MBE questions 30 set

A state's department of education provides musical equipment to any public or private school in the state that requests it. A private religious school applied for and received musical equipment under this program. The school exclusively uses the equipment to teach its students to perform religious music. Which of the following is the best argument supporting the constitutionality of the state's policy of providing musical equipment to this private religious school?

The purpose and effect of the music program is secular and does not entangle government and religion.

A homeowner entered into a written agreement with a contractor whereby the contractor agreed to completely remodel the homeowner's bathroom "to her specifications" at a cost of $10,000. The homeowner's specifications were highly detailed and required custom-made fixtures that would not be usable in other bathroom remodeling jobs. The contractor ordered the custom-made fixtures and paid $4,000 for them when they were delivered to his place of business. Figuring up the cost of the fixtures and labor, the contractor estimated that he would make a total profit of $2,000 on the job after payment for materials and workers. Before the contractor began work on the project, but after he had paid for the fixtures, the homeowner told the contractor that she had had a change of heart and would probably be selling the house the following year, and so would not need a custom bathroom. The contractor made no attempt to sell the fixtures to another contractor and filed suit against the homeowner for damages. What is the contractor likely to recover?

$2,000 as expectation damages, plus $4,000 in reliance damages.

A breeder of quarter horses entered into an agreement with a rancher to sell and deliver two quarter horses, one to the rancher and the other to the rancher's fianc�e as a gift. Although the fair market value of each horse was $3,000, the horse breeder agreed to sell both horses together for a total price of $5,000. Under the agreement that the rancher wrote out and both parties signed, the horse breeder agreed to deliver one horse to the rancher on August 1, at which time the rancher agreed to pay the horse breeder $5,000. The horse breeder further agreed to deliver the other horse to the rancher's fianc�e on August 12. On August 1, the horse breeder delivered the first horse to the rancher and, at the same time, the rancher gave the horse breeder a certified check for $5,000. On August 12, the horse breeder brought the second horse to the residence of the rancher's fianc�e and told her that the horse was a gift from the rancher. The rancher's fianc�e told the horse breeder that she loathed quarter horses and she refused to take the horse. The horse breeder brought this horse back to his farm and sent an e-mail to the rancher, informing him that his fianc�e refused delivery and that he (the horse breeder) could not keep the horse. Two weeks later, after not hearing from the rancher, the horse breeder sold the horse to an interested party for $3,000. If the rancher sues the horse breeder, how much should the rancher recover?

$2,000, the difference between the value of the horse delivered to the rancher and what the horse breeder received from the rancher.

A landowner included in his will a provision giving "all of my property, both real and personal, wherever situated, to my widow for life, and after her death to any of our children who may survive her." What is the gift to the children?

A contingent remainder.

A horse breeder offered to sell a colt to his neighbor and they agreed on a purchase price. The horse breeder subsequently received a letter from the neighbor thanking him for the sale and summarizing their agreement. The letter contained the neighbor's alleged signature. When the horse breeder attempted to set up transfer of the colt, the neighbor denied that she agreed to purchase it. In a breach of contract action against the neighbor, the horse breeder offers into evidence the letter. The horse breeder testifies that he is familiar with the neighbor's handwriting and recognizes the signature on the letter as being hers. Assuming appropriate objection by the neighbor, who claims that she did not sign the letter, how should the trial court rule on the admissibility of the letter?

Admit the letter but instruct the jury that it is up to them to decide whether the letter is authentic.

A father executed a deed to his art gallery "to my daughter for her life, and on my daughter's death to her children; provided, however, that if my daughter stops painting, to my brother." The daughter has two children and is still painting. At the time of the grant, what is the best description of the interest of the daughter's two children?

A vested remainder subject to open and to total divestment.

The defendant planned to break into a home, steal any valuables that he could easily pawn, and then burn down the home using gasoline from his lawnmower. When the defendant got to the home that night, he realized that he had forgotten the gas at home. Nonetheless, the defendant broke into the home through a basement window. Unbeknownst to him, the police were alerted by a silent alarm and arrested the defendant just as he was leaving the home with a sack filled with valuables. At common law, what crimes has the defendant committed?

Burglary and larceny.

An automotive engineer announced that he had developed a carburetor that will enable cars to achieve 100 miles per gallon of fuel, and that he will allow the carburetor to be inspected next month. Soon after, a former employer of the engineer brought an action to prohibit the engineer from displaying the carburetor, claiming that the engineer probably had stolen the carburetor's design from the employer. The court granted the employer a temporary restraining order prohibiting the engineer from disclosing any mechanical details of his carburetor, and ordered a hearing to be held in one week to determine whether a preliminary injunction should be issued. Because each party would have to reveal the mechanical details of his designs at the hearing, the employer requested that the hearing be closed to the public and that the record be sealed to avoid revelation of his designs. The court granted the request. A reporter for a monthly automobile magazine heard about the case and wanted to attend the hearing. When he was told that the hearing would be closed, he filed an action to have it opened. What is the reporter's best argument for opening the hearing?

Closure is not necessary to preserve an overriding interest here.

To increase tourism, a city began sponsoring laser light shows, which proved to be very popular. Several charitable organizations received permission from the council to sponsor a show and charge admission to raise money to help support their causes. One of them hired a famous laser light artist to give their show. When the artist arrived, he began setting up his lasers for the show. A city official soon stopped him, informing him that he could use only the city's lasers because the city feared that outsiders might use powerful lasers that could cause eye damage to viewers. The artist told the charitable organization that had hired him that the success of his art depends on the power of his lasers and that he could not produce desirable effects using the city's lasers. The charitable organization appealed to the city, but the city held fast to its rule requiring all laser light artists to use the city's lasers. If the charitable organization files an action against the city, how will the court most likely rule?

Find for the city, because the rule is a reasonable time, place, and manner restriction.

A plaintiff sued an auto manufacturer for negligence after a car accident involving the plaintiff's car that was made by the auto manufacturer. Sixty days after service of the complaint and 40 days after service of the manufacturer's answer that contained no counterclaim, the plaintiff filed a motion seeking to file an amended complaint adding a claim for strict products liability against the auto manufacturer stemming from the same incident. The statute of limitations for strict products liability claims expired one week before the motion was filed. How should the court rule on the plaintiff's motion?

Grant the motion, because the amended complaint relates back.

A plaintiff filed a civil action based on negligence against a defendant in federal district court, alleging that the defendant negligently ran a red light at an intersection and collided with the plaintiff's vehicle, causing the plaintiff's injuries. A week after the close of discovery, the plaintiff filed a motion for summary judgment on the issue of whether the defendant was negligent. With the motion, the plaintiff filed (i) his own sworn affidavit, which stated that the traffic signal was green as he entered the intersection; (ii) an affidavit of a witness who was driving the car behind him, which stated that the witness saw the entire incident and that the plaintiff's traffic signal was green as he approached and entered the intersection; and (iii) an affidavit of another witness, which stated that she saw the entire incident and that the defendant's signal had been red for several seconds before the defendant entered the intersection and was still red when the defendant entered the intersection. In response to the motion, the defendant filed his own affidavit which stated that he does not recall seeing the traffic signal before entering the intersection, but believes that it was not red. He also filed the affidavit of a pedestrian on the scene. The pedestrian stated that she did not see the traffic signal prior to the accident, but that another passerby told her that the traffic signal was yellow for both drivers. How should the court rule on the plaintiff's motion?

Grant the motion, because the plaintiff has supported his motion with substantial evidence and the defendant has failed to produce admissible evidence that contradicts the plaintiff's evidence.

A husband and a wife were arrested by federal agents and charged with distributing obscene materials through the United States mails. When called before a grand jury, the wife refused to say anything, invoking her Fifth Amendment right to be protected from compelled self-incrimination. The husband was terrified of the grand jury and readily admitted under questioning that he sent obscene matter through the mail. He also incriminated his wife in the illegal activity. The thought of a trial and a prison term drove the husband over the edge, and he committed suicide two days before his trial was to begin. A month later, the wife was put on trial in federal district court. The federal prosecutor seeks to introduce a transcript of the husband's grand jury testimony into evidence against the wife. The defense attorney objects. How should the court rule on the admissibility of the grand jury transcript?

Inadmissible, because the husband's testimony was not subject to cross-examination.

When a crowded city bus braked suddenly, the standing passengers were thrown together, and a woman wearing very high-heeled shoes began to stumble. A man who was unacquainted with her kept her from falling by reaching his arm around her waist. If the woman sues the man for battery, will she recover?

No, because his conduct was socially acceptable.

The owner of a valuable painting hired professional movers to transport it to an auction house when she decided to sell it. As the movers were carrying it to their van, a window air conditioner that a tenant had been trying to install fell out of his second floor window and crashed through the painting and onto the ground. The owner had been watching from her apartment across the street and saw her painting destroyed. She became extremely upset and needed medical treatment for shock. If the owner brings a claim for negligent infliction of emotional distress against the tenant, is she likely to recover?

No, because she was not within the zone of danger.

A patient properly sued her doctor in federal court for medical malpractice. At trial, the doctor's attorney called four well-known experts in the field who uniformly agreed that the doctor acted within the normal standard of care in treating the patient. The patient's attorney called only one young and inexperienced expert who opined that the doctor did not act within the normal standard of care; however, he contradicted himself on the stand and could not answer certain simple questions. During the trial, no motions were made by the doctor's attorney. Surprisingly, the jury returned a verdict in favor of the patient, and the doctor's attorney filed a renewed motion for judgment as a matter of law 22 days after the judgment was entered. Will the court grant the motion?

No, because the doctor did not move for a judgment as a matter of law during the trial.

A homeowner and a local builder entered into a written contract that called for the builder to build a second story onto the top of the homeowner's one-story residence. When scheduling conflicts arose, the builder asked the homeowner if they could substitute his buddy, an out-of-town builder who had comparable experience and skills, to perform the local builder's part of the contract. All of the parties agreed to the substitution. Unfortunately, the out-of-town builder made a major blunder that will be quite expensive to correct. Is the local builder liable to the homeowner for the cost of correcting the defect?

No, because the local builder was discharged through a novation.

A contractor filed a breach of contract action against a supplier in federal district court, seeking compensatory damages. The contractor does not seek, and under applicable law cannot recover, punitive damages. The supplier admits the existence of the contract but denies breach. The contractor served on the supplier an interrogatory asking the supplier to state his net worth. Assuming the supplier objects to the interrogatory and the contractor files a motion to compel an answer, will the court require the supplier to answer?

No, because the requested information is not relevant to the claim or defense of any party.

After drinking at his favorite bar all day long and becoming very intoxicated, the defendant pulled out a gun to reenact a scene from a movie he had seen the other day. Pointing his gun at a bystander, he slurred a line from the movie and pulled the trigger. He was shocked to see the bystander fall down dead with a bullet in him. Due to his intoxicated state, the defendant cannot remember pulling out or firing the gun. A state statute defines all murders as second degree murders unless deliberation and premeditation can be shown, in which case the crime is elevated to first degree murder. The crimes below are listed in descending order of seriousness. What is the most serious crime of which the defendant may be convicted?

Second degree murder.

To satisfy a debt owed to a creditor, a son executed and delivered to the creditor a warranty deed to a large tract of undeveloped land. The creditor promptly recorded the deed. Shortly thereafter, she built a house on the property and has lived there ever since. The son never actually owned the land. It belonged to his father, but the father had promised to leave the property to the son. Later, the father died and his will devised the property to the son. Pressed for money, the son then sold the land to an investor by warranty deed, which the investor promptly recorded. Although the investor paid full value for the property, he purchased it strictly for investment and never visited the site. He therefore did not realize that the creditor was living there, and knew nothing of the son's earlier deed to the creditor. The jurisdiction in which the land is located has the following statute: "A conveyance of an estate in land (other than a lease for less than one year) shall not be valid against any subsequent purchaser for value without notice thereof unless the conveyance is recorded." Which of the following is the most likely outcome of a quiet title action brought by the creditor against the investor?

The creditor prevails, because the investor was not a purchaser for value without notice of the creditor's interest.

On February 1, a national department store chain entered into a written agreement with a canoe manufacturer providing that the manufacturer would sell the department store any quantity of 16-foot aluminum canoes that the department store desired at a price of $250 per canoe, deliveries to be made 30 days after any order. The agreement was signed by authorized agents of both parties. On March 1, the department store sent the manufacturer an order for 500 canoes to be delivered in 30 days. The manufacturer immediately e-mailed the department store a confirmation of the order. Ten days later, the department store sent the manufacturer an order for an additional 500 canoes, to be delivered in 30 days. Five days after receiving the department store's second order, the manufacturer e-mailed the department store and explained that a large sporting goods chain was willing to purchase all of the manufacturer's output of 16-foot canoes at $275 per canoe and that the manufacturer would be unable to fill any of the department store's orders. The department store found another canoe manufacturer willing to provide it with 16-foot aluminum canoes for $280 per canoe and on April 15 filed an action against the manufacturer seeking damages for the manufacturer's failure to deliver the 1,000 canoes ordered. How should the court rule?

The department store is entitled to cover damages of $30 per canoe only for 500 canoes but is not entitled to any damages for breach of the duty of good faith.

Using his cellphone, a witness recorded a speeding driver hitting a pedestrian. The witness sold the recording to the driver. The driver then gave the recording to his attorney. After the pedestrian filed suit against the driver, the pedestrian sent a discovery request to the driver requesting that he produce "all items that show or describe the accident." Which of the following best describes whether the driver must provide the video, or a copy of it?

The driver must provide the video because it is relevant to the pedestrian's claim.

A jeweler sent a fax to a gold dealer offering to sell the dealer 100 ounces of gold at $900 per ounce. The dealer immediately responded via fax, "What are your terms of shipment?" The jeweler faxed back, "F.O.B. my store." The dealer faxed back, "I accept." Who must pay the freight charge from the shop to the dealer?

The gold dealer, because of the F.O.B. term.

A mother was in a nursing home and asked her attorney to draft a deed that would give her farm to her son. The attorney drew up the deed, had the mother properly execute it, and thereafter properly recorded the deed. The attorney then told the son what she had done. The son immediately went to the nursing home and told the mother that he did not want the farm so she should take back the deed. A week later, the mother returned home to the farm. Shortly thereafter, the son died without a will, leaving his wife as his only heir. The mother has brought an action against the wife to quiet her title to the farm. If the mother is successful in this action, what is the likely reason?

The son never effectively accepted delivery of the deed.

A landowner validly conveyed a small office building to the Green Party "as long as they use it for operating quarters until the next presidential election." After the next presidential election, which was in three years, the building would go to a private organization that monitors and prepares comprehensive listings of gas prices throughout the country. A year after the conveyance, the landowner died, validly devising all of her property to her son. Although this jurisdiction is a common law jurisdiction with respect to all real property considerations, the state's probate laws provide that future interests or estates in real property may be passed by will or descent in the same manner as present or possessory interests. Last week, the Green Party and the gas monitoring organization joined together to sell the office building in fee simple absolute to a developer. The son filed suit to prevent the sale of the property to the developer. In this action, who should prevail?

The son, because he did not sign the contract of sale.

Adherents of a particular religion whose tenets focused mostly on business practices forbade women from studying their sacred texts. A group of college students who were adherents of that religion applied to use an empty room at their state college to study sacred texts. The school permitted numerous student groups to use its facilities for extracurricular activities during times when classes were not in session. However, the school administration denied the requests from the group in question, claiming that it would be in violation of a state statute forbidding any group using public facilities to discriminate on the basis of race or gender. The students brought an action in federal court challenging application of the statute to them by the school administration. If the court finds the actions of the school valid, what is the most likely reason?

The statute is the least restrictive means of advancing the state's compelling interest in ending discrimination by groups using public facilities.

The mayor of a town received several complaints from residents regarding the growing number of adult theaters and nude dancing establishments in a nearby town. To allay fears, the mayor asked the town's attorney what could be done to prevent or at least limit such establishments from setting up business in their town, which currently follows a zoning plan that provides for residential, commercial, and light industrial uses. Which of the following most correctly describes the town's constitutional options?

The town may revise its zoning ordinance to limit the location of adult theaters and nude dancing establishments to control the secondary effects of such businesses.

Small, prolific mussels called zebra mussels were first introduced into the Great Lakes by a foreign cargo ship. They became a serious problem because they attached themselves to smooth, hard surfaces, and often clogged water intake pipes. Congress determined that zebra mussels posed a great threat to the economic welfare of the Great Lakes region and passed a statute requiring all Great Lakes water intakes to be coated with a special chemical compound that repels zebra mussels. Studies by biologists at a major state university showed that while the special chemical compound that the federal government has required was effective, it also was toxic to other aquatic life. The biologists recommended that Great Lakes intake pipes be coated with a less toxic and less expensive copper-based paint. On the basis of those studies and the recommendation, three Great Lakes states adopted laws permitting municipal water districts to coat their intake pipes with copper paint. Can municipalities using copper-based paint on their intake pipes successfully be prosecuted for violating the federal law?

Yes, because Congress may adopt laws regulating navigable waters.

A dairy farm operated a small processing plant that supplied premium ice cream to nearby specialty shops and ice cream parlors. It entered into a written agreement with a local ice cream parlor to sell "all output" of its Extra Rich ice cream to the ice cream parlor, and the ice cream parlor agreed to sell exclusively the dairy farm's Extra Rich frozen desserts. The agreement stated that the ice cream parlor would pay $25 for each five-gallon container of Extra Rich ice cream that it ordered from the dairy farm. Several months after the parties entered into this contract, demand for high-fat ice creams dropped sharply among the health-conscious consumers who had formerly patronized the ice cream parlor, and the proprietor had to throw out some of its product because the reduced demand meant that opened containers were not used up before the taste of the ice cream became affected. The ice cream parlor wanted to stop selling the dairy farm's Extra Rich ice cream and instead sell a frozen yogurt product produced by another dairy. Can the dairy farm enforce its agreement against the ice cream parlor?

Yes, because changing demand is one of the standard risks of business that both parties assumed.

An electronics company sued a competitor in federal court for patent infringement, alleging that the competitor had copied several aspects of the electronic company's latest smartphone model. The competitor plans to defend the lawsuit but is worried about being forced to reveal confidential research and development information. The parties scheduled a conference under Rule 26(f) of the Federal Rules of Civil Procedure. At the conference, the parties are to discuss whether they need a court order protecting trade secrets and other related confidential information. Is this a proper discussion for a Rule 26(f) conference?

Yes, because the parties must discuss their discovery plan during a Rule 26(f) conference.