8/31-Mixed-subject MBE PQs-6

Question 8543 A farmer contracted with a wholesaler to sell 10,000 pounds of dragon fruit at $10 per pound, the market price for dragon fruit at that time. After these merchants executed the contract, a variety of unforeseeable factors, including favorable weather conditions and a significant number of other farmers growing dragon fruit, drove the market price of dragon fruit to $1 per pound. The wholesaler attempted to renegotiate with the farmer, but the farmer refused to modify the contract. When the wholesaler refused to accept delivery of the dragon fruit, the farmer sued the wholesaler. The wholesaler raised the defense that to force him to buy dragon fruit for ten times its current market price would be unconscionable. Does the wholesaler have a valid unconscionability defense? Answers: No, because the contract price was reasonable when the wholesaler agreed to it. No, because the farmer and the wholesaler, as merchants, had fairly equal bargaining power. Yes, because no reasonable person would agree to buy dragon fruit at ten times its market price. Yes, because the factors that resulted in the reduction of the price of dragon fruit were unforeseeable.

Answer choice A is correct. A court may modify or refuse to enforce a contract or part of a contract on the ground that it is unconscionable when the contract is so unfair to one party that no reasonable person in the position of the parties would have agreed to it. The contract or part of the contract at issue must have been unconscionable at the time it was made. Here, the wholesaler contracted with the farmer to buy dragon fruit at $10 per pound, which was a fair market price at the time the parties entered the contract. The fact that intervening events caused prices to fall dramatically is a risk inherent in business dealings that is assumed by the buyer and does not make the transaction unconscionable. Answer choice B is incorrect because, while the defense of unconscionability is often used when there is a contract between parties with vastly unequal bargaining power, that is not the only way that a contract could be unconscionable. This contract still could have been unconscionable (e.g., contained boilerplate language that would make the contract unconscionable), even if the bargaining power of the two parties was relatively equal. Answer choice C is incorrect because this addresses only half of the analysis; the unfairness must also exist at the time of contracting. Answer choice D is incorrect because foreseeability is not a relevant factor in an unconscionability inquiry.

Question 7014 An FBI agent was accused of killing a witness in a federal case. A U.S. Marshal who had been guarding the witness had actually killed the witness after being paid by the defense attorney to do so. The agent knew this, but because the U.S. Marshal threatened to harm the agent's family, he told no one. The agent was indicted for murder, and his lawyer counseled him about the legal elements of the crime. At the arraignment, the judge explained the nature of the charge and the applicable statutory sentences. The judge also explained that although the normal maximum penalty for the charge was capital punishment, based on the plea bargain offered by the prosecution, the prosecutor would recommend no more than life without parole if the agent pled guilty. Finally, the judge explained that by pleading guilty, the agent would waive his right to a jury trial. Fearing for the safety of his family, the agent pled guilty to the murder charge. Determining that there was a factual basis for the plea, the judge accepted the agent's plea. One month after the arraignment, the U.S. Marshal was arrested and charged with the murder of another witness. The agent, believing his family would now be safe if he disclosed the truth, subsequently filed a motion to set aside his guilty plea. What is the strongest argument in favor of setting aside the guilty plea? Answers: The judge did not determine whether the plea resulted from force or improper threats. The judge did not investigate whether there was any evidence that could prove the agent's innocence. The judge did not personally explain each element of the crime to the agent on the record. The prosecutor's plea bargain unconstitutionally coerced the agent into entering a guilty plea by threatening him with capital punishment.

Answer choice A is correct. A guilty plea is an admission of facts contained in the charging document (e.g., indictment, information). Because a guilty plea constitutes both a confession and a waiver of various constitutional rights, the plea must be both intelligent and voluntary. The record must reflect that the judge has determined that the defendant knows and understands (i) the nature of the charges and their essential elements, (ii) the consequences of the plea (e.g., the maximum and minimum possible sentences, possible immigration consequences), and (iii) the rights that the defendant is waiving (e.g., the right to a trial). The judge must also determine that the plea did not result from force or improper threats. Here, the judge did not ask or determine whether the agent's plea resulted from force or improper threats. Therefore, this is the best argument provided to set aside the guilty plea. Answer choice B is incorrect because a judge need not search for exculpatory evidence before accepting a plea. Answer choice C is incorrect. The judge does not personally need to explain each element of the crime. It is sufficient for the defendant's counsel to explain the nature and elements of the crime to him. Answer choice D is incorrect. A plea bargain may involve the defendant's sentence, such as a promise by the prosecutor to recommend a particular sentence in exchange for the defendant's guilty plea. A defendant's plea made in response to the prosecution's threat to bring more serious charges does not violate the protection of the Due Process Clause against prosecutorial vindictiveness, at least when the prosecution has probable cause to believe that the defendant has committed the crimes. Without more facts, there is no evidence that this plea bargain amounted to unconstitutional coercion or prosecutorial vindictiveness.

Question 6184 A man was drinking at a bar. He started arguing with the man sitting next to him, and the verbal argument quickly escalated into a physical altercation. The two men began punching each other, and then one of the men put on brass knuckles and started to hit the other man. The bartender quickly grabbed a knife from behind the bar, and tried to break up the fight between the two men. The man with the brass knuckles punched the bartender repeatedly. The bartender responded by trying to stab him. However, he accidentally stabbed a woman next to him instead. The woman has filed a battery claim against the bartender to recover damages for the stabbing. Who will prevail? Answers: Correct Answer: The bartender, because he was trying to protect himself from the man. You Selected: The bartender, because he did not intend to stab the woman with the knife. The woman, because the bartender's intent to stab the man transferred to her. The woman, because the bartender was required to retreat before using deadly force.

Answer choice A is correct. A person may use deadly force to defend himself if he has a reasonable belief that force sufficient to cause serious bodily injury or death is about to be intentionally inflicted upon him. In this case, the woman will not prevail because the bartender's use of deadly force, stabbing her with a knife, was reasonable to defend himself from the man's attack using brass knuckles. Answer choice B is incorrect because although transferred intent would usually apply to a misdirected battery, one who acts in self-defense is not liable for injuries to bystanders that occur while he is acting in self-defense, so long as those injuries were accidental, rather than deliberate, and the actor was not negligent with respect to the bystander. Answer choice C is incorrect because the doctrine of transferred intent is negated if the bartender used force necessary to defend himself from serious bodily injury or death. As stated above, one who acts in self-defense is not liable for accidental injuries to bystanders that occur while he is reasonably acting in self-defense. Answer choice D is incorrect. Under the majority rule, a person is not required to retreat before using deadly force.

Question 8370 A patient brought a medical malpractice action against a physician in federal court. The patient's complaint sought $100,000 in damages. The parties met for a Rule 26(f) discovery conference. Twenty days later, the patient had not supplied the physician with a computation of the damages and access to documentary support of that computation. Which of the following would justify the patient's conduct? Answers: The parties agreed, without court approval, to lengthen the time period in which initial disclosures must be made. A party is generally not required to make initial disclosure until 21 days after the discovery conference. The physician has not supplied the initial disclosures that are required of her. The physician has not requested this information.

Answer choice A is correct. Among the initial disclosures that a party must make is a computation of each category of damages claimed by the disclosing party, who must also make available for inspection and copying the documents or other evidentiary material on which each computation is based. Generally, a party must make these initial disclosures at or within 14 days after the parties' Rule 26(f) discovery conference. However, as with many discovery rules, the parties may agree to modify the time in which initial disclosures must be made. Answer choice B is incorrect because the general rule is that a party has 14 days after the parties' Rule 26(f) discovery conference in which to make an initial disclosure, such as the disclosure of a computation of damages. Answer choice C is incorrect because the failure of another party to make initial disclosures does not excuse an opposing party from making initial disclosures. Answer choice D is incorrect because a party is required to make initial disclosures of specific information, including a computation of damages, even though the opposing party does not request this information.

Question 7251 A defendant was charged with allegedly raping a female student when he took her home after their date. The defendant's main defense is that the sexual intercourse was consensual. The student has testified that she was drinking on the evening of the date, but that she remembered everything that happened after she returned with the defendant in his car to his apartment. She testified that she agreed to go to the defendant's apartment, but that when they arrived, he attacked her and raped her in his living room. On cross-examination, the defense asked the student if she remembered the color of the defendant's car that she rode in that evening. She testified that it was black. The defense then tried to admit into evidence a properly authenticated photograph of the defendant's car showing that the defendant's car was actually purple. The prosecution objected. Is the court likely to grant the prosecution's objection? Answers: Yes, because the student should not be impeached on a collateral matter. Yes, because the "rape shield" rule prevents this line of questioning. No, because the student's mistake shows a deficiency in her capacity to recall information. No, because the student can be properly impeached by evidence that contradicts her testimony.

Answer choice A is correct. Generally, a party may not impeach the credibility of a witness by introducing extrinsic evidence of a collateral matter. Instead, the party must accept the witness's testimony. In this case, the student testified inaccurately about the color of the defendant's car, but this mistake is likely irrelevant to the crime at issue in the trial. Therefore, the court is unlikely to find that impeachment as to this collateral matter is proper. Answer choice B is incorrect. Under the "rape shield" rule, evidence offered to prove the sexual behavior or sexual predisposition of a victim (or alleged victim) generally is not admissible in any civil or criminal proceeding involving sexual misconduct. Therefore, the rule is not applicable to this evidence. Answer choice C is incorrect. A witness may be impeached by showing a deficiency in her testimonial capacities to perceive, recall, or relate information. This can be achieved by demonstrating that the witness is physically or mentally impaired, or through evidence of outside interference with the witness's abilities, such as thunder impeding the ability to hear or darkness impeding the ability to see. This rule would likely allow questions about how much the student had to drink that evening or her blood alcohol content if she went to the hospital after the rape, but it is unlikely to allow the admission of extrinsic evidence to contradict her mistake about the color of the defendant's car, which is a collateral matter. Answer choice D is incorrect because, in this situation, the subject of the impeachment is too unrelated to the relevant facts of the case to allow impeachment by extrinsic evidence.

Question 6671 A teenager walking down the sidewalk noticed that a car had been left unlocked with the engine running. The car's owner, a security guard, had parked the car beside the curb in front of his house in order to run in and get a pistol, which he was licensed to carry. As the owner came out his front door with the pistol, the teenager was opening the driver's door. The owner warned the teenager not to enter the car or he would shoot the teenager. The teenager ignored the warning. The owner shot and seriously injured the teenager. The owner has been charged with aggravated battery, which includes battery committed with a deadly weapon. Can the owner successfully assert defense of property as a justification for the shooting? Answers: No, because the owner used deadly force. No, because the owner was negligent in leaving the car running. Yes, because the owner reasonably believed that the teenager was about to steal his car. Yes, because the owner warned the teenager before using force against the teenager.

Answer choice A is correct. Generally, deadly force may not be used in the defense of property. Here, the owner was not permitted to use deadly force to prevent the teenager from entering the car. Answer choice B is incorrect because the owner's right to use force to prevent the theft of his property is not lessened by his failure to take precautionary measures to prevent the theft. However, the owner's right to use force to protect his property generally does not extend to the use of deadly force. Answer choice C is incorrect. Although the property owner's belief that someone is stealing his property must be reasonable, the property owner generally may not use deadly force to prevent the theft of his property. Answer choice D is incorrect because a property owner generally is not justified in using deadly force to prevent the theft of his property, even though the property owner has warned the thief about the use of such force.

Question 7196 Two rock climbers, a man and a woman, decided to climb a rock outcropping over a hiking trail. A few hours later, a park ranger discovered the two rock climbers and a hiker lying injured and unconscious on the trail. It looked like the rock climbers, who were still tethered together, had fallen on the hiker. The park ranger called for medical assistance and, with the other rangers, was able to bring all three injured parties down the mountain to an ambulance. While in the ambulance, the woman regained consciousness. She told the ambulance technician that she and the man had ingested hallucinogenic drugs before their climb, and that as she remembered the incident, the man had unexpectedly jumped when they reached the top of the outcropping. The hiker has sued the other man for negligently inflicting the hiker's injuries. Although the woman is available to testify, the hiker wants to call the ambulance technician to testify as to the woman's account of the fall. May the ambulance technician testify as to the woman's statements? Answers: No, because the statements are hearsay not within any exception. No, because the woman is available to testify. Yes, because the statements could expose the woman to legal liability. Yes, because the statements were made to the ambulance technician.

Answer choice A is correct. Hearsay is a statement that the declarant makes at a time other than while testifying at the current trial or hearing (i.e., an out-of-court statement) that is offered to prove the truth of the matter asserted. Hearsay evidence generally is inadmissible unless it falls within an exception or exclusion set out in the Federal Rules. Here, the woman's statements to the ambulance technician are hearsay. Accordingly, the statements are only admissible if they fall within an exclusion or exception to the hearsay rule. The statements, while relevant, are not an admission by an opposing party because the woman is not a party in the hiker's action. The statements do not fall within any other exclusion. In addition, no exceptions to the hearsay rule apply. Therefore, the statements are inadmissible. Answer choice B is incorrect. The fact that the woman is available to testify would not otherwise preclude the admission of the technician's testimony concerning the woman's statements. However, the testimony is not admissible because it does not fall under a hearsay exception. Answer choice C is incorrect. Although the exposure to legal liability would be sufficient for the woman's statements to fall within the statement against interest exception to hearsay, this exception only applies if the declarant is unavailable to testify. Here, the facts indicate the woman is available to testify. Answer choice D is incorrect. Although a statement made for medical diagnosis or treatment need not be made to a physician, the statement must be made for medical diagnosis or treatment. Even if the woman's statement that the climbers had ingested hallucinogenic drugs before the climb was medically relevant to her treatment or diagnosis, her claim that the man unexpectedly jumped does not fall under this exception.

Question 7218 A manufacturer of hot water heaters sold a unit to a commercial gym for use in their showers. The hot water heater was designed and built with a safety feature that prevented the water from reaching any temperature that would cause second- or third-degree burns to healthy adult skin. The manufacturer delivered and installed the water heater for the gym. After the gym received many complaints from patrons that the showers were always too cold, the gym discovered that the water from the water heater was cooling significantly in the pipes that connected the water heater to the showers. In response, the gym hired a plumber to bypass the safety feature, allowing for a much higher temperature. The showers worked perfectly for many months. However, that winter, the gym had new insulation installed around its plumbing to prevent the pipes from freezing and rupturing. As a result, the water from the hot water heater no longer cooled off in the pipes, and a patron suffered second-degree burns. If the patron sues the manufacturer for strict products liability, is she likely to recover damages? Answers: No, because the gym intentionally bypassed the safety feature. No, because the hot water heater was not unreasonably dangerous until the new insulation was installed. Yes, because the manufacturer failed to warn the patron of the risks posed by the hot water heater. Yes, because the patron, as a foreseeable user of the water from this hot water heater, was an appropriate plaintiff.

Answer choice A is correct. If the product substantially changes between the time it is distributed by the manufacturer and the time it causes an injury, then this change may constitute a superseding cause that cuts off the liability of the original manufacturer. Here, the gym substantially changed the condition of the hot water heater by bypassing the safety feature. This will cut off the manufacturer's liability to the shower's foreseeable users. Therefore, the patron will not be able to recover from the manufacturer. Answer choice B is incorrect. The installation of the new insulation would not legally affect whether or not the water heater itself had a defect that made it unreasonably dangerous. Instead, the hot water heater became unreasonably dangerous when the gym substantially changed its condition, and that danger manifested itself when the insulation was added. Answer choice C is incorrect because there is no evidence that a defect existed in the hot water heater until the gym altered its condition. Therefore, the manufacturer would have no duty to warn anyone of a dangerous condition. Answer choice D is incorrect. Although the patron would have been a proper plaintiff if she could have established a claim against the manufacturer under a theory of strict products liability, the gym's conduct was a supervening cause of the hot water heater's dangerous condition and the patron's injuries. Therefore, she cannot maintain a claim against the manufacturer.

Question 3256 A defendant was indicted for violation of a federal criminal statute that made possession or use of harmful chemicals for non-peaceful purposes illegal. Violation of the statute is punishable by imprisonment. The statute was enacted by Congress to implement a treaty. The defendant admitted that he violated the statute, but contended that the statute violated the Tenth Amendment by interfering with powers reserved to the states. Does the defendant have standing to pursue this challenge? Answers: Yes, because the defendant would suffer an injury in fact from enforcement of the statute. Yes, because the statute exceeded Congress's enumerated powers. No, because the right to assert a Tenth Amendment challenge belongs only to the state. No, because the statute was enacted by Congress to implement a treaty.

Answer choice A is correct. In order to have standing to assert a claim or defense, a person must suffer an injury in fact. Here, the defendant is subject to imprisonment for violation of the statute, which the defendant contends is unconstitutional. Because the defendant has suffered an injury in fact, he has standing to assert the claim. Answer choice B is incorrect because it does not specifically address the defendant's standing to challenge the statute, but instead is an argument as to why the statute is unconstitutional. Answer choice C is incorrect because an individual, as well as a state, may have standing to challenge a federal statute on Tenth Amendment grounds. Answer choice D is incorrect because it does not specifically address the issue of the defendant's standing to challenge the statute, but instead is an argument as to why the statute is constitutional.

Question 7306 In response to a local increase in the sale of illegal narcotics, a police department began conducting random vehicle stops on a particular street to check for suspicious behavior. Pursuant to this policy, an officer stopped a vehicle one night and asked the driver to produce his license and registration. As the driver looked for these documents, the officer swept his flashlight across the vehicle's rear windows and noticed an open manila envelope on the back seat. A stack of cash wrapped in a rubber band was visible inside the open bag. Suspecting that the cash was from a drug sale, the officer ordered the driver to step out of the vehicle. When the officer patted down the driver's outer clothing, the officer found an unlicensed firearm. In the driver's subsequent trial for possession of an unlicensed firearm, the driver's lawyer has moved to suppress the firearm under the exclusionary rule. How should the court rule on the driver's motion? Answers: Suppress the firearm, because the officer did not have reasonable suspicion to stop the driver's car. Suppress the firearm, because the driver had a reasonable expectation to privacy in the manila envelope. Admit the firearm, because the traffic stop was temporary and lasted no longer than was necessary to effectuate its purpose. Admit the firearm, because the officer had reasonable suspicion that the driver was involved in a drug sale.

Answer choice A is correct. Police generally may not stop an automobile, even for a driving-related matter, without a reasonable, individualized suspicion of a violation of the law, unless the stop is effected on the basis of neutral, articulable standards. Here, randomly stopping vehicles to check for suspicious behavior does not overcome the general requirement of reasonable suspicion. Therefore, the stop was invalid, and evidence seized in a subsequent pat-down of the driver should be excluded. Answer choice B is incorrect because, had the stop been a valid seizure supported by reasonable suspicion, the contents of the open envelope would be in the officer's plain view. Therefore, the fact that the money was in the envelope will not make the firearm inadmissible. Answer choice C is incorrect. A "Terry stop" is a limited and temporary intrusion on an individual's freedom of movement that must last no longer than is necessary to effectuate the purpose of the stop. However, the stop itself still must be justified by reasonable suspicion. Here, the initial stop was neither supported by reasonable suspicion nor affected on the basis of neutral, articulable standards, and therefore was not a lawful traffic stop. Answer choice D is incorrect. When the chain of causation between the primary taint and the evidence has been so attenuated as to "purge" the taint, evidence that could otherwise be subject to the exclusionary rule may be admissible. For example, the discovery of an arrest warrant during an unlawful investigatory stop can attenuate the connection between the unlawful stop and the evidence seized incident to arrest. However, the development of reasonable suspicion during an unlawful investigatory stop does not lead to a valid search incident to an arrest. Therefore, the development of reasonable suspicion during this stop will not attenuate the connection between the beginning of the unlawful stop and the evidence seized in the driver's investigatory pat-down.

Question 7118 A mother purchased a used crib from a private estate auction. The estate sale was held by an auctioneer who often sold used personal property, including furniture, at auctions for estate sales. The crib was not assembled when the mother purchased it, so the mother put it together by herself when she got home. A few nights later night, the crib collapsed while her baby was sleeping in it. The baby fractured her wrist in the fall. The mother sued the auctioneer under a strict products liability theory. At trial, it was established that the crib was defective as purchased from the auctioneer, but that the mother was 20% at fault because she failed to screw in one slat of the crib properly. Is the mother likely to be able to collect damages from the auctioneer for her baby's injuries? Answers: No, because the auctioneer is not a seller subject to strict liability. No, because the mother was partially at fault for the crib collapsing. Yes, because the auctioneer was in the business of selling furniture. Yes, because the auctioneer sold a defective crib to the mother.

Answer choice A is correct. To be subject to strict liability for a defective product, the defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff. This includes the manufacturer of the product, its distributor, and its retail seller. However, an auctioneer of a product generally is not subject to strict liability with respect to the products auctioned. For this reason, the mother is unlikely to be able to collect damages from the auctioneer in this action. Answer choice B is incorrect because in a comparative fault jurisdiction (which is the default on the bar exam), a plaintiff can still recover even if they are contributorily negligent. Answer choice C is incorrect. Although the auctioneer was in the business of auctioning personal property, he was not in the business of selling furniture as a retail seller. Because an auctioneer of a product generally is not subject to strict liability with respect to the products auctioned, the auctioneer is unlikely to be liable here as a retail seller. Answer choice D is incorrect because, as an auctioneer, the defendant probably is not a proper defendant for a strict product liability action even if the crib was defective.

Question 4891 An employer filed suit in state court against a former employee. The employee was domiciled in the same state in which the employer was incorporated and had its principal place of business. The employer's complaint alleged that the former employee violated an employment agreement and sought damages of $50,000 for the violation. The employee, after timely filing a compulsory counterclaim against the employer for federal patent infringement, timely filed a petition for removal with the proper federal district court. The petition asserted the existence of subject-matter jurisdiction on the basis of a federal question. In response, the employer filed a motion to remand the case to state court for lack of subject-matter jurisdiction. In ruling on this motion, the district court remanded the case to state court. Which of the following would support the court's action? Answers: The well-pleaded complaint rule. The employer's satisfaction of its burden of proving lack of jurisdiction. Lack of diversity of citizenship. Failure to satisfy the amount-in-controversy requirement.

Answer choice A is correct. Under the well-pleaded complaint rule, federal question subject-matter jurisdiction exists only when the federal law issue is presented in the plaintiff's complaint. It is not sufficient that a defendant's counterclaim, even a compulsory counterclaim, arises from federal law. Here, the employer's complaint alleged a state law cause of action, the employee's breach of a contract with the employer. Consequently, there was a lack of subject-matter jurisdiction based on the existence of a federal question, even though the employee's compulsory counterclaim clearly asserted a federal law claim. Answer choice B is incorrect because the burden of proving the existence of subject-matter jurisdiction rests with the party who is asserting the existence of such jurisdiction. In this case, that burden rests with the employee-defendant who removed the action to federal court. Answer choice C is incorrect because, although diversity of citizenship does not exist when both parties are citizens of the forum state, diversity of citizenship is not required when subject-matter jurisdiction is based on a federal question. Answer choice D is incorrect because, although the $50,000 amount-in-controversy in this case did not meet the threshold requirement of an amount over $75,000, there is no amount-in-controversy requirement when subject-matter jurisdiction is based on a federal question.

Question 7057 A municipality enacted an ordinance detailing a mandatory movie-ratings system for all theaters in the municipality. The ordinance also prohibited minors from showings of movies with certain ratings indicating obscene imagery or language. A movie theater located in the municipality did not want to adhere to the ordinance's rating system, and filed a case in state court challenging its constitutionality based upon the freedoms of speech provided in the state and federal constitutions. The state court found that the ordinance violated both the state constitution and the federal Constitution, and ruled in favor of the movie theater. The municipality appealed to the state supreme court. The state supreme court sustained the ruling of the lower court in part, declining to decide the issue under the federal Constitution because the state constitution, which granted greater protection than the federal Constitution to obscene speech, was clearly violated by the ordinance. The municipality subsequently filed a writ of certiorari with the U.S. Supreme Court. What should the U.S. Supreme Court do in response to the writ of certiorari? Answers: Remand the case to the state supreme court Dismiss the writ of certiorari Reverse the state supreme court's decision Affirm the state supreme court's decision

Answer choice B is correct. A final judgment by a state court that rests on adequate and independent state grounds may not be reviewed by the U.S. Supreme Court. The state-law grounds must fully resolve the matter (i.e., be adequate) and must not incorporate a federal standard by reference (i.e., be independent). Here, the state supreme court noted that the state constitution granted more protection to obscene speech than the federal Constitution. Therefore, the state ground relied upon in this case is independent because it does not rely on or incorporate a federal standard. The finding also fully resolves the issue. Because states may grant greater protections than the federal Constitution without violating federal law, once the court found that the ordinance violated the state constitution it became unnecessary to resolve the federal issue. Thus, the state supreme court's decision rested upon adequate and independent state grounds, and the U.S. Supreme Court should dismiss the writ of certiorari. For this reason, answer choices A, C and D are incorrect.

Question 4945 A plaintiff properly filed a civil action for breach of contract in a federal district court sitting in diversity. During voir dire, the defendant's attorney questioned a prospective juror about his familial relationship to the plaintiff. The potential juror stated that he was the plaintiff's third cousin, but also stated that he had not had any dealings with the plaintiff in over 20 years. The defendant challenged this prospective juror for cause, due to his potential bias. After questioning the prospective juror about his ability to give a fair trial to all parties and receiving an affirmative reply, the court denied the challenge. The defendant, having exercised three peremptory challenges, sought to excuse the potential juror by exercising a fourth peremptory challenge. Should the court permit the defendant to exercise a fourth peremptory challenge? Answers: No, because the court had denied the defendant's challenge for cause with respect to this prospective juror. No, because the defendant has already exercised his peremptory challenges. Yes, because a party has an unlimited number of peremptory challenges, provided such challenges are not made for racial- or gender-based reasons. Yes, because a court cannot dictate how a party exercises peremptory challenges that are not made for racial- or gender-based reasons.

Answer choice B is correct. A party in a federal civil action is entitled to three peremptory challenges. Because the defendant has already exercised three peremptory challenges, the court should deny the defendant's request to exercise a fourth. Answer choice A is incorrect because a party is not prohibited from exercising a peremptory challenge with respect to a prospective juror whom the party has unsuccessfully challenged for cause. Answer choice C is incorrect. While it is true that a party cannot exercise a peremptory challenge that is made for racial- or gender-based reasons, a party is entitled to only three peremptory challenges. Answer choice D is incorrect. Although a court generally cannot prevent a party from exercising a peremptory challenge unless the challenge is made for racial- or gender-based reasons, in this instance the court's refusal to permit the defendant to exercise the peremptory challenge is not based on the reason for the challenge, but on the statutory, numerical limit imposed on such challenges.

Question 7509 An individual purchased a building previously used for industrial purposes and converted it into 25 spaces for lease. The individual attached a sign to the outside of the building that prominently displayed the words "Homemade Local Crafts" because her plan was to fill the building with tenants who were local artisans. Because of rental rates well below the market rates, 23 local artisans rapidly entered into oral one-year leases with the individual. With regard to each lease, the artisan promised to display and sell in the leased space only items that the artisan had personally created. The individual orally leased the 24th space for one-year to a seller of exotic specialty foods that the seller acquired from producers in various places throughout the world. Because the individual was very good friends with the seller, the individual did not extract from the seller the same promise that the individual had required of the other tenants nor did the individual mention having done so with regard to the other tenants. When the artisans who were tenants, all of whom had complied with the promise they made to the individual, learned of the seller's tenancy, they objected. The individual, however, refused to rescind the seller's lease. Which of the following is the best theory for the artisans to obtain an injunction against the seller? Answers: Express equitable servitude Implied reciprocal servitude License Real covenant

Answer choice B is correct. An implied reciprocal servitude must meet the following requirements to be enforceable: (i) there must be intent to create a servitude on all real property interests (i.e., a common scheme); (ii) the servitude must be negative (i.e., a promise to refrain from doing something); and (iii) the party against whom enforcement of the servitude is sought must have actual, record, or inquiry notice. Reciprocal negative servitudes are implied from the common scheme. Here, the landlord (i.e., the individual) evidenced an intent for the tenants to display and sell only items they created both in the naming of the building and in imposing this restriction on the 23 artisan-tenants. In addition, the servitude, although phrased in terms of what could be displayed and sold, effectively prohibited the artisan-tenants from displaying and selling items that they did not create. Also, although the food seller was not told about this servitude by the landlord and did not have record notice of the servitude as all of the leases were oral rather than written, the food seller arguably had inquiry notice from the building's sign and the adherence of the other tenants to this restriction. Answer choice A is incorrect because, unlike an express equitable servitude, no writing is required for an implied reciprocal servitude. Answer choice C is incorrect. A license is a nonpossessory right to enter another's real property for some delineated purpose. Although a license, unlike a real covenant or an express equitable servitude, does not require a writing, here, each artisan was a tenant pursuant to a lease who had the right to possess his or her space to the exclusion of others, not licensees who only possess the right to enter the property of another. Answer choice D is incorrect because a real covenant, like an express equitable servitude, requires that the covenant be in writing.

Question 7387 In a single growing season, a virulent parasite infected a large number of acres of wheat across a state. In response to the crisis, Congress established a program by which affected wheat farmers could sell their infected acres to the federal government for fair compensation. Many farmers opted into the program, and the federal government obtained thousands of acres of wheat fields. Congress then established a second program by which the acquired land was leased out to corn and soybean farmers, as studies had shown that these crops could replenish soil after it had been used to grow wheat. Due to the low cost of leasing the land, the farmers were able to sell the crops on the local market at a lower price than other farmers for a substantial profit. Corn and soybean farmers who farmed other land in the state bought an action challenging the constitutionality of the program leasing land to soybean and corn farmers. Which of the following provides the strongest constitutional support for the challenged program? Answers: The Commerce Clause of Article I The Federal Property Clause of Article IV The General Welfare Clause of Article I The Takings Clause of the Fifth Amendment

Answer choice B is correct. Article IV, Section 3 gives Congress the "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." There is no express limit on Congress's power to dispose of property owned by the United States. Here, the property power of Article IV enables Congress to lease federal property to whomsoever it wishes. Answer choice A is incorrect because, for this program to be authorized by congressional authority over interstate commerce, there must be evidence that the program affects conduct that has an aggregate effect on interstate commerce. Here, it is unclear whether there is activity that has an aggregate effect on interstate commerce. Moreover, because the Federal Property Clause requires no such proof, it is a stronger source of authority for this program. Answer choice C is incorrect because Congress cannot legislate for the general welfare; they can only tax and spend for the general welfare. Answer choice D, although providing strong support for the program that allowed the federal government to purchase this land, does not support the program concerning Congress's later use or disposition of the property. Therefore, the Federal Property Clause provides direct authority for the challenged program.

Question 4343 A real estate agent approached a homeowner and told her that he represented a developer who intended to build an industrial facility near the homeowner's home. The agent told the homeowner that the developer had already received the zoning variance necessary to build the facility, and that the plans had been approved by the city council. The agent informed the homeowner that the value of other homes in the area had dropped significantly whenever such variances were granted, and offered to purchase the home at a 25% discount. The homeowner agreed to the sale. In fact, the agent was aware that no such variance had been granted, and that the developer had no plans to build an industrial facility. After title to the home passed to the real estate agent, the homeowner discovered the agent's falsehood. The agent was charged with the crimes of larceny by trick and false pretenses in a jurisdiction that has extended these crimes to cover real property. For which crimes is the agent likely to be convicted? Answers: The agent is likely to be convicted of both false pretenses and larceny by trick. The agent is likely to be convicted of false pretenses, but not larceny by trick. The agent is likely to be convicted of larceny by trick, but not false pretenses. The agent is unlikely to be convicted of either crime.

Answer choice B is correct. At common law, false pretenses requires obtaining title to the property of another person through the reliance of that person on a known false representation of a material fact, and the representation is made with the intent to defraud. Larceny by trick occurs when a defendant obtains possession of but not title to property owned by another through fraud or deceit, with the intent to permanently deprive the victim of that property, resulting in the conversion of the property. In this case, the agent told the homeowner that an industrial variance had been granted, and gained title to the home through the homeowner's reliance on this misrepresentation. Because this misrepresentation was intentionally made, and the homeowner relied on that false fact, the agent could be convicted of false pretenses. Answer choices A and C are incorrect because larceny by trick occurs when a defendant obtains possession but not title to property. In this case, the defendant did actually obtain title to the property, and thus would be guilty of false pretenses rather than larceny by trick. Answer choice D is incorrect because the agent is likely to be convicted of false pretenses due to the false representation that resulted in her gaining title to the property.

Question 4895 Two parked vehicles, a luxury car and a pickup truck, were seriously damaged when a light pole fell on them. The owners of the vehicles jointly sued the installer of the pole in federal district court, alleging that the damage to their vehicles was caused by the defendant's negligent installation of the pole. The owner of the car claimed $75,000 in damages and the owner of the truck claimed $15,000 in damages. The defendant was a citizen of the forum state. Each plaintiff was a citizen of the same neighboring state. Contending a lack of subject-matter jurisdiction, the defendant timely filed a motion to dismiss the action. The court granted the motion. Did the court err in granting the motion? Answers: No, because the plaintiffs are citizens of the same state. No, because the amount-in-controversy requirement was not met. Yes, because the defendant is a citizen of the forum state. Yes, because the plaintiffs' claims arose out a common nucleus of operative fact.

Answer choice B is correct. In order for subject-matter jurisdiction based on diversity to exist, the amount in controversy must exceed $75,000 and no plaintiff may be a citizen of the same state as any defendant. Although the diversity-of-citizenship requirement is met because the plaintiffs and the defendant reside in different states, the amount-in-controversy requirement is not met by either plaintiff. The damages sought by each, although arising from the same occurrence, cannot be aggregated to meet this requirement. Since neither plaintiff sought damages in excess of $75,000, the federal district court did not err in dismissing the case for lack of subject-matter jurisdiction. Answer choice A is incorrect because the fact that both plaintiffs are citizens of the same state is not grounds for dismissing the case. Diversity jurisdiction only requires complete diversity between opposing parties in a case. Parties on the same side may be citizens of the same state without destroying diversity jurisdiction. Answer choice C is incorrect because, although a defendant in an action brought in state court may not remove the case to federal court when the defendant is a citizen of the forum state, there is no similar restriction on initially bringing an action in federal court. Answer choice D is incorrect. A court may exercise supplemental jurisdiction over a plaintiff's claim for which the court does not otherwise have subject-matter jurisdiction if there is a common nucleus of operative fact with another plaintiff's claim over which there is subject-matter jurisdiction. In this case, however, the court does not have subject-matter jurisdiction over the claim of either plaintiff because neither claim exceeds $75,000.

Question 5964 A potential gang member was required to go through an initiation in order to formally join the gang. The head of the gang told the potential member that he had to drive the getaway car in a robbery for his initiation task. Three members of the gang, including the gang leader, went to a bank one morning and held up the bank tellers. When they emerged from the bank, the potential member, who had been waiting around the corner, pulled up outside the bank in a car and drove them away. Bank security cameras recorded the gang members in the act of robbing the bank. When they were arrested, the gang members told the police that the potential gang member had driven the getaway car. He was subsequently arrested for robbing the bank. Will the potential gang member likely be convicted of robbery? Answers: Yes, because he was an accessory before the fact. Yes, because he was a principal in the second degree. No, because he did not enter the bank and hold up the tellers. No, because he was under duress.

Answer choice B is correct. Under the majority and MPC rule, an accomplice is a person who, with the purpose of promoting or facilitating the commission of the offense, aids or abets a principal prior to or during the commission of the crime. An accomplice to the crime can be convicted of the crime, even if he was not involved in the principal's criminal actions. An accomplice is responsible for the crime to the same extent as the principal. Here, the potential gang member, as an accomplice, can be convicted of robbery even though he did not enter the bank or hold up the tellers. Answer choice C is therefore incorrect. Answer choice A is incorrect. The difference between an accessory before the fact and a principal in the second degree is presence. An accomplice who is physically or constructively present during the commission of the crime is a principal in the second degree. For example, a getaway driver some distance from the scene is deemed constructively present and will be considered a principal in the second degree. An accomplice who is neither physically nor constructively present during the commission of the crime, but who possesses the requisite intent, is an accessory before the fact. Here, the potential gang member was constructively present at the crime scene because he was the getaway driver parked around the corner from the bank. Thus, he was a principal in the second degree, not an accessory before the fact. Answer choice D is incorrect because needing to commit a crime to join a gang is not an example of duress. A third party's unlawful threat that causes a defendant to reasonably believe that the only way to avoid death or serious bodily injury to himself or another is to violate the law, and that causes the defendant to do so, allows the defendant to claim the defense of duress. In this case, the potential gang member committed the bank robbery as part of an initiation process into the gang, not because it was the only way for him to avoid death or serious bodily injury.

Question 8400 After graduating from college, a man lived at home with his parents. He purchased a life insurance policy and named his parents as its beneficiaries. Three months later, he was found dead at the base of a cliff. The insurance company, contending that the man had died by suicide, refused to honor the policy. The parents sued the insurance company to compel it to pay them as beneficiaries of the policy. At trial, the man's mother testified that she had read the man's diary entries during the weeks leading up to his death. Although the diary itself was not found with the man's belongings after his death despite a good-faith search by his parents, the court permitted the mother to recount from memory several life-affirming passages from the diary, such as "I'm having the time of my life," and to testify that, in her opinion based upon those passages, her son was not suicidal. Did the court err in permitting the mother to recount the diary entries and to express her opinion as to her inference from her son's diary entries? Answers: No, because the best-evidence rule does not apply to the mother's testimony as to the diary entries. No, because the mother based her opinion on the passages from her son's diary, which she had read. Yes, because the diary itself is the best evidence of its contents and has not been introduced into evidence. Yes, because the mother's testimony as to diary passages is inadmissible hearsay.

Answer choice B is correct. Unlike an expert witness, a lay (non-expert) witness is only permitted to testify as to the witness's opinion when that opinion is based on the witness's perceptions. Here, the mother's opinion is based on the passages in her son's diary, which she had read, and what those passages reveal about her son's state of mind. Answer choice A is incorrect. While the best-evidence rule does apply to the mother's testimony as to the passages from her son's diary, the best-evidence rule allows testimony about the contents of a writing when the original has been lost, and the proponent is acting in good faith. Here, despite a good-faith search by the man's parents, the diary cannot be located. Therefore, the best-evidence rule, although applicable, does not require the diary to be admitted. Answer choice C is incorrect. Regarding the mother's testimony as to the passages from her son's diary, the diary is an original document that constitutes the best evidence of those passages. However, when the document has been lost and there is no evidence that the proponent acted in bad faith regarding its loss, the contents of the writing may be proved by other means. Here, the diary has not been found despite a good-faith search by the man's parents. Consequently, the court could permit the man's mother to testify as to its contents. Answer choice D is incorrect. Hearsay is a statement that the declarant makes at a time other than while testifying at the current trial or hearing (i.e., an out-of-court statement) that is offered to prove the truth of the matter asserted. Here, while the mother did testify as to the contents of the man's diary, her testimony was not to establish the truth of what the man wrote (e.g., that he was having the time of his life) but instead to support her lay opinion that he was not in the emotional state of someone who would commit suicide.

Question 7527 On a Saturday evening out with his friends at a local bar, a man got into a fight and punched a bouncer. The bouncer fell and hit his head, triggering an aneurysm. The bouncer died from his injuries later that evening. Despite claiming that the bouncer was the initial aggressor, the man was charged with murder. At his trial, although he will not testify, the man intends to claim self-defense and plans to call a witness to testify as to the bouncer's reputation for initiating fights. How should the court rule on the admissibility of this testimony? Answers: Exclude the testimony, because it is inadmissible character evidence. Exclude the testimony, because the prosecution must first introduce evidence of the bouncer's good character. Admit the testimony, because it is a proper use of character evidence relevant to the man's defense. Admit the testimony, because it is relevant to the man's character for truthfulness.

Answer choice C is correct. A criminal defendant may introduce reputation or opinion evidence of the alleged victim's character when it is relevant to the defense asserted. In this case, the man intends to introduce evidence of the bouncer's reputation for initiating fights in support of his claim of self-defense. In this context, the court should admit the evidence. Answer choice A is incorrect because the defendant is permitted to admit evidence of the bouncer's character to support his claim of self-defense. Answer choice B is incorrect because it misstates the law. Generally, the prosecution may offer rebuttal evidence of the alleged victim's good character only after the defendant has introduced evidence of the alleged victim's bad character. There is no requirement that the prosecution first introduce evidence of the victim's good character in order for the defendant to be able to present evidence of the victim's bad character. Answer choice D is incorrect. Although the witness's testimony would support and is likely relevant to the man's character for truthfulness in claiming that the bouncer was the initial aggressor, the man's character for truthfulness has not been called into question by the prosecution (i.e., he has not been impeached). Evidence of the truthful character of a witness is admissible only after the witness's character for truthfulness has been attacked. Moreover, the man will not testify at trial, so his truthfulness will not be called into question.

Question 6552 The owner of a pit bull had to go on a weeklong business trip. He hired a dog sitter to take care of the pit bull while he was gone. The owner had erected a three-foot-high picket fence around his front yard to allow the pit bull to move around without a leash. The owner had rescued the pit bull from an illegal dogfighting facility, and the pit bull's dogfighting instincts had not yet dissipated. However, the owner did not warn the dog sitter of these facts because he did not want the dog sitter to refuse the job, and the fence had always successfully restrained the pit bull in the past. After the owner left on his trip, the dog sitter allowed the pit bull to roam around the front yard without a leash while he talked on the phone. The pit bull spotted a pedestrian walking next to the fence. When the pedestrian got close, the pit bull sprung up on its hind legs, leaned over the fence, and bit the pedestrian. The pedestrian has filed a strict-liability action for damages against the owner. Who will prevail? Answers: The owner, because he used reasonable care to prevent the pit bull from harming anyone by erecting the fence. The owner, because the owner of a domestic animal is not strictly liable for injuries caused by it. The pedestrian, because the owner knew that the pit bull's dogfighting instincts had not dissipated. The pedestrian, because the owner is liable for the dog sitter's negligence.

Answer choice C is correct. A domestic animal's owner is strictly liable for injuries caused by that animal if he knows or has reason to know of the animal's dangerous propensities, and the harm results from those dangerous propensities. Here, the owner knew that the pit bull used to be in dogfights, and that his dog fighting instincts had not yet dissipated. Therefore, he is strictly liable for the injuries to the pedestrian. Answer choice A is incorrect. The owner is strictly liable for the harm caused by the pit bull. Accordingly, the reasonable care he took to prevent the pit bull from harming anyone is irrelevant. Answer choice B is incorrect because a domestic animal's owner is strictly liable for injuries caused by that animal if he knows or has reason to know of the animal's dangerous propensities, and the harm results from those dangerous propensities. In this case, the owner knew of the pit bull's dangerous propensities and the injuries to the pedestrian resulted from those propensities. Answer choice D is incorrect because the dog owner will be primarily and strictly liable for the injuries to the pedestrian, regardless of any negligence on the part of the dog sitter.

Question 7425 A recently enacted state statute bans the importation of unshelled pecans into the state from other states. The statute is designed to protect pecans grown in the state from insects that live in the shells of pecans. The insects have not been found in the pecans grown in the state. An out-of-state grower and seller of pecans has challenged the statute in federal court as a violation of the Dormant Commerce Clause, alleging that the statute facially discriminates against out-of-state commerce. Should the court grant judgment to the out-of-state grower? Answers: Yes, because the statute facially discriminates against pecans grown out-of-state, constituting a per se violation of the Dormant Commerce Clause. Yes, if the out-of-state grower can also establish that the statute imposes an undue burden on interstate commerce. No, if the state can establish that no other nondiscriminatory means are available to protect the health of locally grown pecans. No, because the state can establish a substantial nexus between the health of locally grown pecans and the import of out-of-state pecans.

Answer choice C is correct. A state statute discriminates against out-of-state commerce if it protects local economic interests at the expense of out-of-state competitors, which this statute clearly does. If a state statute, on its face or in practice, is discriminatory, then the statute may be upheld if the state can establish that (i) an important local interest is being served, and (ii) no other nondiscriminatory means are available to achieve that purpose. While the state can show that an important local interest is being served, the state must also show that no other nondiscriminatory means are available to achieve the state's purpose of protecting the health of locally grown pecans. Answer choice A is incorrect because a facially discriminatory state statute may nevertheless be upheld if it serves an important local interest and no other nondiscriminatory means are available to achieve that purpose. Answer choice B is incorrect. In order for a plaintiff to establish that the Dormant Commerce Clause prohibits a state statute, the plaintiff needs to show that the statute either discriminates against out-of-state commerce or places an undue burden on interstate commerce. The plaintiff need not establish both discrimination against out-of-state commerce and an undue burden on interstate commerce. Answer choice D is incorrect because the substantial nexus test is relevant to state taxation of commerce, not the Dormant Commerce Clause.

Question 4298 A woman visited a miniature golf course with a companion. While the couple was playing a hole near the edge of the course, the woman noticed a gated fence with a sign reading "NO ENTRY - AUTHORIZED PERSONNEL ONLY." She turned the handle of the gate, which opened readily, and stepped through the gate into an undeveloped part of the grounds. As she walked through the area, she stepped into an exposed drainage pipe and broke her ankle. The woman sued the golf course for her injuries. The golf course filed a motion to dismiss, claiming that it did not breach any duty owed to the woman. How should the court rule? Answers: The court should deny the motion, because invitees are owed the greatest duty of care by landowners. The court should deny the motion, because the golf course had a duty to conduct reasonable inspections of the property to make it safe for invitees. The court should grant the motion, because the woman exceeded the scope of her invitation when she opened the gate and entered the off-limits area. The court should grant the motion, because the golf course satisfied any duty owed to the woman by warning her of known dangerous conditions by posting the sign.

Answer choice C is correct. An invitee is one who enters the land of another by invitation, often, but not necessarily, for the business purposes of the landowner. A landowner owes the greatest duty of care to invitees: he is under the same obligations owed to licensees (duty to warn and to use reasonable care), but he also must conduct reasonable inspections of his property and make the property safe for the protection of invitees. A landowner is liable for any negligence that causes an invitee to be injured due to unsafe conditions. The duty of care owed to an invitee does not extend beyond the scope of the invitation, however, and the invitee is treated as a trespasser in areas beyond that scope. Here, the woman entered an area that was off-limits to guests and exceeded the scope of her invitation; thus, she was a trespasser when she entered the off-limits area. Landowners owe no duty to undiscovered trespassers, and they owe discovered or anticipated trespassers a duty to warn or protect them from concealed dangerous artificial conditions only. Here, the drainage pipe was exposed, so even if the golf course had anticipated that guests might choose to enter the off-limits area, it had no duty to warn them of an obvious dangerous condition. Answer choice A is incorrect because, although landowners generally owe invitees the greatest duty of care, there is no such duty when invitees exceed the scope of their invitation. Answer choice B is incorrect because it describes the duty owed to invitees. The woman exceeded the scope of her invitation when she entered the off-limits area, and thus the golf course owed her only those duties owed to a trespasser. Answer choice D is incorrect because the golf course did not have a duty to warn the woman of the drainage pipe. Even if the woman was considered an anticipated trespasser, the golf course owed her a duty only to warn or protect her from concealed dangerous artificial conditions. Because the drainage pipe was not concealed, the golf course did not have a duty to warn the woman of its existence.

Question 5924 A woman and a man were living together in a house owned by the man when they broke up. The man told the woman to leave and changed all the locks in his house. The woman, wanting to take the man's television to punish him, asked her friend to help her, telling her friend that the woman owned the television. One night, the friend helped the woman pick the lock on a back door while the boyfriend was away. Once inside, the woman pointed out the television. The friend carried the television out to the woman's car. She drove to her new apartment where her friend brought the television inside. When the man discovered the television was gone, he broke into the woman's new apartment one night, and retrieved the television. The jurisdiction continues to follow the common law with regard to the crime of burglary. Given these facts, which, if any, of these individuals is guilty of burglary? Answers: None of them. The friend and the woman. Only the woman. Only the man.

Answer choice C is correct. Burglary is the breaking and entering of the dwelling of another at nighttime with the specific intent to commit a felony therein (in this case, larceny). Persons taking back their own property or taking property in the honest but mistaken belief that the property belongs to someone who has authorized them to take it lack the intent to steal required for larceny. In this case, all of the elements of burglary are satisfied as to all three individuals, except for the specific intent requirement. The friend and the man lacked the requisite criminal intent for burglary. Only the woman had the requisite specific intent. The man's house was no longer her dwelling. Although she did not remove the television from the man's house, she entered the house with the specific intent to deprive the man of the television (i.e., to steal). Answer choice A is incorrect because the woman had the requisite criminal intent for burglary. Answer choice B is incorrect because the friend thought he was helping the woman retrieve her property, and therefore lacked the requisite intent for burglary. Answer choice D is incorrect because the man was retrieving his property, and therefore lacked the requisite intent for burglary.

Question 6476 An inmate filed a § 1983 claim against a state prison officer in federal court for an alleged denial of medical care. The complaint alleged that, due to the prison officer's refusal to bring the inmate to a dentist upon request, the inmate lost most of his teeth to decay. As a result, the inmate alleged that he was unable to eat most of the food provided by the prison, and had lost a dangerous amount of weight. The inmate attached no exhibits to his complaint. The prison officer filed a response that alleged that the inmate had removed his own teeth with pliers when unattended in the shower. The prison officer attached an affidavit from the prison dentist confirming this account of the incident. He also attached the inmate's dental records, which also supported his story. The prison officer then filed a motion for summary judgment. At the hearing on this motion, the inmate contended that the prison was operated by liars, and that his story was true. Should the court grant the motion for summary judgment? Answers: No, because the court may consider only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice. No, because the court must construe all evidence in the light most favorable to the nonmoving party. Yes, because the inmate has failed to show a genuine dispute for trial. Yes, because a reasonable jury could return a judgment in favor of the prison officer.

Answer choice C is correct. Under Rule 56, a motion for summary judgment is applicable to all civil actions and must be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. If a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in his own pleading. Because the inmate in this case has presented only conclusory allegations and denials, the court should grant the motion for summary judgment. Answer choice A is incorrect because it lists what the court may consider in deciding a motion to dismiss, and the court is not limited to considering the complaint when considering a motion for summary judgment. Answer choice B is incorrect because, although it states true law, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. Here, the inmate has not met the burden to defeat the motion for summary judgment, even with the evidence weighed in his favor. Answer choice D is incorrect. It is not sufficient that a reasonable jury could return a verdict in favor the moving party. Instead, to establish that there is no genuine dispute as to any material fact, the moving party must show that that a reasonable jury could not return a verdict in favor of the nonmoving party (here, the inmate).

Question 7482 A defendant was on trial for murder. The pastor of his church was called as a character witness. The pastor testified that the defendant has a reputation in the community for peacefulness. On cross-examination, the prosecutor, seeking to impeach the pastor and having a good-faith basis for his question, asked the pastor if he had a violent temper. Of the following, which is the defense attorney's best basis for objecting to this impeachment question? Answers: The question exceeds the scope of the direct examination of the pastor. The question does not relate to the defendant's character. The question constitutes impermissible character evidence. The question violates the limitation imposed on evidence of a witness's religious beliefs or opinions.

Answer choice C is correct. While character evidence (i.e., generalized information about a person's behavior) can be admissible for impeachment purposes, such as to show the witness's character of untruthfulness, character evidence is generally inadmissible. Here, the prosecutor is attempting to show that the pastor, a violent person, is a bad person and therefore should not be believed. Because this is not directly related to the pastor's truthfulness, it is impermissible character evidence. Answer choice A is incorrect because cross-examination of a witness can include questions about the credibility of the witness. Consequently, the question is not impermissible on the basis that it exceeds the scope of the direct examination, as a question properly impeaching the witness would be admissible. Answer choice B is incorrect because any witness may be impeached by certain types of character evidence. Answer choice D is incorrect because, while evidence of witness's religious beliefs or opinions is not admissible to attack or support a witness's credibility, the prosecution's question regarding whether the pastor was a violent person does not relate to the pastor's religious beliefs or opinions.

Question 7786 A skier sued a ski resort company in federal court based on diversity jurisdiction for injuries she sustained when she collided with trail maintenance equipment being operated by a company employee. In its instructions to the jury, the court failed to state that, under the applicable state law, the skier could not recover if she was more than fifty percent at fault. The skier's attorney did not object to this omission. The jury returned a special verdict, finding that the skier was 65 percent at fault and the company 35 percent at fault; the court entered judgment dismissing the skier's complaint. The skier's attorney moved for a new trial, which the trial court denied. On appeal, the skier's attorney contended that the trial court's failure to instruct the jury as to the 50-percent standard constituted plain error, which mandated a new trial. The law of the state in which the federal district court sits does not recognize the plain error rule. On which of the following grounds can the appellate court deny the motion? Answers: The plain error rule applies only in criminal, not civil cases. The plain error rule does not apply in a case based on diversity jurisdiction when the law of the state in which the federal court sits does not recognize this rule. The failure of the skier's attorney to object to the omission of a jury instruction on the 50-percent standard precludes the application of this rule. The omission of the 50-percent standard did not affect the skier's substantive rights.

Answer choice D is correct. A court may consider a plain error in jury instructions that affects substantial rights. Here, based on the jury's special verdict that the plaintiff was 65 percent at fault for the accident, the appellate court could conclude that the trial court's failure to give the 50-percent standard instruction did not affect the skier's substantive rights. Answer choice A is incorrect because the plain error rule is applicable in civil as well as criminal cases. Answer choice B is incorrect because, under the Erie doctrine, a federal court generally applies federal rather than state procedural rules in an action based on diversity jurisdiction. Here, FRCP 51(d)(2) provides that a court may consider a plain error in jury instructions that affects substantial rights. Answer choice C is incorrect because the plain error rule applies in situations in which a party failed to preserve an objection to the jury instructions.

Question 6560 A neighbor of a married couple overheard the husband and wife arguing loudly about the wife's alleged extramarital affair. A few hours later, the neighbor heard police sirens approaching, so he went outside to see what was happening. Two police cars pulled up in front of the married couple's home, and a few minutes later the coroner appeared. The neighbor later found out that the wife had died that evening under suspicious circumstances. The next day, while he was having breakfast with his friend, the neighbor told the friend that the husband had found out that the wife was having an extramarital affair, and in the heat of passion, the husband had killed his wife. In fact, the husband had left his house shortly after having the argument with his wife that the neighbor overheard. While he was gone, a burglar had broken into his home and murdered his wife when she tried to call the police. The friend knew the husband, and informed the husband of the neighbor's statement. If the husband files a defamation suit against the neighbor, will he succeed? Answers: No, because the husband will not be able to prove that he suffered any pecuniary loss due to the neighbor's defamatory statement. No, because the neighbor's statement was merely an opinion. Yes, because the neighbor acted with actual malice. Yes, because the neighbor told his friend that the husband murdered his wife due to her extramarital affair.

Answer choice D is correct. A plaintiff may bring an action for defamation if the defendant's defamatory language of or concerning the plaintiff is published to a third party who understands its defamatory nature, and it damages the plaintiff's reputation. Here, the neighbor's statement that was communicated to the friend was defamatory, and would damage the husband's reputation because the neighbor claimed that the husband killed his own wife in the heat of passion after finding out that she was allegedly having an extramarital affair. Answer choice A is incorrect. Pecuniary loss, also referred to as special damages, is only required when the defamatory statement is not slander per se. Here, the neighbor accused the husband of committing a crime involving moral turpitude (i.e., voluntary manslaughter), which constitutes slander per se. Therefore, the husband will not have to show pecuniary loss to recover. Answer choice B is incorrect. A defamatory opinion is actionable if the defendant implies that there is a factual basis for that opinion. Here, the neighbor's statement to his friend clearly implies a factual basis for making the statement. Answer choice C is incorrect because the husband is not a public figure and is not required to prove that the neighbor acted with actual malice. Moreover, there is no evidence to indicate that the neighbor entertained serious doubts about the truthfulness of his statement to the friend; he merely failed to confirm the factual accuracy of his statements. Thus, the neighbor did not act with actual malice.

Question 7371 Due to rising public concerns about the treatment of chickens in the egg industry, there has been a recent spike in the number of households raising chickens on their private property to collect eggs. Because it was often easy for a family to raise enough chickens to produce more eggs than the family could use, many households sell their surplus eggs at local markets and to private buyers. Lobbyists for the egg industry recently presented Congress with a study that revealed that, because so many buyers were purchasing eggs from local private sellers, eggs from backyard chickens were starting to substantially affect the national market. As a result, rates of salmonella contamination in eggs used by private consumers are rising and the big egg factories are losing business. In response to this study, Congress seeks to pass a statute that would prevent family households from raising more than two hens per household without a license. Will this statute be constitutional? Answers: No, because the statute does not consider the number of members of a household to determine how many hens would produce a surplus. No, because the statute will regulate the purely private conduct of raising hens, not the sale of eggs. Yes, because Congress can restrict private conduct that poses a public health risk or endangers the public welfare. Yes, because the trend of raising backyard chickens, in the aggregate, has a substantial effect on the national egg market.

Answer choice D is correct. Congress has the power to regulate interstate commerce, as well as any activity that, in the aggregate, substantially affects interstate commerce. With respect to an intrastate activity that does not have a direct economic impact on interstate commerce, such as growing crops for personal consumption, as long as there is a rational basis for concluding that the "total incidence" of the activity in the aggregate substantially affects interstate commerce, Congress may regulate even a minute amount of that total. Thus, because these backyard chickens are having a substantial aggregate effect on the national market, Congress can regulate this conduct by exercising its power to regulate interstate commerce. Answer choice A is incorrect because there only needs to be a rational basis for a statute regulating conduct that, in the aggregate, substantially affects interstate commerce. Even if this statute is not narrowly tailored to ensure that each household can raise chickens for their own egg requirements with no surplus, the statute is nevertheless rationally related to reducing the production and sale of eggs from backyard chickens. Therefore, it is likely valid. Answer choice B is incorrect because Congress can regulate this intrastate private conduct because of its substantial aggregate effect on interstate commerce. Answer choice C is incorrect because Congress cannot legislate for the general welfare. If a state had enacted a regulation for this reason, such a regulation would likely be a valid exercise of the state's police power. However, this reasoning would not justify a Congressional statute.

Question 7273 A claustrophobic man with a heart condition entered an elevator in an apartment building. While the man was riding the elevator, the elevator doors became stuck. The man pressed the alarm button to alert security that he was trapped, but the button had no effect. After being stuck in the elevator for an hour, the elevator door opened on its own. A few minutes after getting out of the elevator, the man suffered a fatal heart attack. It was later established that the elevator had become stuck due to poor maintenance by the apartment building's management, and the alarm button in the elevator had a minor manufacturing defect that prevented it from alerting security when activated. It was also established that if he had been alerted of the situation, the security guard could have released the man in moments. The applicable jurisdiction allows wrongful-death actions to be brought by a decedent's spouse for deaths resulting from negligence. If the man's widow sues the elevator company for damages for wrongful death, which of the following is the elevator company's strongest defense? Answers: It was not foreseeable that the man would suffer from a heart attack from being stuck in the elevator. Neither the man nor his widow were in privity of contract with the elevator company. The negligent maintenance of the elevator by the apartment building's management is an intervening cause, protecting the elevator company from liability. The defective alarm button was not the actual cause of the man's heart attack.

Answer choice D is correct. In a negligence action, the plaintiff must prove that the defendant's actions were both the actual cause (also known as the factual cause or "cause in fact") and the proximate cause (also known as the legal cause) of the plaintiff's injury. If the plaintiff's injury would not have occurred but for the defendant's tortious act or omission, then the defendant's conduct is a factual cause of the harm. If the injury would have occurred despite the defendant's conduct, then there is no factual cause. Here, the facts only provide that the man had a preexisting heart condition and that he had a heart attack moments after exiting the elevator. The elevator company's best defense would be to argue that these two events are not causally connected, and that the man would have had a heart attack even if he was never stuck in the elevator. Answer choice A is incorrect. Under the "eggshell-skull" rule, the extent of the damages need never be foreseeable. The defendant is liable for the full extent of the plaintiff's injuries that may be increased because of the plaintiff's preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable. Here, the man was claustrophobic and had a heart condition. If his fear from being trapped did indeed trigger his heart attack, the elevator company could still be liable for the unforeseeable medical consequences of his panic from being trapped. Answer choice B is incorrect because there need not be privity of contract for the widow to successfully bring a wrongful death action. Answer choice C is incorrect because negligence by a third party is generally considered foreseeable, and will not be considered an intervening cause that protects a defendant from liability.

Question 3210 A federal agency regularly contracted with a construction company to perform renovations on federal government buildings. In contracting with the company, the agency followed the federally mandated competitive bidding process; each individual renovation project was covered by a separate contract. Recently, the company made a contribution to a political action committee with interests adverse to the current administration. As a consequence, the agency terminated renovation contracts that had been awarded to the company. Did the agency's decision to terminate its contracts with the company violate the Contracts Clause of Article I, Section 10? Answers: Yes, because the agency cannot cancel a contract to serve the current administration's political ends. Yes, because a governmental entity cannot impair an existing public contract. No, because a governmental entity, as a party to the contract, had the right to cancel it. No, because the governmental entity was a federal agency.

Answer choice D is correct. The Contracts Clause of Article I, Section 10 prohibits state legislation from retroactively impairing the obligation of contracts. This clause does not apply to federal action or court decisions. Here, the entity that impaired existing contracts with the company was a federal agency. Consequently, the agency's action did not violate the Contracts Clause. Answer choice A is incorrect. Even though a federal agency's cancellation of a contract to serve the political ends of the current administration would not constitute an important governmental interest for purposes of the Contracts Clause, because the federal agency is not a state legislature, whatever action it takes does not violate the Contracts Clause. Answer choice B is incorrect. The Contracts Clause does not absolutely preclude the impairment of a public contract by a governmental entity. Interference with the obligations of a public contract is permitted when the government's important interest cannot be served by a less-restrictive alternative and the impairment is necessary because of unforeseeable circumstances. More importantly, under these facts, the federal agency is not a state legislature and thus whatever action it takes does not violate the Contracts Clause. Answer choice C is incorrect because the Contracts Clause applies to public contracts as well as private contracts. This clause prohibits a state legislature from impairing a contract between a private party and the state. Thus, the mere fact that a governmental entity was a party to the contract does not preclude the applicability of the Contracts Clause.

Question 8534 A businessman was involved in a near-fatal car accident and was hospitalized. His hospitalization had resulted in his falling behind on a business loan. While the businessman was in the hospital recovering from one of several major operations, the lender, who was a family friend, approached the businessman's recently widowed mother about additional security for the business loan. The lender intimated that, if no action were taken with regard to the loan, the lender would have to file a civil action against the businessman. Distraught over her son's accident and the recent loss of her husband, the borrower's mother, at the lender's suggestion, granted the lender a mortgage on her own residence, which she owned outright, as additional security for the business loan. In exchange for the mortgage, the lender extended the time in which the businessman had to repay the loan, though he did not reduce the outstanding amount of the loan. Of the following, which would be the best basis on which the businessman's mother can seek to avoid the mortgage? Answers: The businessman's mother, due to emotional distress, lacked capacity to enter into a contract. The businessman's mother granted the mortgage under duress. The lender did not give additional consideration for the mortgage. The mortgage was obtained through undue influence.

Answer choice D is correct. Undue influence is the unfair persuasion of a party to assent to a contract. Here, the circumstances surrounding the mortgage, such as the mortgagor's emotional trauma over her son's physical condition, her being a distraught recent widow, the friendship between the mortgagee and the mortgagor, and the granting of the mortgage at the lender's suggestion, all point to the mortgage being obtained through undue influence. While undue influence is not a certainty, it is the best option provided for the mother to pursue rescission. Answer choice A is incorrect because emotional distress does not generally rise to the level of incapacity to contract. In order to challenge a contract on the grounds of mental incapacity, the party must have been unable to understand the nature and consequences of the transaction or unable to act in a reasonable manner with regard to the transaction, and the other party must have reason to know of this fact. Answer choice B is incorrect because, in order for a contract to be voidable for duress, there must be an improper threat that deprives a party of a meaningful choice. Generally, the threat of civil action is not improper unless it is made in bad faith. Here, the lender did not act in bad faith to compel the mother to grant the mortgage in a transaction unrelated to the loan, but instead sought the mortgage as additional security for the loan. Answer choice C is incorrect. Although the lender had already made the loan to the borrower and did not reduce the outstanding amount of the loan, the lender did extend the time for the payment of that loan. As a consequence, the lender did give additional consideration for mother's granting the mortgage. Although this consideration directly benefited the mother's son rather than the mortgagor, a party's direct benefit from a contract need not be financial.