-state tutoring company would like to conduct business in the state, but very few of its tutors are licensed by the state. The company has sued to challenge the law. Is the company likely to prevail?

No, because the law is rationally related to a legitimate state interest. The state licensing requirement should receive rational basis scrutiny because it neither burdens a fundamental individual right nor creates a constitutionally suspect classification. The licensing requirement for tutors is a rational means of protecting the state's legitimate interest in ensuring the competency of tutors, and so the state law easily satisfies the rational basis test.

A state law to promote tourism creates an easement across a portion of a private farm for hikers who wish to use a historic trail that crosses the farm. The law allows the farm's owner to charge hikers a fee to cover the costs of this use, but it does not otherwise compensate the owner. Is the law constitutional?

No, because the law takes the owner's property without just compensation. The state-created easement provides for the physical occupation of a portion of the owner's farm and thus constitutes a government taking of that portion of land. The takings clause requires that the government provide just compensation to owners for the land it takes. Just compensation is determined by the fair market value of the taken land. Although the state law allows the owner to charge a fee to recover costs from hikers who use the trail on the farm, the fee is not equivalent to the fair market value of an easement across the land.

A man contracted with a personal flight instructor to take 15 flying lessons from her. The lessons were to begin two months from the signing of the contract. One month after the contract was signed, the man died when his car was struck by a drunk driver. The instructor demanded that the man's estate pay for the 15 lessons. When the estate refused to pay, the instructor sued the estate. It is undisputed that the instructor was willing and ready to perform her obligations under the contract. Is the instructor likely to prevail in the action against the estate?

No, because the man's death excused both his and the instructor's performance obligations. The man's death frustrated the purpose of the contract because his being alive for the lessons was a basic assumption of the contract. Restatement (Second) of Contracts § 265.

Late one evening, a woman sitting in her living room with the lights off saw a man using a flashlight to look into her car, which was parked on the street in front of her home. The woman had left an expensive laptop computer on the front seat of the car and knew that there had been a series of car thefts in the area. After seeing the man break her car window, the woman retrieved a shotgun, fired it, and hit the man. She then called the police. When the police officers arrived, they arrested both the man and the woman. The woman is charged with aggravated assault. At trial, her attorney has asked the court to instruct the jury that she was permitted to use force in defending her property. The jurisdiction follows common law principles for defenses. Should the court give the jury the requested instruction?

No, because the woman was not entitled to use deadly force in defense of property. the common law rule that deadly force cannot be used in defense of property remains the rule in virtually every state today.

he owner of a local road-paving company has for several years provided road repair and maintenance services for a small town under an annual contract. The owner's price is usually lower than the prices of other bidders because the owner's equipment and personnel are located in the town. In a recent town mayoral election, the owner supported the candidate challenging the incumbent mayor. The owner's paving trucks carried bumper stickers promoting the challenger. When the incumbent mayor saw the owner in a local restaurant, the mayor said, "You'd better get those bumper stickers off your trucks or you'll never pave another road in this town again." The owner refused to comply. The incumbent mayor won the election. When the road construction projects for the next year were put out to bid, the owner of the local paving company was again the lowest bidder. The mayor, however, vetoed the selection and chose a contractor from farther away, at a much higher price. State law does not require selection of the lowest bidder. Is the mayor's selection of the other contractor constitutional?

No, because the mayor's action is a violation of the owner's right to freedom of expression and association.

A company hired an attorney to sue a former company manager for violating a covenant not to compete. The company's president told the attorney that the manager had begun working for a competitor and gave the attorney a copy of the signed covenant. The attorney brought a federal diversity action against the manager and attached to the complaint a copy of the signed covenant. The attorney also moved for a preliminary injunction, referring to the attached covenant and submitting a supporting affidavit from the company's president. At the hearing on the preliminary injunction motion, the manager denied ever having signed such a covenant and conclusively demonstrated that the copy of a signed covenant attached to the company's motion was forged. The court, on its own initiative, ordered the attorney to show cause why the attorney should not be sanctioned under Rule 11. Would sanctions against the attorney be proper?

No, because the motion was supported by evidence that was likely sufficient to satisfy an objectively reasonable attorney. Federal Rule of Civil Procedure 11(b) requires that factual contentions presented by an attorney to the court have evidentiary support. Attorneys may rely on affidavits and documents provided by their clients unless the circumstances suggest that it would be unreasonable to do so or that further inquiry is needed.

Members of a political organization protested against US foreign policy by blocking the entrance to a military base. After several members were arrested, the organization's leader called for "even bigger demonstrations next week to halt operations at the base." The US Attorney in the jurisdiction brought a federal civil action against the organization and its leader, seeking an injunction against protests that interfered with the base's operations. With the complaint, the US Attorney moved for a temporary restraining order (TRO) to "enjoin any blockade of the base's entrance or other disruption of base activity until the court can hear motions for a preliminary and a permanent injunction." The US Attorney attached an affidavit certifying the unsuccessful efforts she had made to locate the organization and its leader and to notify them of the motion. The court immediately held a hearing and issued the TRO in a one- sentence order that did not describe the acts to be restrained but instead incorporated by reference the allegations of the complaint and the TRO motion. Did the court properly grant the TRO?

No, because the order did not describe in reasonable detail the acts to be restrained. Federal Rule of Civil Procedure 65(d) requires that every order granting a TRO must state the reasons why it was issued and must detail the acts restrained, which this order failed to do.

On March 1, an owner entered into a written contract to sell her car to a buyer for $15,000, with delivery and payment to occur on March 6. The buyer had previously declined to enter into an option contract to hold the owner's offer open until March 6. On March 3, the buyer emailed the owner to say that he might not have the $15,000 by March 6. The owner did not respond. On March 4, the owner sold the car to her neighbor for $13,000 and told the buyer that she planned to sue him for breach of contract to recover the difference in the purchase price. Is the owner likely to succeed in a breach of contract action?

No, because the owner anticipatorily repudiated her contract with the buyer. Anticipatory repudiation requires (1) an overt communication of an intention not to perform a contractual obligation or (2) an action that renders performance impossible or shows a party's determination not to perform. UCC § 2- 610, cmt. 1. Here the buyer did not anticipatorily repudiate because on March 3, he merely said that he "might not" have the money to complete the transaction on March 6. Therefore, the owner anticipatorily repudiated by selling the car to the neighbor and will not succeed in a claim against the buyer for breach of contract.

A plaintiff filed a federal diversity action against a corporate defendant and the same day mailed to the defendant's managing agent a notice of the complaint and two copies of a request to waive service. Sixty-one days later, after the defendant had failed to return the signed waiver request, answer, or otherwise plead, the plaintiff moved for entry of default and a default judgment. The plaintiff did not file proof of service. Assume that any relevant state service law is the same as federal law. Is the court likely to grant the motion?

No, because the plaintiff failed to effect proper service of process. Although a request for waiver of service was sent, the defendant was not obligated to and did not respond to the request. Without a waiver of formal service, the plaintiff must formally serve the defendant before the defendant would have an obligation to respond. In the absence of formal service, an entry of default would be inappropriate.

A plaintiff sued a defendant for assault after a late-night barroom brawl. At trial, the plaintiff planned to call several bar patrons who had been present on the night in question to testify to the circumstances of the alleged assault. The trial judge ordered all witnesses excluded from the courtroom during the trial except for the parties. The trial judge then ordered the plaintiff to testify first during his case-in-chief and to relate his version of events before hearing the testimony of other eyewitnesses. The plaintiff has objected to the order requiring him to testify first. Did the trial judge exceed her authority in ordering the plaintiff to testify first?

No, because the trial judge has broad discretion to exercise control over the order of examining witnesses. Under FRE 611(a), a trial judge possesses broad discretion to control the mode and order of examining witnesses and presenting evidence so as to make trial procedures effective for determining truth. A trial judge who is concerned about a party's hearing all eyewitness testimony and thereafter tailoring his testimony to that of other witnesses would not abuse her discretion in ordering that party to testify before the other witnesses.

A plaintiff who lives near a factory has sued the company that owns it, alleging that a toxin released from the factory caused the plaintiff to suffer a respiratory disease. The company contends that only a small amount of the toxin was released for a brief period, and that in any event the toxin is not known to cause any respiratory disease. The plaintiff has not disputed the minimal amount and brief length of the exposure. has objected to the admission of the expert's testimony. At a pretrial hearing to determine the admissibility of the expert's testimony, the expert testified that she based her opinion on several studies provided by the plaintiff's attorney about another substance that is similar to the toxin at issue. These studies show that prolonged exposure to high doses of the similar substance can cause the respiratory disease that the plaintiff suffers from. On cross-examination, the company's attorney elicits from the expert an admission that she did not consider, in forming her opinion, two recent clinical studies, both of which concluded that there was no connection between the toxin at issue and any respiratory disease. Should the court allow the Plaintiff's expert witness to testify at trial?

No, because the plaintiff has failed to show by a preponderance of the evidence that the expert based her opinion on sufficient facts and data and that she employed a reliable methodology. Under FRE 702, an expert's opinion must be based on sufficient facts and data and the expert must employ a reliable methodology. Here, the expert failed to satisfy those standards. She relied on studies showing the effects of prolonged exposure to high doses of a similar toxin, when the plaintiff was exposed briefly to small doses of this particular toxin. The expert also failed to consider recent studies about the toxin in question.

A police department received reliable information that a woman was selling drugs from her apartment. Upon arriving at the apartment, officers noticed the smell of burning marijuana (which is an illegal substance in the jurisdiction) coming from inside the closed front door. They knocked on the door and announced, "Police!" Immediately, they began to hear sounds of items being moved inside. Concerned that evidence was being destroyed, the officers opened the unlocked door and entered the apartment, where they saw drugs and cash on the dining room table. They arrested the woman for drug offenses. The woman has moved to suppress the evidence obtained from her apartment, arguing that the police violated the Fourth Amendment when they entered the apartment without a warrant. Should the court grant the woman's motion to suppress?

No, because the police had probable cause and exigent circumstances.

A buyer entered into a valid written contract with a seller to purchase vacant land. Unbeknownst to the seller, the buyer planned to construct a gas station on the land. The contract provided that the buyer could rescind the contract if the seller failed to deliver marketable title. After a title search, the buyer discovered that a restrictive covenant prohibited using the land for commercial purposes. The buyer had not had actual knowledge of the restrictive covenant before executing the contract. The buyer refused to close on the contract, and the seller has sued for specific performance. Should the seller prevail?

No, because the restrictive covenant rendered the title unmarketable. A seller is required to convey a marketable title to a buyer in the absence of a contrary provision in the contract. A restrictive covenant makes title unmarketable unless the covenant is excepted in the contract. Here there is no exception in the contract. Answer B is incorrect. The law will require the title to be marketable but will not require a perfect title.

A state law imposes a tax on all leases of real estate. The tax is calculated on gross rent and is imposed on the lessee at the beginning of each lease term. May the state collect this tax on the lease of office space in the state by the United States Social Security Administration?

No, because the state may not directly tax any agency of the federal government. the state cannot impose a tax directly on the federal government or any of its agencies. United States v. New Mexico, 455 U.S. 720 (1982).

A pedestrian sued a defendant for injuries he suffered after the defendant allegedly drove his car through a red light and struck the pedestrian in a crosswalk. At trial, a woman who had seen the accident testified that she clearly saw the defendant run the red light and hit the pedestrian. The defendant did not cross-examine the woman, and she was excused as a witness and immediately left the jurisdiction. The defendant then called the woman's neighbor to testify that the woman had told him a week after the accident that the defendant had not run the red light. The pedestrian objects to the neighbor's testimony about the woman's statement. Is the neighbor's testimony about the woman's statement admissible?

No, because the statement is hearsay if offered to prove that the defendant did not run the red light and cannot be offered to impeach because the woman was not given an opportunity to explain or deny the statement. The woman's out-of-court statement would be hearsay if offered to prove that the defendant, in fact, did not run the red light, and there is no applicable hearsay exception. Further, extrinsic evidence of the woman's prior inconsistent statement may not be offered to impeach her, because she had no opportunity at trial to explain or deny the earlier statement.

A defendant was arrested and charged with burglary. Under state law, police are required to obtain DNA samples from all persons arrested for felonies and to store those samples in a state registry. The police informed the defendant of the state law and said that they would be using a cheek swab to obtain a DNA sample from him. The defendant did not object. The defendant was later acquitted of burglary. A year later, however, authorities matched the defendant's DNA to an unsolved sexual assault crime. The defendant, now charged with sexual assault, has moved to suppress the DNA sample as having been obtained in violation of the Fourth Amendment. Should the court suppress the DNA sample?

No, because the statute requiring collection of DNA samples from felony arrestees does not violate the Fourth Amendment. The Supreme Court upheld the constitutionality of a state law that authorized police to take DNA samples from persons arrested for serious offenses. King also affirmed the right of law enforcement to test and store the DNA profiles in a government database and then compare them to unsolved crime scene samples. Here, the defendant was arrested and charged with a felony, and the DNA sample was obtained, stored, and used as authorized by statute. Thus there was no constitutional violation, and suppression is not justified.

A woman executed and delivered to her unmarried nephew a warranty deed conveying her home to him "on the date of his marriage." The nephew promptly recorded the deed. Several years later, when the nephew was still unmarried, the woman died testate, leaving her entire estate to her sister. The executor of the woman's estate has asserted that the nephew has no interest in the home. Is the executor correct?

No, because the woman's death did not affect the nephew's future interest in the home. Answer B is correct because the woman conveyed a springing executory interest to the nephew while retaining a fee simple subject to executory limitation. The woman's death did not affect the nephew's springing executory interest, and her estate now holds the fee simple subject to executory limitation. When and if the nephew marries, his executory interest will vest in fee simple. If the nephew dies unmarried, the sister's interest will swell into a fee simple.

A seller signed a valid contract with a buyer for the sale of a restaurant building. The contract provided that the closing would occur at the office of the seller's attorney 30 days after the date of the contract. Twenty days later, the buyer asked the seller if the closing could be postponed for 15 days beyond the scheduled closing date. The seller authorized her attorney to email the buyer saying that the closing date would be extended for 15 days but that "time is now of the essence." The buyer emailed back that the change was reasonable and thanked them. On the rescheduled closing date, the buyer was in a car accident on the way to the closing and was hospitalized for a month. When the buyer was released from the hospital, he told the seller and her attorney that he was now ready to close. They responded that the buyer had breached the contract and that there would be no closing. Can the buyer still enforce the contract?

No, because time was made "of the essence" as to the rescheduled closing date. The initial contract did not require time to be "of the essence" for the closing. When the buyer requested a postponement of 15 days, the seller agreed but noted that time was now "of the essence," which the buyer agreed was reasonable. Time may be made of the essence later if there is a reasonable time between the notice and the new date.

A blasting company was conducting blasting operations in connection with a highway-widening project. Prior to setting off a charge, the blasting company supervisor posted a large warning sign and stationed a flagman to stop automobiles along the highway. Although a motorist saw and understood both the sign and the flagman's instruction to stop, the motorist nonetheless continued past the flagman and the sign and was traveling along the highway at the moment of the blast. A flying rock from the blast hit and severely damaged the motorist's car. The jurisdiction follows the traditional common law rules governing contributory negligence and assumption of risk. If the motorist pursues a claim against the blasting company to recover for the damage to the car, and all the foregoing facts are established, how much should the motorist recover?

Nothing. This question specifies that the traditional common law rule of assumption of risk applies. Under that rule, even if an actor causes injury to a victim, the victim is barred from recovering damages if the injury results from the victim's having knowingly and voluntarily chosen to encounter the risk of injury posed by the actor's conduct. The motorist was fully aware that there was risk posed by the blasting company's activity and was instructed to stop, yet chose to proceed, thus assuming the risk of damage to the car as a result of the blasting.

A real estate brokerage firm, which is incorporated and headquartered in State A, has brought a federal diversity action in State A against one of its former employees for theft of trade secrets. The former employee had worked at the firm's headquarters throughout her employment but is now a citizen of State B. The firm seeks compensatory and punitive damages. The court has asked the parties to submit proposed jury instructions on punitive damages and the relevant authority to support those instructions. State A's choice- of-law rules select State A law, which limits punitive damages to five times the amount of compensatory damages. Assume that the US Supreme Court has held that the Constitution limits punitive damages to 10 times the amount of compensatory damages. Which of the following submissions on the instructions is correct?

Punitive damages are limited to five times the amount of compensatory damages, because State A's choice-of-law rules select State A law. In Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 498 (1941), the US Supreme Court ruled that in cases governed by Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), the court is to apply whatever law would be applied by the courts of the state in which the district court is sitting.

State authorities received information that a man had been making threats against his ex-wife. To determine whether the man was serious, an undercover officer introduced himself to the man at a bar. The officer said that he had previously taken care of problems for angry spouses. After some discussion in which the man expressed his extreme anger at his ex-wife, the man offered the officer $5,000 to kill her. The officer agreed and made arrangements to meet the man at the bar the next day to collect the $5,000 payment. When the man showed up the next day at the bar, authorities immediately arrested him. The jurisdiction defines attempt, solicitation, and misprision of a felony as at common law, and also punishes bilateral conspiracies. The crimes below are listed in descending order of seriousness. What is the most serious crime of which the man can properly be convicted?

Solicitation of murder. The man committed solicitation of murder by attempting to induce the undercover officer to murder the man's ex-wife.

A man offered to sell illegal drugs to an undercover police officer, who immediately arrested the man. The officer searched the man but found no drugs in his possession. The jurisdiction follows the common law of conspiracy and solicitation, and uses the dangerous-proximity test for attempt. What crime, if any, has the man committed?

Solicitation. The man committed criminal solicitation by attempting to cause the officer to commit the crime of possessing a controlled substance.

A defendant has been indicted for shooting a gun at a local official. She has raised an insanity defense. At trial, the defendant's attorney seeks to call a qualified psychiatrist as an expert witness. The psychiatrist would testify (1) that at the time of the shooting the defendant suffered from schizophrenia and heard voices commanding her to shoot the official, and (2) that because of these auditory hallucinations, the defendant was legally insane at the time of the shooting. The prosecutor objects to the proposed testimony. What is the proper ruling for the court to make?

The first part of the psychiatrist's proposed testimony is admissible, but the second part—that the defendant was legally insane—is inadmissible. Under FRE 704(b), an expert in a criminal case may not state an opinion about whether a defendant was legally insane at the time of the alleged crime. Such testimony is inadmissible because it is an opinion about whether the defendant had a mental state that constitutes a defense. The psychiatrist's testimony regarding the defendant's schizophrenia and auditory hallucinations is admissible, but the testimony about whether the defendant was legally insane at the time of the shooting is inadmissible.

Twenty years ago, a woman conveyed land to a city so long as the city used the land "for park purposes." The deed was promptly recorded. Seventeen years ago, the city discontinued using the land as a park. Because the city needed additional parking for nearby city buildings, it paved the land and has used it as a parking lot ever since. The period of time to acquire title by adverse possession in the jurisdiction is 10 years. Last year, the woman died intestate, leaving a son as her only heir. The son sued the city, claiming ownership of the land, but the court found against him. What is the most likely explanation for the court's decision?

The city acquired the land by adverse possession. The 10-year statute of limitations began to run 17 years ago when the city began using the land for non-park purposes, a use it continued for more than the statutory 10- year period. The woman failed to sue the city in a timely manner after the city stopped using the land for a park. Thus, when the woman died, she no longer owned the land and no interest passed to her son.

A multi-building apartment complex in a city residential neighborhood has a swimming pool, the use of which is restricted to tenants of the complex. The owner of the complex has applied to the city for a permit to construct an additional apartment building on the site. The city has told the owner that it will approve the permit only if the owner makes the swimming pool available to all residents of the neighborhood. The purpose of the condition is to compensate neighborhood residents for the increased street traffic that will result from the tenants of the new building. Is the permit condition constitutional?

The Supreme Court has held that government- imposed conditions on the development of a property constitute a taking unless the conditions are rationally related to preventing harms caused by the new development. Because the condition of making the swimming pool available to neighborhood residents is not rationally related to alleviating the harm of increased street traffic, the condition constitutes a government taking. The city does not propose to provide just compensation for the taking, and therefore the condition is unconstitutional. No, because there is no logical nexus between the permit condition and the city's concern with increased street traffic.

A passenger domiciled in State A has brought a federal diversity action in State A against a railroad, seeking damages for injuries suffered when the railroad's train, which the passenger boarded in State A, derailed in State B. The railroad is incorporated and has its principal place of business in State B and operates in States A and B. Several other passengers were also injured and have brought individual actions in State B federal court. The railroad has moved the State A federal court to transfer the action to the State B federal district court. State B has only one federal district. What is the railroad's best argument in support of the motion?

The accident occurred in State B and many witnesses are located there. Transfers to a different federal court are granted in the interest of justice and for the convenience of the parties and witnesses. Here, because the accident occurred in State B, because the railroad is located in State B, and because other passengers have brought actions in State B federal court, State B appears to be the most convenient venue for the action.

A property owner hired an arborist to cut down all the trees on her property and to transport the trees to a lumber company. The owner agreed to pay the arborist $10,000 when the work was complete. The arborist said that the work would take him three days. On the first day, the arborist cut down all the trees. That evening, a fire caused by vandals completely destroyed the trees, making them unfit for use by the lumber company. What, if anything, must the owner pay the arborist?

The arborist's restitutionary interest, which would be the reasonable value of the services he rendered. The arborist's performance was discharged by impracticability because the non- occurrence of the vandalism and fire was a basic assumption of the contract. Restatement (Second) of Contracts § 261. But the arborist is entitled to restitution for the value of the part of the contract that the arborist performed before that discharge. Restatement

A recreational outfitter placed an online order with a seller for 20 new kayaks. The outfitter agreed to delivery by carrier under a destination contract, paid for the order, and received an email confirmation from the seller. The seller placed shipping labels on 20 individual kayaks in the seller's warehouse. The shipping labels listed the outfitter's name and address, the order number, and the proposed delivery date. The seller informed the carrier that the kayaks were ready to be picked up from the seller's warehouse for delivery to the outfitter. The carrier picked up the kayaks and delivered them to the outfitter. At what point were the kayaks identified to the contract?

When the seller placed the shipping labels on the kayaks. Goods are identified to the contract when the seller ships, marks, or otherwise designates them as goods to which the contract refers. UCC § 2-501. Here the seller marked them before they were shipped, so identification occurred when the seller put the labels on the kayaks.

A man borrowed money from a bank to finance the purchase of a commercial building. The man signed a promissory note, which was secured by a mortgage on the building. Because the man had few other unencumbered assets, the bank required additional security. The man's mother granted the bank a mortgage on a motel that she owned, but she did not sign a promissory note. Both mortgages were promptly recorded. Five years later, after real estate values had dropped considerably, the man defaulted on the loan from the bank. After acceleration, the bank initiated foreclosure proceedings against both the commercial building and the motel owned by the mother. The mother timely objected to the foreclosure proceedings against the motel. The bank responded that it had the right to include both the commercial building and the motel in the foreclosure proceedings. Who is correct?

The bank, because the motel was voluntarily mortgaged to secure the man's debt. A person may validly mortgage their land to secure the debt of another person. The mortgagor need not be the debtor.

A homeowner entered into a contract with a builder under which the builder was to install two new bathrooms in the homeowner's house. The stated price for the first bathroom was $30,000, and the price for the second bathroom was $35,000. The builder, without justification, left the job after completing the $30,000 bathroom. The homeowner found another contractor to complete the second bathroom for $35,000 and has suffered no losses as a result of the builder's breach. The builder has sued the homeowner for the $30,000 contract price of the first bathroom, which remains unpaid. What is the most likely result of the builder's suit?

The builder will recover $30,000, because the contract is divisible into two parts.

A man owned an oceanfront cottage. A woman owned land across the street that did not have direct ocean access. For $10,000, the man executed a deed titled "Grant of Pedestrian Right-of-Way" to the woman and "her heirs and assigns" over a designated strip of his land between the street and the ocean. The deed was never recorded. Several years later, the woman sold her land. The woman made no mention of the easement, and the buyer had no actual notice of it. After the buyer took possession of the land, neighbors informed her about the pedestrian easement over the man's land, but when the buyer attempted to use the easement, the man informed her that it was no longer available and constructed a chain-link fence to block the way. The buyer promptly sued the man to establish her right to use the easement. Who will likely prevail?

The buyer, because the easement was appurtenant to her land. The man granted an express easement appurtenant to the woman "and her heirs and assigns." The man's land was the servient estate, the woman's land was the dominant estate, and the easement benefits the woman's land. An easement appurtenant passes with the title, and now the buyer has the benefit of the easement. It is irrelevant that the buyer had no actual notice of the easement when she bought the land.

A company set up a website for the advertisement of goods and services offered by individuals, as well as other public notices. One of the notices on the site announced that the furnishings in a home at a specified address were free for the taking. Within a few hours of the posting, all the furnishings had been taken. The notice had been placed by the homeowner's cousin without the homeowner's knowledge. The cousin bore a grudge against the homeowner and had placed the notice while the homeowner was away and had left the door to the home unlocked. In a negligence action brought by the homeowner against the company, what will be the company's strongest defense?

The company had no duty to the homeowner.

A shareholder of a car manufacturing company wants to sue the company in fed court for breach of fiduciary duty. What info about the company, bedsides it's place of incorporation, does the shareholder's attorney need in order to determine whether the parties are diverse?

Where the company's headquarters are located.

A company incorporated and headquartered in State A brought a federal diversity action in State A against an attorney domiciled in State B. The complaint asserted that the attorney had sent defamatory emails to the company's customers in many different states, including State A. The attorney had few contacts with State A, and none of the contacts in that state were related to the alleged defamatory emails. After being served in State B with the summons and complaint, the attorney determined that he was not subject to personal jurisdiction in State A and ignored the action. On the company's motion, the clerk entered a default in the action. After a hearing on damages, the court entered a default judgment for the company. The attorney has moved for relief from the default judgment. What is the attorney's best argument in support of the motion?

The default judgment is void, because the court did not have personal jurisdiction over the attorney. Federal Rule of Civil Procedure 60(b)(4) specifically authorizes relief if the "judgment is void." Because the court had no personal jurisdiction over the attorney in the action, the judgment is void.

A depositor sued her bank in federal court, seeking $30,000 in damages. The complaint set out the bank's method of calculating interest and alleged that the method violated both federal banking law and state contract law. The bank filed a motion to dismiss, asserting that its method of calculating interest, as described in the complaint, was proper under federal law and that the federal law preempted the depositor's state-law claim. The court granted the motion to dismiss the depositor's federal claim and reserved ruling on the motion to dismiss the state- law claim. After completing discovery, the bank has moved to dismiss the state-law claim for lack of subject-matter jurisdiction. How should the court proceed?

The court may hear the state-law claim, because it is so related to the federal claim that they form part of the same case or controversy. As long as a plaintiff presents a colorable claim under federal law, it will be sufficient to support supplemental jurisdiction over state-law claims that form part of the same case or controversy. The dismissal of the federal claim did not divest the court of supplemental jurisdiction over the state- law claim, though the court, in its discretion, might rely on the dismissal as a reason to discontinue hearing the state- law claim.

A delivery driver backed her truck up to the loading dock of a large home improvement store. Although it was not her job to unload the truck, the driver would sometimes open the truck's rear doors after parking it in position. On this occasion, when the driver was about to open the rear doors, she observed through the doors' windows that some large boxes appeared to be pressed against the doors. At that point, she sought assistance. Two people who were on the loading dock responded to her request: the store's shipping manager and the manager's adult friend who was a former employee of the store and was visiting to catch up with the manager. The driver and the friend stood back as the manager opened the doors; no boxes fell out. With the doors open, all three observed a nylon rope that ran tightly across some of the boxes near the doors. As the manager began to cut through the rope, the driver, who with the friend remained at a distance, said, "Are you sure you want to do that?" A moment later, the friend noticed that the padlock from the truck's rear doors had fallen to the dock floor between him and the truck. Without saying anything to the manager or the driver, the friend took several steps forward to retrieve the lock. At that instant, the manager succeeded in cutting the rope, and the boxes that had been held in place by the rope fell and hit the friend's head, injuring him. The friend has sued the store for negligence. The jurisdiction has a system of modified comparative fault but also recognizes assumption of risk as a distinct and complete defense. Assuming that the store has raised an assumption-of-risk defense and that both sides have filed summary judgment motions based on the facts set out above, how should the trial court rule?

The court should deny both motions. Whether the friend's conduct amounts to an implied assumption of risk, thus defeating liability entirely, or comparative fault, thus potentially allowing for partial recovery, is a jury question.

A corporation that was having a factory built filed a federal diversity action against the general contractor and an electrical subcontractor for the project. The complaint alleged breach of contract claims arising from construction delays and deficient electrical work that had caused the corporation significant financial losses. The general contractor filed a crossclaim against the subcontractor, asserting only the defense that the general contractor was not liable to the corporation because the subcontractor's deficient work was the sole cause of the construction delays and the corporation's losses. After discovery, the corporation settled with the general contractor and dismissed the claims against it. The subcontractor has moved to dismiss the general contractor's crossclaim. Which of the following arguments best supports the motion?

The crossclaim is improper, because it asserts a defense, not a claim for relief. Federal Rule of Civil Procedure 13(g) allows parties to bring claims against co-parties. There is no authority under Rule 13(g) to allow an attempt to assert a defense against the plaintiff so as to shift direct liability for damages owed to the plaintiff to a codefendant.

A wealthy elderly woman was repeatedly harassed by a debt collector over a period of two months. The debt collector was trying to collect a large debt owed to his client by the woman's impoverished adult son. Although the debt collector knew that the woman was not legally responsible for the son's debt, he called the woman multiple times each day and threatened to destroy her credit. He also told her that he knew where she lived and that he was going to withdraw the money from her bank account. As a result, the woman suffered great mental anguish, was unable to sleep, and ultimately suffered serious health consequences. Which of the following conclusions would best support a claim by the woman against the debt collector for intentional infliction of emotional distress?

The debt collector's conduct was extreme and outrageous. A conclusion that the debt collector's conduct was extreme and outrageous, combined with the fact that the woman experienced severe emotional distress and the fact that the debt collector was probably at least reckless with respect to the risk of causing her distress, will provide the woman with a plausible claim for intentional infliction of emotional distress (IIED). None of the conclusions stated in the other answers will provide as much assistance to the woman in proving her IIED claim.

A defendant was charged with murdering a business rival. Two days before he was killed, the rival visited the police station to communicate his concerns about the defendant, saying to the police, "I think [the defendant] is going to kill me." At the defendant's murder trial, the defendant moved to exclude the rival's statement to the police on both hearsay and confrontation grounds. The prosecutor responded that the defendant had forfeited both his hearsay and his confrontation objections by killing the rival. For purposes of the motion, the parties have agreed that the prosecutor can establish to the court, by a preponderance of the evidence, that the defendant killed the business rival because the rival had stolen a large amount of money from the defendant. What is the correct ruling on the prosecutor's contention that the defendant has forfeited his objections?

The defendant has forfeited neither objection b/c the prosecutor has not shown that the defendant killed the business rival with the intent to keep him from testifying. The requirements for forfeiting a hearsay objection and a confrontation objection are the same, and the prosecutor has not demonstrated forfeiture of either objection. In order to forfeit either a hearsay objection under FRE 804(b)(6) or a confrontation clause objection, a defendant must have engaged in wrongful conduct for the purpose of preventing the declarant from testifying. Here, the defendant's purpose for his wrongful conduct (killing the declarant) was revenge for a theft and not a desire to prevent trial testimony. Therefore, the prosecutor cannot make the showing of intent required for forfeiture of either objection.

The owner of a house leased it to a tenant for a one-year term. A provision in the lease stated that the owner had the right to place "For Rent" signs on the premises during the last 90 days of the lease term if the lease was not renewed. The lease also required the tenant to permit prospective lessees to enter and examine the premises during the 90-day period but did not address the owner's right to enter the premises for purposes of showing the house to prospective lessees. The tenant decided not to renew the lease, and at the beginning of the 90-day period, the owner told the tenant that she was going to show the house to a prospective lessee. The tenant refused to allow the owner to enter the house but said that the prospective lessee could enter. Which of the following best supports the owner's right to enter the house?

The duty of good faith. The lease does not explicitly say that the owner may enter the house to show it to prospective lessees, but such a right may be fairly implied in order to carry out the intention of the parties.

An engineer and a real estate developer entered into a written professional-services contract. The contract stated that in return for $10,000, the engineer was to "complete a feasibility study and a master plan, and use best efforts to obtain county approval of the [developer's planned] project." The engineer submitted a completed feasibility study and master plan to the developer. Despite the engineer's best efforts, however, the county did not approve the project. Because of this outcome, the developer refused to pay the engineer for any of the engineer's services. In a breach of contract action by the engineer against the developer, which party will likely prevail?

The engineer, because the developer breached the contract by not paying once the developer's obligation to pay the engineer became due. The engineer's obligation was to "use best efforts to obtain county approval," not to obtain county approval, and the engineer performed all obligations as promised. Therefore, the developer breached by refusing to perform the developer's obligations under the contract.

A defendant has been sued for theft by his former employer. At trial, the employer seeks to call the defendant's estranged daughter to testify. The daughter would testify that her brother told her, "I helped [the defendant] steal money from his employer." The brother is available to testify but would be a hostile witness. The defendant's attorney objects to the daughter's testimony on hearsay grounds. The employer argues that the statement is admissible under the hearsay exception for statements against interest. Should the court permit the daughter to testify about her brother's statement over the defendant's objection?

The exception to the hearsay rule for statements against interest may be used to admit evidence only after a showing that the declarant is unavailable to testify. Because the brother is available, that particular hearsay exception may not be used. No, b/c the brother is available to testify.

An engineering firm submitted a bid to a municipality for the construction of a new wastewater treatment plant. The firm's bid included a subcontractor's bid to complete the electrical work on the plant for $100,000. The municipality awarded the construction contract to the firm. Later that day, before the firm told the subcontractor of the award, the subcontractor told the firm that it was withdrawing its bid because it had recently undertaken a new project that would absorb all its capacity for the next 18 months. The firm nevertheless accepted the subcontractor's bid and demanded that it perform the electrical work on the plant, but the subcontractor refused. The firm had to hire another subcontractor to perform the electrical work, at a cost of $115,000. The firm completed the construction of the plant at a profit. Which of the following statements correctly describes the firm's legal rights, if any, against the first subcontractor?

The firm is entitled to recover expectation damages, because the first subcontractor's bid was irrevocable for a reasonable time and the firm timely accepted it. Here the offeror (the subcontractor) knew that the offeree (the firm) would substantially rely on the offer in creating a bid for the municipality's project and knew that the firm could not accept the subcontractor's offer until the municipality accepted the firm's overall bid on the project. This reasonable reliance had the effect of creating an option contract under which the subcontractor could not revoke its bid for a reasonable time. Since the subcontractor could not revoke its bid, its attempt at revocation was ineffective, and the bid was still open at the time the firm accepted it. Therefore, a contract was formed by offer and acceptance, and the remedy for breach of this contract is expectation damages.

A recently installed elevator suddenly started free-falling down the elevator shaft while carrying passengers. Frightened, a passenger pried the inside doors open and impulsively stuck his arm through them to try to stop the fall. As a result, his arm was broken. The elevator eventually stopped without causing further injuries. In a negligence action brought by the injured passenger against the company that installed and maintained the elevator, the injured passenger has asked the trial judge to instruct the jury that it may find the company negligent on a theory of res ipsa loquitur. In response, the company has argued that the passenger's conduct caused his injuries. How should the judge rule?

The judge should grant the passenger's request but should also instruct the jurors to consider any carelessness of the passenger in awarding damages if they find the company liable. The question of the passenger's negligence is relevant to the jury's assessment of damages but is not a bar to a res ipsa instruction.

A man died domiciled in State B. Under his will, he devised his cabin located in State A to a nephew. The man devised the balance of his estate to his son. The man's son, who also lived in State B, survived the man. The man's nephew predeceased the man. The nephew had lived in State C. The nephew's daughter, who lived in State D, survived the nephew and the man. Which state's law will determine whether the bequest to the nephew lapsed?

The law of State A, b/c State A is where the cabin is located.

A defendant is on trial for conspiracy to distribute drugs. The prosecutor wishes to introduce into evidence a ledger found at the defendant's home during the execution of a search warrant. The ledger includes detailed information regarding the defendant's purchases and sales of drugs over a two-year period. The prosecutor is considering two alternative ways to lay the foundation for admission of the ledger as a business record. The first alternative is to call the police officer who executed the search warrant to testify that she found the ledger in the defendant's home. The second alternative is to call a codefendant, who has pled guilty, to testify that he was the defendant's drug supplier for over two years and that he was present when the defendant used the ledger to record their transactions as well as transactions with other buyers and sellers as they occurred. Which of the following is correct regarding the ledger's admissibility under the business records exception to the hearsay rule?

The ledger may be admitted through the codefendant but not through the officer. The officer cannot lay the foundation for admission of the ledger through the business records exception, as explained below, but the codefendant can. The codefendant's testimony would show that the drug activity was regularly conducted, that the source of information in the records was an insider to the drug activity with personal knowledge of the transactions, that the entries were made near in time to the transactions, and that the transactions were routinely recorded.

A man who was visiting a shooting range misunderstood a signal that indicated shooting in progress and walked in front of another customer who was shooting toward a target. The man was hit by a bullet and seriously injured. The man sued the customer, the owner of the range, and the manufacturer of the signaling apparatus. The jurisdiction prohibits a plaintiff from recovering against a defendant whose fault is less than or equal to that of the plaintiff. If the jury determines that the man was 25% responsible and that each defendant was also 25% responsible, will the man be able to recover damages, and if so, how much from each defendant?

The man will not be able to recover damages. Given the rule provided in the question, because the man was 25% responsible, he cannot recover from any defendant, as each was also 25% responsible (a percentage equal to the man's responsibility).

A mother purchased over-the-counter pain medication for her daughter, who suffered from headaches. The packaging indicated that the pills were "coated" but did not list the ingredients in the coating. A few days after she bought the medication, because the daughter was in extreme pain, the mother gave the daughter three times the recommended dose of the medication. Thirty minutes later, because the daughter had a very rare allergy to an ingredient in the coating, she had a severe allergic reaction, for which she was hospitalized. The mother was aware of the daughter's allergy, but she did not know that the medication contained the ingredient to which the daughter was allergic. In a failure-to-warn action brought against the manufacturer of the medication, which of the arguments below would be the LEAST promising as a defense?

The manufacturer's duty was to warn learned intermediaries, not consumers of the medication. This question asks which argument would be LEAST effective for the manufacturer's defense against liability. The learned intermediary doctrine—which insulates manufacturers of prescription drugs from liability if they provide adequate warnings to prescribing physicians—has no application in this case, which involves the sale and use of an over-the-counter medication. Accordingly, the doctrine would offer no help to the manufacturer in its defense of the action.

A car owner brought a federal diversity action against the car's manufacturer, alleging that the manufacturer had fraudulently misrepresented the car's compliance with federal emissions standards. The manufacturer answered, denying the allegations. After discovery closed, the court entered a final pretrial order setting out the issues for trial. One week later, the owner moved to amend the order to include the issue of whether the manufacturer had also fraudulently misrepresented the car's fuel economy. What standard will the court use to determine whether to grant the owner's motion?

The motion may be granted only to prevent manifest injustice. Under Federal Rule of Civil Procedure 16(e), a final pretrial order may be amended only to prevent manifest injustice.

A nephew and a niece inherited vacant land. The nephew soon discovered that the land was subject to a mortgage held by a local bank, which required monthly payments for the next 10 years. Without telling the niece or seeking her permission, the nephew paid the monthly mortgage payments for one year. The nephew then demanded immediate payment from the niece for half of the mortgage payments he had made. The niece refused. If the nephew sues the niece for contribution, who will likely prevail?

The nephew, because without his payments, the bank could have foreclosed the mortgage and they could have lost the land. The nephew and the niece inherited the vacant land as tenants in common. While neither is personally liable on the mortgage, their failure to pay could result in a foreclosure. To avoid foreclosure, payment must be made to the bank, and as co-tenants, each is responsible for his or her share of the mortgage payment. The nephew paid more than his pro rata share and thus may recover the amount owed by the niece in a contribution action.

A woman who owned an apartment building decided to give the building to a man whose wife she did not care for. The woman signed and promptly recorded a deed properly describing the property and identifying the man by name. The deed specified that under no circumstances was the property "to ever pass to [the man's wife]." Unbeknownst to the woman, the man had died before she executed and recorded the deed. Under the man's duly probated will, he had devised all of his property to his wife. When the woman learned of the man's death, she said in the presence of several witnesses, "I must take back that deed, because I don't want [the man's wife] to own the apartment building." Before the woman could do anything about the deed, however, she died. By her duly probated will, she left all of her estate to her niece. There are no applicable statutes. In an appropriate action to determine the ownership of the apartment building, who will likely prevail?

The niece, because the deed to the man is void. B/c the deed to the man is void, it is irrelevant that the deed was recorded. Recording does not validate a void deed.

To encourage urban farming, a city ordinance requires vegetables sold at farmers' markets in the city to have been grown within the city limits. A farmer who grows vegetables on land in a nearby state wants to sell those vegetables at a farmers' market in the city. The farmer has challenged the ordinance on constitutional grounds. What is the farmer's best argument that the ordinance is unconstitutional?

The ordinance discriminates on its face against interstate commerce, and there are nondiscriminatory ways to promote the city's interest in encouraging urban farming. because on its face the ordinance discriminates against commerce from outside the city. By doing so, it necessarily excludes commerce from outside the state. Even though the ordinance also excludes some commerce from within the state, it is still considered facially discriminatory. Such facially discriminatory laws are allowed only in the absence of any nondiscriminatory way to promote the government's interest.

A speaker at a rally in a public park argued that paper money was unconstitutional because Article I gave Congress the power only to "coin" money. The speaker ended his speech by setting fire to a pile of one-dollar bills. Although the fire was promptly extinguished and there had been no risk that it would spread, the speaker was convicted of violating a local ordinance against starting an open fire in a public place without a permit from the fire department. The speaker has challenged the conviction on constitutional grounds. How should the court rule?

The ordinance is constitutional, because it is narrowly tailored to further a significant government interest that is unrelated to the suppression of free expression, and individuals have other ways of communicating their messages. The burning of the one-dollar bills was expressive conduct protected by the First Amendment, because the speaker intended the burning to communicate a message, and in context, the audience was likely to receive the message. The ordinance, however, does not violate the First Amendment because it is content- neutral and it satisfies the elements of intermediate judicial scrutiny, which are stated correctly in Answer A.

Swimmers were unable to use a city- owned beach for several days because demonstrators protesting city policies had taken over the beach. Immediately after the demonstration ended, the city enacted an ordinance that banned "all First Amendment activities" on the beach. What is the best argument AGAINST the constitutionality of the ordinance?

The ordinance is overly broad.

A company agreed to provide regular facilities-maintenance services for a landlord's apartment buildings for $150 per hour. The parties also orally agreed that if the services required in any given month exceeded 100 hours, the landlord would pay the company a discounted hourly rate of $125 per hour for those extra services. When the parties put their agreement in writing, however, neither party noticed that the contract did not include the discounted- rate provision. In a recent month, because of several snowstorms, the services needed by the landlord exceeded 100 hours. The landlord has reminded the company that services in excess of 100 hours are to be paid at the discounted rate, but the company insists that it be paid at the contract rate of $150 per hour. Which of the following best describes the legal relationship between the parties at this point?

The parties have a valid, enforceable contract that will be reformed to reflect the discounted rate of $125 per hour for services in excess of 100 hours. If a written agreement fails to include a term of the agreement due to both parties' mistake, the writing may be reformed to express the actual agreement. Restatement (Second) of Contracts § 155. Here the landlord is entitled to reformation to include the mistakenly omitted term.

At his death, a father devised a life estate in land to his daughter and the remainder to his son. The daughter later purported to convey a fee simple absolute interest in the land by warranty deed to a purchaser in exchange for valuable consideration. The purchaser properly recorded the deed. The son then transferred his remainder interest in the land to the daughter by quitclaim deed. The daughter died, leaving her husband as her sole beneficiary and executor. The husband has consulted an attorney to determine the ownership of the land. What advice should the attorney give the husband?

The purchaser owns a fee simple absolute interest in the land, because the son transferred his remainder interest to the daughter. While the daughter did not own the fee when she purported to convey the fee to the purchaser, the purchaser subsequently acquired the fee when, after the daughter conveyed to the purchaser, the son conveyed his remainder interest to the daughter. This is due to the doctrine of "estoppel by deed" or "after-acquired property." Under this doctrine, the portion comparative negligence with joint and several liability, a plaintiff can recover all the damages due, after discounting for the plaintiff's negligence, from any one of the defendants, and that defendant must pursue the others for contribution. In this case, the injured driver would be able to recover the full $90,000 from the neighbor, and the neighbor would have to pursue the teenager for contribution of his $60,000 share. Thus, if all parties are solvent, the neighbor should be out-of-pocket only $30,000 in the end.

A state law requires that anyone convicted for the second time of a sex offense serve a specified minimum prison sentence and be sterilized. Statistics show that 50% of those convicted of sex offenses in the state over the past five years are members of racial minority groups, whereas the members of those groups account for only 15% of the state's general population. A significant majority of convicted sex offenders are male. Which of the following would be the strongest argument in challenging the constitutionality of the law under the equal protection clause of the Fourteenth Amendment?

The requirement of sterilization deprives a select group of persons of a fundamental right, and it is not necessary to serve a compelling governmental interest. The state requirement of sterilization denies affected individuals the right to procreate, which the US Supreme Court has held to be a fundamental right. A state law that burdens a fundamental right must satisfy the strict judicial scrutiny test, the elements of which are correctly stated here.

A graduate student who was moving needed cardboard boxes, so she went to her usual grocery store to look for some. The store regularly gave repeat customers empty boxes to promote goodwill. Seeing no boxes outside, the student entered the store and asked a store employee for help. The employee pointed toward the rear of the store and said that all the empty boxes were in the storeroom. The student went into the storeroom through a door with a sign that said: "Keep Out. Employees Only." While in the storeroom, she tripped on a fold in a floor mat and fell into a stack of wooden crates. The topmost crate fell on the student, causing a head injury. The student has sued the store to recover for her injury. Which statement below is the most appropriate characterization of the student and her conduct under traditional common law rules?

The student was an invitee in the storeroom, because she had permission to enter the storeroom consistent with the store's policy of making its empty boxes available to repeat customers. The store's policy, combined with the employee's grant of permission, conferred on the student the status of invitee while she was in the storeroom seeking empty boxes.

A woman shot at her husband, intending to kill him. The bullet passed through the husband's shoulder, wounding him, and struck the couple's son in the head, killing the son instantly. The woman has been charged with attempted murder of her husband and murder of her son. Which of the following, if authorized by state law, would be constitutionally permissible?

The woman may be tried in separate trials for both murder and attempted murder and, if convicted, can be punished for both. Typically for a single offense, an attempt merges into the completed offense because the intended target is the one who suffers the harm. However, there are two separate offenses here. The first is the woman's failed attempt to kill the husband, which resulted only in his injury; this is an attempted murder. The second is causing the death of her son, which is a completed murder. Although the woman did not intend to harm her son, her intent toward her husband can be transferred under the doctrine of transferred intent to hold her liable for the actual harm caused to her son. The doctrines of mens rea and causation support liability for both the action the woman attempted and the harm she caused to each victim. Consequently, a fact-finder could find her guilty of the son's murder. The charges need not be tried together; each is a separate and independent offense.

A woman brought a products liability action against a drug manufacturer in federal court under state law, claiming that the manufacturer had failed to warn that an arthritis drug caused severe hair loss in female patients. In discovery, the manufacturer inadvertently turned over to the woman two documents reflecting communications between the manufacturer's president and its counsel regarding the drug's possible side effects. There were 23 other, similar documents reflecting such communications that were not turned over in discovery. Although the manufacturer learned of the disclosure during the discovery period, it did not seek the return of the two documents until the day before trial. In response, the woman claimed that the manufacturer had waived the attorney- client privilege as to all 25 documents, including the 23 that had not been turned over. How should the court rule on the woman's claim of waiver of privilege?

There was a waiver of the attorney-client privilege regarding only the two disclosed documents. Under FRE 502(a), because the disclosure was inadvertent, the waiver does not extend to undisclosed communications.

A grantor conveyed a commercial property to a friend "so long as alcoholic beverages are not sold on the property, and if alcoholic beverages are sold on the property, the estate is to end at once." The friend took possession of the property. Four years later, the friend opened a tavern that sold alcoholic beverages on the property. Six months after the opening, while the friend continued to operate the tavern, the municipality in which the property is located validly condemned the property. There are no applicable statutes. To whom should the condemnation proceeds be paid?

To the grantor, because the friend's estate had ended.

An organization that opposes capital punishment applied to a city for a permit to demonstrate in a public park near the statehouse. In its permit application, the organization stated that it would show videos of executions, and that the executions depicted in the videos are violent. Although the city regularly allows the park to be used for expressive activity, it denied the organization a permit. The city was concerned that the videos would be disturbing to visitors at the statehouse, especially children. What standard of review should a court use in determining whether the city's denial of the permit violated the First Amendment?

Whether the city's denial of the permit was necessary to serve a compelling government interest. The denial of the permit was a content-based restriction on expression because it was based on the content of the videos, which city officials found to be disturbing. Content-based restrictions on expression in a traditional public forum receive strict judicial scrutiny, the elements of which Answer B correctly states.

A train conductor brought an action against her railroad employer under a federal statute providing liability for work- related injuries occurring on railroads. The employer denied liability, claiming that the conductor's injuries pre-dated her employment and were outside the scope of the statute. At the close of the evidence at trial, the employer moved for judgment as a matter of law (JMOL), which the court denied. The jury returned a verdict for the conductor. The employer has renewed its JMOL motion. What standard should the court apply in ruling on the motion?

UnderFederal Rule of Civil Procedure 50, a courtmay grant judgment as a matter of lawagainst a party only if the court finds that areasonable jury would not have a legallysufficient evidentiary basis to find for thatparty. Whether there is legally sufficient evidence to support the verdict.

A husband and wife and their four children lived on a farm that the wife had inherited from her father. On numerous occasions, the wife's brother had offered to buy the farm from her, but she had always refused. The husband died suddenly in an accident. The day after the husband's funeral, the brother and his attorney visited the wife at the farm. The brother again told the wife that he wanted to buy the farm and told her that she would need the proceeds of the sale to support her children. The brother also said that his attorney had drafted an offer to purchase the farm and that the wife needed to sign it right away. The attorney confirmed the need to accept quickly. The wife reluctantly signed the offer and sold the farm to the brother for its fair market value. A few days after the sale, the wife learned that her husband had a life insurance policy that would provide her with a substantial payout and that she had not needed to sell the farm to support her children. What would be the wife's strongest argument for rescinding the contract?

Undue Influence. Undue influence, or "over-persuasion," often includes the factors that are found in these facts, such as an unusual time and place for the persuasion, multiple persuaders, and time pressure.

The owner of a home in a rural area had for many years enjoyed unspoiled views of the surrounding countryside from her back deck. Several months ago, a neighboring farmer placed unsightly items, including an old, rusted tractor and some machine parts, entirely on his own property, but in a location visible from the homeowner's deck. The homeowner asked the farmer to move the items to a different area of the farm, out of the homeowner's line of sight. The farmer acknowledged that it was not common for farmers in the area to keep old equipment on their land in locations visible to neighbors, but nonetheless refused to move the items. Concerned that the farmer's placement of the items might adversely affect the resale value of the property, the homeowner paid for an appraisal of her own property. The appraisal determined that the market value of the property had not been diminished by the farmer's actions. If the homeowner were to sue the farmer for private nuisance, which of the following would be the farmer's best argument against liability?

Unsightly conditions ordinarily do not of themselves amount to an unreasonable interference with the use and enjoyment of a neighboring property. The question asks for the BEST argument against liability. Courts typically have held that a defendant's causing a property owner to view unsightly things from her property by itself does not suffice to establish the sort of unreasonable interference with the use and enjoyment of property that is necessary for nuisance liability. While there is no guarantee that the farmer would prevail on the basis of this argument, it would be the farmer's best argument.

During jury selection in federal court, a prospective juror stated that her father and brother were federal agents and that she had met the agent who had arrested the defendant on a number of prior occasions because he played on her brother's softball team. When asked by the court whether she could judge the facts without being biased by knowing the arresting agent, the prospective juror expressed some doubt. The court nonetheless denied the defendant's request to dismiss the prospective juror. The defendant later exercised one of his peremptory challenges to remove the prospective juror from the jury. The defendant was convicted. On appeal, he argues that the conviction should be reversed because the court erroneously failed to remove the prospective juror for cause. How should the federal court of appeals decide the issue?

Uphold the conviction, b/c the prospective juror did not serve on the jury. In United States v. Martinez-Salazar, 528 U.S. 304 (2000), the Court held that the erroneous denial of a challenge for cause does not warrant reversal if the prospective juror ultimately does not serve on the jury. Here, because the prospective juror was ultimately excused through a peremptory challenge, the appellate court would reject the defendant's argument and uphold the conviction.

A man owned two adjacent vacant tracts of land; he sold the westerly tract to a woman. The deed to the woman expressly stated that the use of the land was restricted to residential use and made the restriction binding on the woman and her heirs and assigns. In the deed, the man also expressly promised, for himself and his heirs, that he would insert a similar residential-use restriction in any deed to the easterly tract of land given in the future. The woman promptly recorded her deed. Several years later, the man conveyed the easterly tract of land to an entrepreneur, who planned to open a convenience store on the land. The deed to the entrepreneur contained no restrictions on use. The entrepreneur had no actual notice of the man's promise to the woman to include a restriction in the deed. When the woman heard of the entrepreneur's plans, she asked her attorney whether the entrepreneur is bound by the promised residential-use restriction. Which of the following factors will be dispositive?

Whether the entrepreneur had a duty to search the title for the westerly tract. A buyer is on constructive notice of all information that a search of the land records would reveal. At issue is whether the entrepreneur had record (constructive) notice of the restriction. If so, the entrepreneur would not be a good-faith purchaser for value. Courts are divided about whether a buyer is required to search deeds outside of the chain of title to the land the buyer is purchasing. Here, the deed from the man to the woman is outside of the entrepreneur's chain of title even though they share a common grantor. Thus, knowing whether the jurisdiction's law puts a buyer on notice of all land transfers of the buyer's grantor, even those outside of the chain of title, is essential. If it does, the entrepreneur had a duty to search the title for the westerly tract.

A defendant has been charged with being a felon in possession of a firearm. He has maintained that he was only an overnight guest in the apartment in which the firearm was recovered. At trial, the prosecution seeks to offer various items of evidence found at the apartment, including mail addressed to the defendant at that apartment, various receipts bearing the defendant's credit card information, and clothing of a size that would fit the defendant. The prosecution wishes to use the testimony of the law enforcement officer who found the items in the apartment during a search to authenticate them. After hearing the officer's testimony, what standard should the court use in determining whether the items have been properly authenticate?

Whether there is sufficient evidence to support a finding that the items are what the prosecution claims them to be. The production of evidence "sufficient to support a finding" that the evidence is what the proponent (here the prosecution) claims it to be is the proper standard for authentication under FRE 901.

In a writing signed on February 1, a buyer agreed to purchase a specified quantity of lumber from a seller for $12,500, delivery to be made on July 1. Thereafter, the market price of lumber increased significantly. Due to this price increase, on June 14 the seller told the buyer that it would not deliver the lumber unless the buyer agreed to a purchase price of $14,500 and agreed to waive any claim for damages against the seller. The buyer refused and told the seller that she would purchase lumber elsewhere. On June 18, after a reasonable search for alternative sources, the buyer purchased lumber from another supplier for $15,500. If the buyer sues the seller for breach, will the buyer be likely to prevail?

Yes, and the buyer will recover damages of $3,000, because that is the difference between the cost of cover and the contract price. The seller's demand for a modification was a repudiation, because the seller said that it would not perform if the buyer did not agree to the price increase. UCC § 2-611, cmt. 2. The remedy of a buyer of goods for a seller's breach includes cover by getting substitute goods. In that situation the buyer's damages are the difference between the cost of cover and the contract price together with incidental or consequential damages, less expenses saved due to the breach. UCC § 2-712. Here the difference between the cost of cover and the contract price is $3,000.

A woman bought a homeowner's insurance policy from an insurance company through one of its agents. One year later, a fire completely destroyed the woman's house and its contents, and she learned that the policy covered the cost of rebuilding the house but not the cost of replacing the contents. The woman sued the insurance company for breach of contract, claiming that when the agent sold her the policy, he did not notify her, as was legally required, that she would have to purchase a supplemental policy to cover the house's contents. At trial, the woman testified that the agent had not provided the required notice. The agent's supervisor plans to testify that the company issues thousands of policies through its agents each year and that it is the routine practice of those agents to discuss supplemental policy options with each customer. The woman's attorney has objected to this proffered testimony. Should the court allow the supervisor's testimony?

Yes, as evidence of the company's routine practice. The routine practice of the company's agents in discussing supplemental policy options with customers is admissible under FRE 406.

Assigned counsel for a capital defendant had heard that his client had an unsavory background and a highly dysfunctional childhood. He was reluctant to delve into the details for fear that they might reflect poorly on his client, and he decided not to investigate. After his client was convicted, counsel presented a penalty phase defense that repeated the denials of the liability phase. The jury returned a death sentence. After exhausting state remedies, the defendant filed a post-conviction petition, arguing that his trial counsel rendered ineffective assistance of counsel by failing to investigate and present mitigating evidence of his sordid upbringing. If the court finds a reasonable probability that the mitigating evidence, if presented, would have affected the jury's sentence, should the court grant the petition?

Yes, b/c defense counsel's failure to investigate a defendant's life history for mitigating evidence in the penalty phase of a capital murder trial constitutes ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), a defendant must show two things: (1) that defense counsel's performance was deficient and (2) that the deficiency was prejudicial. In Wiggins v. Smith, 539 U.S. 510 (2003), the Court held that defense counsel has a duty to conduct a reasonable investigation to determine whether there are mitigating facts for the penalty phase of a capital case. The Court held that defense counsel's inadequate investigation was prejudicial because a reasonable investigation would have revealed details that gave rise to a reasonable probability of a different outcome in sentencing; thus, the defendant had been deprived of the effective assistance of counsel. Answer C is correct because, as in Wiggins, defense counsel unreasonably chose not to investigate facts that could have been presented in mitigation, and that failure was prejudicial.

A landlord owns a 10-unit apartment building and lives in one of the apartments. A uniformly enforced provision in every apartment lease prohibits all pets. A tenant with a serious hearing impairment asked permission from the landlord to keep a hearing-assistance service dog in her apartment to alert and assist her in the event of fire or other emergency. The landlord refused. Is the landlord's refusal likely a violation of the federal Fair Housing Act?

Yes, b/c the landlord refusal is arbitrary. The tenant has a serious hearing impairment, which is a handicap under the Fair Housing Act. The Act requires the landlord to make a reasonable accommodation for such a handicap, and the tenant's need for a trained service dog outweighs any concerns underlying the landlord's prohibition of pets.

A defendant has been charged with conspiracy to commit arson and insurance fraud after his restaurant burned to the ground late one night. At trial, the prosecutor presents evidence that, two days before the fire, the defendant paid $10,000 to a man who was later seen entering the restaurant shortly before the fire started. The man has invoked his Fifth Amendment privilege and refuses to testify at the defendant's trial. The prosecutor calls the man's fiancée, who testifies that on the day of the fire, she noticed that the man seemed nervous and asked him what was wrong. She says that he told her, "I'm getting paid $10,000 to burn down a restaurant tonight, and I'm a little nervous about it." The defendant objects to the admission of the man's statement to the fiancée, relying on the hearsay rule and the confrontation clause. Is the man's statement to the fiancée admissible?

Yes, b/c the man's statement is a non testimonial declaration against penal interest. The man is unavailable to testify due to his assertion of his Fifth Amendment privilege. His statement to his fiancée was so contrary to his penal interest that one would not expect him to make it unless it were true. Further, there is corroboration of his statement: the defendant paid him $10,000 and the man was seen entering the restaurant shortly before the fire. Therefore, the hearsay exception for declarations against penal interest would make the man's statement admissible. Further, because the man's statement to his fiancée is nontestimonial, the Sixth Amendment would not block its admission.

A plaintiff has sued a defendant for negligently causing her injury. The plaintiff alleges that the defendant, who was standing on a scaffold while painting a building, dropped a paint can that struck the plaintiff on the head while she was walking under the scaffold. At trial, to prove her injury, the plaintiff offers a photograph for admission into evidence. A witness will testify that he took the photograph with his cell phone and that the photograph accurately portrays what he saw. The photograph shows the plaintiff lying on the sidewalk, bleeding from a gash on her head, with a spilled paint can nearby. Is the photograph admissible?

Yes, b/c the photograph will be authenticated by the witness' testimony. The witness's testimony is sufficient to authenticate the photograph under FRE 901. It is testimony of a witness with knowledge that the photograph is what it is claimed to be.

A client emailed an attorney from whom he regularly sought advice, asking, "Please give me an opinion on the attached documents." Without responding to the email, the attorney immediately began reviewing the documents and working on the requested opinion. Two days later, the client sent the attorney a second email stating, "Please ignore my previous email. I have taken care of the problem." Minutes later, the attorney emailed a reply stating, "I have already completed the work." The attorney has billed the client for the time she spent working on the requested opinion. Is the attorney entitled to recover?

Yes, because a contract was formed when the attorney began working on the requested opinion. When an offer can be accepted either by promise or by performance, the beginning of performance acts as an acceptance that completes the process of mutual assent and binds both parties since consideration also is present.

A developer financed the purchase of a tract of vacant land with a mortgage loan from the seller. Two years later, at a time when the land remained vacant, the developer took out a second mortgage loan from an investor to construct self-storage units on the land. Both mortgages were promptly recorded in the order in which they were executed. The developer made all payments on both mortgage loans for several years but eventually defaulted on the loan from the seller, who threatened to initiate foreclosure proceedings. To avoid the foreclosure, the developer executed a deed in lieu of foreclosure conveying the land back to the seller. But before the developer delivered the deed to the seller, it notified the investor of the proposed conveyance and gave her the option to cure the developer's default on the seller's loan. The investor declined to do so, and the developer delivered the deed to the seller. If nothing else has happened since the conveyance to the seller, is the investor's mortgage still valid?

Yes, because a deed in lieu of foreclosure does not eliminate junior mortgages. The deed in lieu of foreclosure does not extinguish the subsequent mortgage on the property. A mortgagor's later-executed mortgage generally can be extinguished only by foreclosure. Thus, the holder of the senior lien (the seller) should have searched the title to determine if a junior lien existed and, if so, brought a foreclosure action to extinguish it rather than accepting a deed in lieu of foreclosure.

Over the course of a year, police in a small town received complaints about vandalism in public parks. They connected the incidents because the vandal left specific graffiti at each site, and investigation provided the police with a reasonable suspicion that the perpetrator was a specific local resident. Using an online directory that the resident had joined, the police obtained the resident's cell-phone number. The police then subpoenaed the cell-phone provider to provide one year of historical cell-phone site-location data. The data showed that for each incident, the resident's cell phone had been in the vicinity of the vandalized property. The resident was charged with multiple counts of destruction of property. Defense counsel has moved to exclude the cell- phone site-location data, arguing that its collection violated the Fourth Amendment. Did the collection of the data violate the Fourth Amendment?

Yes, because a warrant is required to collect such extensive historical cell-phone site-location data. In Carpenter v. United States, 138 S. Ct. 2206 (2018), the Supreme Court held that a warrant is required to collect extensive historical site-location data from a cell-phone provider. Here, the data sought was one year's worth of site- location information, which clearly falls within the rule of Carpenter. In addition, Carpenter rejected the use of a subpoena to circumvent this warrant requirement.

A man needed a loan to purchase a business. The man submitted to a lender a loan application that included a then- accurate statement of his financial condition. The lender reviewed the application and concluded that the man was creditworthy without verifying any of his information. A week after the man submitted his application, however, his financial condition changed significantly for the worse. The man did not report this change to the lender. Two days later, the lender approved the loan, and the man and the lender signed a loan agreement. Before disbursing the loan funds, the lender learned of the change in the man's financial condition. Is the lender entitled to cancel disbursement of the funds and rescind the loan agreement?

Yes, because after his financial situation changed, the man was obligated to disclose facts necessary to prevent his previous statement of his financial condition from being a misrepresentation. Nondisclosure of a fact is the equivalent of a misrepresentation when a person knows that disclosure of the fact is necessary to prevent some previous assertion from being a misrepresentation.

A plaintiff sued a defendant for breach of an implied-in-fact contract. The case went to trial, and after all the evidence was presented, the court issued the following instruction to the jury: "Conduct will create an implied-in-fact contract if the conduct of both parties is intentional, and if each knows, or has reason to know, that the other party will interpret the conduct as an agreement to enter into a contract." Was the instruction correct?

Yes, because an implied-in-fact contract can be established by conduct alone. According to the Restatement (Second) of Contracts § 4, an implied-in-fact contract is a contract where the mutual promises are inferred from conduct.

A drug-dealing operation consisted of three men: a supplier, a dealer, and a lookout. The supplier became convinced that the lookout was a police informant. He persuaded the dealer that they should kill the lookout to avoid problems. They purchased a gun and ammunition to commit the murder and planned to dispose of the lookout's body by pushing it off a cliff. The supplier arranged a meeting in a remote area of a state park. After the three men arrived, the supplier fired two shots at the lookout, who fell to the ground. Both the supplier and the dealer believed that the lookout was dead. The dealer subsequently pushed the lookout's body off a nearby cliff. Unbeknownst to the supplier and the dealer, the lookout had been wounded by the bullets but was not dead; he died as a result of the fall from the cliff. Can the supplier be convicted of murder?

Yes, because both the shooting and the disposal of the body were part of the original plan to kill the lookout. Although he did not directly cause the lookout's death, the supplier can be convicted as an accomplice. Acting with requisite intent, the supplier encouraged the dealer to commit murder and facilitated the lookout's death. Although the supplier and the dealer both believed that death resulted from the shooting, the fact that death resulted from the fall is neither unforeseeable nor sufficiently disconnected from the scheme to cut the causal chain.

In response to a nationwide increase in drug-related crime, Congress passed a statute creating a new agency responsible for enforcing federal drug laws. The statute authorizes the President to appoint the agency's director with the advice and consent of the Senate and prohibits the President from removing the director without the Senate's consent. The President appointed a director, and the Senate confirmed the appointment. Recently, the President has become dissatisfied with the director's strict approach to drug-law enforcement and wishes to remove the director. Because a majority of senators favor strict drug-law enforcement, the Senate has refused to consent to the director's removal. May the President constitutionally remove the director without the Senate's consent?

Yes, because congressional participation in the decision to remove a presidential appointee violates the separation of powers. Congress cannot play any role in the removal of executive officers, as the Supreme Court made clear in Myers v. United States, 272 U.S. 52 (1926), and Bowsher v. Synar, 478 U.S. 714 (1986).

Police officers responding to phone calls of complaining neighbors noticed several broken windows in a home, glass on the ground, and a blood-stained shirt on the front porch. Through a window, the officers saw a man, whose hands were bleeding, shouting and throwing things, but no one else appeared to be present in the home. When the officers knocked on the door, the man refused to respond. The officers then asked if he needed medical assistance. The man told them to leave and not come back unless they had a warrant. The officers then entered the home, and the man pointed a shotgun at them. The officers withdrew but later arrested the man for felony assault on a police officer. Alleging that the warrantless entry violated the Fourth Amendment, the man has moved to suppress the officers' testimony at trial. Should the court grant the motion to suppress?

Yes, because officers cannot use the emergency aid exception to justify a warrantless entry when only the suspect himself needs aid. On these facts, the officers could reasonably believe that a warrantless entry was necessary to keep the man from harming himself or others. When the officers entered, they did not know whether another person was in the home, nor did they know whose blood was on the shirt. Consequently, under Michigan v. Fisher, 558 U.S. 45 (2009), the warrantless entry was reasonable.

A doctor ordered chest X-rays for a patient who smoked cigarettes. After the consulting radiologist told the doctor that the X-rays looked normal, the doctor told the patient that he was in good health. In fact, the radiologist had missed signs of cancer on the X-rays that a trained radiologist, acting competently, would have detected. After another X-ray of the patient's chest, performed one year later, showed advanced lung cancer, the doctor discovered that the radiologist had misinterpreted the patient's earlier X-rays. The patient died within four months of the later X-ray, because by then his cancer had become untreatable. In a wrongful death suit against the radiologist based on only the facts set out above, a jury found the radiologist negligent and awarded $3 million in compensatory damages and $21 million in punitive damages. Is the radiologist likely to have the punitive damages award vacated on appeal?

Yes, because punitive damages awards are not authorized unless there is proof of willful or wanton misconduct on the defendant's part.

A contractor agreed to build a wood- frame house for a landowner for $300,000. The parties agreed that the price would increase by the amount that the cost of lumber for the job exceeded the then- current cost of $30 per 100 board feet. The landowner reduced the agreement to writing but inadvertently failed to include in the written contract the price-escalation clause relating to the cost of lumber. Both parties signed the contract without noticing the omission. When the contractor purchased lumber for the job, the price of the lumber had risen to $60 per 100 board feet. When the contractor submitted a final bill that included the increased price of lumber, the landowner refused to pay the increased price for the lumber on the grounds that the price-escalation clause was missing from the written contract. If the contractor sues the landowner to recover the additional cost, will the contractor be likely to prevail?

Yes, because since the parties were both mistaken as to the content of the writing, the court will reform the writing to express their agreement. When the written contract fails to express the actual agreement because of a mistake of both parties, the court may reform the writing to accurately express the agreement.

In a probation revocation proceeding, the government has called the defendant's probation officer to testify. The probation officer will testify that a confidential informant told her that the defendant had violated his probation by associating with known criminals. The defendant objects to the proposed testimony. Is the probation officer's testimony admissible in the probation revocation proceeding?

Yes, because the Federal Rules of Evidence do not apply to probation revocation proceedings.

A plaintiff, a citizen of State A, sued a defendant, a citizen of State B, in a state court in State B. The complaint asserted a $120,000 claim under state law. Fifty days after service of the complaint, the plaintiff amended the complaint, adding a second defendant, a citizen of State C. The amended complaint asserted the $120,000 state-law claim and a related federal-law claim against both defendants. Twenty-five days after service of the amended complaint, the second defendant removed the action to a federal court in State B with the first defendant's consent. Was removal proper?

Yes, because the amended complaint asserted a claim under federal law. An action is removable if it could have been originally filed in federal court. Here, the amended complaint contained a claim that qualified for federal-question jurisdiction. Although there also was diversity jurisdiction, removal was not barred by the forum- defendant rule because that rule bars removal only when diversity is the only basis for federal jurisdiction.

A mother subdivided vacant land that she owned into three lots. She kept one lot for herself, conveyed another to her daughter, and conveyed the remaining lot to her son. Each conveyance was by a deed of gift containing a covenant specifying that only one single-story home could be constructed on the conveyed lot in order to preserve views of a nearby lake from the mother's lot. The deeds were promptly recorded. The mother then constructed a large three-story house on her lot. Several years later, the son conveyed his vacant lot to a purchaser using a warranty deed that made no mention of the covenant in the previous deed from the mother. The purchaser promptly recorded her deed. When the purchaser later began constructing a three-story house similar to the mother's, the mother sued to enjoin the construction. Should the court grant the injunction?

Yes, because the burden of the covenant runs with the land even if the purchaser had no actual notice of the covenant. The mother created an equitable servitude when she conveyed the third lot to her son. The burden was on the son's lot (to build only a one-story house), and the benefit was on her retained lot (to preserve her view of the lake). The equitable servitude was in writing and was recorded, providing constructive notice of it; actual notice was not required.

A woman purchased a car from a seller who had reset the car's odometer to read 25,000 miles. The seller was aware that the car's actual mileage was approximately 90,000. Unaware of the car's actual mileage, the woman resold the car to a friend seven months later. At the time of the resale, the friend looked at the odometer, which read 30,000 miles, and said, "Great!" By then, the actual mileage was 95,000. Immediately after buying the car, the friend took it to his mechanic, who completed minor repairs and told the friend that he estimated the car's actual mileage to be approximately 100,000. Assuming no applicable statutes, is the friend likely to prevail in an action to rescind his purchase of the car from the woman?

Yes, because the car's actual mileage is a material fact that was not revealed to the friend before he bought the car.

A city owned and operated an electric utility that supplied electricity to the city's businesses and residences. Citing the need for efficiency, the city implemented a plan to replace old electric meters with wireless meters in businesses and residences. The city's plan did not include advance notice to property owners or a method to obtain consent from property owners. A homeowner who opposed the installation of the wireless meters was denied his request for a hearing on the city's plan. The homeowner then blocked the city's access to his house, obstructing the city's effort to replace the old meter. The city responded by threatening to arrest and prosecute the homeowner for disorderly conduct. The homeowner then sued the city in federal district court, challenging the meter- replacement plan on due process grounds and seeking to enjoin its enforcement. The city moved to dismiss. While the city's motion was pending, the city council passed an emergency ordinance requiring both prior notice and property owner consent before the removal or replacement of any electric meter. Should the court grant the city's motion?

Yes, because the case is moot. The case is moot because the only relief sought by the homeowner is no longer available.

An investor has sued a broker in federal court for violation of federal securities law, claiming that the broker misrepresented the investments he made on the investor's behalf. The investor and the broker are citizens of State A. The broker would like to assert a breach of contract claim as a counterclaim to the investor's action, alleging that the investor failed to pay the broker for the investments he made on her behalf. Can the broker join the contract claim?

Yes, because the contract claim is a compulsory counterclaim. The contract claim is a compulsory counterclaim under Federal Rule of Civil Procedure 13(a), because it arises out of the same transaction or occurrence that is the subject matter of the investor's claim, and thus not only may the broker assert the contract claim, but that claim must be included in the broker's answer or it will be forfeited.

A plaintiff domiciled in State A brought a federal diversity negligence action in State A against a defendant domiciled in State B. The action was based on an accident that had occurred in State C. The defendant was personally served with process at her office in State B, which is located 50 miles from the State A federal courthouse. The defendant travels to State A once each year for a weeklong vacation but has no other State A contacts. The defendant answered, denying all allegations. One week later, the defendant filed an amended answer, denying all allegations and including the defense of lack of personal jurisdiction. State A has a long- arm statute that permits personal jurisdiction to the constitutional limit. The defendant has moved for an order dismissing the action based on the personal-jurisdiction challenge asserted in the amended answer. Should the court issue the order?

Yes, because the defendant lacks minimum contacts with State A. The defendant does not have any contacts with State A that are related to this lawsuit. The defendant is not domiciled in State A and only visits there periodically for reasons unrelated to the plaintiff's claim.

A driver was injured when one of the tires on her car ruptured, causing the car to veer off the road. The rupture resulted from a defect in the tire that existed at the time it was sold by the manufacturer to a retailer, who sold it to the driver and installed it on her car. The driver sued the manufacturer on a strict products liability theory. During discovery, the driver's attorney obtained a memorandum that had circulated among engineers employed by the manufacturer. The memorandum acknowledged that undetectable defects would cause ruptures in approximately one out of every 10,000 tires sold. The manufacturer sells approximately 10 million tires per year. After discovering this memorandum, the driver's attorney filed a timely amended complaint, adding a claim for battery. The manufacturer has moved for partial summary judgment, seeking dismissal of the battery claim, based on the undisputed facts set out above. If no additional facts are provided to the court concerning the risk of tire rupture, should the court grant the motion?

Yes, because the driver cannot establish that the manufacturer intended or knew to a substantial certainty that its placement of the tire into the stream of commerce would cause her to suffer a harmful or offensive contact. The driver might have a valid strict products liability claim against the manufacturer. However, the manufacturer's knowledge of a small statistical likelihood of tire failure is not by itself sufficient to support a finding— required for battery liability—that the manufacturer acted with the intent to cause harmful contact, or with the knowledge that a harmful contact would occur. Thus, the court should grant the manufacturer's partial summary judgment motion.

A defendant was charged with conspiracy to possess cocaine with intent to distribute. While on bail with travel restricted to his home state, he purchased an airplane ticket to another country by using an alias. At trial, the prosecution seeks to introduce evidence of the defendant's ticket purchase. Should the court admit this evidence?

Yes, because the evidence is relevant both to show the defendant's consciousness of guilt and to show his motive to commit the crime.

A decedent's executor has brought a federal diversity action against a man, alleging that while the decedent and the man were riding dirt bikes on a track, the man's bike ran into the decedent's bike, causing the decedent to fall to her death. The man denies fault for the decedent's death. At trial, the executor's only witness testifies that shortly before the accident he was riding 50 feet behind the man and saw the man rapidly approaching the decedent until they were only a few feet apart. This witness briefly looked away, heard an unusual noise, and immediately afterward saw the decedent and the decedent's bike on the ground. The man calls three witnesses, none of whom had met the decedent or the man before. Two riders testify that they were riding parallel to the man and never saw his bike touch the decedent's bike. A track attendant, who was stationed close to the area where the decedent fell, testifies that he was watching the track and never saw any contact between the decedent and the man. The man has moved for judgment as a matter of law. Should the court grant the motion?

Yes, because the executor has presented insufficient evidence to support a verdict. In determining whether to grant judgment as a matter of law, the court must determine, after considering all the evidence introduced by both parties, whether there is legally sufficient evidence to support a judgment for the estate. The executor, who bears the burden of proof, has presented only the testimony of another bike rider who was not a true eyewitness to the decedent's accident, but who provided circumstantial evidence about what he saw before and after it. In contrast, the man has provided three disinterested witnesses who testified that they never saw any contact between the man and the decedent. Because the testimony of the witnesses is not in actual conflict, and because the executor has not presented legally sufficient evidence to support a verdict in the estate's favor, the motion should be granted.

A consumer brought a federal diversity action against a manufacturer, seeking damages for products liability claims. In its answer, the manufacturer included the affirmative defense of contributory negligence. Applicable state law had recently abolished contributory negligence as a defense in such actions. Before trial, the judge allowed the parties to submit proposed jury instructions. The manufacturer's attorney proposed an instruction that the jury should not return a verdict for the consumer if it found that the consumer had been contributorily negligent. After the close of the evidence, the judge told the parties that he would give the contributory negligence instruction. The consumer's attorney did not object. The judge instructed the jury. After the jury began their deliberations, the consumer's attorney objected to the contributory negligence instruction. Should the judge consider the objection?

Yes, because the fact that the judge gave the inapplicable instruction constituted plain error that affected the consumer's substantial rights. Because the governing law does not recognize contributory negligence as a defense to this kind of claim, instructing the jury on contributory negligence and allowing that instruction to stand will affect the consumer's substantive rights by permitting the consumer to lose the case based on an erroneous statement of the law. The inclusion of the instruction thus constitutes plain error.

A shopper slipped and fell in a grocery store, injuring her wrist. In a medical malpractice action against the doctor who treated her, the shopper alleges that the doctor worsened the injury by his treatment. Normally, competent medical treatment would have resulted in a complete cure of the wrist injury. The doctor is seeking to implead the grocery store. The grocery store contends that its alleged negligence was not a proximate cause of any of the injuries allegedly caused by the doctor. Should the court allow the doctor to implead the grocery store?

Yes, because the fact-finder could assign some of the responsibility for the shopper's injuries to the grocery store. The doctor can implead the grocery store, because the fact-finder could find that the negligence of both the grocery store and the doctor contributed to the total injury suffered by the shopper, including the worsening of her injury resulting most immediately from the doctor's malpractice.

A woman owned land subject to a mortgage held by a bank. She fell behind in her mortgage loan payments, and the bank properly initiated foreclosure proceedings. The land was sold at a foreclosure sale that resulted in surplus proceeds to which the woman was entitled. Before payment of the surplus proceeds to her, she died testate. In her duly probated will, which she had executed before granting the mortgage to the bank, the woman specifically devised the land to a charity. The remainder of the woman's estate was given by the will to her brother, her sole heir. A dispute has arisen in the administration of the woman's estate about the foreclosure sale surplus proceeds. The woman's brother contends that he is now entitled to those proceeds. Is the brother correct?

Yes, because the foreclosure sale was completed before the woman's death. A will speaks at the time of the testator's death. At that time, the woman did not own the land because she had lost it in the foreclosure action. At the time of the woman's death, she only had an interest in the surplus proceeds, which was personal property that passed to the brother, who is the woman's residuary legatee.

A buyer purchased a house for $300,000. The buyer financed the purchase, in part, with a $250,000 loan from a bank, secured by a mortgage on the house. Before the closing, the buyer's attorney advised him to purchase a standard-form, $300,000 title insurance policy naming the buyer as the insured. Because the buyer had forgotten to bring his checkbook to the closing, his son, who had accompanied him to the closing, paid the premium for him. One year later, the buyer died. Under his will, the house passed to his son. Two years later, the son was successfully sued by a previous record owner with a superior title to the house. The previous owner's claim had not been excepted in the buyer's title insurance policy through the carelessness of a title company employee. At the time of the lawsuit, the house was still subject to the bank's mortgage. The son immediately sought indemnification for the loss from the title insurance company. Is the son entitled to indemnification from the title insurance company?

Yes, because the house passed to the son under the buyer's will. A title insurance policy is a contract of indemnity and insures the named insured in the policy and his heirs and devisees so long as the named insured or his heirs or devisees own the insured property. Here, the house passed to the buyer's son under the buyer's will, and the son owned the house/property when the holder of the superior title brought the suit.

A lawyer was called to testify before a grand jury that was investigating a hit-and-run accident. A security guard at the lawyer's office had testified earlier that on the date of the accident he had seen a person leave the lawyer's office at around 7 p.m., get into a car, and strike a pedestrian while driving out of the parking lot without stopping afterward. The lawyer was asked to disclose the identity of the person who left his office around 7 p.m. on the date of the accident. The lawyer stated that the person was a client but refused to disclose the client's identity, citing the attorney-client privilege. Can the lawyer be compelled to disclose the client's identity to the grand jury?

Yes, because the identity of a lawyer's client is not privileged when disclosure would not reveal a confidential attorney- client communication. Disclosure to the grand jury of the client's identity would not reveal anything about the communications between the client and the lawyer; the privilege therefore does not apply, and the lawyer can be compelled to make the disclosure.

A buyer purchased a commercial building and financed the purchase by executing both a negotiable promissory note and a mortgage to the bank to secure repayment of the loan. The mortgage was promptly recorded. Six months later, the bank assigned only the promissory note to an investor. The assignment made no express reference to the mortgage and was not recorded in the public land records. The bank immediately sent the buyer a notice of the assignment, which provided the address of the investor and explained that the bank was no longer servicing the loan. The buyer made timely payments to the investor for two years but then defaulted on the loan. After the buyer failed to cure the default, the investor accelerated the debt and commenced a foreclosure action. The buyer's defense in the foreclosure action is that the investor is not the mortgagee and therefore has no right to foreclose. Does the investor have the right to foreclose?

Yes, because the investor became the owner of both the note and the mortgage by virtue of the assignment of the note to him. The assignment of a note automatically transfers the mortgage to the assignee of the note; a separate document assigning the mortgage to the assignee is unnecessary.

A trucker driving down an isolated country road late one night struck cattle that had escaped from a farmer's pen and wandered into the road. The trucker was unable to stop before hitting the cattle but was not driving carelessly. While he was not injured in the collision, the trucker sustained damage to his truck and lost income during the time it took to repair the truck. The trucker sued the farmer for his damages and invoked the doctrine of res ipsa loquitur. At trial, the farmer introduced evidence that his cattle pen was of a sufficient height to prevent cattle from stepping over it and was constructed of thick steel pipe sitting in concrete with a substantial top rail. A sturdy pen such as this one would be more difficult for cattle to break through than one constructed of barbed wire or electric wire. Should the trial court allow the case to go to the jury with a res ipsa loquitur instruction?

Yes, because the jury could conclude that cattle would not ordinarily escape a strong, secure cattle pen in the absence of negligence. The farmer was in exclusive control of his farm, and the trucker did not contribute to the accident, so the jury is permitted to conclude that the cattle escaped due to the farmer's negligence.

A defendant was charged in federal court under the Assimilative Crimes Act, which provides that the criminal law of the state in question applies to crimes committed on federal enclaves within the state. Federal prosecutors charged the defendant with aggravated theft for stealing computer equipment from a store on a federal military base. Under the controlling state's criminal law, the crime of aggravated theft, punishable by up to 10 years in prison, requires that the stolen property be worth $1,000 or more. If the stolen property is worth less than $1,000, the crime is simple theft with a maximum punishment of five years in prison. The value of the equipment was disputed. The prosecutor offered evidence that the computer equipment was worth more than $1,000, but an expert witness called by the defense testified that the equipment was worth much less. The defense attorney has requested that the trial court instruct the jury on the lesser included offense of simple theft. The prosecution objects, arguing that the court should only instruct on the charged offense of aggravated theft. Upon the defense attorney's request, should the trial court instruct the jury on the lesser included offense of simple theft?

Yes, because the jury could rationally find the defendant not guilty of the greater offense but guilty of the lesser included offense. Upon request, a court should give a lesser included offense instruction if, on the evidence presented, the jury could rationally acquit the defendant of the charged offense but convict of the lesser offense. Here, the element of value is in reasonable dispute.

An owner acquired an apartment building and financed part of the purchase with a mortgage loan. The promissory note contained a clause that permitted the lender to accelerate the outstanding loan balance if the owner defaulted on the terms of the loan unless the owner cured the default within 10 days of a notice of default. The mortgage required the owner to make loan payments, maintain casualty insurance, and pay property taxes. The owner made the loan payments when due but neglected to pay an insurance premium. When the lender learned that the owner was not maintaining the insurance, the lender notified the owner that the loan was in default and that it planned to accelerate the loan unless the lender received notification within 10 days that the premium had been paid. The owner failed to pay the premium within that time period, and the insurer notified both the owner and the lender that it was canceling the coverage. In order to protect itself from a potential loss, the lender had the insurance policy reinstated by paying the delinquent premium. The owner then promptly tendered the amount of the delinquent insurance premium payment to the lender, but the lender refused to accept it. The lender accelerated the loan, and after the owner failed to pay the accelerated amount, the lender initiated a foreclosure action. At the time of the acceleration, the owner was current on all loan payments. There is no applicable statute. Did the lender have the right to accelerate?

Yes, because the lapse in insurance coverage constituted a material default of the terms of the mortgage. Acceleration clauses are valid. While typically triggered by nonpayment of the mortgage debt, they can also be triggered by the mortgagor's failure to satisfy other conditions in the mortgage, such as timely payment of insurance premiums.

A manufacturer entered into a five- year contract with a distributor to supply the distributor with products to be distributed in State A. The manufacturer reserved the right to enter into additional such contracts with other State A distributors. The manufacturer knew that the distributor would, on the basis of the agreement, invest in an expansion of its distribution centers in State A in order to handle the distribution of the manufacturer's products to retail sellers in that state. At the time the manufacturer entered into the contract, it had already firmly decided to withdraw from the State A market in two years. Because the distributor had heard rumors of such a plan, its chief executive officer, before signing the contract, asked a representative of the manufacturer whether such a plan was in place. The representative denied the existence of any such plan. Two years into the contract, the manufacturer announced that it no longer intended to sell products in State A and canceled its contract with the distributor. The manufacturer did not thereafter supply products for distribution or sale in State A. Does the distributor have a viable fraud claim against the manufacturer?

Yes, because the manufacturer denied that it had a withdrawal plan when the distributor asked about it at the time the contract was formed. The manufacturer, at the time of entering into the contract with the distributor, falsely stated to the distributor that it did not have a plan in place to cease providing products for sale in State A. This was an intentional and material misrepresentation, made for the purpose of deceiving the distributor, on which misrepresentation the distributor actually and reasonably relied to its detriment. As such, it supports a fraud claim by the distributor.

A retailer sent a purchase order to a computer manufacturer requesting the shipment of a specified quantity of laptops. The purchase order stated: "In the event of a breach, the retailer may pursue all remedies available to it under the UCC." The manufacturer received the purchase order and promptly shipped the laptops to the retailer. The manufacturer sent an acknowledgment form to the retailer four days later. Two days after accepting delivery of the laptops, the retailer received the manufacturer's acknowledgment form, which excluded consequential damages. The same day, the retailer discovered that the laptops were defective. If the retailer sues the manufacturer for breach of contract, will the retailer be entitled to pursue a claim for consequential damages?

Yes, because the manufacturer's shipment of the laptops constituted an acceptance of the retailer's offer.

Fifteen years ago, a man who owned vacant land granted an easement over that land, by deed of gift, to his neighbor for use as a shortcut to her cabin. The deed was silent concerning the easement's location; however, the neighbor used a 15-foot strip along the west side of the man's land. Last year, the neighbor's cabin was destroyed by fire. The neighbor rebuilt the cabin in a new location, as required by the local building code, and now wants to access the cabin from the east side of the man's land. The neighbor has told the man that she plans to relocate the easement on the east side of his land at her expense. The man has told the neighbor that the easement cannot be relocated. The man's land remains vacant. Does the man have the right to stop the neighbor from relocating the easement?

Yes, because the neighbor's use of the easement on the west fixed the location of the easement. The man conveyed an express easement over his land to his neighbor by a deed of gift, which satisfied the statute of frauds. Although the location of the easement was not in writing, the location was set by the neighbor's 14-year use of a 15-foot strip on the west side of the man's land.

The number of large billboards along a city's major roadways has increased considerably in recent years. Many political groups have contributed to that increase with their growing use of billboards to display messages that further a variety of political candidates and public causes. The city council has received many complaints from residents claiming that the billboards are ugly and detract from picturesque sights along the roadways. In response to these complaints, the city council has enacted an ordinance that substantially limits the number and the size of billboards that may be erected along designated scenic roadways. A company that owns many of the billboards affected by this ordinance has filed suit, claiming that the ordinance violates the company's freedom of speech. Should the court uphold the ordinance?

Yes, because the ordinance is narrowly tailored to further the substantial government interest in the city's appearance. The ordinance is a content-neutral restriction on speech because it regulates without regard to the content of the message expressed on the billboards. Content- neutral speech restrictions receive intermediate judicial scrutiny, the elements of which are summarized in Answer C. The Supreme Court has held that the aesthetic interests of a community are sufficiently substantial to justify content-neutral restrictions on public displays of signs. The ordinance here is narrowly tailored because it applies only to scenic roadways and it does not completely ban signs there.

A woman purchased a house, financing the purchase with a 30-year mortgage granted to a local bank, which the bank promptly recorded. Five years later, the woman lost her job, had difficulty making her mortgage payments, and defaulted on several payments. The bank notified the woman that it would accelerate the mortgage debt as permitted by the mortgage. The woman tried to sell the house but could not find a buyer. The woman wants to avoid the publicity of a foreclosure sale and protect her credit rating. The house is not encumbered by any other liens. The woman has asked the bank if it would accept a deed to the house and relieve her from any further liability on the loan. The bank is receptive to the woman's proposal. Is the woman's proposal a viable foreclosure substitute under these facts?

Yes, because the proposal is voluntary and the bank would receive unencumbered title from the woman. Because there are no other liens against the property, the bank's acceptance of the deed in lieu of foreclosure gives the bank a free and clear title to the property.

A state law requires every motor carrier hauling goods on the state's highways to register with and obtain a permit from the state's transportation commission. The purpose of this requirement is to facilitate application of the state's valid police, welfare, and safety regulations to carriers using the state's highways. The fee for registration is nominal, and the commission has no discretion to deny a permit to a carrier that properly registers and pays the registration fee. Are the state's requirements constitutional when applied to a wholly interstate carrier?

Yes, because the requirements apply equally to interstate and intrastate carriers and are the only prerequisites to the issuance of the permit. Even a nondiscriminatory state law may be unconstitutional if the burden on interstate commerce clearly outweighs the state's interest in regulation. However, in this case the state law does not discriminate against interstate commerce and the burden is minimal compared with the state's interest in applying its police, welfare, and safety regulations. Lloyd A. Fry Roofing Co. v. Wood, 344 U.S. 157 (1952).

During a criminal investigation of possible securities fraud committed by the senior management of a public corporation, the prosecutor has called a witness to testify before a grand jury. The witness will testify that he was an accountant for the corporation, that he dealt with its senior management on a daily basis concerning the corporation's financial disclosures to the public, and that, in his opinion, all members of the senior management knew that the disclosures were fraudulent. Can the witness's testimony be considered by the grand jury?

Yes, because the rules of evidence do not apply to grand jury proceedings. he Federal Rules of Evidence do not apply to grand jury proceedings under FRE 1101(d)(2).

A son managed an apartment building that his elderly father owned. Ten months ago, the son asked the father to sign some tax documents related to the apartment building and slipped in among the documents a deed that conveyed the building to the son. The father did not read the documents before signing them because he trusted his son. After the father signed the deed, the son promptly recorded it. Five months ago, the son sold the building to an investor, who promptly recorded her deed. The investor was unaware of the circumstances surrounding the conveyance of the building from the father to the son. Two months ago, the father died survived by his wife and his son. The father's duly probated will, executed five years earlier, devised the apartment building to his wife. Is the wife entitled to ownership of the apartment building?

Yes, because the son tricked his father into signing the deed to him and that deed is therefore void. Fraud in the execution of a deed is the equivalent of a forged deed; as a result, the deed is void.

The federal government hired a private contractor to repair and maintain the roads in a national park located wholly within a state. In a written agreement, the government agreed to pay the contractor an annual fixed fee and to reimburse the contractor for all expenses associated with the work. The agreement provided that the contractor must pay for all materials and expenses from a special bank account into which the government would deposit required payments and reimbursements. The state collected a generally applicable sales tax from the contractor on materials purchased for the work with money from the special bank account. Was the state's imposition of the sales tax constitutional in this situation?

Yes, because the tax did not discriminate against the federal government or its contractors, and the materials were purchased by the contractor rather than by the federal government. A state tax is valid if it is nondiscriminatory and does not apply directly to the federal government. United States v. California, 507 U.S. 746 (1993).

A woman wanted to purchase a tract of land but could not immediately obtain a loan. Her friend agreed to loan her the entire purchase price if, immediately following the purchase, the woman would deed the land to him. They also agreed that the woman would have 10 years in which to repay the loan and that the friend would deed the land back to the woman when the loan was fully repaid. Lastly, they agreed that during the 10-year period the woman could live on the land. The deed to the friend did not refer to their agreement. At the end of the 10th year and after the loan had been repaid, the woman demanded that the friend deed the land back to her. The friend refused, claiming that he owned the land and that the payments the woman had made over the preceding 10 years were rent, not loan repayments. The woman sued to compel the friend to convey the land to her. Is she likely to prevail?

Yes, because the woman's agreement with the friend constituted an equitable mortgage. Where a deed is delivered to secure a loan to buy land, the deed is treated as a mortgage if doing so accomplishes the parties' intent. Here the facts clearly establish the parties' intent that the friend merely have a security interest in the land, not an absolute title.

A defendant was on trial for murder, which the jurisdiction defines as a homicide with malice aforethought. Three witnesses testified for the state that the defendant approached the victim in a bar, engaged in a brief conversation with him, and then, without warning, drew a gun and shot the victim in the stomach. One witness for the state testified that just before the defendant drew his gun and shot the victim, the victim twice kicked the defendant in the groin. The state's evidence clearly established that the victim died as a result of the gunshot wound. The defendant did not testify or offer any evidence. The defendant requested that the jury be instructed on voluntary manslaughter based upon heat of passion from adequate provocation. The state argued that murder should be the only form of homicide submitted. Should the court instruct on voluntary manslaughter?

Yes, because there was evidence that reasonably could support a jury finding of adequate provocation. a reasonable jury could find that the defendant was twice kicked in the groin by the victim prior to the homicide, and on that basis could conclude that the defendant had adequate provocation. Even though it is a single witness who recounts this event, a jury can credit a single witness's testimony.

A plaintiff sued a defendant for injuries she allegedly received when she slipped and fell while shopping in the defendant's grocery store. At trial, the plaintiff calls as a witness another shopper who testifies that she saw the plaintiff slip and fall on an oily substance on the floor of the store. On cross-examination, the defendant's attorney asks: "Isn't it true that you told an investigator one week after the accident that you did not see [the plaintiff] fall?" The witness denies making the statement. Later in the trial, the defendant's attorney calls the investigator, who offers to testify that the witness told him, "I never saw [the plaintiff] fall." The plaintiff objects to admission of the investigator's testimony about the witness's out-of-court statement. Should the court admit the investigator's testimony about the witness's out-of-court statement?

Yes, but only for the limited purpose of impeaching the witness's trial testimony. The defense may offer extrinsic evidence of a witness's prior inconsistent statement for the limited non-hearsay purpose of impeaching the witness after the witness has been given an opportunity to explain or deny the statement.

After a woman left a company to start her own business, her former supervisor became convinced that she was breaching a noncompetition agreement that she had signed when she had begun employment with the company. At the supervisor's suggestion, the company assigned its security officer to investigate and provided the officer with information about the woman, including her telephone number. Unbeknownst to the company, the officer emailed the woman's phone service provider, pretending to be the woman, and obtained copies of her phone records, which showed that she had contacted several customers of the company after she left, in breach of the agreement. The records also revealed a number of phone calls by the woman to others, including medical providers. The woman, after learning of the security officer's investigation, sued the company, asserting several tort claims. Should the trial court allow the case to go to the jury?

Yes, on a claim of invasion of privacy. The company, through its employee, engaged in conduct that a jury could determine to be intrusion upon seclusion. Intrusion upon seclusion is one of the four privacy torts recognized by the second Restatement of Torts.

A defendant was convicted of burglary following a jury trial in state court. After trial, defense counsel learned that the prosecution had failed to disclose that the key witness against the defendant had previously been convicted of perjury in another case. The defense filed a motion for a new trial. The trial court rejected the defense argument and upheld the conviction because state discovery rules did not require the disclosure. The defendant then filed an appeal, arguing that the prosecution's failure to disclose this prior perjury conviction had violated his federal constitutional rights. Can the state appellate court overturn the conviction based on the prosecution's failure to disclose the witness's prior perjury conviction?

because the prosecution has a constitutional obligation to turn over material exculpatory evidence, which includes evidence that would impeach a critical government witness. Here, the government's key witness had a conviction for an offense—perjury—that directly related to the witness's credibility. If the failure to disclose that information created a reasonable probability of a different outcome, then the appellate court should reverse the conviction. Yes, if there was a reasonable probability of a different outcome.

A defendant was tried in federal court for bank fraud. The defendant had retained private defense counsel. As part of the prosecution's case, a federal agent testified regarding incriminating statements that the defendant's confederate, who by the time of trial was a fugitive, had made during a prior interview. Though this testimony violated the Confrontation Clause, the defense attorney raised no objection. The jury ultimately convicted the defendant. The defendant has now hired new counsel for his appeal and argues that the admission of the federal agent's testimony was erroneous. If the appeals court finds that the trial court should not have admitted the testimony, does it have the authority to reverse a conviction when the trial attorney raised no objection to the challenged testimony?

under the "plain error" rule, an appellate court may remedy an error that was plain or obvious if that error affected substantial rights. Here, the error was obvious, of constitutional dimension, and likely prejudicial. Consequently, the court of appeals has authority to reverse the conviction. Yes, because an appeals court may correct plain error affecting substantial rights.