MBE Bar Prep

Which of the following is character evidence, rather than habit evidence? a) "Ben goes to church every Sunday" b) "Ben is always in a hurry" c) "Ben always wears his seatbelt" d) "Ben goes to the pub every Friday night at 7pm"

"Ben is always in a hurry" is an example of character evidence because it describes a general character trait of Ben, rather than his regular response to a specific set of circumstances. "Ben always wears his seatbelt," "Ben goes to church every Sunday," and "Ben goes to the pub every Friday night at 7 p.m." are all examples of habit evidence. Habit evidence concerns a person's regular response to a specific set of circumstances. Character evidence describes one's disposition with respect to general traits.

To finance the purchase of a vineyard, a vintner borrowed $500,000 from a bank, secured by a mortgage on the vineyard. Due to a clerical error, the bank's mortgage was not immediately recorded. Six months later, the vintner borrowed $10,000 from a creditor, also secured by a mortgage on the vineyard. The creditor immedi- ately recorded its mortgage. The following week, the bank discovered its error and recorded its mortgage. Subsequently, the vintner defaultedon her payments to the bank. The bank insti- tuted foreclosure proceedings but did not jointhe creditor in the action. A buyer purchased the property at the foreclosure sale. A statute of the jurisdiction provides, "No conveyance or mortgage of real property shall be good against subsequent purchasers for value without notice unless the conveyance is recorded." If a court finds that the buyer took title subject to the creditor's mortgage, what is the most likely reason? (A) The creditor's mortgage was senior to the bank's purchase money mortgage. (B) The bank did not join the creditor in the foreclosure action. (C) The vintner has not defaulted on the credi- tor's mortgage. (D) The buyer assumed the creditor's mortgage.

(A) If a court finds that the buyer took title subject to the creditor's mortgage, it will be because the creditor's mortgage was senior to the bank's purchase money mortgage ("PMM"). A PMM is a mortgage typically given to a third-party lender, who is lending the funds to allow the buyer to purchase the property. A PMM, whether recorded or not, has priority over mortgages, liens, and other claims against the mortgagor that arise prior to the mortgagor's acquisition of title. However, PMM priority is subject to being defeated by subsequent mortgages or liens by operation of the recording acts. Here, the creditor's mortgage has priority over the bank's PMM under the juris- diction's notice statute because the creditor had no notice of the bank's interest at the time of the loan. Because foreclosure does not affect any interest senior to the mortgage being foreclosed, the buyer takes title subject to the creditor's mortgage. (B) is incorrect because, although failure to join a necessary party results in the preservation of that party's interest despite foreclosure and sale, the creditor's mortgage was senior to the bank's mortgage, and thus it was not a necessary party. (C) is incorrect because the creditor's mortgage is not preserved merely because the vintner has not defaulted on it. Rather, the creditor has a valid mortgage on the vineyard because the buyer took title subject to it. The vintner remains primarily and personally liable on the creditor's mortgage, but if the vintner defaults and the buyer does not pay, the creditor may foreclose on its mortgage. (D) is incorrect because it misstates the facts. The buyer did not sign an assumption agreement, which would render him primarily liable to the creditor while the vintner became secondarily liable as a surety. Rather, the buyer took title subject to the creditor's mortgage because it was not destroyed by the foreclosure sale.

An off-duty mall security guard was at a bar with his girlfriend when he got into an argument with another patron. The argument escalated and the guard drew out the pistol he had been given at work and shot the patron in the chest, killing him. The survivors of the dead patron broughta wrongful death action against the security agency that hired the guard. At trial, they estab- lished that the guard had been required to fill out an application listing references and indicating whether he had any prior convictions for offenses involving violence or use of a weapon, which would disqualify him by law from a positionas a security officer. The guard had listed as references some aunts and uncles who had not seen him in some time, and he stated that hehad no prior convictions. In fact, the guard had several times been convicted of violent assaults using firearms, and records of these convictions were available in a public database. The agency, however, had not investigated the statements on his application. Will the survivors of the patron likely prevail in the wrongful death action? (A) Yes, because a reasonable employer would have discovered the guard's prior convic- tions. (B) Yes, because the agency employed the guard and gave him the pistol he used to kill the patron. (C) No, because the agency owed no duty to the patron which was violated. (D) No, because the guard's actions occurred while he was acting outside the scope of his employment.

(A) The agency is likely to be liable to the patron's survivors because it should have known of the guard's prior convictions. Under the doctrine of respondeat superior, an employer is not vicariously liable for the acts of an employee outside the scope of his employment. However, the employermay be liable for its own negligent selection if it has some reason to be on notice that the actions that resulted in harm were likely to occur. Thus, because the plaintiffs can show that a reasonable employer could have learned of the guard's violent crimes from public records, the agency likely did not act with reasonable care by not even investigating the guard's statements on his application (and hiring someone as an armed guard who was barred by law from that type of job), and then giving him a gun that he could carry off duty. (B) is incorrect because merely giving the guard the pistol does not breach the agency's duty—the agency must have had some reason to know of the guard's dangerous propensities. (C) is incorrect because a duty to those whom the guard encounters can arise from the agency's supplying the guard with a weapon. (D) is incorrect because the rule it states is only for an employer's vicarious liability, and negligent selection of an employee is not vicarious liability; it is independent negligence on the part of the employer.

Several years ago a number of employeesof the state transportation department formeda workers' organization, a voluntary associa- tion incorporated under the laws of the state.The organization has grown in size over the years and has become very powerful politically. Nearly 85% of all state highway maintenance workers are members of the organization, which is supported entirely by the dues of its members. Membership is not required as a condition of employment or advancement in the state trans- portation department. After a vote of its entire membership on the question, a member was expelled from the organization solely because she is an active, knowing member of a group that seeks to propagate the concept of white racial supremacy. The expelled member brings suit in an appropriate court seeking reinstatement of her membership. The suit alleges that her expulsion violates rights guaranteed to her by the First and Fourteenth Amendments. Which of the following is the strongest consti- tutional defense that the organization may assert to this suit? (A) The First and Fourteenth Amendments do not apply to the actions of the organization. (B) Active, knowing membership in groups with overtly racist objectives is not protected by the First and Fourteenth A mendments. (C) The organization could reasonably believe that it has a compelling interest in elimi- nating from its membership active, knowing members of groups with overtly racist objectives. (D) The expulsion of the member took place only after a vote of the organization's entire membership.

(A) The best defense is that First Amendment rights do not apply to the organization. First Amend- ment rights are made enforceable against a state through the Fourteenth Amendment. However, the amendments do not prevent private individuals or organizations from encroaching upon individual civil liberties. Because there is nothing in the facts to indicate significant state involve- ment (state action) with the organization (granting corporate status does not suffice), the amend- ments do not apply to the organization's actions in expelling one of its members. (B) is incorrect because the First Amendment protects the freedom of association. There are limits on this freedom (e.g., a person can be punished for membership in a group if (i) the group calls people to illegal action—as opposed to merely advocating what people ought to do; (ii) the person knows of the group's illegal advocacy, and (iii) the person has the specific intent to accomplish the illegal aims). Therefore, merely belonging to a group with racist objectives may be protected by the First and Fourteenth Amendments. The right to associate with other persons for expressive or political activity, while not absolute, is within the scope of freedom of speech rights. (C) and (D) would have no bearing on the alleged violation of the member's rights. While the government may infringe on freedom of association rights by showing a compelling interest, that test is not appli- cable to action taken by a private organization.

A pool hall seeking to attract more after- noon business advertised a $2-per-hour table rental discount between the hours of 2 p.m. and 6 p.m. The advertisement caught the attention of students who attended a high school in the city where the pool hall was located. Soon the hall was full of students in the afternoon. To discourage city youth from frittering away their afternoons, the city council passed an ordinance imposing a $2-per-hour rental tax on pool tables rented before 6 p.m. on weekdays. Which of the following people or entities would not have standing to bring a lawsuit to challenge the tax? (A) A civic watchdog and good government group. (B) The owner of the pool hall. (C) A citizen of the city who opposes every new tax and who has taken advantage of the discount on several occasions. (D) A 16-year-old boy who regularly plays pool at the hall after school.

(A) The civic watchdog group is not likely to have standing to challenge the tax. To have standing,a plaintiff must show that it has a concrete stake in the outcome of a controversy that arises outof an injury in fact. On a constitutional issue, the plaintiff must be able to show that it is or will be injured by the government action involved and that its injury can be remedied by a decisionin its favor. The injury must be concrete and particularized and not conjectural or hypothetical. The civic watchdog group is not likely to have standing because it has no concrete stake in the outcome. It has not shown that it will be injured by the tax in any more than the general way in which everyone is injured by unlawful governmental conduct, and that is not a sufficient injuryto sustain standing. (Note that an organization may have standing to represent its members if there is a sufficient injury to the members that is related to the organization's purpose, and the nature of the claim and the relief sought does not require participation of the members; but since this organization is not limited to pool hall owners or customers, its injury is not sufficient to allow standing.) (B) is incorrect. The tax could have its intended consequence of discouraging high school students from shooting pool in the afternoon. If that happens, the owner's revenues would decrease. Thus, he has a concrete stake in the outcome and his injury could be prevented by removing the tax. Therefore, the owner has standing. (C) is incorrect. Anyone who plays pool regularly in the afternoon would be injured by the tax even though its purpose is to keep high school students from shooting pool. Note that the rule that there is no "citizen standing" is not applicable here—while the citizen generally opposes new taxes, this is not a case where he is attempting to challenge the tax as a mere citizen—he has patronized the pool hall in the after- noon and would be directly impacted by the tax. (D) is incorrect for much of the same reason that (C) is incorrect. As a regular patron of the hall, the student would be directly impacted by the tax and eliminating the tax would eliminate any harm caused by the tax. Therefore, the student has standing.

A seller and a buyer entered into negotiations over the telephone for the buyer to buy widgets from the seller. Following their conversation, the seller sent the buyer a contract, already signed by the seller, agreeing to sell 1,000 widgets to the buyer for a total contract price of $10,000. Upon receipt of the contract in the mail, the buyer signed the contract, placed it in an envelope, and deposited the envelope in the mailbox located in front of the buyer's office building. Before the seller received the contract, the buyer had a change of heart. He telephonedthe seller and said, "Look, I just can't make a profit on those widgets. I'm not interested in that contract we talked about." The seller replied, "That's all right, I understand. Maybe we can do business some other time." The next day, the signed contract was delivered to the seller's office. The seller, also having had a change of heart, decided that he wanted to enforce the contract. Is the contract enforceable against the buyer? (A) Yes, because the acceptance occurred prior to rejection. (B) Yes, because of the parol evidence rule. (C) No, because the offer to rescind was accepted and that discharged the original contract. (D) No, because the rejection by telephone voided the acceptance by mail.

(A) The contract is enforceable because the "mailbox rule" applies here. Acceptance by mail creates a contract at the moment of posting, properly addressed and stamped, unless the offer stipu- lates that acceptance is not effective until received, or an option contract is involved. If the offeree sends an acceptance and then rejects the offer, the mailbox rule applies; i.e., a contract is created upon dispatch of the acceptance. Because no option contract is involved here, and the seller's offer did not state that the buyer's acceptance would be effective only when received, the buyer's acceptance was effective the moment he placed the envelope containing the contract in the mailbox. The buyer's attempt to reject occurred after acceptance took place. Thus, a valid contract was formed and the seller may enforce it. (B) is incorrect because the parol evidence rule is inapplicable to the issue of enforceability. The parol evidence rule applies to prevent the introduction of evidence of certain statements made before or concurrently with the execution of a written contract that was intended by the parties to be the complete and final expression of their agreement. These statements are inadmissible to vary the terms of the written agreement. Here, the issue is not the terms of the agreement, but rather whether there is an agreement at all. Note that the parol evidence rule does not prevent the introduction of evidence that affects whethera contract was formed or whether it is valid. Thus, the parol evidence rule would not preventthe introduction of evidence of an oral rescission of the contract. Here, the attempted rescissionis ineffective because there was no meeting of the minds. (C) is incorrect because there is no "meeting of the minds" concerning the rescission. A contract may be discharged by an express agreement between the parties to rescind; the agreement to rescind is itself a binding contract. Because the seller did not know that the buyer had accepted the offer, the seller did not know there was a contract to rescind. Thus, seller's statement that "that's all right" cannot be construed as acceptance of the buyer's offer to rescind. Therefore, a contract to rescind was not formed. (D) is incorrect because the telephone rejection did not void the acceptance by mail. As discussed above, if the offeree sends an acceptance first, followed by a rejection, the mailbox rule applies; i.e., a contract is created upon dispatch of the acceptance. Because the buyer's telephone rejec- tion took place after his acceptance by mail, the rejection was ineffective. While an offeree will be estopped from enforcing the contract if the offeror receives the rejection first and changes his position in reliance on it, the offeror (the seller) is the one wanting to enforce the contract here.

A nursing home, as a matter of policy, admitted patients known for violent behavior. Each night before the patients went to bed, all doors were locked so that intruders could not enter the premises without forcing an entry. One morning an elderly and docile patient was found beaten in her bed. The doors had been locked, and there were no signs of forced entry into the building during the previous night. The patient sued the nursing home for her injuries and established the above facts. At the close of the patient's case, the nursing home moved for a directed verdict. How should the court rule? (A) Deny the motion, because the jury could find that an occurrence such as this would not ordinarily happen unless the nursing home was negligent. (B) Deny the motion, because the nursing home is required to exercise a very high degree of care towards the patients in its care. (C) Grant the motion, because the patient did not establish that the beating was caused by an employee of the nursing home. (D) Grant the motion, because the beating was caused by the criminal act of a third party.

(A) The court should deny the motion because the nursing home could be found liable under the doctrine of res ipsa loquitur. This doctrine would apply because the injury ordinarily would not have occurred in the absence of negligence on the part of the nursing home, such as by accepting violent patients without providing adequate security for other patients. The nursing home has assumed the duty of ordinary care for the safety and security of its patients. Because the doors were locked, the injury occurred as a result of either a nursing home employee or a patient, and the nursing home would be liable in either case. Admitting patients known for their violent behavior created a foreseeable risk of injury to all the patients, and the exercise of ordinarycare would require that the nursing home provide adequate security to protect the patients. The patient's beating establishes enough evidence of the breach of duty by the nursing home here to withstand the motion and send the case to the jury. (B) is incorrect. There is no rule of law that imposes a high degree of care in this situation—just ordinary care under the circumstances. Thus, the nursing home is only liable because it has breached its duty of ordinary care for the safety and security of the patients. (C) is incorrect. The patient need not prove that the beating was caused by an employee in order to impose liability on the nursing home, because violence by another patient was foreseeable. The nursing home has assumed the duty of ordinary care for the safety and security of its patients. (D) is incorrect. An intervening criminal act of a third party will not cut off liability if it was foreseeable and the defendant owed a duty of care to the plaintiff. The nursing home has assumed the duty of ordinary care for the safety and security of its patients, and here criminal acts were foreseeable because the nursing home accepted violent patients.

While driving in State A, the defendant, a State B resident, was in an automobile accident with the plaintiff, a resident of State A. The plaintiff filed a negligence action against the defendant in a State A state court consistent with State A's long arm statute, and properly served the State B defendant pursuant to the State A long arm statute. The State B defendant immedi- ately filed a motion to dismiss the action on the grounds that the State A court does not have personal jurisdiction. How should the court rule on the motion to dismiss? (A) The court should deny the motion, because the defendant has purposeful contacts with State A that are directly related to the claim being asserted. (B) The court should deny the motion because the plaintiff is a State A resident. (C) The court should grant the motion unless the defendant is subject to general jurisdic- tion in State A. (D) The court should grant the motion because State A courts lack constitutional authority to assert jurisdiction over defendants outside of State A unless such defendants consent to the State A courts' jurisdiction.

(A) The court should deny the motion. The question provides that service was made pursuant to the State A long arm statute. The assertion of personal jurisdiction is statutorily authorized, in that it is consistent with State A's long arm statute, and the exercise of personal jurisdiction is consti- tutional, given that the claim arises from or relates to the defendant's purposeful activities (using roads) in State A. Thus, a court in State A may properly exercise personal jurisdiction over the defendant from State B, even if the defendant does not consent to personal jurisdiction and is not domiciled there. (B) is incorrect because personal jurisdiction cannot be exercised against a defendant based on the plaintiff's domicile. (C) is incorrect. There are two types of personal jurisdiction: general and specific. Here, the defendant's activity in the state allows State A to exercise specific jurisdiction (jurisdiction for the specific claim arising from the activity). General jurisdiction (jurisdiction for all causes of action) is not needed. (D) is incorrect because consent is not necessary to assert personal jurisdiction over a defendant, as explained above. Consent is one basis for exercising personal jurisdiction over a defendant, but not the only basis.

A homeowner raked up numerous dead, dry leaves that had fallen on his yard and set fire to the pile, even though the wind was blowing at 15-20 miles per hour that day, and a county ordinance made it unlawful to burn leaves on any day when the wind speed exceeded 10 miles per hour. After the homeowner went into his house, the wind whipped the burning leaves into the air and deposited some of them, still burning, on the wood-shingled roof of a neighboring house, setting the house on fire. A driver was passing by and saw the burning roof of the neighbor's house. He pulled over, got out of his car and ran across the street toward the neighbor's yard so that he could warn the occupants of the house. The driver was struck by a paramedic's vehicle just arriving in response to a telephone report of the fire. The driver brought an action against the homeowner to recover for the injuries he suffered from being struck by the emergency vehicle. How should the court rule in this action? (A) For the driver, because the homeowner's negligence was a proximate cause of the driver's injuries. (B) For the driver, because the homeowner's conduct constituted negligence per se. (C) For the homeowner, because the emergency vehicle was the actual cause of the driver's injuries. (D) For the homeowner, because one who responds to a fire assumes the risk of foreseeable dangers.

(A) The court should rule for the driver. The homeowner's negligence in burning leaves during a period of relatively high winds resulted in a fire, and it is foreseeable that third persons will attempt to rescue the victims of the tortfeasor's negligent acts. To the extent that the emergency vehicle was an intervening force, it was a normal response (responding to the fire) and was not unforeseeable. Thus, the homeowner's negligence was a proximate cause of the driver's injuries. (B) is incorrect. The issue upon which the homeowner's liability to the driver turns is proximate cause; it is immaterial to that analysis whether the homeowner's negligence is established by a showing that he failed to exercise due care (indicated by the facts) or that his conduct violated a statute and constituted negligence per se (also established by the facts), which still leaves causa- tion and damages to be established. Even if no statute were applicable to the circumstances, the homeowner would still be liable to the driver; thus, (B) is not as good an answer as (A). (C) is incorrect. The homeowner's negligence was a cause in fact of the driver's injuries, because it was the homeowner's negligence which both prompted the driver to attempt a rescue of the occupants of the burning residence, and brought the emergency vehicle onto the scene. It is possible for the separate actions of two independently operating actors to combine to injure the plaintiff,and whether either of them is liable for those injuries depends on the elements of the negligence analysis, including proximate cause. Here, the homeowner breached the duty of due care, and that breach was an actual and a proximate cause of the injury to the driver. (C) is therefore inaccurate. (D) is incorrect because there is no evidence that the driver assumed the risk of being struck by the emergency vehicle. Note that the "firefighter's rule" may bar a firefighter on assumption of risk or public policy grounds from recovering for injuries while responding to a negligently caused fire; however, the rule does not apply to the driver here.

A landlord who owned a strip mall entered into a written five-year lease of one of the units with a discount retail perfumery. The lease provided for a monthly rent of $1,000, payable on or before the first day of each month. The perfumery dutifully paid its rent on time for two years and three months. At that time, with the oral permission of the landlord, the perfumery transferred its interest in the remainder of the lease to a dry cleaner in writing, and added a clause requiring the dry cleaner to get permis- sion from the perfumery for any subsequent assignments. The dry cleaner promptly paid rent to the landlord for 14 months, and then asked the landlord to approve a transfer of its interest in the lease to a video rental store. The landlord gave her oral assent. To obtain the perfumery's approval of the transfer to the video store, the dry cleaner wrote a letter to the perfumery, promising that if any problems arose and anyone tried to go after the perfumery for money, the dry cleaner would "make it good." After the perfumery sent a letter back to the dry cleaner agreeing to the transfer, the dry cleaner executed a written transfer of its interest to the video store. The video store promptly paid rent for three months. Having failed to make any profits, the video store ceased paying any rent to the landlord and cannot be located. The landlord has been unable to find anyone interested in the unit. Given that any judgment against the video store would be worthless, from whom can the landlord collect the unpaid rent owed on the lease? (A) Either the perfumery or the dry cleaner. (B) The perfumery only, but the perfumery may recover in turn from the dry cleaner. (C) The perfumery only, and the perfumery has no recourse against the dry cleaner. (D) Neither the perfumery nor the dry cleaner.

(A) The landlord may collect the unpaid rent from either the perfumery or the dry cleaner. A complete transfer of the tenant's entire remaining term is an assignment of the lease. However, the original tenant can still be held liable on his original contractual obligation in the lease to pay rent; i.e.,on privity of contract. (D) is therefore incorrect because the perfumery is liable for the rent. (B) and (C) are also incorrect. Because the covenant to pay rent touches and concerns, and hence runs with the tenant's leasehold estate, an assignee owes the rent directly to the landlord. If the assignee reassigns the leasehold interest, his privity of estate with the landlord ends, and he generally is not liable for the subsequent assignee's failure to pay rent in the absence of a specific promise to the landlord. However, even if the assignee made no promise to the landlord but did promise the original tenant that he would pay all future rent, the landlord may sue the assignee as a third-party beneficiary of the promise to the original tenant. Here, while the dry cleaner made no promise to the landlord, the dry cleaner did make a promise to the perfumery regarding the obligation that the perfumery owed to the landlord. Thus, the landlord can sue either the perfumery or the dry cleaner for the unpaid rent.

On July 26, a manufacturer of computer accessories received a purchase order formfrom a retailer who ordered 2,000 ergonomic mouse pads for delivery no later than September 1 for a total price of $10,000, as quoted in the manufacturer's current catalog. Two days later, the manufacturer faxed its own purchase order acceptance form to the retailer, who was a first- time customer. This form stated that it was an acceptance of the specified order, was signed by the manufacturer's shipping manager, and contained all of the terms of the retailer's form, but it also contained an additional printed clause stating that the manufacturer makes no express or implied warranty of fitness or of merchant- ability. Assuming no further communication between the parties, which of the following is an accurate statement of the legal relationship between the manufacturer and the retailer? (A) There is an enforceable contract between the parties whose terms include an implied warranty of merchantability. (B) There is an enforceable contract between the parties whose terms do not include an implied warranty of fitness or merchant- ability. (C) There is no enforceable contract between the parties because the manufacturer's form constituted a rejection of the retailer's offer and a counteroffer by the manufacturer. (D) There is no enforceable contract between the parties because the manufacturer's form added an additional term that materially altered the terms of the retailer's offer.

(A) The manufacturer and the retailer have a contract without the disclaimer of warranties. Thus, the terms include the implied warranty of merchantability. In contracts for the sale of goods, a definite expression of acceptance operates as an acceptance even if it states additional terms. Between merchants, additional terms proposed by the offeree in an acceptance automatically become part of the contract unless: (i) they materially alter the original terms of the offer (e.g., they change a party's risk or the remedies available); (ii) the offer expressly limits acceptance to the terms of the offer; or (iii) the offeror objects to the additional terms within a reasonable time. A disclaimer of warranties is a material alteration because such a clause affects the remedies that the parties can pursue. Hence, the acceptance is effective to create a contract but the disclaimer clause would not become part of the contract. (B) is therefore incorrect. (C) is incorrect because it reflects the common law "mirror image" rule, which the UCC has rejected in sale of goods cases. (D) is incorrect because under the UCC rule, the inclusion of a material additional term does not prevent formation of a contract; instead, a contract is formed without the inclusion of that additional term.

The owner of a self-propelled riding mower started the engine to mow his front lawn when the clutch of the mower suddenly engaged, causing it to lurch forward rapidly and throw him off. By the time the owner caught up with the mower, it had started into the street. A motorist swerved to avoid the mower and struck a tree on the opposite side of the street. An investigation revealed that the sudden shift of the clutch was caused by a defective gear in the transmission. If the motorist brings a negligence action for personal injuries and property damage against the owner, will she prevail? (A) No, because the owner was so startled by the mower's sudden movement that he was unable to react swiftly enough to prevent the harm. (B) No, because the sudden movement was caused by a defective gear in the mower. (C) Yes, because her damages were caused by the owner's operation of a dangerously defective piece of machinery. (D) Yes, because a landowner owes a duty to passersby to exercise reasonable care in activities on his land.

(A) The motorist will not prevail under these facts because the owner does not appear to have breached his duty of care to her. A prima facie case for negligence consists of: (i) a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plain- tiff against an unreasonable risk of injury; (ii) breach of that duty by the defendant; (iii) such breach being the actual and proximate cause of the plaintiff's injury; and (iv) damage to the plain- tiff's person or property. While the owner owed a duty of care to the motorist because she was passing by his property while he was operating his riding mower, the facts do not suggest a breach of duty. He was thrown off by the sudden forward movement of the mower and could not catch up to it before it entered the street. Absent the owner's breach of duty, the motorist cannot recover. (B) is incorrect because the owner may be found liable for negligence in his operation of the mower regardless of what caused the sudden movement. Here, however, nothing suggests that he was negligent in starting the mower or failing to discover or guard against the defect. (C) is incor- rect because the motorist must prove that the owner knew or should have known of the defect and was therefore negligent in operating the mower while it was in such a defective condition. Merely showing the defective condition of the mower, without more, will not suffice to impose liabilityon the owner, and nothing in the facts indicates that the owner knew of the defect. (D) is incorrect even though a landowner does owe a duty of reasonable care to passersby, such as the motorist. As discussed above, nothing in the facts indicates that the owner breached that duty.

A patient had been taking a prescribed anti- seizure medicine, which had prevented him from having seizures while he had been taking it, but which had caused unpleasant side effects. His physician gradually weaned the patient off the medicine. One year later, the patient was driving when he suddenly suffered a seizure and lost control of his car, which crashed into the carin front of him. The driver of that car suffered serious injuries and sued the patient and the physician. If the physician is not liable to the driver, what will be the most likely explanation? (A) It was not reasonably foreseeable that re- moving the patient from medication could cause harm to third parties. (B) The physician warned the patient about driving once he was off the medication. (C) Given the side effects, it was medically reasonable to take the patient off of the medicine. (D) The patient was judged not liable to the driver.

(A) The physician would not be liable to the driver if it was not reasonably foreseeable that the patient's seizures might recur after the patient was removed from the medication and create an unreasonable risk of harm to third parties. A prima facie case for negligence consists of: (i) a duty on the part of the defendant to conform to the standard of care of a reasonable person forthe protection of the plaintiff against an unreasonable risk of injury; (ii) breach of that duty; (iii) the breach was the actual and proximate cause of the plaintiff's injury; and (iv) damage to the plaintiff's person or property. If the recurrence of the patient's seizures following removal from the medication was not reasonably foreseeable, then the physician breached no duty to anyone by taking the patient off the medication. (B) is not as good a choice as (A) because a warning against driving may not have been sufficient to satisfy the duty of care. If there was a risk of seizures of which the physician was aware, the trier of fact could find that it was not reasonable to take the patient off the medication with just a warning against driving, given the likelihood that at some point he would resume driving. (C) is incorrect because the fact that the decision to suspend the medication may have been a reasonable medical decision as it applied to the patient (i.e., the seizures had stopped, and the medication produced unpleasant side effects) does not resolve the physician's liability. The issue in the question relates to how the decision affected a third party. If the decision created an unreasonable risk of injury to persons such as the driver, and such risk was reasonably foreseeable, then the physician will not be insulated from liability for the resulting injury by the medical reasonableness of the decision for the patient. Thus, (C) is not as good a choice as (A). (D) is incorrect because the physician's liability is not dependent on the patient's liability. The patient might not be liable because he had no reason to anticipate that a seizure would occur, but that does not establish that the physician exercised reasonable care.

In an automobile collision case, the defen- dant's attorney called the defendant to the stand and asked, "Was the traffic light red, amber,or green when you entered the intersection?" The defendant replied, "It was green." Next, the defendant's attorney asked, "What did you tell the first police officer who arrived on the scene about the condition of the traffic light when you entered the intersection?" Before the defendant could reply with "I told him it was green," the plaintiff's attorney objected. How should the court respond to the objec- tion? (A) Sustain it, because the statement is hearsay not within any recognized exception to the hearsay rule. (B) Sustain it, because the testimony is an irrel- evant prior consistent statement. (C) Overrule it, because the statement is made from personal knowledge and, therefore, is nonhearsay. (D) Overrule it, because the defendant is in court and is subject to cross-examination by the plaintiff's attorney.

(A) The statement is hearsay not within any exception. This question involves the proposed testimony of a witness (the defendant) about his prior out-of-court statement (telling the officer that the light was green) that is consistent with his in-court testimony. It appears that the prior statement is being offered to prove the truth of the matter asserted in the statement—that the light was green when the defendant entered the intersection. Thus, the proposed testimony is hearsay evidence and does not fall within any recognized exception to the hearsay rule. (B) is wrong because it states that the objection to the defendant's proposed testimony should be sustained because the prior consistent statement is irrelevant. Federal Rule 401 establishes a standard for relevance that is very easy to meet: relevant evidence is evidence having any tendency to make the existence ofa consequential fact more probable or less probable than it would be without the evidence. The color of the traffic light at the time the defendant entered the intersection is clearly a consequential fact in the plaintiff's tort claim against the defendant. That the defendant immediately told the officer that the light was green would have some tendency to prove that the light was in fact green. The problem with the defendant's proposed testimony is not that it is substantively irrelevant, but rather that it is an unacceptable form of evidence, i.e., hearsay. (C) is wrong because, if an item of evidence is hearsay and not within any hearsay exception, it does not become admissible simply because it was made from personal knowledge. Declarants typically make hearsay statements based on personal knowledge; that does not transform the statements into nonhearsay or somehow render them admissible. (D) is incorrect; the fact that the defendant is in court and subject to cross-examination does not change the nature of the statement. Federal Rule 801(d)(l)(B) defines when a witness's prior consistent statement is not considered hearsay evidence: (i) when it is offered to rebut an express or implied charge that the witness is lying or exaggerating because of some motive (e.g., bias), provided the prior consistent statement was made before the onset of the alleged motive to lie or exaggerate; or (ii) when it is offered to rehabilitate a witness whose credi- bility has been impeached on some non-character ground other than a charge of recent motivation to lie or exaggerate (e.g., an alleged inconsistency or sensory deficiency). Here, there are no facts indicating that the defendant has been impeached by any method, so the hearsay exclusion for prior consistent statements does not apply. (Note also that the testimony may be inadmissible on the additional ground that it is improper bolstering of an unimpeached witness.)

The declarant collapsed at her wedding reception after drinking champagne during the wedding toast. She was rushed to the hospital accompanied by her bridesmaids. A few hours later, as the bridesmaids kept vigil over her hospital bed, the barely conscious declarant murmured: "I couldn't believe it when I sawit, but now I can. I saw my new husband drop something into my glass before the toast. Make sure he is brought to justice for murdering me." The declarant lost consciousness and lapsedinto a coma; she remains in a vegetative state.It was determined that she was poisoned, and her husband was arrested and charged with attempted murder. At trial, the prosecution wishes to call one of the bridesmaids to testify to the declarant's statement at the hospital. Should the court admit the proposed testi- mony? (A) No, because it is hearsay not within any exception. (B) Yes, as an excited utterance. (C) Yes, as a statement of identification. (D) Yes, as a dying declaration.

(A) The statement is inadmissible hearsay. It is an out-of-court statement being offered to prove the truth of the matter asserted, i.e., that the defendant tried to kill the declarant. The statement does not qualify as a dying declaration, an excited utterance, or a prior statement of identification, as discussed below. (B) is incorrect. The statement does not constitute an excited utterance because there is no indication that the declarant was still under the stress of what had happened to her. Although being poisoned is certainly a startling event, she "murmured" the statement hours later while barely conscious. Her statement also indicates that she had time to consciously reflect on what had happened. (C) is incorrect because the hearsay exclusion for prior statements of identifi- cation only applies where the declarant testifies at trial and is subject to cross-examination. Here the declarant is in a coma and unavailable to testify. Additionally, her statement simply described her husband's action and was not an "identification" for purposes of the rule. (D) is wrong because the use of dying declarations is limited to civil actions and prosecutions for homicide. Here, the defendant is being tried for attempted murder. Thus, the statement does not qualify as a dying declaration.

A state prohibited speechmaking, noisy picketing, or other public gatherings within 100 feet of the state legislative building when the legislature was in session to vote or debate on any legislation. The statute did permit silent picketing or silent vigils at any time, as long as the pickets did not interfere with pedestrians or traffic. The nearest place to the building where speeches could be made during a session was a large public park directly opposite the building. During a controversial debate on a proposed bill to reinstate the state's death penalty, supporters of the bill gathered for a rally and speeches. One of the leaders of the group was giving a speech when he was informed that the legislature had decided to send the bill back to committee and that there would be no voteon the bill until the next legislative session. He told the crowd that they should all go across the street and let the legislators hear the voices of the people. When he led the chanting crowd to the front of the building, the state police dispersed them and arrested the leader, charging him with violating the statute. Is the state statute constitutional? (A) Yes, both on its face and as applied to the leader. (B) Yes on its face, but not as applied to the leader. (C) No on its face, because a state's citizens have a right to take their complaints to their state legislature. (D) No on its face, because it permits silent picketing while prohibiting other picketing.

(A) The statute likely will be held constitutional on its face and as applied. The First Amendment protects the freedom of speech. In most cases, regulation of the content of speech will be found to be unconstitutional unless the government can prove that the content regulation is necessary to achieve a compelling government interest. However, regulation of the conduct associated with speech—the time, place, or manner of the speech activity—is tested under different standards. In a public forum (i.e., a place traditionally open to speech activities, such as a park), such a regulation will avoid strict scrutiny and be upheld if it is content neutral, it is narrowly tailoredto achieve an important government interest, and it leaves open alternative channels of commu- nication. The regulation here prohibits speechmaking and noisy picketing within 100 feet of the legislative building while the legislature is in session. It does not differentiate based on content,it appears to be narrowly tailored to allowing the legislature to meet in a quiet setting so it can get work done (since the statute applies only when the legislature is in session and extends only 100 feet), and the statute leaves open other channels of communication, such as silent pickets and holding rallies across the street. Therefore the statute is valid on its face. And since the leader of the group violated the statute, it was constitutional to apply it to him. There is no reason why he could not have remained in the park and spoken as noisily as he wanted to. Therefore, (B)is incorrect. (C) is wrong because there are many methods to direct complaints to a legislature without speechmaking right in front of the building. (D) is incorrect because silent versus noisy is not a content-based restriction. It is reasonable to allow silent picketing while prohibiting noisy picketing, since the goal here is to allow the legislature to meet without excessive noise disturbing them.

A fleeing bank robber ran into a school and took the principal hostage at gunpoint. The police, who had received a detailed descrip- tion of the clothing the robber was wearing, surrounded the school and demanded that the robber come out with his hands up. When it began to get dark, the robber ordered the principal to undress, and the robber switched clothing with the principal. He tied the princi- pal's hands to his side and pushed the principal out the door first. Seeing that the first person out of the door did not emerge with hands up and that the person was wearing clothing the robber was described as wearing, a police sharpshooter shot and killed the principal. The robber was captured and put on trial for the murder of the principal. Should the jury find the robber guilty? (A) Yes, because the police were justified in us- ing deadly force under the circumstances. (B) Yes, because changing clothes with the principal was an act taken with extreme indifference to an unjustifiably high risk to human life. (C) No, because it was not foreseeable under the circumstances that the police would use deadly force. (D) No, because the robber was not responsible for the police shooting the principal.

(B) In forcing the principal to dress in the robber's clothing and to leave the school first, the robber exhibited extreme indifference to an unjustifiably high risk to human life; i.e., the robber acted with malice aforethought. Murder is the unlawful killing of a human being with malice afore- thought. Malice aforethought exists if the defendant has any of the following states of mind: (i) intent to kill; (ii) intent to inflict great bodily injury; (iii) awareness of an unjustifiably high riskto human life; or (iv) intent to commit a felony. When the robber forced the principal to dress in the robber's clothing and leave the school first, the robber knew that there was a high risk that the police would mistake the principal for the robber and shoot the principal, who could not raise his hands in the air. By compelling the principal to proceed into a situation that presented an unjus- tifiably high risk to the principal's life, the robber manifested extreme indifference to that risk. Thus, the robber acted with a state of mind that was sufficient to constitute malice aforethought. This state of mind, in conjunction with the robber's act of placing the principal in this position, makes the robber guilty of the murder of the principal. (C) is incorrect because in fact it was foreseeable that the police would use deadly force against what they perceived to be an armedand dangerous felon. (D) is incorrect because, by consciously creating the appearance that the principal was actually the robber, an armed and dangerous felon, and compelling the principal to proceed out the door without his hands up, the robber is deemed to be responsible for the shooting of the principal. It may be true that, as (A) states, the police were justified in using deadly force under the circumstances. The police may use deadly force to apprehend an armed felon who poses a threat of serious bodily harm, and it appeared to the police that the principal was such a person. However, (A) is incorrect because it implies that the robber would not be guilty if the police were not justified in using deadly force. The robber's indifference to an unjustifiably high risk to human life does not depend on whether the police response was legally justified. In effect, (A) would make the robber's mental state dependent on his knowledge of the law regarding police use of deadly force. Even if the police response was not legally justified, there was still an unjustifiably high risk that the police would shoot under these circumstances. (B) addresses this risk, while (A) does not.

In a wrongful death action, the plaintiff claimed that the defendant intentionally caused the death of the plaintiff's husband, who was the defendant's co-worker. At trial, the plaintiff's attorney called another co-worker to the stand as a witness. The defendant's attorney did not object to the witness's testimony that there had been "bad blood" at work between the deceased and the defendant. However, the attorney objected to one line of questioning, but he was overruled by the judge. The line of questioning was as follows: Attorney: "Now, you've told us how the deceased came back to the shop after he had obviously been hit hard on the jaw. What did he say at that time?" Witness: "He said that the defendant did it, and just then I noticed that the defendant was in the shop too." Attorney: "What did the defendant do?" Witness: "He just smirked and started laughing." Was the judge correct in overruling the objection to the admission of this portion of the witness's testimony? (A) Yes, because it is a statement against inter- est by the defendant. (B) Yes, because it is an adoptive statement by a party-opponent. (C) No, because the introduction of the deceased's out-of-court statement would violate the defendant's right to confront witnesses. (D) No,becausethedeceased'sstatementthat the defendant did it is hearsay, and cannot qualify as a dying declaration.

(B) The judge was correct in overruling the objection because it was an adoptive statement by the defendant. A statement by an opposing party is not hearsay. A party may expressly or impliedly adopt someone else's statement as his own. One type of adoptive statement occurs when a party hears an accusation and remains silent when a reasonable person would have protested if the accusation were untrue. Under those circumstances, both the accusation and the lack of protest can be introduced by the party-opponent if relevant. Here, the deceased accused the defendant of hitting him in the jaw and the defendant failed to deny the accusation. Therefore, (B) is correct. Regarding (D), it is true that the deceased's statement would probably not qualify as a dying declaration. A declaration made by the now-unavailable declarant, while believing his death was imminent, that concerns the cause or circumstances of what he believed to be his impending death is admissible. The question does not indicate that the deceased believed that his death was imminent at the time he made his statement; therefore, the statement would not qualify as a dying declaration. However, (D) is incorrect because the testimony would be admissible as an adoptive statement by an opposing party. (A) is wrong because the "statement against interest" hearsay exception can only be used when the declarant is unavailable to testify. Here, the defendant is available. Furthermore, laughing and smirking would not qualify as statement against interest; the defendant didn't make any affirmative statement. The only reason his reaction is admissible is because it qualifies as an adoptive admission by silence. (C) is wrong because the Confrontation Clause does not apply to civil cases.

For many years, a farmer has grown and harvested a sizeable wheat crop on his land. On May 1, the farmer entered into an agreement with a bakery to supply the bakery with 10,000 bushels of wheat at $15 a bushel. The agree- ment called for the farmer to deliver the bushels to the bakery's plant on or before September 1. In mid-July, it became apparent that the year's wheat crop grown in the United States was going to be substantially smaller than originally antici- pated. As a result, the price of wheat on August 1 rose to $35 a bushel. On August 10, the farmer informed the bakery that he would be unable to deliver any bushels to the bakery on September 1 because he had sold his entire harvested crop to other consumers. If the bakery sues the farmer for breach of contract, will the bakery prevail? (A) Yes, as long as it files suit on or after Sep- tember 1. (B) Yes, regardless of whether it sues before or after September 1. (C) No, because the sharp increase in the price results in a commercial frustration of the original deal, which excuses the farmer's performance. (D) No, because the unforeseen rise in price is a substantial change of circumstances that excuses both parties.

(B) The bakery will prevail regardless of when it sues. The farmer's statement of August 10 that he would be unable to deliver because he had sold all of his crop to others constitutes a repudiation of the contract, which entitles the bakery to sue at once rather than wait for the September 1 perfor- mance date. [See UCC §2-610] The bakery will prevail unless there have been some unanticipated circumstances that would excuse performance, but a rise in price due to poor crop performance is not sufficient to excuse performance under the doctrine of commercial impracticality. The farmer appears to have repudiated merely to make a greater profit. (A) is incorrect—because the farmer repudiated, the law does not require the bakery to wait until the due date for performance to arrive. It may sue at once. [See UCC §2-610] (C) is incorrect because the facts do not indicate that the farmer has been harmed at all by the price increase, or that he cannot perform the contract with the bakery. As a matter of fact, he is simply attempting to gain a windfall by repudiating the contract with the bakery to sell at a higher price. (D) is incorrect because the facts do not indicate that the circumstances that led to the poor crop were unforeseen. Crop performance is risky and variable, and a poor crop can certainly result in a price increase by virtue of the operation of the law of supply and demand. The farmer must be assumed to have anticipated such possibilities and taken such risks.

Based on a tip from a reliable informantthat an attorney was illegally selling automatic weapons and ammunition from his storefront office, the police obtained a warrant to search for weapons at the office. When they arrived at the building, they saw a client exiting the attorney's office and placing what appeared to be a weapon inside his jacket. The police stopped the client on the street and an officer patted down his outer clothing. The officer felt no weapon but did feel a bag with several small tube-shaped objectsin it. She immediately placed the client under arrest. The contents of the bag were later deter- mined to be marijuana cigarettes. Prior to trial on the narcotics charge, the client sought to suppress introduction of the marijuana as evidence. The arresting officer testified atthe suppression hearing that, based on her long experience as a narcotics officer, she concluded immediately that the bag contained marijuana cigarettes when she first touched it. If the officer's testimony is believed, how should the court rule on the motion to suppress the marijuana evidence? (A) Deny it, because the search was incident to a lawful arrest. (B) Deny it, because the police had a reasonable suspicion that the client might be armed and dangerous. (C) Grant it, because the scope of an officer's patdown during an investigatory detention is limited to a search for weapons. (D) Grant it, because the search warrant did not authorize the police to search the client despite the fact that he was just present at the place to be searched.

(B) The client's motion should be denied because the seizure of the marijuana was properly withinthe scope of the stop and frisk. A police officer may stop a person without probable cause for arrest if she has an articulable and reasonable suspicion of criminal activity. [Terry v. Ohio (1968)] In such circumstances, if the officer reasonably believes that the person may be armed and dangerous, she may conduct a protective frisk. The scope of the frisk is limited to a patdown of the outer clothing for concealed instruments of assault, but the officer may reach into the suspect's clothing and seize any item that the officer reasonably believes, based on its "plain feel," is a weapon or contraband. [Minnesota v. Dickerson (1993)] Here, the officer believed that the client put a weapon in his jacket as he was leaving a place where weapons and ammunition were being sold illegally; thus, she had reasonable grounds to conduct both a stop and a frisk. If the court accepts the officer's testimony that she instantly recognized the marijuana cigarettes based on the patdown only without any further conduct, they were properly seized and can be admitted into evidence. (A) is incorrect because the client was not under arrest at the time the patdown disclosed the marijuana. While the police may conduct a full search incident to a lawful arrest, they had only detained the client for purposes of an investigatory detention at the time of the seizure. (C) is incorrect because, as discussed above, a frisk for weapons also allows an officer to seize contra- band if she immediately recognizes it as such. (D) is incorrect because the police did not need to rely on the search warrant to search the client; for the limited stop and frisk that occurred here, the police need only a reasonable suspicion of criminal activity and a reasonable belief that the suspect is armed and dangerous.

The defendant approached a clerk at a local gas station/mini-mart and offered to exchangea pair of sunglasses for some gas. The clerk refused, saying he could only accept cash. The defendant then pulled a knife out of his pocket and told the clerk he wanted a fill up. The clerk, who was quite a bit older than the defendant, gave him some "fatherly advice" that crime does not pay. In response to the advice, the defendant put the knife away. Feeling sorry for the defen- dant, the clerk then agreed to give him somegas for the sunglasses. The defendant got thegas and then left. The clerk then discovered that the defendant had taken the sunglasses from a display case in the store and clipped the tag off before offering them to the clerk. The defendant was apprehended shortly thereafter. Which of the following statements is correct regarding the defendant's conduct? (A) The defendant can be convicted of larceny by trick and attempted robbery. (B) The defendant can be convicted of false pretenses and attempted robbery. (C) The defendant can be convicted of larceny by trick but not attempted robbery because he voluntarily abandoned the attempt. (D) The defendant can be convicted of false pretenses but not attempted robbery because he voluntarily abandoned the attempt.

(B) The defendant can be convicted of false pretenses and attempted robbery. False pretenses consists of obtaining title to the property of another by an intentional or knowing false statement of past or existing fact with intent to defraud another. With regard to the false representation, all thatis required is that the defendant create a false impression as to a matter of fact, which is what happened here. In this case, the defendant obtained title to the gasoline by creating a false impres- sion that he owned the sunglasses that he was offering in exchange, and he had the requisite intent to be convicted of false pretenses. He can also be convicted of attempted robbery because he attempted a taking of the property of another in the presence of the victim by force and with the intent to permanently deprive the victim of it. The fact that he was persuaded not to carry out the robbery does not affect his liability for attempt; that crime was completed as soon as he pulled out a knife and demanded the gas. (A) and (C) are incorrect because larceny by trick occurswhen possession of the property is obtained by the defendant's misrepresentations, whereas false pretenses is the appropriate offense when the misrepresentations have prompted the victim to convey title to the property to the defendant. Here, the clerk intended to convey title to the gas to the defendant in exchange for the sunglasses. (C) and (D) are incorrect because the majority rule is that abandonment is not a defense to attempt. As discussed above, the crime of attempted robbery was completed as soon as the defendant pulled the knife out of his pocket and demanded the gas.

A stockbroker visited a customer at the customer's office and sold her some securities. Coincidentally, three days after the sale, the stockbroker and customer were involved in a car accident on the freeway into the city. After the securities dramatically declined in value, the customer determined that the broker violated federal securities statutes when the broker sold the securities. The customer and the broker are citizens of the same state. The customer filed an action against the broker in federal district court, asserting a claim for $70,000 for the broker's violation of federal securities statutes and a claim for $4,000 for the broker's negligence in damaging the customer's car. May a federal court hear these claims together? (A) No, because unrelated claims may not be joined in the same action. (B) No, because the federal court lacks subject matter jurisdiction over the negligence claim. (C) Yes, because the amount in controversy is irrelevant in federal question cases. (D) Yes, because the court has federal question jurisdiction over the statutory securities claim and supplemental jurisdiction over the negligence claim.

(B) The federal court may not hear these claims together because there is no supplemental jurisdic- tion over the negligence claim. Generally, every claim in federal court must have a basis for federal subject matter jurisdiction. There are two main bases for federal subject matter jurisdic- tion—diversity of citizenship jurisdiction and federal question jurisdiction. Once a claim is in federal court, supplemental jurisdiction sometimes may be used to have a claim heard. Diversity of citizenship jurisdiction is available when (i) there is complete diversity of citizenship, meaning that each plaintiff is a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000. A natural person's citizenship is the state that is the person's domicile. In the instant case, the facts state that the broker and customer are from the same state. As a result, complete diversity does not exist. Furthermore, although the customer may aggre- gate all the claims he has against the broker, the aggregate amount ($74,000) does not meet the minimum amount in controversy requirement. For these reasons, subject matter based on diversity is not available. Federal question jurisdiction is available when the plaintiff, in his well-pleaded complaint, alleges a claim that arises under federal law. Anticipation of a federal defense or the fact that federal law is implicated by the plaintiff's claim do not give rise to federal question jurisdiction; the plaintiff's claim must arise under federal law. Here, the customer alleges that the broker violated federal securities law. That is sufficient to invoke federal question jurisdiction over the securities claim (which does not have an amount in controversy requirement or a complete diversity requirement). However, the claim for damages to the customer's car is a state law claim, and federal question jurisdiction is not available. Thus, to be heard, the negligence claim must invoke supplemental jurisdiction. When the federal court has subject matter jurisdiction over one claim, it has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding. Here, though, the customer's negligence claim is not related in any way to the customer's claim for violating federal securities law. As a result, supplemental jurisdiction is not available. Thus, (B) is the correct choice and (D) is incorrect. (C) is incorrect even though it contains a true statement of law, because there is no supplemental jurisdiction and thus no federal subject matter jurisdiction. (A) is too broad of a statement. When dealing with a single plaintiff against a single defendant, the plaintiff is allowed to join any number and type of claims against the defendant. Thus, if subject matter jurisdiction requirements could have been satisfied, the customer here could have joined all the claims he has against the broker. (When multiple plaintiffs or multiple defendants are involved, it is essential only that at least one of the claims arise out of a transaction in which all were involved.)

When a jogger came to a bike path that passed under a road, he used the path to save some time, despite seeing a sign reciting a city ordinance that permitted only bicycles to use the path and prohibited pedestrians. After he reachedthe other side, a motorist pulled out of an alley across the bike path and hit him with her car, injuring him. There was a stop sign at the end of the alley, but the motorist had failed to see the jogger and had not stopped. Had the jogger not used the bicycle path, he would not have been near the alley when the motorist drove out. In a suit by the jogger against the motorist, is the jogger likely to prevail? (A) Yes, because the motorist's failure to stop at the stop sign was an unforeseeable inter- vening force that caused his injury. (B) Yes, but his recovery will be reduced if any fault is attributed to him by the trier of fact. (C) No, because his violation of the ordinance was the actual and proximate cause of his injury. (D) No, because his violation of the ordinance was an unforeseeable intervening force that caused his injury.

(B) The jogger likely will prevail, but his recovery will be reduced if any fault is attributed to him by the trier of fact. The motorist's negligent failure to stop at the stop sign was an actual and proximate cause of the jogger's injuries, so the jogger will prevail in his suit against the motorist. However, the jury could find that the jogger also contributed to his injury to a minimal extent by being on the bike path, in which case his recovery of damages will be reduced by the percentage of his fault. (A) is incorrect because the defendant's conduct is not an intervening force. An inter- vening force is one that comes into motion after the defendant's negligent act and combines with it to cause injury to the plaintiff. Here, no intervening force is present in the facts. (D) is similarly incorrect. A plaintiff's conduct, even if it constitutes contributory negligence, is never character- ized as an intervening force. (C) is incorrect. The jogger's violation of the ordinance may have been an actual cause of his injury because, but for his violation of the ordinance, he would not have been in the spot where he was struck; whether it was a proximate cause of his injury depends on the foreseeability determination by the jury. Regardless, however, the motorist's negligent failure to stop was clearly both an actual and proximate cause of the jogger's injuries; hence, the jogger will prevail.

A music show promoter was handing out leaflets at a county fair, advertising a commer- cial country and western music concert sched- uled at the fairgrounds two weeks after the county fair was due to end. The fair manager approached the promoter and politely asked him to stop distributing leaflets because it was in contravention of the fair's rules. The promoter refused to stop, and the manager summoned a county police officer. In the officer's presence, the manager again told the promoter to stop handing out the leaflets. The promoter ignored the manager again and continued to hand out leaflets, at which point the promoter was arrested for criminal trespass and charged in municipal court. At trial, the promoter defended againstthe charges by claiming a violation of his First Amendment rights. Which of the following, if true, is most damaging to the promoter's First Amendment claims? (A) The place where the promoter distributed leaflets was private property leased to the county for holding the fair. (B) The rules of the county fair clearly prohibit all leafleting or other solicitations on fair property, except at designated hours other than the time the promoter was engaged in distributing leaflets. (C) The means of communication was printed leaflets rather than oral speech. (D) The message on the leaflets promoted a commercial event.

(B) The most damaging fact to the promoter's First Amendment claims is that the fair's rules clearly prohibit leafleting except at designated hours other than the time the promoter was distributing leaflets. The First Amendment freedom of speech is not absolute. To avoid chaos and to protect other governmental interests, government is allowed to adopt reasonable time, place, and manner regulations on speech in public forums and designated public forums. To be valid, such regula- tions must be content-neutral, be narrowly tailored to serve an important government interest, and leave open alternative channels of communication. The fact that the rule here allows solicita- tion at specified times indicates that it is narrowly tailored and leaves open alternative channels of communication. The rule also seems to be content-neutral and it serves the government's important interest of keeping the fair orderly. Therefore, the rule would probably be valid if (B) is true. (A) would not be damaging to the promoter because the First Amendment protects against infringement on speech by the government, regardless of whether the speech is on private or public property; the fact that the fairgrounds are private property does not preclude the property from being a public forum during the time that the county was leasing it and conducting a fair on it. Hence, the fairgrounds would be considered to be government property for purposes of application of the public forum rule. (C) is not damaging because the First Amendment protec- tions extend to most forms of speech, including certain symbolic acts and the right not to speak. It certainly also extends to leafleting. (D) is not very damaging because the First Amendment protects commercial speech, although the standard for regulation differs from other speech—the government may ban false or misleading commercial speech and may regulate (including content regulation) other commercial speech with narrowly tailored regulations that directly advance a substantial government interest. The regulation here appears to meet this standard.

A small parish hired a contractor to builda school wing onto its church for a cost of $200,000 by August 31. The parties entered into a written contract that provided for five progress payments of $40,000 each at various stages of completion. On July 18, after the contractor had spent $160,000 on performance and received $120,000 in progress payments, he notified the parish that he was quitting the project becausea more lucrative job came up. The parish hired some local laborers who did construction work for a living to finish the job by August 31 for $120,000, which was a reasonable price given the short notice. If the parish sues the contractor for breachof contract, and the contractor countersues to recover the $40,000 in costs that he has not been paid, what is the likely award? (A) The parish can recover $120,000, the cost to complete construction of the wing. (B) The parish can recover $40,000, the difference between the contract price and the total amount that the parish paid for construction of the wing. (C) The contractor can recover $40,000, the difference between the amount it expended on performance and the amount it was paid, to prevent the parish's unjust enrichment. (D) Neither party can recover anything, because the $40,000 extra that the parish had to pay to complete construction of the wing is offset by the $40,000 difference between the contractor's expenditures and the payments that the parish made to the contractor.

(B) The parish can recover $40,000, which is the amount above the contract price that it cost the parish to get the wing completed. In construction contracts, when the builder breaches after partially performing, the standard measure of damages to which the owner is entitled is the cost of completion plus reasonable compensation for any delay in performance (unless completion would involve undue economic waste). In addition, most courts allow the builder to offset or recover for work performed to date if necessary to avoid the unjust enrichment of the owner. Here, the parish paid the contractor $120,000 and had to pay the laborers an additional $120,000. Thus, the total cost of the wing was $240,000, which is $40,000 more than the contract price. No offset will be allowed for the reasons discussed in (C) and (D) below. Hence, the parish can recover $40,000. (A) is incorrect because the cost of completion is determined from the perspective of the owner, i.e., how much additional money did the owner have to pay to above the contract price to have construction completed? Here, the owner (the parish) paid $40,000 more to have the wing completed than it would have paid had the contract been performed to completion. The parish would be unjustly enriched if it could recover another $80,000 beyond the damages it suffered. (C) and (D) are incorrect because the parish was not unjustly enriched by the additional amount that the contractor expended in performance over the progress payments that it received. The parish still had to pay $40,000 more than the contract amount for completion of the wing because of the contractor's breach. Thus, the parish received no windfall as a result of the contractor's additional expenditures.

An owner of 40 acres of mountain land sold the western 20 acres to a buyer. Because no access to any public road existed on the western side of the property, the deed conveying title to the buyer included an easement for ingress and egress that ran along the southern border of the owner's land. This deed was duly recorded. About the same time that this sale took place, the county extended the public road so that it abutted on the buyer's 20 acres. The buyer then built a cabin on the property. Later, the owner and the buyer both sold their 20 acres to the owner's cousin. The cousin then sold the 20 acres acquired from the buyer to his lawyer and sold the other 20 acres to a doctor. All deeds involved in the various conveyances of the 20-acre parcels were validly recorded. Neither the cousin-lawyer deed nor the cousin- doctor deed made any mention of easements or rights-of-way. In fact, no use was ever made of the easement. A few years later, the lawyer sold his 20 acres to a development company that wished to build a hunting lodge on the property. The development company now wants to construct a road across the doctor's property in the manner contemplated in the deed from the original owner to the buyer. What is the strongest argument as to why the development company should not be permitted to construct the road? (A) Any easement that might have existed was extinguished by abandonment because of nonuse. (B) Any easement that once existed was termi- nated by merger. (C) The county's subsequent expansion of the public road removed the necessity of using the easement across the eastern parcel. (D) Neither the cousin-doctor deed nor the cousin-lawyer deed made any mention of the easement.

(B) The strongest argument is based on merger. When the cousin bought both parcels from the owner and the buyer, the dominant (buyer) and servient (owner) estates came together in the same owner, and the easement was terminated by merger. Once terminated by merger, the easement does not revive when the ownership is later split. (A) is incorrect. An easement may be terminatedby abandonment, but mere nonuse is not enough. The holder of the dominant estate must physi- cally manifest an intent to abandon. The facts do not show that any holder of the western parcel did anything to indicate this intent. (C) is incorrect. The easement granted in the deed from the owner to the buyer was a valid express easement. No implied easement arose because there was no necessity for one. The later construction of the public road can have no effect if there had been no valid implied easement in the first place. (D) is incorrect. The fact that the easement was not included in the subsequent deeds is irrelevant because the easement was in the owner-buyer deed, which was recorded properly in the chain of title. That puts all subsequent purchasers on notice of the easement, and it need not be put in subsequent deeds to be given effect. Exam Tip: Multiple transfers can be confusing on the exam. A technique to aid analysis is to take a quick moment to note the various transfers and holders of the land. For instance, here we have the following, which clearly shows the merger and unity of ownership in the Cousin: West Owner - Buyer - Cousin - Lawyer - Dev. Co. EastOwner - Owner - Cousin - Doctor - Doctor

A pedestrian sued a local bar for injuries he suffered when he was struck by a car driven by a bar patron that had run a red light. He claimed that the patron was permitted to drink too much liquor at the bar before leaving. At trial, the pedestrian called a witness to the stand. The witness testified that she and a friend had visited the bar on the night in question. The witness seeks to testify that she remarked about the patron to her friend, "Look at that guy. He's so drunk he can't even stand up." Is the witness's testimony concerning her remark to her friend admissible? (A) Yes, as a prior consistent statement. (B) Yes, as a present sense impression. (C) Yes, as an excited utterance. (D) No, because it is hearsay not within any exception.

(B) The witness's remark is admissible under the present sense impression exception to the hearsay rule. [Fed. R. Evid. 803(1)] Under this exception, a declarant's statement describing or explaining an event or condition is admissible if it was made while the declarant was perceiving the eventor condition or immediately thereafter. Here, the witness made the observation of the intoxicated patron while she was observing him. (A) is wrong. First, there is no indication that the witness's prior statement at the bar is consistent with anything the witness has said on the stand (i.e., she has not testified that the patron was drunk; she has only testified about her prior statement at the bar). Furthermore, even if her statement at the tavern is consistent with her current testimony, it is not admissible on this basis. A witness's prior consistent statement is admissible when it is offered to (i) rebut a charge that the witness is lying or exaggerating because of some motive (e.g., bias), provided the prior consistent statement was made before the onset of the alleged motive; or (ii) rehabilitate a witness whose credibility has been impeached on some other non-character ground (e.g., a sensory deficiency). Here the witness has not been impeached, so her prior consistent state- ment cannot be introduced. (C) is incorrect because the declarant's statement would be unlikely to qualify as an excited utterance. For her statement to be admissible as an excited utterance, it would have to have been made under the stress of excitement produced by a startling event. The facts do not indicate that the declarant's observation of the patron was startling or stressful; just that she noticed that he was drunk. (D) is wrong because the statement comes within the present sense impression exception to the hearsay rule.

In a suit to recover for injuries after a car accident at an intersection, the plaintiff testi- fied that she had had the right-of-way at the intersection. The defendant's attorney did not cross-examine the plaintiff. The plaintiff then called a witness to testify that, shortly after the collision, as she pulled the plaintiff from the car, the witness heard the plaintiff say, "I think I'm dying! Didn't the other driver see I had the right- of-way?" Should the court admit the testimony? (A) Yes, because the plaintiff's statement was made under belief of impending death. (B) Yes, because the plaintiff's statement was an excited utterance. (C) No, because the plaintiff's credibility has not been attacked. (D) No, because the plaintiff's belief that she had the right-of-way has already been estab- lished without contradiction.

(B) The witness's testimony should be admissible as an excited utterance. Statements made under the stress of some exciting event and relating to that event are admissible under this exception to the hearsay rule. Here, the statement made by the plaintiff right after the collision and relating to it qualifies as an excited utterance. The declarant need not be unavailable for this exception to apply. In contrast, (A) is incorrect because the Federal Rules require the maker of a dying declaration to be unavailable for the declaration to be admissible under the dying declaration exception. (C)is incorrect. While it is true that the plaintiff's credibility has not been attacked, the statement is not being offered for rehabilitation. (D) is incorrect because there is no rule limiting cumulative evidence to establish a point, so certainly testimony from a second witness tending to prove a key issue would be admissible. If this were the tenth person to testify on that point, then the testimony might not be relevant.

As a result of an automobile accident at an intersection, the plaintiff sued the defendant, claiming that the defendant's car was traveling at a high rate of speed and went through a red light just before the crash. A witness for the plaintiff testified that he observed the accident and that the plaintiff's car was traveling at a low speed with a green light at the time of the accident. Which of the following will the court find NOT admissible to admit to impeach the credi- bility of the witness? (A) A certified copy of a certificate of convic- tion for felony assault and battery seven years ago. (B) The testimony of the witness's friend that, last month, while having a drink at a bar, the witness told her that the plaintiff's light was red. (C) A record of an arrest one week ago for embezzlement. (D) On cross-examination of the witness, the question, "Isn't it a fact that you lied to your employer last year concerning your meal expenses on a business trip?"

(C) A record of an arrest, even for a crime such as embezzlement, cannot be used to impeach the credibility of a witness. Since there was no criminal conviction, this would be classified as evidence of a prior bad act that demonstrates dishonesty. Federal Rule of Evidence 608 would allow an inquiry into such a prior bad act during cross-examination of the witness being impeached, but extrinsic evidence of such acts is not allowed under Rule 608, even if the witness denies the act on cross-examination. (A) might be admissible to impeach. Under Federal Rule 609, a prior felony conviction for crimes that do not involve dishonesty can be used to impeach, although the trial judge has discretion to exclude the evidence if its probative value is substan- tially outweighed by unfair prejudice or other Rule 403 considerations. (B) represents an accept- able method of impeachment. Prior inconsistent statements can be introduced to show that the witness's testimony is not credible. (D) is an acceptable impeachment method. Under Rule 608, a witness may be interrogated on cross-examination with respect to any act of misconduct that is probative of truthfulness (i.e., demonstrates dishonesty). Lying on an expense report would be such an act.

A motorist from State A struck and injured a pedestrian in State B. The pedestrian, a State B resident, brought an action in a State B federal court against the State A motorist, seeking $100,000 in damages. The summons and complaint were served on a receptionist at the motorist's place of business in State A. State A's rules permit service of process in this manner, while State B's rules do not. If the motorist moves to dismiss the complaint on the basis of improper service of process, is the court likely to dismiss the action? (A) Yes, because, under choice of law rules, the court will apply the law that a state court in State B would apply. (B) Yes, because the federal rules do not permit service on an individual defendant by deliv- ering process to a third party found at the defendant's place of employment. (C) No, because the federal rules permit service under the rules of the state in which service will be effected. (D) No, because the federal rules permit service on a person of suitable age and discretion at the defendant's place of employment.

(C) The court is not likely to dismiss the action. Generally, Rule 4 allows for: (i) personal service,(ii) service left at the defendant's usual place of abode with one of suitable age and discretion residing therein, or (iii) service upon an authorized agent of the defendant. Alternatively, service may be made as provided by the rules of the state in which the federal court sits or the state in which service is to be effected, regardless of the basis of subject matter jurisdiction. Here, the rules of State A, the state in which service was effected, permit service of process in this manner. Hence, service of process was proper. (A) is incorrect. Under the Erie doctrine, a federal court, in the exercise of diversity jurisdiction, is required to apply the substantive law of the state in which it is sitting, including that state's conflict of law rules. However, the federal courts apply federal procedural law. Because the Federal Rules of Civil Procedure governing service of process are procedural rather than substantive, the court will apply the federal rules here. (B) is incorrect. It is true that Rule 4 does not provide general authority to serve process on a third party found at a defendant's place of employment, instead permitting service only upon an agent authorized by appointment or by law to receive service of process on behalf of the defendant. Here, however, the State A law did permit service of process in this manner, and Rule 4 permits service of process in accordance with the rules of the state in which service is to be effected, as discussed above. (D) is incorrect because it states the rule for substituted service at the defendant's usual place of abode; that rule does not apply to the defendant's place of employment.

During the investigation of a large gambling operation, the police obtained a warrant to search a bookie's home based on the affidavitof an informant. The informant was a rival bookie who had never acted as an informant before, and much of the substance of the rival's information came from third-party sources. During the search, the police seized a varietyof gambling evidence, including betting slips and a check from the defendant. The bookieand the defendant were arrested for violatingthe state's gambling laws, and separate trials were ordered. At a suppression hearing for the bookie, the court held that the search warrant for the bookie's home was not supported by probable cause and suppressed introduction of the evidence seized. The defendant moved to suppress introduction of the betting slips and the check on the same basis. If the court agrees that the search warrantof the bookie's home was not supported by probable cause, should the defendant's motion be granted? (A) Yes, because the rival bookie was not a reliable informant. (B) Yes, because the evidence is the fruit of an unlawful search. (C) No, because the defendant's reasonable expectation of privacy was not constitution- ally violated. (D) No, because the police acted reasonably in relying on the issuance of the warrant.

(C) The defendant's motion should be denied because his constitutional rights were not violated by the search and seizure of the bookie's home based on an invalid warrant. To have a Fourth Amend- ment right to be free from unreasonable search and seizure, a person must have a reasonable expectation of privacy in the place searched or the item seized. Standing to challenge a search on Fourth Amendment grounds does not exist merely because a person will be harmed by introduc- tion of evidence seized during an illegal search of a third person's property; the defendant's own expectation of privacy must be violated. Here, the defendant had no right of possession of the place searched and no property interest in the items seized; thus, he had no standing to object to the search of the bookie's home and the seizure of the betting slips and check. (D) is incorrect because the defendant's motion should be denied regardless of the reasonableness of the police reliance on the search warrant. Under United States v. Leon (1984), a finding that a warrant was invalid because it was not supported by probable cause will not entitle a defendant to exclude the evidence obtained thereby if the police reasonably relied on a facially valid warrant. However, that determination does not need to be made with regard to the defendant because his constitutional rights were not violated by the defective warrant. (A) and (B) are incorrect because, as discussed above, the search was unlawful only with regard to the bookie's rights; the evidence may be used against the defendant because he had no expectation of privacy in the place searched.

A motorist, a citizen of State A, was injured when her car collided with a bakery delivery truck. The bakery company that owns the truck is a State B corporation based in State B. The driver of the truck is a citizen of State A and an employee of the bakery company, and he was acting in the scope of his employment whenthe collision occurred. The motorist filed an action against the bakery company in federal district court. The complaint alleges that the bakery company is liable for the negligence of its employee, the driver. The bakery company in turn filed a third-party claim against its driver, alleging that he, as the primarily negligent party, is liable to the company for any sum that the motorist recovers from it. Can the driver, once impleaded, assert and maintain in the same action a counterclaim against the bakery company under the federal Fair Labor Standards Act to recover $2,000 in wages that the company failed to pay the driver? (A) No, because the driver's counterclaim does not arise from the same transaction or oc- currence as the motorist's original claim. (B) No, because the court lacks subject matter jurisdiction over the driver's counterclaim. (C) Yes, because the driver's counterclaim is permitted under the Federal Rules of Civil Procedure. (D) Yes, because if the driver does not assert the counterclaim, he will be barred from asserting the claim as an independent action.

(C) The driver may assert a counterclaim against the bakery company. Once a third-party defendant is impleaded, he may assert permissive and compulsory counterclaims the same as any other defendant. If a counterclaim arises out of the same transaction or occurrence as one of the plain- tiff's claims, it is a compulsory counterclaim and must be pleaded or it will be barred. Any other counterclaim is permissive and may be asserted even though there is no connection at all between it and the plaintiff's claim, as long as there is subject matter jurisdiction for the counterclaim. Here, the wage claim does not arise from the same transaction or occurrence as the claim asserted against the driver, but it has an independent jurisdictional basis, so it is permitted as a permissive counterclaim. Therefore (A) is incorrect. (B) is incorrect because the court has federal question jurisdiction over the driver's federal Fair Labor Standards Act claim. (D) is incorrect because this claim has an independent jurisdictional basis and may be asserted independently rather than as a permissive counterclaim.

In a civil action against a security guard and the bank that employed him, the plaintiff alleged that he was shot after a traffic altercation when the security guard jumped out of his car and was waving his loaded gun. The plaintiff alleged that the bank was negligent in entrusting the weapon to the guard, and that the guard was negligent in his handling of the weapon. The plaintiff offers the testimony of the guard's former co-worker, who worked with the guard for 10 years at another bank. The former co-worker is prepared to testify that, during the time that he worked with the guard, the guard had a reputation for being a hothead, keeping his weapon loaded during off-duty hours, and threatening people with his gun whenever he got into an argument. Assuming proper objection, how should the court rule regarding the admissibility of the testimony? (A) The former co-worker's testimony is char- acter evidence, inadmissible in a civil case. (B) The former co-worker's testimony is character evidence admissible against the bank if it can be established that the bank knew of the guard's reputation. (C) The former co-worker's testimony is character evidence admissible against the bank whether or not the bank knew of the guard's reputation. (D) The former co-worker's testimony is admis- sible to help establish that the guard may have acted negligently at the time of the accident.

(C) The former co-worker's testimony is admissible character evidence. Under Federal Rule 404, in a civil case, evidence of the character of a person generally is inadmissible if offered to prove that the person may have acted in conformity with his character on a particular occasion. If, however, the character evidence is offered for some other purpose, such as where a person's character itself is an essential element of a claim or defense in the case (e.g., in defamation or negligent hiring/ entrustment cases), Rule 404 will not exclude the evidence. The testimony is evidence of the guard's character but, if offered against the bank, it would be offered to show that the bank may have been negligent when it entrusted the gun to the guard. Thus, the evidence would not be excluded by Rule 404. In addition, the evidence would be relevant even if the bank did not know of the guard's reputation, because the jury could find that a reasonable investigation by the bank would have uncovered the information and the bank should have known of the guard's reputation. (A) is too broad a statement. In a civil case, character evidence is not admissible to help prove that a person acted in conformity with his character, but it may be admissible for the purpose it is offered here. (B) is too narrow a statement. The evidence clearly would be admissible if the bank knew of the guard's reputation. Thus, (B) is technically a correct statement. However, since the theory of the case against the bank is "negligent entrustment," the evidence could be admitted even if the bank did not know of the guard's reputation but should have known. Thus, (C) is a more complete statement than (B). (D) is wrong. Under Rule 404, the evidence is not admissible to help establish that the guard may have acted negligently.

A landowner who owned five acres on the shore of a lake gave verbal permission to a neighbor to cross over her land to get to thelake so he could fish. About three years later, a trespasser built a boat dock on the far west end of the landowner's land without her permission. The land was heavily wooded, and the dock could not be seen from the landowner's house, although if she had taken a walk along the shore she would have found it. The neighbor and the trespasser would see each other frequently while they were fishing, and when the neighbor bought a boat, the trespasser gave him permis- sion to tie up the boat to the dock at any time. Soon thereafter, the trespasser died and left all of his property to his son, who lived in another state. Although the neighbor never contacted the trespasser's son, he kept his boat at the dock. About two years later, the landowner discovered the dock on her land and told the neighbor to remove his boat because she was going to have the dock torn down. The neighbor filed for an injunction to prevent the landowner from tearing down the dockand to establish his right to continue to use it. Although the trespasser had died before he had sufficient time to gain title by adverse posses- sion to the land on which his dock was built, the neighbor had been crossing over the landowner's land for about five and one-half years. The juris- diction has a five-year requirement to establish title to land by adverse possession or to acquire prescriptive easements. What is the likely ruling of the court? (A) The landowner cannot tear down the dock because the neighbor had been using the dock for a sufficient amount of time to gain an easement by prescription. (B) The landowner can tear down the dock because, although the neighbor has an easement by prescription, he did not build the dock himself and, therefore, had no right to gain title to the land by adverse possession. (C) The landowner can tear down the dock, and the neighbor does not have an easement by prescription. (D) The landowner can tear down the dock because once the trespasser died, the neighbor no longer had permission to use the dock and he did not have time to gain an adverse interest as to the trespasser's son.

(C) The landowner can tear down the dock and the neighbor has no easement right. To acquire a prescriptive easement, the use must be open and notorious, adverse, and continuous and uninter- rupted for the statutory period. The neighbor's original right to cross the landowner's land was with her oral permission rather than adverse and, therefore, he had a license only. Regardless of how the neighbor's use of the dock is viewed with regard to the landowner's interest, there was not a sufficient amount of time for the neighbor to have gained a prescriptive easement because at least the first three years of his use were not adverse. Hence, (A) and (B) are wrong. (D) is wrong because it would only be relevant that the neighbor had gained an adverse interest against the trespasser's son if the son had gained an adverse interest against the landowner, and the facts indicate that he had not. Although tacking is permitted where the subsequent possessor takes by descent, devise, or deed purporting to convey title, the trespasser's son never possessed the property. Thus, the trespasser's son had not gained title to the property by adverse possession and the landowner could tear down the dock.

A man lost some money while playing poker with several people at his friend's house. When the man accused his friend of cheating, his friend asked him to leave. The man became abusive and refused to leave, so his friend and a couple of other players forced him to go. Angry and determined to get his money back, the man went to his home and picked up his gun. He headed back to his friend's house, intending to shoot his friend if he did not give back the money. However, due to the altercation at the house, his friend had called the police. Justas the man was about to step onto his friend's property, the police pulled up and stopped him. They frisked him, found the gun in his pocket, and arrested him. A state statute prohibits entry onto the property of another with the intent to commit violence thereon. If charged with attempt under this statute, will the man be found guilty? (A) No, because this is an "attempt" statute, and there cannot be an attempt of an at- tempt. (B) No, because it would be an attempt to convict a person for a guilty mind. (C) Yes, because the man was trying to enter the property and he had the necessary state of mind. (D) Yes, because the statute was designed to protect the public from violence, and the man is dangerous.

(C) The man will likely be found guilty. An attempt requires both a specific intent to commit the crime and an overt act in furtherance of that intent. Given that the man intended to enter his friend's property and was apprehended just before doing so, both requirements for attempt canbe established. (A) is incorrect because the man is not being charged with the attempt to commit violence, but with the attempt to enter onto the property with the intent to commit violence. (B) is also wrong because the statute prohibits not only the state of mind, but also an act (entering onto another's property). (D) is a poor answer because the man cannot be convicted unless it is proved that he committed the offense with which he has been charged, and this answer does not require that the elements of the crime be proved.

A buyer purchased a parcel of property from a seller for $100,000, financing the purchase with a loan from the seller secured by a mortgage on the property. The seller promptly and properly recorded his mortgage. Shortly thereafter,the buyer obtained a loan from a credit unionfor remodeling secured by a mortgage on the property. The credit union promptly and properly recorded its mortgage. One year later, thebuyer obtained a home equity loan from a bank secured by a mortgage on the property. The bank promptly and properly recorded its mortgage.A few months later, the buyer stopped making payments on the debt owed to the credit union. With proper notice to all parties, the credit union brought an action to foreclose on its mortgage. At that time, the buyer owed $20,000 on the seller's mortgage, $25,000 on the credit union's mortgage, and $30,000 on the bank's mortgage. At the foreclosure sale, the property was sold for $45,000. The jurisdiction in which the property is located permits deficiency judgments. After the $25,000 debt owed to the credit union is satisfied from the proceeds, which of the following statements is most correct? (A) The seller's mortgage and the bank's mortgage are both reduced by $10,000 and remain on the property. (B) The seller's mortgage is satisfied in full and extinguished, while the bank's mortgage remains on the property. (C) The seller's mortgage remains on the property, while the bank's mortgage is reduced by $20,000 and extinguished, leaving the buyer personally liable to the bank for the deficiency of $10,000. (D) The seller's mortgage is satisfied in full and extinguished, and the bank's mortgage is also extinguished, leaving the buyer person- ally liable to the bank for the deficiency of $30,000.

(C) The seller's mortgage remains on the property and the bank's mortgage is extinguished, andthe buyer is personally liable to the bank for the deficiency. As a general rule, the priority of a mortgage is determined by the time it was placed on the property. When a mortgage is foreclosed, the purchaser at the sale will take title as it existed when the mortgage was placed on the property. Thus, foreclosure will terminate interests junior to the mortgage being foreclosed but will not affect senior interests. The proceeds of the foreclosure sale are used first (after expenses and fees) to pay the principal and accrued interest on the loan that was foreclosed, and then to pay off any junior interests in the order of priority. Where the proceeds of the sale are insufficient to satisfy a mortgage debt, the mortgagee can bring a personal action against the mortgagor/debtor for the deficiency. Here, foreclosure by the credit union leaves the seller's senior purchase money mortgage interest intact on the property; the purchaser at the foreclosure sale takes the property subject to that mortgage. On the other hand, the bank's mortgage interest, because it was junior to the credit union's interest, was extinguished by the credit union's foreclosure action. After the credit union's loan is paid off, the $20,000 that remains is used to reduce the amount of the debt owed to the bank. The bank can recover the balance against the buyer personally in a deficiency action. (A) is wrong because the seller's mortgage and the bank's mortgage are treated differently because of their priority in relation to the credit union's mortgage. (B) states the opposite of the actual result— the seller's mortgage (the senior interest) remains on the property and the bank's mortgage (the junior interest) is extinguished. (D) is wrong because, as discussed above, the seller's mortgage remains on the land; thus, all of the remaining proceeds from the foreclosure sale after the credit union's mortgage debt is satisfied go towards reducing the debt owed to the bank.

A sporting goods shop owner placed an online order to one of his regular suppliers for 200 12-inch leather softballs at $5 per ball,the supplier's list price, delivery within seven days. The supplier checked its inventory and discovered that it had only 180 12-inch leather softballs, which it shipped to the shop owner, along with 20 12-inch synthetic softballs. The synthetic softballs had the same list price of$5 per ball. The supplier also emailed to the shop owner the following message: "We did not have enough leather softballs in stock to fill your order. Therefore, we are sending synthetic softballs at the same list price to make up the balance of the shipment—hope you will be able to use them!" Upon receipt of the shipment and the email, what are the shop owner's options? (A) The shop owner may accept the conform- ing part of the shipment and reject the nonconforming part, in which case he must pay the supplier $900 less any damages sustained because of the nonconforming part of the shipment. (B) The shop owner may accept the shipment, in which case he must pay the supplier $1,000 less any damages sustained because of the nonconforming shipment. (C) The shop owner may reject the shipment, but the supplier will not be liable for breach of contract. (D) The shop owner may reject the shipment, in which case he may recover against the supplier for breach of contract.

(C) The shop owner may reject the shipment, but the supplier will not be liable for breach of contract because the supplier alerted the shop owner that the shipment was an accommodation. Under Article 2 of the UCC, an offer to buy goods for current or prompt shipment is construed as inviting acceptance either by a promise to ship or by current or prompt shipment. A shipment of nonconforming goods ordinarily is an acceptance creating a bilateral contract as well as a breach of that contract. The result is different if the seller seasonably notifies the buyer that a shipment of nonconforming goods is offered only as an accommodation to the buyer; in that case, the shipment is a counteroffer, not an acceptance and breach, and the buyer is free to accept it or reject it. (A) is incorrect because, as discussed above, the shipment constituted a counteroffer by the supplier, which the shop owner was obligated to wholly accept or reject. Choices (B) and (D) are incorrect because, without a valid contract, the shop owner cannot recover any damages from the supplier.

A seller entered into a contract to sell his land to a buyer for $100,000, with the closing to take place in 30 days. The following week, the seller died in an automobile accident. His will left his personal property to his son and his real property to his sister. At closing, who is entitled to the proceeds of the sale? (A) Neither the son nor the sister, because death, an eventuality for which the parties could have provided, terminates the agree- ment if they did not so provide. (B) Neither the son nor the sister, because title was rendered unmarketable by the seller's death. (C) The son. (D) Thesister.

(C) The son is entitled to the proceeds of the sale because, under the doctrine of equitable conver- sion, a deceased seller's interest generally passes as personal property. If the seller dies, "bare" legal title passes to the takers of his real property, but they must give up the title to the buyerwhen the contract closes. When the purchase price is paid, the money passes as personal property to those who take the seller's personal property (unless the seller specifically devises the land in question to a devisee). Thus, the son, as the personal property devisee, is entitled to the proceeds of the sale and (D) is incorrect. (A) is incorrect as a matter of law. A real estate contract survives the death of either party unless the agreement itself provides otherwise. (B) is incorrect because marketable title is title reasonably free from doubt. Generally, this involves either defects in the chain of title or encumbrances that might present an unreasonable risk of litigation. Such problems are not present in these facts.

A Hispanic woman was a citizen of a foreign country but had lived in the United States for 10 years. She had properly acquired resident alien status and regularly complied with all regula- tions pertaining to resident aliens, such as annual registration at the local post office. Several of her friends had been called for jury service and she thought it would be interesting to serve on a jury. However, after extensive research she discovered that no Hispanic female alien had ever served on a jury in the county where she lived; in fact, no person of that class had ever been in a venire panel. May she compel the county officials to include her and other persons of her class in venire panels through a lawsuit in federal district court? (A) Yes, because there is a consistent pattern of discrimination against persons of her class. (B) Yes, because alienage is a suspect category. (C) No, because certain privileges, such as jury service, may be constitutionally denied to aliens. (D) No, because she lacks standing, in that she is not involved in a case or controversy where the lack of jurors in her class might prejudice her right to a fair trial.

(C) The woman would not prevail in this lawsuit because the right/duty to serve on a jury may be denied to aliens. The Equal Protection Clause prohibits unreasonable discrimination by state governments and their subsidiaries. Whether discrimination is reasonable depends on the basis of the discrimination and the right involved. If the discrimination is based on a suspect classification or involves a fundamental right, it will not be upheld unless the government can prove that the discriminatory action is necessary to achieve a compelling interest (i.e., the strict scrutiny test). In most other cases, the discriminatory action will be upheld unless the challenger can prove that the action is not rationally related to a legitimate state interest (i.e., the rational basis test). State and local classifications based on alienage usually are tested under the strict scrutiny test and are struck down. However, there is an exception for laws discriminating against aliens wishing to participate in the self-government process. The rational basis test is used in those cases. Serving on a jury is part of the self-governing process, and it is rational to limit jurors to citizens to ensure familiarity with our court system, a sufficient stake in our system of justice, and the like. (A) is incorrect because the discrimination is constitutional as long as it is rationally related to a legitimate government purpose. As explained above, restricting jury service to citizens would be regarded as such a purpose. (B) is incorrect because, as explained above, although alienage is generally a suspect classification, only a rational basis test is used for discrimination related to the self-governing process. (D) is incorrect because she could claim an injury based on the fact that she was discriminated against. Those who claim a violation of equal protection of the law in that they have been discriminated against have standing to sue.

A manufacturer of washing machines telephoned a machine company and asked for a price quote on an order for 250 washing machine motors built according to the specificationsthat the manufacturer had sent to the machine company the previous week. The company responded that it would sell the motors to the manufacturer at a cost of $20 apiece, with delivery in 30 days. The manufacturer agreed to the terms and instructed that its order be entered. The machine company immediately started work on the motors, and had made a substantial begin- ning on their manufacture (having completed 110 motors) when the manufacturer notified the company that it would not honor the contract. The machine company stopped work on the motors and sued the manufacturer, which raised the Statute of Frauds as a defense. The machine company responded that the specially manufac- tured goods exception takes the contract out of the Statute of Frauds. If the machine company loses, what is the most likely reason? (A) It had not substantially completed work on the contract. (B) It had completed work on less than half of the motors. (C) It stopped work on the motors before the job was completed. (D) It could have sold the motors in the ordinary course of its business.

(D) If the machine company loses, it will be because it could have sold the motors in the ordinary course of its business. Under the UCC's Statute of Frauds, a contract for the sale of goods for a price of $500 or more generally must be evidenced by a signed writing to be enforceable. However, under the specially manufactured goods exception, an oral contract is enforceable if all three of the following elements are established: (i) the goods must be specially manufactured for the buyer, (ii) the seller must have substantially begun work on the goods or else entered into a commitment to purchase them from someone else, and (iii) the goods must not be sellable in the seller's ordinary course of business. If the goods are sellable, as (D) states, this exception does not apply. (A) and (B) are incorrect because the seller need only have substantially begun work on the goods, which the machine company did by having completed 110 motors. (C) is incorrect. In the case of an anticipatory repudiation, the nonrepudiating party may treat the anticipatory repudia- tion as a total repudiation and sue immediately. Hence, the company was entitled to stop work and sue after the manufacturer's repudiation.

A political activist, stopped while driving his car by a police officer in a patrol car, believed that the officer had stopped him solely because a large sign painted on the side of his vehicle proclaimed him a member of a controversial political organization. When additional police units arrived at the scene, the activist was convinced it was a setup. Although unarmed and slightly built, the activist swung his fist at the original officer. Another officer, seeing this, drew his gun and shot the activist in the stomach. The activist then seized the gun of the officer he had punched and shot at the second officer, missing him and killing an onlooker. At the activist's murder trial, his expert witness, who was not contradicted at trial, testi- fied that the activist was rendered unconscious by being shot in the stomach. If the jury accepts the expert's testimony, what is the most serious crime for which the activist can be convicted in the absence of a felony murder or misdemeanor manslaughter rule? (A) Murder, because the activist started the fight in which he eventually shot the by- stander. (B) Murder, because although the killing might have been mitigated as to the second officer, no mitigating circumstances would apply to the innocent bystander. (C) Manslaughter, because the activist did not intend to kill the onlooker. (D) Neithermurdernormanslaughter,because the activist was unconscious when he shot the onlooker.

(D) The activist cannot be convicted of either murder or manslaughter in the death of the onlooker because he did not commit a voluntary act. Virtually all crimes, including homicide, requireeither a voluntary physical act or a failure to act under circumstances imposing a legal duty toact. An act performed while the defendant is unconscious is not voluntary because it does notstem from a conscious exercise of the will. Thus, if the trier of fact accepts the expert testimony, the activist cannot be convicted of the onlooker's homicide. (A) is incorrect because the death of the bystander was not proximately caused by the activist's initial conduct in swinging at the first officer. A crime such as homicide that requires not merely conduct but also a specified result of that conduct imposes liability on the defendant only for results that occur as a "natural and probable" consequence of the conduct. Even if the jurisdiction did apply the felony murder doctrine or misdemeanor manslaughter doctrine to the initial battery of the officer, it would require that the death be a foreseeable result of the felony or misdemeanor, and here it could be argued that it was not foreseeable that other officers would respond to the battery with deadly force and that a gun battle would ensue, causing the death of a bystander; in any event, the battery does not suffice for homicide in the absence of these doctrines. (B) is incorrect because, under the transferred intent doctrine, any mitigating circumstances excusing or justifying the killing of the second officer would generally be transferred to the bystander; if mitigated as to the former, it would be mitigated as to the latter. The same reasoning applies to (C); if the activist had the requisite intent for murder as to the officer, this intent would be transferred to the onlooker, making the activist liable for murder. Nor would the activist's battery suffice for involuntary manslaughter based on criminal negligence, because the proximate cause requirement cannot be established.

A software vendor who collected vintage baseball cards as a hobby had in his collec-tion a Roger Maris baseball card, circa 1961,in pristine condition. The vendor knew that the local high school baseball coach would love to add that card to his own collection, so he told the coach that he was interested in selling it. The coach said that he would like to buy the card but did not have the kind of money on hand that he would need. He mentioned that he would, however, be getting a bonus in three weeks. The vendor replied that he could wait three weeks and proceeded to write the following on a piece of paper and hand it to the coach: "I will transfer my 1961 Roger Maris baseball card to the coach if he gives me $2,000 within the next 30 days." The vendor then signed the paper. Two weeks later, before the coach could pay the $2,000 to the vendor, the vendor incurredan unexpected debt and gave the baseball card to his creditor as repayment of the debt. The vendor then called the coach to tell him that he was revoking his offer to sell the baseball card to the coach. The coach, who had cleared off his mantel and built a little wooden stand on which to display the card, filed suit against the vendor. Will the coach likely be successful? (A) Yes, because the offer to sell was irrevo- cable for 30 days. (B) Yes, because the vendor wrongfully prevented the fulfillment of the contractual condition. (C) No, because the confirmatory writing is not binding where only one party is a merchant. (D) No, because the paper was a revocable offer for a unilateral contract.

(D) The coach will not be successful in his suit, because the writing on the paper was merely an offer for a unilateral contract, which is revocable prior to acceptance. The vendor did, in fact, revoke his offer before the coach accepted. An offer for a unilateral contract is a promise to performin exchange for a requested performance, and acceptance is achieved by that requested perfor- mance rather than by a return promise. Here, the vendor promised to transfer the baseball card to the coach if the coach performed by tendering $2,000. Thus, he clearly indicated that he was looking for payment rather than a promise, making the offer unilateral and revocable prior to the offeree's performance. Note that the coach did not make an offer because there was no expression of promise, undertaking, or commitment. He merely expressed that he would like the card but did not have cash. He did not propose any terms. Since the coach's statement was not an offer, the vendor's writing could not be an acceptance. (A) is incorrect because the offer was revocable. It was neither an option contract nor a merchant's firm offer; thus, the vendor was free to revoke it. An option is a promise to keep an offer open for an agreed-upon time and requires consideration. Here, the coach gave no consideration to the vendor to hold the offer open, so this cannot be an option contract. Consideration is not required to make the offer irrevocable if a merchant signs a writing giving assurances that the offer will be held open during the time stated (or, if no time is stated, for a reasonable time not to exceed three months). With a couple of notable exceptions (e.g., warranty of merchantability), most anyone in business is considered a merchant for purposes of Article 2. However, for the merchant rules to apply, the party must be acting in his mercantile capacity. Here, the vendor is in the software sales business and would be considered a merchant for any transaction involving his business—even if it did not involve software. This transac- tion, however, involved the vendor's personal life (his hobby) rather than his business. Thus, he was not acting in his mercantile capacity and the merchant rules on firm offer and confirmatory memo would not apply to this transaction. (B) is incorrect for two reasons: First, there was no contract, so there was no contractual condition. Second, even if this were a contract, the vendor did not interfere with the condition of the coach paying $2,000. The fulfillment of that condition was completely within the coach's control, not the vendor's. (C) is incorrect because the writing is an offer, not a contract or confirmatory memo. If this were a contract, it would be one for the sale of goods priced at more than $500; thus, it would require a writing signed by the party tobe charged. Here, there is a writing signed by the party to be charged (the vendor), so there is no need to resort to the confirmatory memo rule. Moreover, to satisfy the Statute of Frauds and bind both parties with a merchant's confirmatory memo of an oral agreement, both parties must be merchants. As noted above, neither party is a merchant for purposes of this transaction.

A state child safety statute required children under eight years of age to be in a government- approved car seat when riding in a motor vehicle. A father was driving to a ballgame with his seven-year-old child, who was buckled in the back seat with a regular seat belt. The father did not notice when the child unbuckled himself and started climbing into the front seat. The child grabbed the steering wheel "to help daddy steer," causing the car to swerve into the other lane and collide with another motorist's car. The motorist was seriously injured from the collision; the father and his child were unhurt. The motorist sued the father to recover damages for her injuries. At trial, the motorist presented evidence of the statute, her injuries, and the facts stated above. At the conclusion of the proofs, both parties moved for a directed verdict. How should the trial judge proceed? (A) Grant the motorist's motion, because the father's violation of the statute constituted negligence per se. (B) Grant the father's motion, because the motorist offered no evidence that the statute was intended to prevent the harm that occurred. (C) Deny both motions and submit the case to the jury, because the jury could find that the father is liable for his child's negligent conduct. (D) Deny both motions and submit the case to the jury, because the jury could find that the father breached his duty of care owed to the motorist.

(D) The court should deny both motions and submit the case to the jury, because the jury could find that the father was negligent in not preventing his child from grabbing the steering wheel. Under ordinary negligence principles, the father owed a duty to other motorists to maintain control of his vehicle. The jury could find that the father breached this duty of care by not noticing whenhis child unbuckled the seat belt and started climbing into the front seat, and not preventing the child from grabbing the steering wheel. Hence, the case should go to the jury for a determination of whether the father was negligent. (A) is incorrect because the facts do not establish that the statutory standard of care is applicable to these facts. The precise standard of care in a common law negligence case may be established by proving that a statute providing for a criminal penalty applies to the particular case. If that is done, the statute's more specific duty will replace themore general common law duty of care. Violation of the statute establishes negligence per se—a conclusive presumption of duty and breach of duty; the plaintiff must then establish causationand damages to complete the prima facie case of negligence. To prove that the statutory standard applies, the plaintiff must show that (i) she is in the class intended to be protected by the statute, and (ii) the statute was designed to prevent the type of harm that occurred. Here, the statute likely was intended primarily to protect children from injuries caused by not being properly restrained in a vehicle involved in a collision. The motorist has presented no evidence that the statute was intended to protect her from the harm that she suffered. (B) is incorrect because even though the motorist did not establish that the statute applies to her claim, she has presented facts sufficientto allow the jury to find that the father breached the common law duty of care that he owed to other motorists. (C) is incorrect because the father is not vicariously liable for his child's negligent conduct at common law. Any liability of the father in this case would arise from his own potential negligence in failing to control his child while driving.

What does the Fourteenth Amendment Privileges or Immunities Clause protect?

The rights of national citizenship The Fourteenth Amendment Privileges or Immunities Clause prohibits states from denying their citizens the rights of national citizenship, such as the right to petition Congress for redress of grievances, the right to vote for federal officers, the right to enter public lands, the right to interstate travel, and any other right flowing from the distinct relation of a citizen to the United States Government. Corporations, aliens, and legal residents are not citizens of the United States and are not protected by the Fourteenth Amendment Privileges or Immunities Clause.

A patient filed a malpractice claim againsta doctor in a federal court in State A. A State A state statute bars introduction of evidence concerning plaintiff behaviors in medical malpractice cases. The statute was enacted with the policy goal of ensuring that recoveries against negligent doctors would not be reduced due to plaintiff negligence. While there is no federal statute or rule that specifically addresses this situation, federal judges generally admit relevant evidence. At trial, the doctor wants to present evidence that the patient's obsessive exercise routine contributed to stitches popping, which would be relevant to negate his claim. How will the court likely rule as to the admis- sibility of the evidence? (A) Admit the evidence, because the admis- sion of evidence is a procedural issue rather than a substantive issue. (B) Admit the evidence, because the admission of evidence is arguably procedural. (C) Not admit the evidence, because this is a substantive issue rather than a procedural issue. (D) Not admit the evidence, because not following the state law would likely be outcome determinative and lead to forum shopping.

(D) The court should not admit the evidence. This situation highlights the Erie doctrine, which requires federal courts sitting in diversity jurisdiction to apply the substantive law of the state, and federal procedural law. The initial issue is whether there is a federal law on point, because, if so, that law should govern if it is "arguably procedural." The facts state that there is no federal statute, rule, or law on point; accordingly, (B) is incorrect because the "arguably procedural test" doesnot apply. Thereafter, simply considering whether the state evidentiary statute is procedural or substantive is not adequate because that is not the complete test. Accordingly, choices (A) and (C) are both incorrect in focusing only on whether the evidence is substantive or procedural. When there is no federal statute or rule on point, the Court has used various tests at different times. Here, under the outcome determination test, admissibility of the evidence would be considered substantive because it substantially affects the outcome of the case; if admission of the evidence affects the outcome, plaintiffs would be encouraged to shop forums. For this reason, the federal court likely would apply the state standard and not admit the evidence.

As permitted by state law, a large city inthe state adopted an ordinance legalizing slot machines in shopping malls within the city. Several prominent city residents were upset by the new ordinance because gambling violates one of the main tenets of their religion. Seeking relief, the citizens contacted their representa- tive in Congress and asked the representative to sponsor a bill making it illegal to place gambling machines in shopping malls throughout the country. The representative sponsored such a bill. Congress made a factual finding that the activity regulated has a substantial economic effect on interstate commerce and passed the statute. If the statute banning gambling machines in shopping malls is challenged on constitutional grounds by a proper plaintiff in federal court, would the court likely uphold the statute? (A) No, because it was based on the citizens' religious tenets and so violates the First Amendment Establishment Clause. (B) No, because the statute does not regulate the channels or instrumentalities of inter- state commerce. (C) Yes, because Congress has made a factual finding that the activity regulated has a substantial economic effect on interstate commerce. (D) Yes, because there is a conceivable rational basis for concluding that the activity regulated, in aggregate, substantially affects interstate commerce.

(D) The court would likely uphold the statute against a constitutional challenge because there is a conceivable rational basis for concluding that gambling, in aggregate, substantially affects inter- state commerce. Under the Commerce Clause, Congress may regulate: (i) the channels of inter- state commerce; (ii) the instrumentalities of interstate commerce, as well as persons and things in interstate commerce; or (iii) activities that have a substantial effect on interstate commerce. When Congress attempts to regulate intrastate activities under the third of the preceding prongs, the Court will uphold the regulation if it involves economic or commercial activity as long as there is a conceivable basis for concluding that the activity in aggregate substantially affects interstate commerce. Here, the statute involves commercial activities—placing gambling machines in shopping malls. And it is conceivable that gambling machines in shopping malls, in aggregate, could substantially affect interstate commerce. Therefore, the statute would be upheld. (A) is incorrect because the citizens' motivation for requesting the law would not taint it. The Establish- ment Clause prohibits government sponsorship of religion and compels the government to pursue a course of neutrality toward religion. While the origin of the law may have been motivated by constituents' religious beliefs, that does not mean that the government is sponsoring religion. Indeed, refusing to listen to constituents' ideas merely because they are motivated by the constitu- ents' religious views would almost certainly violate the Free Exercise Clause. Since the statute is religiously neutral and there is no indication that Congress adopted it based on religious doctrine, it does not violate the Establishment Clause. (B) is incorrect because, under the Commerce Clause, Congress also has the power to regulate activities that have a substantial effect on inter- state commerce. (C) is incorrect because it states the test applicable to situations where Congress seeks to regulate noneconomic or noncommercial intrastate activity under the Commerce Clause (e.g., possession of a gun in a school zone); as noted above, gambling in shopping malls is an economic or commercial activity.

A truck collided with a car in State A, injuring the driver of the car. The driver of the car filed a civil action in federal district court in State A against the trucking company to recover damages for the driver's injuries. The trucking company filed a motion to dismiss the action against it on the grounds that the court in State A did not have personal jurisdiction over it. Although the driver of the truck was the compa- ny's employee, the trucking company argued that the driver did not have authorization to drive the truck to State A. Following a hearing, however, the court ruled that the trucking company was subject to the court's personal jurisdiction. Another two months passed, and the trucking company did not file an answer. The driver of the car then filed a motion asking that the clerk of court make an entry of default, and the clerk did so. What procedure must the driver follow to obtain a default judgment against the trucking company? (A) File a motion to have the clerk of court enter the default judgment, which the clerk may do without the trucking company re- ceiving any further notice of the motion. (B) File a motion to have the clerk of court enter the default judgment, which the clerk may do as long as the trucking company receives additional notice of the motion for default judgment. (C) File a motion to have the judge enter the default judgment, which the judge may do without the trucking company receiving any further notice of the motion for default judgment. (D) File a motion to have the judge enter the default judgment, which the judge may do as long as the trucking company receives additional notice of the motion for default judgment.

(D) The driver must file a motion to have the judge enter the default judgment. A defendant against whom a default is entered loses the right to contest liability unless the entry of default is set aside. However, the amount of damages must still be determined before a default judgment may be entered, and the defaulting party can be heard at the hearing for damages. If the defendant has "appeared," even though he has not answered, he must be notified of the request for a default judgment by first-class mail at least seven days before the hearing on the application for a default judgment. Appearance includes any actual formal appearance before the court and any other action that clearly indicates that the defendant intends to contest the case on the merits. Here, the trucking company made an appearance when it challenged the court's jurisdiction. (A) and (B) are incorrect because the clerk may enter a default judgment only in very limited cases. Whenthe amount of damages is not for a sum certain, the judge must hold a hearing to determine the damages. That is the case here because there are personal injuries involved. (A) and (C) are incor- rect because notice is required when the defendant has appeared in the case in some fashion.

A driver arrested for DUI was booked and read Miranda warnings. He did not respond to any questions and was arraigned in night court. At the arraignment, he requested an attorney and was provided with one. Later that night, after the attorney left, a bartender arrived at the police station to complain that he was beatenup by the driver. The driver had not made bail and was still in police custody, so the police took the driver from his cell, read him Miranda warnings, and questioned him about the fight. The driver admitted to beating up the bartender. Was the interrogation about the fight proper? (A) Not proper under either the Fifth or Sixth Amendment. (B) Not proper under the Fifth Amendment, but proper under the Sixth Amendment. (C) Proper under the Fifth Amendment, but not proper under the Sixth Amendment. (D) Proper under both the Fifth and Sixth A mendments.

(D) The questioning was proper under both the Fifth and Sixth Amendments. Under the Fifth Amend- ment, the driver did not request counsel when dealing with the assault and battery interrogation. The police are not required to call his attorney unless the driver specifically requested an attorney. On the DUI charge, he did not request an attorney until at his arraignment—at that proceeding, an invocation of the right to counsel falls under the Sixth Amendment and is specific to that offense. The court will not infer from this request that the driver also was asserting his Fifth Amendment right to counsel for any subsequent custodial interrogations on other crimes. [McNeil v. Wisconsin (1991)] Furthermore, he did not invoke his Fifth Amendment right to remain silent simply by failing to answer questions; invocation of that right must be explicit. Therefore, the interroga- tion about the fight was proper under the Fifth Amendment, and (A) and (B) are incorrect. As for the Sixth Amendment, the right to an attorney is offense-specific. While the driver asked for an attorney on the DUI charge, he did not ask for one on the assault and battery charge. Therefore, his request for an attorney did not automatically follow from the DUI charge to the assault and battery charge. Moreover, there had not yet been a formal charge on the assault and battery issue, so the driver did not have a right to an attorney under the Sixth Amendment until formal proceed- ings on that charge had begun. Thus, the interrogation was proper under the Sixth Amendment, and (A) and (C) are incorrect.

A developer contracted with a general contractor to build an office building, and completion of the building was two years late. The developer filed a breach of contract action in federal district court against the general contractor, seeking damages caused by the delay. The general contractor filed a third-party claim against a major subcontractor, claiming that the subcontractor caused any delay and should be liable to the general contractor for anything the general contractor has to pay the developer. The subcontractor believes that the developer inter- fered with the subcontract and that the devel- oper's interference caused not only the delay but also substantial cost overruns for the subcon- tractor. May the subcontractor assert a claim in the pending action against the developer seeking payment for the cost overruns? (A) No, because the subcontractor is a third- party defendant and may not assert claims against the original plaintiff. (B) No, because the subcontractor's claim does not seek indemnity for its liability to the general contractor, so the subcontractor may not assert this claim against the devel- oper as an impleader claim. (C) Yes, because the subcontractor and the developer are already parties to the action, and the subcontractor's claim arises from the same transaction or occurrence as the developer's original claim, so the subcon- tractor will be barred from asserting the claim in an independent action. (D) Yes, because the subcontractor's claim against the developer arises from the same transaction or occurrence as the developer's original claim, but the subcontractor may assert the claim in an independent action if it prefers.

(D) The subcontractor may assert a claim against the developer in the pending action. A third-party defendant may assert a claim against the plaintiff if the claim arises out of the same transaction or occurrence as the plaintiff's original claim. (A) is therefore incorrect. Because the subcontractor's claim seeking payment for cost overruns and the developer's original contract claim arise out of the same transaction or occurrence, the subcontractor may assert its claim against the developer. (B) is incorrect because the subcontractor's claim does not have to seek indemnity; it must arise out of the same transaction or occurrence as the original claim. (C) is incorrect because a third- party defendant's claim against the plaintiff is not compulsory. Therefore, failure to assert the claim in the pending action would not bar the subcontractor from asserting it in an independent action.

A landowner conveyed his parcel of land "to my sister and her heirs so long as it is used for residential purposes, but if it is ever used for other than residential purposes, then to the local community center." Five years later, the landowner died, devising all of his real estate to his friend and leaving his daughter as his only heir. The following year, the landowner's sister and the landowner's daughter entered into a contract with a third party to sell the parcel to him in fee simple for $100,000. After examining title, the third party refused to perform under the contract because he believed the sister and the daughter could not deliver good title. The jurisdiction follows the common law Rule Against Perpetuities and has a statute providing that all future estates and interests are alienable, descendible, and devisable in the same manner as possessory estates and interests. If the sister and the daughter sue the third party for specific performance, how should the court rule on their request? (A) Grant it, because the sister owns the parcel in fee simple. (B) Grant it, because the sister and the daughter together own the parcel in fee simple. (C) Deny it, because the local community center has a valid interest in the parcel. (D) Deny it, because the friend has a valid interest in the parcel.

(D) Their request for specific performance will be denied. With a future interests question that may raise the Rule Against Perpetuities, you must first label the interests granted. The landowner attempted to give a fee simple determinable to his sister ("to my sister and her heirs so long asit is used for residential purposes") followed by an executory interest in the community center ("but if it is ever used for other than residential purposes, then to the local community center"). If the grant to the community center is valid, the landowner would have retained nothing. But the grant over to the community center is void under the Rule Against Perpetuities. It will not vest until the property is used for nonresidential purposes, an event that could occur outside lives in being plus 21 years. If the interest in the community center is void, that leaves only the sister's fee simple determinable. That means the landowner must have kept a possibility of reverter, which always accompanies a fee simple determinable that is not followed by an executory interest. The landowner's possibility of reverter was devised to the friend under the landowner's will. Thus, both the sister and the friend have interests in the property, and the failure of the friend to join in the contract means no specific performance of it. (A) is incorrect. The sister has a fee simple determinable. When the Rule Against Perpetuities voided the attempted executory interest in the community center, it struck all the language following the comma: "but if . . ."; that left "to my sister and her heirs so long as it is used for residential purposes." The fee simple determinable is not a fee simple absolute; it is accompanied by the possibility of reverter in the grantor, and that person (or his successor) must join in the conveyance for the grantee to get a fee simple absolute. (B) is incorrect. The daughter owns nothing; the landowner devised his real property interests to the friend, so his heir takes none of it. The sister has a fee simple determinable, not a fee simple absolute. (C) is incorrect. The Rule Against Perpetuities voided the attempted executory interest in the local community center; it has nothing.

Which of the following statements is correct regarding government action challenged under the Due Process or Equal Protection Clause where no fundamental right or suspect or quasi-suspect classification is involved? A The law will be upheld unless it is arbitrary B The law must be the least burdensome means to achieve the legislative goal C The burden of proof is on the government to show that the law is necessary D The law is valid only if it is substantially related to a legitimate government purpose

A If government action is challenged under the Due Process or Equal Protection Clause, and no fundamental right or suspect or quasi-suspect classification is involved, the law will be upheld unless it is arbitrary or irrational. A rational basis standard applies. The law is valid if it is rationally related to a legitimate government purpose; it need not be substantially related to a legitimate purpose. The burden of proof is on the CHALLENGER to show that the law is unconstitutional, NOT on the government to show that it is necessary. The law need NOT be the least burdensome means to achieve the legislative goal. The rational relationship test does not require a tight fit between the goal sought and the law employed-just a rational connection.

For many years, civil service rules have provided that any member of the city's police department must serve a one-year probationary period before he or she will be considered a permanent employee. However, because the rules were enacted before the city's police academy was established, a prospective police officer now spends six months in the academy before being hired by the city. A graduate of the police academy was with the city police department for eight months after graduation when she was terminated. There were no city ordinances or state laws that required that she be given either a reason for the termination or a hearing, and she was given neither. The graduate brought suit against the city in state court because of the termination of her employment, alleging a violation of her due process rights. Which of the following would most likely give her a constitutional basis to require the city to give her a statement of reasons for the termination and an opportunity for a hearing? A) No police officer had ever been terminated during probation except where there was actual cause B) the six months she spent in the academy must be considered as part of her probationary period C) The budget of the police department was recently increased to allow for the hiring of additional officers D) She was the only female police officer on probation and the only officer not given permanent employment

A The fact that no police officer has been terminated during probation except for cause may be enough for the graduate to show that she has a right to a hearing. Continued public employment may be a protected property interest if there is a clear practice or mutual understanding that an employee can be terminated only for "cause." If the graduate can establish this, she will be able to force the city to give her a reason for her termination and a hearing. (C) is incorrect because a general increase in police officer positions does not establish a specific right to employment for the graduate. (B) is wrong because there is nothing in the Constitution that requires that a city follow any particular method of employment practice, as long as the method chosen by a city does not violate some constitutional prohibition. The fact that the city's civil service law was not changed to reflect the additional period of time a police officer spends in the police academy does not create a right protected by the Fourteenth Amendment. (D) states facts that could give rise to an equal protection, rather than due process, claim.

The state of Blue enacted a statute to protect its faltering lobster industry. The statute provides that no lobster shall be taken from lobster beds lying within three miles of the state shoreline unless the lobster is at least one pound in weight. The statute's one-pound limitation is intended to enable young lobsters to reproduce before being caught. At the same time, Congress enacted a lobster conservation act that provides $5 million for research funds to develop and improve breeding grounds for lobsters. The federal act imposes a special excise tax of $1,000 on each lobster caught in violation of state law if later shipped in interstate commerce. A lobsterman who lives in the state of Green, which is just south of the state of Blue, crossed over into waters lying within three miles of the Blue coastline. He was arrested by state Blue law enforcement officers for taking lobsters that weighed less than one pound. The man defended the charge by challenging the constitutionality of the state Blue statute. Which of the following results is most likely? a) The statute will be upheld because it does not violate the Constitution in any way b) The statute will be upheld because the Commerce Clause does not apply when a state is seeking to protect natural resources c) The statute will be held invalid because it violates the Interstate Privilege and Immunities Clause of Art. IV., Sec. 2 d) The statute will be held invalid because it is preempted by the federal lobster conservation act

A The statute will be upheld because it does not discriminate against out-of-state economic interests and it is not unduly burdensome. A state or local government may regulate local aspects of interstate commerce if such regulation: (i) does not discriminate against out-of-state competition to benefit local economic interests; and (ii) is not unduly burdensome (i.e., the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by the regulation). The state of Blue statute does not discriminate against out-of-state elements of the lobster fishing industry. The statute is designed to maintain the lobster population by allowing lobsters to reproduce. By maintaining the lobster population, the state is attempting to further the legitimate interest of reviving its faltering lobster fishing industry, rather than trying to protect a local business against interstate competition. In addition, the statute is applied evenhandedly (i.e., it does not merely regulate the activities of out-of-state lobster fishers while exempting in-state fishers from those same regulations). Therefore, the statute does not discriminate against interstate commerce. The statute may impose some incidental burden on interstate commerce by requiring out-of-state lobster fishers to refrain from taking lobsters weighing less than one pound from lobster beds within three miles of the state shoreline. However, this burden should not result in any great difficulty for out-of-state lobster fishers who wish to catch lobsters in state Blue waters. There is nothing especially burdensome or restrictive about the statute's provisions, and certainly the incidental burden that does exist does not outweigh the state's legitimate interest in maintaining its lobster population and the vitality of its lobster fishing industry. Consequently, the statute is not unduly burdensome. Because the statute is not unduly burdensome and is nondiscriminatory against out-of-state competition, it does not violate the Commerce Clause. (B) is incorrect because it is overbroad. The Commerce Clause does apply even when a state seeks to protect natural resources. (C) is incorrect because the Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents when such discrimination concerns fundamental rights, such as those involving important commercial activities or civil liberties. The Blue statute does not discriminate in favor of its own citizens, because no one is permitted to take a lobster from a lobster bed lying within three miles of the state shoreline unless the lobster weighs at least one pound, regardless of whether that person is a resident of the state of Blue. Therefore, the statute confers no advantage on state residents and there is no violation of the Privileges and Immunities Clause of Article IV, Section 2. (D) is incorrect because the statute is not preempted by the federal act. Under the Supremacy Clause, a state law that directly conflicts with a federal law will be held invalid. Even if a state law does not directly conflict with a federal law, it may still be held invalid if the law prevents achievement of federal objectives or it appears that Congress intended to preempt the entire field of regulation. Here, the state statute seems to be in harmony with the federal act, since both seek to preserve lobster fishing. Moreover, no implied preemption will be found since the act recognizes and reinforces state laws on the subject by providing a penalty for shipping lobsters taken in violation of state law. Thus, (D) is incorrect.

A wholesale seller of widgets telephoned a retail seller of widgets and told him that he had 5,000 pounds of widgets ready for delivery at $5,000. The retailer agreed to purchase the widgets, but stated that he wanted the wholesaler to deliver 2,000 pounds now and 3,000 pounds next month. There were no further communications between the parties. Assuming that the retailer's request is not a material change of terms, what is the most likely result of the conversation between the wholesaler and the retailer?

A contract was formed to deliver 2,00 pounds now and 3,000 pounds next month The conversation created a contract for 2,000 pounds of widgets now and 3,000 pounds next month. Because the contract is for the sale of goods, the UCC governs. Under the UCC, a contract is formed whenever it appears from the parties' communications that they intended to enter into a contract. Here, it is clear that the parties intended to enter into a contract, but the acceptance contained terms additional to the offer terms. When this occurs, the UCC provides for which terms govern: If the contract is between merchants, the additional terms in the acceptance are included in the contract, unless (i) the additional terms materially alter the contract, (ii) the offer expressly limits acceptance to the terms of the offer, or (iii) the offeror objects within a reasonable time. Here, both parties are merchants, and we were told to assume that that the delivery terms do not materially alter the contract. There is no indication that the offer limited acceptance to the terms of the offer or that the wholesaler objected to the terms; thus, there is a contract containing the additional terms. (B) would be correct if one of the parties were not a merchant, because under the UCC, when an acceptance proposes additional terms, a contract would be formed under the terms of the offer unless both parties are merchants. (C) would be correct if the UCC did not apply, because under the common law, an acceptance must mirror the offer (the "mirror image" rule); if new terms are added in the acceptance, it is treated as a counteroffer. (D) is incorrect because, under the UCC, no notice was necessary to form the contract. Notice would be required, however, if the wholesaler did not want to be bound by the additional terms. Note that the fact that this was an oral conversation does not prevent formation of the contract. To be enforceable, any contract for the sale of goods priced at $500 or more must be evidenced by a writing signed by the party to be charged. This affects enforceablility, not formation. For this contract to be enforceable, some form of signed writing (e.g., a merchant's confirmatory memo) would be necessary.

For due process purposes, a person will be deemed to have a property interest in continuation of a government benefit if the person has __________.

A legitimate claim or entitlement to the benefit Due Process claims can be based on legitimate claims or entitlements to property. The term property is broader here than personal belongings, realty, chattels, and the like. But an abstract need or desire or a unilateral expectation of the benefit is not enough. There must be a legitimate claim or entitlement to the benefit based on state or federal law or policy. For example, a government employee who may be fired only for cause has a legitimate claim to continued employment and thus has a property interest in her job, while an at-will employee has, at best, a unilateral expectancy of continued employment and no property interest. "A right to, rather than privilege in, the benefit" is incorrect. It describes how the courts formerly differentiated between protected property interests (rights) and unprotected interests (privileges). These terms are no longer used by the courts for these purposes. The term investment-backed expectations is somewhat relevant to property interests, as it is sometimes a factor considered in determining whether there has been a governmental taking of private property under the Fifth Amendment. However, it generally is not considered in deciding whether a person has a property interest in continuation of a government benefit. As discussed above, a unilateral expectancy does not give rise to a sufficient property interest; there must be a legitimate claim or entitlement under law or policy rather than a mere expectancy.Due Process claims can be based on legitimate claims or entitlements to property. The term property is broader here than personal belongings, realty, chattels, and the like. But an abstract need or desire or a unilateral expectation of the benefit is not enough. There must be a legitimate claim or entitlement to the benefit based on state or federal law or policy. For example, a government employee who may be fired only for cause has a legitimate claim to continued employment and thus has a property interest in her job, while an at-will employee has, at best, a unilateral expectancy of continued employment and no property interest. "A right to, rather than privilege in, the benefit" is incorrect. It describes how the courts formerly differentiated between protected property interests (rights) and unprotected interests (privileges). These terms are no longer used by the courts for these purposes. The term investment-backed expectations is somewhat relevant to property interests, as it is sometimes a factor considered in determining whether there has been a governmental taking of private property under the Fifth Amendment. However, it generally is not considered in deciding whether a person has a property interest in continuation of a government benefit. As discussed above, a unilateral expectancy does not give rise to a sufficient property interest; there must be a legitimate claim or entitlement under law or policy rather than a mere expectancy.

On September 15, a highlighter manufacturer faxed a large office supply company offering to sell the supply company 50,000 highlighters for $25,000. The supply company faxed back the following communication: "We accept your offer. Please box 125 highlighters per case in post-consumer cardboard shipping boxes." Assuming the existence of a valid contract, what would its terms include?

All terms set forth in the manufacturer's offer plus all those in the office supply company's purported acceptance that did not amount to a material alteration of the manufacturer's offer and to which the manufacturer did not object within a reasonable time. The language in choice (D) properly states the UCC position regarding the terms of the contract. Under the UCC, if both parties to a contract are merchants, additional terms in an acceptance will be included in the contract unless (i) they materially alter the original contract; (ii) the offer expressly limits acceptance to the terms of the offer; or (iii) the offeror has already objected to the particular terms, or objects within a reasonable time after notice of them is received. [UCC §2-207(2)] The manufacturer and office supply company are both merchants because they regularly deal in goods. [UCC §2-104(1)] Therefore, under Article 2 the contract will include the terms of the manufacturer's offer plus those in the office supply company's purported acceptance that did not amount to a material alteration of the offer or to which the manufacturer did not object within a reasonable time. Note that the manufacturer's offer did not expressly limit acceptance of its terms. (A) is incorrect because this was a contract between two merchants. Contract formation under the UCC for contracts between merchants is governed by the rule stated above. If one of the parties were not a merchant, (A) would be correct-if one of the parties to a contract for sale of goods is not a merchant and the acceptance includes additional or different terms, such terms are considered to be mere proposals that do not become part of the contract unless the offeror accepts. [UCC §2-207(2)] However, because this is a contract between merchants, the office supply company's terms regarding shipping will be included unless they materially alter the offer, as discussed above. (B) is incorrect because it does not fully state the Code's "battle of the forms" provision. The choice fails to mention the manufacturer's power to object within a reasonable time. (C) is incorrect because, like (B), it does not note the manufacturer's power to object within a reasonable time.

Which of the following is not required in order for a plaintiff to have standing to bring an action in federal court?

An economic loss An economic loss is not required for standing. Impact on a person's well-being and environmental injuries are sufficient as well. Any injury in fact is sufficient. An injury in fact is required for standing. A plaintiff must have a stake in the controversy. Some specific injury must be alleged, and it must be more than merely theoretical. Causation is required for standing. There must be a causal connection between the conduct complained of and the injury. Redressability is required for standing. A court asks whether a ruling favorable to the plaintiff will eliminate the harm to her.

For a plaintiff to have standing in federal court, she must demonstrate that she has a concrete stake in the outcome of the case. What must the plaintiff show to demonstrate a concrete stake in the outcome?

An injury in fact A person has standing if she can demonstrate a concrete stake in the outcome of the controversy shown by an injury in fact-caused by the government-that can be remedied by a ruling in the plaintiff's favor (i.e., causation and redressability). An economic injury is not required for standing in federal court. The injury to the plaintiff does not have to be economic. An impact on a person's well-being or enjoyment of the environment has been found by the Supreme Court to be sufficient harm for standing. Some specific injury must be alleged, and it must be more than a merely theoretical injury that all persons suffer by seeing their government engage in unconstitutional actions.

Which of the following is not a factor in the test for the validity of government action under the Establishment Clause when no sect preference is involved? A The action comports with historical practices B The government action is narrowly tailored to promote a compelling interest C The action faithfully reflects the understanding of the Founding Fathers D The action pursues a course of neutrality toward religion

B "The government action is narrowly tailored to promote a compelling interest" is not part of the test for determining the validity of government action under the Establishment Clause. This strict scrutiny test is applied to determine the validity of government action that includes a sect preference under the Establishment Clause. In determining whether government action is valid under the Establishment Clause, courts will consider whether the action is neutral with regard to religion. Next, courts will consider whether the government action accords with history and faithfully reflects the understanding of the Founding Fathers. If so, the action is unlikely to violate the Establishment Clause.

In which of the following cases would strict scrutiny of a government action be applied to determine whether the action violates equal protection? A A federal law denies government benefits to an individual based on alienage. B A state law denies government benefits to an individual based on alienage. C A state law penalizes an individual who is an undocumented alien. D A state law makes aliens ineligible for public employment in positions that directly affect the self-government process.

B A STATE LAW that denies government benefits to an individual based on alienage is subject to strict scrutiny and will be upheld only if the state proves the discrimination is necessary to achieve a compelling government interest. Generally, alienage classifications made by states are subject to strict scrutiny. (However, there is an exception where the law is related to participation in the self-government process. Such laws are subject only to the rational basis test.) A FEDERAL LAW that denies government benefits to an individual based on alienage is not subject to strict scrutiny. Because the Constitution gives Congress plenary power over aliens, federal classifications based on alienage generally are tested under the rational basis test (i.e., valid unless the challenger can prove that the classifications are not rationally related to a legitimate government interest). A STATE LAW that makes aliens ineligible for public employment in positions that directly affect the self-governing process are not subject to strict scrutiny like other state alienage classifications. Laws relating to the self-governing process are subject only to a rational basis review. A STATE LAW that penalizes an individual who is an undocumented alien also is not subject to strict scrutiny, because the Supreme Court has not held that undocumented aliens is a suspect classification.

Under the Due Process Clause, the following government acts are considered deprivations of liberty except: A Denial of the right to engage in gainful employment B Defamation without a tangible loss C Loss of a freedom provided by the Constitution D Denial of the right to vote

B A government act that causes defamation without a tangible loss is not considered a deprivation of liberty under the Due Process Clauses. The term "liberty" includes more than just freedom from bodily restraints. A deprivation of liberty occurs if a person (i) loses significant freedom of action; or (ii) is denied a freedom provided by the Constitution or a statute. Damage to one's reputation generally does not involve a loss of significant freedom of action or of a freedom provided by law. Therefore, it generally does not constitute a deprivation of liberty. (However, it can, if the damage is so severe that employment or associational opportunities are lost.) Government acts that cause denial of the right to engage in gainful employment, loss of a freedom provided by the Constitution, or denial of the right to vote are within the definition of deprivation of liberty under the Due Process Clause.

Under current Supreme Court precedent, which of the following is a sufficient justification for a government program differentiating on the basis of a person's race? A A program assigning students to public high schools based on race in order to promote diversity among the student body. B A program of minority hiring to correct the effects of past discrimination in hiring by a government agency. C A program laying off white teachers before minority teachers with less seniority, in order to achieve racial balance among the faculty. D A redistricting of legislative boundaries for the purpose of placing racial or ethnic minority voters in the majority.

B A program of minority hiring to correct the effects of past discrimination in hiring by a government agency is permissible. Under the Equal Protection Clause, a government classification based on race is constitutional only if the government can show that the discrimination is necessary to achieve a compelling interest. The Supreme Court has held that remedying past discrimination is a compelling interest and that the type of hiring program described in this choice was necessary to achieve that interest. A program assigning students to public high schools based on race in order to promote diversity among the student body is not constitutional. The Supreme Court has found that promoting racial diversity in public high schools (or grade schools) is not a compelling government interest, and, as discussed above, race-based discrimination is constitutional only if necessary to achieve a compelling interest. Students can be assigned on the basis of race to remedy past discrimination (remedying past discrimination being a compelling government interest), but merely promoting diversity is not. Note, however, that a different rule applies at the college level. The Supreme Court has accepted that diversity is important enough at the college level to allow schools to take race into account in making enrollment decisions, but it cannot be the predominant factor. A program laying off white teachers before minority teachers with less seniority, in order to achieve racial balance among the faculty, is unconstitutional. Racial balance is not a compelling interest and a compelling interest is needed to justify racial discrimination-even racial discrimination that favors minorities. A redistricting of legislative boundaries for the purpose of placing racial or ethnic minority voters in the majority is unconstitutional for similar reasons.

The negative implications of the Commerce Clause would not prohibit a regulation: a) Prohibiting out-of-state wastes from being accepted in private landfills b) Favoring local governments when performing government functions, such as exempting local bonds from state tax while subjecting bonds of other states to a tax c) Requiring operations to occur in the state, such as requiring all milk sold within the state to be pasteurized in the state d) Protecting local businesses, such as by placing a surcharge on out-of-state products

B A regulation favoring local governments when performing government functions, such as exempting local bonds from state tax while subjecting bonds of other states to a tax, is excepted from the negative implications of the Commerce Clause. All of the other choices would be invalid under the negative implications of the Commerce Clause: A regulation prohibiting out-of-state wastes from being accepted in private landfills discriminates against out-of-state business, as does a regulation requiring operations to occur in the state, such as requiring all milk sold within the state to be pasteurized in the state, and the negative implications of the Commerce Clause also prohibit regulations protecting local businesses, such as ones placing a surcharge on out-of-state products.

Which of the following statements regarding revocation and acceptance of contract offers is correct? A A revocation generally is effective when dispatched, and an acceptance generally is effective when dispatched. B A revocation generally is effective when received, and an acceptance generally is effective when dispatched. C A revocation generally is effective when dispatched, and an acceptance generally is effective when received. D A revocation generally is effective when received, and an acceptance generally is effective when received.

B A revocation generally is effective when received and an acceptance generally is effective when dispatched (i.e., the mailbox rule). Under the mailbox rule, if the offeree dispatches an acceptance before he receives a revocation sent by the offeror, a contract is formed.

Which of the following best states the result when, in a contract between merchants for the sale of goods, the acceptance does not match the terms of the offer? A Additional terms may be knocked out of the contract, but different terms will be included unless the offeror has already objected to the particular terms. B Additional terms that do not materially alter the original terms of the offer will be included in the contract, but different terms may be knocked out of the contract. C Neither additional terms nor different terms are ever included in the contract. D Additional terms are never included in the contract, but different terms will be included unless the offer expressly limits acceptance to the terms of the offer.

B Additional terms that do not materially alter the original terms of the offer will be included in the contract. In a contract between merchants for the sale of goods, additional terms in the acceptance will be included in the contract unless they materially alter the original terms, the offer expressly limits acceptance to the terms of the offer, or the offeror has already objected to the particular terms or objects within a reasonable time. Different terms may be knocked out of the contract. There is a split of authority on different terms. Some states follow the same rules as for additional terms, but others employ the knockout rule. Under the knockout rule, conflicting terms are knocked out of the contract and gaps are filled by the UCC gap-filler provisions. Conflicting terms are subject to the knockout rule; additional terms are never subject to the knockout rule.

For a governmental regulation of speech in a public or designated public forum to avoid strict scrutiny and be upheld, which of the following is not necessary? A The regulation must be narrowly tailored to serve an important government interest. B The regulation must be the least restrictive method of achieving the governmental interest. C The regulation must be content neutral. D The regulation must leave open alternative methods of communication.

B It is not necessary that the regulation affecting speech in a public or designated public forum be the least restrictive method of achieving the governmental interest. It is enough that the regulation is narrowly tailored to serve the interest at issue. To avoid strict scrutiny and be upheld, a regulation must be content neutral and narrowly tailored to serve an important government interest, and it must leave open alternative methods of communication. Keep in mind, however, that even if these requirements are met, the regulation may be invalidated for other reasons, such as for being vague or overbroad.

Pursuant to statute, a state's department of education provides model lesson plans to any school or school district in the state requesting such plans. A private religious school whose curriculum is more than 50% religious matters applied for and received model lesson plans for the nonreligious subjects taught in its classrooms. Which of the following is the best argument supporting the constitutionality of the state's statutory policy of providing model lesson plans to this private religious school? A The teaching of religious matters in private schools is not constitutionally prohibited. B The program is available to all private schools regardless of religious affiliation. C Private religious schools fulfill an important educational function. D The Free Exercise Clause requires identical treatment by the state of students in public and private schools.

B That the program treats all private schools the same is the strongest argument because doing so does not violate the Establishment Clause and treating religious schools different from other private schools would violate the Free Exercise Clause. A state does not have to subsidize private education. However, if a state chooses to do so, it cannot deny the same funding to similarly situated religious schools. This is because the Free Exercise Clause requires government to act with neutrality toward religion and religious institutions. And providing the funding does not violate the Establishment Clause, which also urges neutrality toward religion and religious organizations. (A) is true, religious instruction in private schools is not objectionable, but the issue here is whether the government would violate the Free Exercise Clause or the Establishment Clause by providing aid to religious schools under the circumstances. (C) is irrelevant for similar reasons-although private religious schools might fulfill an important educational function that does not go to the constitutional issue presented by the facts. (D) is incorrect because the Free Exercise Clause does not require identical treatment of public and private schools. However, as noted, it does require government to treat private religious schools the same as similarly situated private secular schools. Denying a benefit to a private school based on its religious affiliation punishes religious belief.

A witness testifies on direct examination that he saw defendant's car go through a red light. On cross-examination, defense counsel asks whether the witness said on another occasion that the light was green when defendant drove through. If offered to prove the truth of the matter asserted, the prior statement is hearsay if it was made: a) Before a grand jury b) To a police officer c) At a deposition d) At a prior hearing

B The witness's prior inconsistent statement is not hearsay if it was made at a deposition, a prior hearing, or to a grand jury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are not hearsay under the Federal Rules if the declarant is now testifying and subject to cross-examination. The statement to the police officer, however, is hearsay. It is an out-of-court statement that was not made under penalty of perjury, and will only be admissible if it falls within a hearsay exception.

In compliance with a federal statute that permits government agencies to sell or give away surplus government property, the Secretary of State directed that one of the State Department's surplus airplanes be given to a church. The Secretary knew that the church planned to use the plane to fly medical supplies to its missions in Third World countries. These missions provide medical assistance, but they also attempt to evangelize residents of the countries in question, and the Secretary was aware that, in addition to medical supplies, the plane might transport Bibles and religious tracts translated into local languages. Had the Secretary not ordered the plane to be given to the church, it would have been sold at a very reasonable cost to a nonprofit organization that helps teach young people the fundamentals of piloting and maintaining aircraft. Which of the following parties would be most likely to have standing to sue to prevent the Secretary of State from making the gift to the church? a) A taxpayer b) A citizen of the US c) A member of the nonprofit flying organization d) The attorney general of the state in which the airplane is located

C A member of the nonprofit flying association is most likely to have standing to challenge the gift. To have standing to challenge government action on constitutional grounds, a person must show that he has a concrete stake in the outcome of the litigation. This is to ensure adequate presentation of the issues. To have such a stake, the potential litigant must show that he has an injury in fact caused by the government that is more than the theoretical injury that all persons suffer when the government engages in unconstitutional acts, and that a decision in his favor will eliminate his harm. A member of the flying association can show both components here: If the gift is unconstitutional, the association has suffered more than a theoretical injury-it has lost the opportunity to purchase the airplane from the federal government at a good price, and a decision in the club's favor will eliminate the injury because it will then be able to purchase the plane. Thus, the member of the nonprofit flying organization has standing. (B) is incorrect because the only injury that a citizen would suffer here is the theoretical injury that we all suffer from the government's unconstitutional acts. People have no standing merely as "citizens" to claim that government action violates federal law or the Constitution. (A) is incorrect because a person's injury as a taxpayer is generally held to be insufficient to establish standing. There is an exception where the federal government acts under the taxing and spending power and that action allegedly violates the Establishment Clause, but the government action here falls under the Property Clause and not the Spending Clause; thus, the exception does not apply. (D) is incorrect because the state attorney general has no stake in the outcome of the litigation, and it is not sufficient even if he is deemed to represent the interests of all the citizens in the state.

Which of the following statements regarding expert testimony is false? a) The witness must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject b) The witness's opinion must not embrace the ultimate issue to be decided by the trier of fact in the case c) The subject matter must be one where specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue d) The witness must possess reasonable certainty or probability regarding his opinion

B - The opinion of an expert witness may embrace the ultimate issue in the case . Federal Rule 704(a) and the modern trend repudiate the traditional prohibition on opinions embracing the ultimate issue in the case. The rule provides: "An opinion is not objectionable just because it embraces an ultimate issue." Under Federal Rule 702, expert opinion testimony is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue. This test of assistance to the trier of fact subdivides into two requirements: (i) The opinion must be relevant, and (ii) The methodology underlying the opinion must be reliable. To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. The expert must possess reasonable certainty or probability regarding his opinion. If the opinion of the expert is a mere guess or speculation, it is inadmissible.

Which statement is true regarding a memorandum used at trial to refresh a witness's present recollection? a) The party using it is entitled to offer it into evidence b) It may be offered into evidence of the adverse party c) It must be authenticated before it is shown to the witness d) The memorandum must have been signed by the testifying witness when made

B- Under Federal Rule 612, whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to have the writing produced at trial, to inspect it, to cross-examine the witness thereon, and to introduce it into evidence. Unlike the adverse party, the party using a memorandum to refresh the witness's recollection has no right to offer it into evidence. When a memorandum is used at trial to refresh a witness's recollection, it may be used solely to refresh her recollection and need not be authenticated. There is no signature requirement for a memorandum used to refresh the witness's recollection.

Character evidence is admissible in a civil case IF -

Character is directly in issue A defendant in a criminal case may "open the door" by introducing evidence of his own good character to show his innocence, thus allowing the prosecution to rebut with evidence of his bad character. However, this rule does not apply to civil cases. Where character evidence is allowed in a civil case (i.e., when character is directly at issue), under the Federal Rules, any of the types of character evidence (reputation, opinion, or specific acts) may be used. Character evidence is admissible in a civil case if it is directly in issue, regardless of whether it is offered to show a good character trait or a bad character t

Which of the following is not an exception to the general rule under the Commerce Clause prohibiting states from discriminating against out-of-state competition? a) when the regulation is necessary to further an important, noneconomic state interest such as health or safety b) When the regulation furthers an important, noneconomic state interest such as health or safety and there are no reasonable alternatives available c) When the regulation limits access to privately owned in-state products d) When the state acts as a market participant

C A regulation limiting access to privately owned in-state products would violate the negative implications of the Commerce Clause; there is no exception for such regulations. When a state acts as a market participant, it generally is not restricted by the Commerce Clause; it may favor its own citizens, such as by distributing state-owned resources only to residents or paying residents more for something than it would pay a nonresident (although such conduct might violate the Article IV Privileges and Immunities Clause). When a regulation is necessary to further an important, noneconomic state interest such as health or safety, it is excepted from the general rule of the negative implications of the Commerce Clause prohibiting discrimination against out-of-state competition. There also is an exception for when the regulation furthers an important, noneconomic state interest such as health or safety and there are no reasonable alternatives available. Actually, this is the same answer as above-if there are no reasonable alternatives, the method chosen is considered a necessary method.

Which of the following is considered protected speech under the First Amendment? A Speech creating a clear and present danger of imminent lawless action B Fighting words C Commercial speech D Obscenity

C Commercial speech is protected by the First Amendment. However, false or misleading commercial speech is not protected by the First Amendment. Moreover, commercial speech can be regulated if the regulation serves a substantial government interest, directly advances that interest, and is narrowly tailored to serve that interest. Fighting words, speech creating a clear and present danger of imminent lawless action, and obscenity all are forms of unprotected speech, such that content-based restrictions are allowed.

Which of the following statements is true regarding Congress's power to regulate interstate commerce? a) Congress has no power to regulate interstate commerce because it is an exclusive state power that has been reserved to the states by 10A b) It is exclusively federal and states have no power to regulate any aspect of interstate commerce c) Although it is a federal power, states may regulate interstate commerce subject to the negative implications of the Commerce Clause d) As long as there is no conflict with existing federal legislation, states are free to regulate interstate commerce

C It is true that although it is a federal power, states may regulate interstate commerce subject to the negative implications of the Commerce Clause. The negative implications (also called Dormant Commerce Clause) generally prohibit states from discriminating against out-of-state business or unduly burdening interstate commerce. The power to regulate interstate commerce is NOT exclusively federal; states DO have power to regulate aspects of interstate commerce, as long as they do not discriminate against out-of-state business or unduly burden interstate commerce and Congress has not preempted the field of regulations. It is not true that the regulation of commerce is an exclusive state power that has been reserved to the states by the Tenth Amendment. As discussed above, it is a power delegated in the Constitution by the Tenth Amendment. It is not true that as long as there is no conflict with existing federal legislation, states are free to regulate interstate commerce. As discussed above, states may not regulate a field preempted by federal law or unduly burden interstate commerce.

If a state tax on interstate commerce discriminates against a natural person who is a nonresident, which of the following Clauses is least likely to be relevant in determining whether the tax is valid? A The Privileges and Immunities Clause of Article IV B The Equal Protection Clause C The Privileges or Immunities Clause of the Fourteenth Amendment D The Commerce Clause

C The Privileges or Immunities Clause of the Fourteenth Amendment would not apply to a state tax on interstate commerce that discriminates against a natural person who is a nonresident. It applies when a state denies its own citizens rights of national citizenship. The Commerce Clause would be relevant in determining the validity of a state tax on interstate commerce that discriminates against a natural person who is a nonresident. The negative implications of the Commerce Clause (or "the Dormant Commerce Clause") prohibit taxes that discriminate against nonresidents. The Privileges and Immunities Clause of Article IV would be relevant in determining the validity of a state tax on interstate commerce that discriminates against a natural person who is a nonresident. This Clause prohibits a state from discriminating against nonresidents regarding commercial activities. The Equal Protection Clause would also be relevant in determining the validity of a state tax on interstate commerce that discriminates against a natural person who is a nonresident. This Clause prohibits states from unreasonably discriminating among similarly situated people.

Which of the following is not itself sufficient to trigger strict or intermediate scrutiny on a claim that government action discriminates on the basis of a suspect or quasi-suspect classification? A Facial discrimination B Discriminatory motive C Discriminatory effect D Discriminatory application

C The discriminatory effect of governmental action is not enough, standing alone, to trigger strict or intermediate scrutiny. Only intentional discrimination violates the Equal Protection Clause, and the mere fact that government action appears to have a discriminatory effect does not show a discriminatory intent. Facial discrimination is itself sufficient to show the intent needed to make out a prima facie case for improper discrimination. And facial discrimination can be proven even though the classification is not explicit. For example, facial discrimination was found when a bizarrely drawn redistricting electoral map could not be explained in any way other than in terms of establishing a district in which racial minority persons would be the majority in the district. Likewise, discriminatory application of a law or program to a certain individual or group of individuals is sufficient to show discriminatory intent, even if the program appears to be neutral on its face. The classic example here is a zoning ordinance that prohibits laundries in wooden buildings unless the owner is granted an exception, and exceptions are granted only to majority race members and denied to minority race members. And, of course, if a discriminatory motive for the government action can be shown, that is sufficient to show the necessary intent. It should be noted, however, that mere statistical evidence that the government action has a discriminatory effect, as indicated by the correct choice above, is not enough to show discriminatory intent or purpose

A state statute provides a remedy for victims of employment discrimination. The statute requires complainants to bring charges before the state's fair employment commission within 180 days of the alleged unlawful employment practices. The commission then has 120 days to convene a fact-finding conference to obtain evidence, ascertain the parties' positions, and explore settlement possibilities. An employee was discharged from his job purportedly because of a physical handicap unrelated to his ability to perform his job. The employee filed a timely complaint, alleging unlawful termination of employment, as required by the statute. However, through inadvertence, the commission scheduled the fact-finding conference five days after the 120-day statutory period expired. At the conference, the employer moved that the charge be dismissed for lack of a timely conference. The commission denied the motion. The employer petitioned the state supreme court. The court held for the employer, stating that the failure to comply with the 120-day requirement deprived the commission of jurisdiction to consider the employee's charge. On appeal to the United States Supreme Court, the employee argues that his right to due process will be violated if the commission's error is allowed to extinguish his cause of action. Which of the following best describes the viability of the employee's due process claim? A) The claim fails, because the employee had no protected property interest in his job B) The claim fails, because the state legislature, having conferred on claimants a remedy for claims of unfair employment practices, has the prerogative to establish limiting procedures for such claims C) The claim succeeds because the employee had a protect property interest in the remedy D) The claim succeeds, because of the fundamental unfairness of leaving the employee without a remedy

C The employee has more than an abstract interest in redressing his grievance. His right to redress, guaranteed by the state through its statutory enactment, is itself a property right. Although the legislature may elect not to confer a property interest, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. [Logan v. Zimmerman Brush (1982)] Thus, the state statute cannot be applied so as to deprive the employee of his property interest in using the statutory procedure for possible redress of unfair employment practices without at least affording him an opportunity for an appropriate hearing. It follows that (A) and (B) are incorrect, both because they state the wrong result and because they misstate the applicable rules. As indicated, the employee has a property interest and thus (A) is wrong. (B), in turn, describes a valid general rule but does not describe this case. The state can enact specific procedures, expect the employee to follow them, and bar the claim if he fails to do so. That is, however, not what happened here. Rather, the state itself failed to act in a timely manner, and the statutory time limit operated indiscriminately to extinguish the employee's claim. Finally, (D) is incorrect because it is too general. What happened to the employee was "unfair" because it deprived him of a property right, not because the state is required to provide any remedy, or a specific remedy.

A city zoning board recently denied a request from the local library for a variance needed to expand the library building. An angry library patron went to the library, stood next to the front door, and handed each person entering a leaflet asking the person to contact each city zoning board member named in the leaflet and threaten to vote the member out of office unless the member changed his or her vote regarding the library's request for a zoning variance. The head librarian noticed the patron handing out the leaflets and asked her to stop, correctly explaining that the distribution was in violation of a city ordinance. The patron refused to comply, and the head librarian summoned the police. When an officer arrived, the librarian again asked the patron to stop distributing leaflets, but the patron again refused. The officer then arrested the patron for violating a city ordinance. At trial, the patron defended against the charges by claiming a violation of her First Amendment rights. Which of the following variations of fact would be most helpful to the patron's First Amendment claim? A The librarian did not repeat the "cease and desist" request in the police officer's presence. B The library is completely surrounded by public sidewalks. C The librarian has permitted some people to distribute leaflets at the front door of the library at all hours. D The leaflets also requested campaign contributions to be used to oppose board members who failed to change their vote.

C The most helpful additional fact for the patron is that the head librarian allowed other people to distribute leaflets at all hours. Although the government may adopt reasonable time, place, and manner restrictions in public forums and designated public forums, such restrictions must be content-neutral, or else they will be subject to strict scrutiny. The head librarian's allowing some people to distribute leaflets at all hours shows that the restriction here is probably being used as a content regulation, meaning that the restriction would be subject to strict scrutiny and likely invalidated. Additionally, if the head librarian is allowing others to distribute leaflets at all hours, the discriminatory application of the ordinance might also violate the Equal Protection Clause. (A) is not very helpful because the fact that the patron was informed once of the rule would be sufficient to give her notice that she was violating the law. There is no requirement that persons be warned twice that they are violating speech regulations. (B) might help the patron because she could claim that because the library is surrounded by a public forum (sidewalks), the front door step also is a public forum. This argument will probably fail, however, because the Supreme Court has never made such a holding (and indeed has held that although the sidewalks around the Supreme Court building are public forums, the Supreme Court building itself is not a public forum). This fact might even hurt the patron, because it indicates that alternative public forums were readily available. (D) is not very helpful because political fundraising receives no more First Amendment protection than pure political speech; indeed, more regulation is allowed in the fundraising arena.

In certain parts of a state, single-family residences had become so expensive that the vast majority of families could no longer afford to buy a home. To alleviate this problem, the legislature enacted statutes creating a housing agency. The agency, organized along the lines of a private corporation, was authorized to act as general contractor and build homes in counties where the average cost of a new home exceeded by 50% the national average cost of a new home, then to sell the homes at the cost of materials and labor to first-time homebuyers. In one medium-sized city in the state, the average cost of a new home exceeded the national average by 15%, while in a nearby large city, the average cost of a new home exceeded the average by 50%. The agency began building and selling homes in the large city, but did not operate in the medium city. About 35% of the population of the medium city is of Armenian ethnicity. A citizen of Armenian heritage brings a class action against the state, seeking to have the agency's failure to operate in the medium city declared a violation of the right to equal protection of the Armenian citizens of that city. What fact would be most helpful for the citizen in challenging the statute? A The state could have permitted the agency to build and sell homes in all areas of the state. B Armenian citizens experience difficulty in affording single-family residences. C The legislation setting up the agency was intended to discriminate against Armenian citizens. D The percentage of Armenian citizens is much higher in the medium city than in the large city.

C The most helpful fact would be an intent to discriminate. State action that is facially neutral will nevertheless be struck down if it can be shown that it was intended to discriminate on the basis of race or national origin and does in fact have that effect. The citizen must show that the legislature selected the specific cost guidelines with full knowledge of the population characteristics in the medium city and with the specific intent to disqualify that city from participation in the program because of its high concentration of Armenians. If he proves that intent, he will prevail, and (C) is accordingly his best argument. (A) would not be as helpful because the state could show a rational basis for not operating in the medium city-that housing costs were not high enough to warrant state intervention-which would suffice to justify different treatment not based upon purposeful discrimination. (B) is not a good answer because the difficulty experienced by Armenian citizens in obtaining housing may have nothing to do with state action and may be experienced by other groups as well. (D) is not the best answer because, while it is arguably some evidence of purposeful discrimination, it does not state it as clearly as (C).

After a state supreme court overturned the conviction in a murder case for failure to give proper Mirandawarnings, a reporter asked the murder victim's father to comment on the case as he exited the supreme court building. The father made the following statement: "Each one of the so-called supreme court justices is worse than a murderer, because they make it possible for more sons and daughters to be murdered. I'd like to see every one of them strung up, like they should have done to the creep who was set free, and if someone will give me a rope I'll go in there and do it myself." A state statute proscribes, with criminal penalties, "the making of any threat to the life or safety of a public official for any act the official performed as part of the official's duties in office." Which of the following is correct regarding the statute? A The victim's father could constitutionally be punished under the statute, but only if the state supreme court justices heard the threats he made. B The victim's father could constitutionally be punished under the statute. C The victim's father could not be constitutionally punished under these circumstances, but the statute is constitutional on its face. D The statute is unconstitutional on its face.

C The statute is not unconstitutional. True threats are not protected by the First Amendment. Moreover, content-based restrictions on speech are permitted in cases where the speech creates a clear and present danger of imminent lawless action. A state can forbid advocating the use of force or of law violation if such advocacy (i) is directed to producing or inciting imminent lawless action, and (ii) is likely to produce or incite such action. Thus, a statute proscribing threats to the life or safety of a public official, such as the statute here, is valid. However, it cannot constitutionally be applied to the victim's father. It is doubtful that the father's words will be interpreted as a true threat of immediate harm. In context, the speech seems to be more a political commentary, which would be protected by the First Amendment. The father appeared to be merely venting his outrage. There was no indication that the father's words were inciting imminent lawless action or were likely to produce such action. It does not appear that the father was actually threatening the justices with harm or inciting anyone to storm into the court building. Thus, his speech was protected and (B) is incorrect. (A) is incorrect because the father cannot constitutionally be punished for the reasons stated above. Moreover, whether the justices actually heard the threats would be irrelevant if the threats were otherwise punishable. (D) is incorrect because the statute is valid on its face, as discussed above.

Congress adopted a law granting a state university $2.5 million to study the properties of snowflakes. An outraged taxpayer filed suit to challenge the appropriation. Which of the following is the best argument against this challenge? a) The legislation is a valid exercise of the federal taxing and spending powers b) The federal court lacks jdx to enjoin such expenditures voted by Congress, under the doctrine of separation of powers c) the taxpayer lacks standing to challenge the expenditure d) There is no diversity in this suit because the spending appropriation being challenged is federal, and the plaintiff is a citizen of the US

C) The taxpayer lacks standing to challenge the expenditure The best argument is that the taxpayer lacks standing. Generally, taxpayers lack standing to challenge federal appropriations. There is an exception for expenditures violating the Establishment Clause, but that is not the case here. (A) also is a good answer, but it is not as good as (C). (C) stops the case at its inception. While (A) correctly states that the spending measure here is a valid exercise of the federal taxing and spending power, such an argument would be made later in the case. (B) is wrong because the doctrine of separation of powers does not prevent the courts from enjoining unconstitutional activities by Congress. (D) is wrong because the spending appropriation represents a federal question, so diversity is not required.

Because of budget shortfalls, a state governor recently signed a bill shortening the period for which state unemployment benefits are available. The defendant gave a speech across the street from the governor's mansion, denouncing the law. In his speech, the defendant urged the crowd to rush across the street, drag the governor from his mansion, and show him how it feels to be homeless. A police officer who heard the defendant's speech arrested the defendant and he was charged with violating a state statute that makes it a crime to "make a threat against any state official in the performance of his duty." If the defendant defends on constitutional grounds, the court will likely find the statute:

Constitutional if limited to true threats The court will likely find the statute constitutional if limited to true threats. The Constitution does not protect true threats, defined as speech meant to communicate an intent to place a person in fear of bodily harm. (A) is incorrect. While prior restraints are disfavored under the First Amendment, because true threats are not protected speech, the statute does not constitute a prior restraint. (B) is incorrect. While a state may forbid speech that poses a clear and present danger of imminent lawless action, that is not the only type of unprotected speech under the First Amendment. (D) is incorrect because the law here does not appear to be a fighting words statute, e.g., personally abusive epithets inherently likely to incite an immediate response.

Which of the following is not considered a type of "fighting words" that may be forbidden by statute? A Statements likely to incite physical retaliation. B Conduct undertaken with the intent to cause fear of bodily harm (e.g., cross burning). C Statements meant to place a person in fear of bodily harm. D "Abusive language."

D A statute that prohibits "abusive language" is overbroad and thus not an enforceable fighting words statute. Lots of language that is "abusive" is protected speech. Statements meant to place a person in fear of bodily harm and statements likely to incite physical retaliation are both classic examples of fighting words subject to government regulation. Conduct undertaken with the intent to cause fear of bodily harm (e.g., cross burning) is considered to be a form of fighting words, even though there is no actual spoken threat. This is because the conduct is intended to convey a message that is unprotected by the First Amendment.

Which of the following situations is most likely to raise a procedural due process concern? A State legislation that affects the rights of the general population. B A state agency firing an at-will employee. C Negligent inaction by a state agency that results in injury to an individual. D A judge has an interest in the case before her that causes a serious risk of bias.

D If a judge has an interest in a case before her that causes a serious risk of bias, or actual bias, a procedural due process concern arises. The Due Process Clauses of the Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to the states) provide that the government shall not take a person's life, liberty, or property without due process of law. Due process contemplates fair process/procedure, which requires at least an opportunity to present objections to the proposed action to a fair, neutral decisionmaker (not necessarily a judge). If a judge has an interest in a case that causes a severe risk of bias, or actual bias, the procedure is not fair and the Due Process Clause is violated. State legislation that affects the rights of the general population will not ordinarily give rise to a procedural due process concern. It is only a particular deprivation of an individual's life, liberty, or property that triggers procedural due process concerns. An action that affects the population in a general manner does not trigger such a concern, even if an individual happens to be burdened as a result of the action. Negligent inaction by a state agency that results in injury to an individual also would not likely give rise to a procedural due process violation claim. It is only an intentional deprivation of life, liberty, or property that gives rise to procedural due process issues. Negligent inaction is not a sufficient basis. A state agency's firing of an at-will employee also does not give rise to procedural due process concerns. A person must have a life, liberty, or property interest at stake. An at-will employee has no legitimate interest in continued employment and so does not have a life, liberty, or property interest at stake.

Among the categories of speech that are not protected by the First Amendment is "fighting words." Which of the following statements is not true when it comes to regulation of fighting words? A Fighting words-words or epithets that, when addressed to an ordinary citizen, are inherently likely to incite immediate physical retaliation-may be punished. B Fighting words statutes are often struck down for overbreadth. C True threats-statements meant to communicate an intent to place an individual or group in fear of bodily harm-may be punished. D Hate crime statutes may limit fighting words sanctions to cases in which the words seek to insult or provoke on the basis of race, religion, or sexual orientation.

D It is not true that hate crime statutes may limit fighting words sanctions to cases in which the words seek to insult or provoke on the basis of race, religion, or sexual orientation. Such a limitation means the sanction is based on viewpoint, and the Court will not tolerate such sanctions. The remaining statements all are true: True threats-statements meant to communicate an intent to place an individual or group in fear of bodily harm-may be punished; Fighting words-words or epithets that, when addressed to an ordinary citizen, are inherently likely to incite immediate physical retaliation-may also be punished; and Fighting words statutes are often struck down for overbreadth. The overbreadth problem arises because of the difficulty in precisely describing what is or is not a "fighting word."

An intentional deprivation of life, liberty, or property requires fair procedures and an unbiased decision maker. Whether an individual is entitled to notice, a hearing, or some other fairness consideration depends on the circumstances of the particular deprivation. Which of the following is not a factor a court will consider in determining the type of procedural due process that is required? A The importance of the individual's interest that is involved. B The government's interest in fiscal and administrative efficiency. C The value of specific procedural safeguards of the individual's interest. D The opportunity for the individual to be represented by counsel.

D The opportunity for the individual to be represented by counsel is not something the courts consider in determining what type of procedure is required. There is no across-the-board right to counsel under the Constitution in any event. The level of due process that is required depends on the circumstances surrounding the deprivation of the interest. The courts consider the factors raised in the remainder of the choices: (i) The importance of the individual's interest that is involved, (ii) The value of specific procedural safeguards of the individual's interest, and (iii) The government's interest in fiscal and administrative efficiency. Normally, the person whose interest is being deprived should also receive notice of the government's action and have an opportunity to respond before termination of the interest. However, the court may allow a post-termination hearing in situations where a pre-termination hearing is highly impracticable.

Which of the following has not been held to be a fundamental right by the Supreme Court? A The right of privacy B The right of free speech and assembly C The right to vote D The right to international travel

D The right to international travel has not been held to be a fundamental right, although the right to interstate travel is a fundamental right. Thus, restrictions on the right to travel abroad (e.g., limitations on travel to Cuba), at least when imposed by the federal government, do not have to meet the strict scrutiny standard. The right of privacy, the right to vote, and the right of free speech and assembly all are considered fundamental rights, as are all other First Amendment rights. Thus, government limitations on these rights, if challenged, generally will be held invalid unless the government can prove that the limitation is necessary to achieve a compelling government interest (i.e., strict scrutiny).

The owner of a chain of natural food stores located within a particular state contracted with landowners and construction firms in a neigh- boring state in preparation for the opening of several new stores in the neighboring state. The chain's products are stored and sold in bulk within the stores. Consumers remove the amount of product they want from bins within the stores, place the product in plastic bags, and then present their bags at a checkout counter. Statutes in the neighboring state in which the chain owner would like to open its new stores prohibit the sale of food in bulk due to the health hazards associated with bulk storage and contamination from consumer access to food sold from bins. The state has prosecuted other grocers' viola- tions of the statute in the past. The chain store owner seeks an injunction against state officials in the federal district court with jurisdiction over the matter. The state officials move to dismiss the suit on the ground that the corporation lacked standing to sue. What would be the probable outcome? (A) The suit would be dismissed, because the owner has suffered no injury. (B) The suit would be dismissed, because the challenged state legislation has no effect on civil liberties. (C) The federal court would hear the suit, because a federal question—interstate commerce—is involved. (D) The federal court would hear the suit, because the owner has undertaken substan- tial steps to open outlets in the state.

D) The owner has standing to sue because it can demonstrate a concrete stake in the outcome of the controversy and an impairment of its rights by the state statute. Federal courts will not consider a constitutional challenge to government action unless the person challenging the action has standing to raise the constitutional issue. Under the Supreme Court test, the person must have an injury in fact—both a particularized and a concrete injury that will be remedied by a decision in his or her favor. Here, the store owner has taken substantial steps to open outlets in the stateby contracting with landowners and construction firms in that state, but cannot begin to operate these outlets without violating the state statutes; obtaining the injunction against enforcement will eliminate the problem. The court will therefore hear the suit. (A) is incorrect even though the store owner has not yet been prosecuted for violating the statute. A person challenging the constitution- ality of a statute does not need to violate it and await prosecution as the sole means of seeking relief. Where there exists a clear threat of prosecution if the person fails to comply with the statute (such as previous prosecutions of others), injury in fact is established. (B) is incorrect because threatened economic injury as well as threatened injury to civil liberties will create standing. (C) is incorrect. Although it is true that a federal question is involved, it is not enough that a federal court has jurisdiction over the subject matter of the question. Federal courts are authorized to hear cases and controversies, and the Supreme Court has interpreted this language to require the plain- tiff to have standing—an injury in fact; a concrete stake in the outcome. The motion to dismiss here was made on standing grounds. Choice (D) reflects the standing challenge, while choice (C) does not. If the court accepts the state official's claim that the store owner lacked standing to sue, it would dismiss the suit regardless of the federal issues involved.

A state's regulation of interstate commerce in an area where Congress has not already acted is valid if the regulation:

Does not discriminate against out-f-state competition and does not unlit burden interstate commerce If Congress has not acted, state regulation of interstate commerce is valid if the regulation does not discriminate against out-of-state competition and does not unduly burden interstate commerce. If the regulation does discriminate against interstate commerce, it is valid if it is necessary to an important, noneconomic government interest. "Narrowly tailored to serve an important state interest" is an intermediate scrutiny standard used in some equal protection cases. It does not reflect either standard used to judge state regulations of commerce, as set out above. "Rationally related to a legitimate state objective" reflects the rational basis test used in some due process and equal protection cases and does not reflect either standard used to judge state regulations of commerce, as set out above. "Necessary to protect local businesses" does not reflect a standard used in any case; if a state regulation seeks to protect local business it generally is invalid under the Dormant Commerce Clause.

A defendant is charged with armed robbery. For which purpose is extrinsic evidence that he previously stole a gun inadmissible? a) To show that the defendant stole the gun in preparation for the armed robbery b) To show that the defendant is violent and therefore criminally disposed c) To show that the defendant planned to commit the robbery d) To show that the defendant is the armed robber in question, where the same gun is linked to both instances

Extrinsic evidence of the defendant's other crimes or misconduct is inadmissible if such evidence is offered solely to show that the defendant is violent and therefore has a criminal disposition. However, evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant's character or disposition to commit the crime charged (e.g., to show motive, opportunity , intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident) whenever these issues are relevant. For example, evidence that the defendant previously stole a gun could be brought in to show that the defendant planned to commit the robbery, that the defendant had stolen the same gun that was used in the robbery, and that the defendant had stolen the gun in preparation for the armed robbery.

A public high school publishes a weekly newspaper as part of its journalism class. The student editor-in-chief of the paper wrote an article supporting the legalization of marijuana and showed it to his faculty advisor. To discourage drug use, school policy prohibits the paper from including any drug-related articles. Therefore, the advisor told the editor not to include the article in any edition of the paper. While uploading the electronic files for the paper to their printer, the editor secretly inserted his article. After the article was published and a brief investigation, the student was removed from his position as editor-in-chief. The student brought suit against the school, claiming that his removal was a violation of his First Amendment rights. How should the court rule on this issue?

For the high school, because the newspaper involved was a publi high school newspaper published as part of a journalism class The court should rule for the high school. The Supreme Court has held that curriculum-based public high school activities are not public forums. Content regulation of nonpublic forums is allowed as long as the regulation is viewpoint neutral and reasonably related to a legitimate government purpose. Here, school policy prohibited all discussion of drugs in the school newspaper and was therefore viewpoint neutral. Moreover, the school could argue that prohibiting discussion of drugs in the school paper discourages drug use, a legitimate school interest. Thus, the court should rule for the school. (B) is incorrect because it is overbroad. While students do not enjoy full constitutional rights within the school setting, they do have some protection. For example, the Supreme Court has held that students had a First Amendment right to wear black armbands in school in protest of the Vietnam War. [Tinker v. Des Moines Independent School District (1969)] (C) is incorrect because it is irrelevant. The fact that the legalization of marijuana is a public concern does not address the issue of whether speech about it may be banned from a nonpublic forum. (D) is incorrect because it implies the use of the wrong test. While generally content regulations of speech are permitted only if they are necessary to achieve a compelling interest, this is not true of time, place, and manner regulations. The appropriate test for such regulations depends on whether a public forum is involved, and, as discussed above, when a nonpublic forum is involved, a content regulation will be upheld if it is viewpoint neutral and reasonably related to a legitimate government purpose.

The council of a city with a rich and diverse heritage established a city-run ethnic sculpture garden. City residents and groups were encouraged to erect statues and other displays in the garden depicting ethnic, cultural, and religious heritages. Many of the displays included religious symbols. The city maintained the property and administered the affairs of the garden. While the garden was paid for primarily by a small admission fee, the city contributed about $1,000 each year for the garden's upkeep from general city funds. If a local citizen brings an action in federal court challenging the city's funding of the garden, how should the court rule?

Find the funding constitutional, because it is neutral with regard to religion and Is consistent with longstanding historical practices n determining whether government action is valid under the Establishment Clause, courts will consider whether the action is religiously neutral. If it is neutral, there is no Establishment Clause violation. If the action is not neutral, courts will look at whether the action is in accord with history and faithfully reflects the understanding of the Founding Fathers. If so, the action is unlikely to violate the Establishment Clause. It seems likely from the facts that the funding is neutral because it neither favors nor disfavors religion. Further, even if it is not neutral, it is consistent with history and the framers' intent-there is a long tradition of government funding of the arts even when, as is often the case, there are religious elements in some of the works. Thus, the funding is likely constitutional, so (B) is correct and (C) is incorrect. (A) is incorrect because if the garden did violate the Establishment Clause, the fact that only a relatively small amount of municipal funds were used would not remedy the constitutional violation; de minimis is not a defense. (D) is incorrect because it states the wrong test. Establishment Clause cases not involving a sect preference are evaluated using the neutrality and the history and intent tests, not a compelling interest test.

A photography buff wrote a letter to his brother-in-law offering to sell him his camera for $1,500, because he knew that he had admired it for a long time. The day after the brother-in-law received the letter, he mailed a letter back to the photography buff agreeing to purchase the camera equipment for $1,500. The next day, after describing the camera to a friend who was very knowledgeable about photographic equipment, the brother-in-law learned that the camera was second-rate and not worth more than $1,200. He immediately telephoned the photography buff and told him that he had no interest in buying the camera. The photography buff received his brother-in-law's letter agreeing to purchase the camera equipment a day after receiving the phone call. If the photography buff brings an action against his brother-in-law for breach of contract, and the brother-in-law defends on the grounds that no contract was formed, how should the court rule?

For the photography buff, because his brother-in-law's letter accepting the offer was effective when mailed A contract was formed because the brother-in-law's acceptance was effective on dispatch. Under the "mailbox rule," acceptance by mail or similar means creates a contract at the moment of posting, properly addressed and stamped, unless: (i) the offer stipulates that acceptance is not effective until received; or (ii) an option contract is involved. Here, the brother-in-law dispatched first an acceptance and then a rejection of the photography buff's offer. The mailbox rule applies because the photography buff's offer did not specify that acceptance was not effective until receipt, nor is an option contract involved. Because the brother-in-law dispatched his acceptance before he called with his rejection, the mailbox rule applies. Thus, the brother-in-law's acceptance was effective, thereby creating a contract at the moment it was mailed, and his attempted rejection was ineffective. (B) is incorrect because once the acceptance was effective, the fact that the photography buff received the "rejection" by telephone before he received the acceptance letter has no effect on the formation of the contract. (A) is incorrect because the letter from the photography buff indicates that the subject matter of the contract was his camera that the brother-in-law had admired for some time. This description on its face appears to be sufficiently definite that a court would be able to determine with reasonable accuracy which camera is subject to the photography buff's offer to sell. (D) is incorrect even though it is true that, pursuant to the Statute of Frauds, a contract for the sale of goods of $500 or more is not enforceable unless evidenced by a writing. There is no requirement that a rejection of an offer to enter into such a contract must be in writing.

_________ is not a suspect classification for equal protection purposes.

Gender is not considered a suspect classification for equal protection purposes. Gender is a quasi-suspect classification, triggering an intermediate standard of scrutiny in determining whether a government action or law violates equal protection. Race, national origin, and alienage are the three suspect classifications designated by the Supreme Court as requiring a strict standard of review (strict scrutiny) for a challenge to a government action or law on the basis of equal protection.

In which of the following situations may the prosecution introduce evidence of the defendant's bad character to establish she probably committed the crime charged? a) Where the crime charged is a felony or a crime involving dishonesty or false statement b) Where the defendant first introduces evidence of her good character c) Where the defendant's bad character shows that she is more likely to have committed the crime of which she is accused d) Where the defendant chooses to testify

If the defendant introduces evidence of her good character, she puts her character in issue and the prosecution may rebut by presenting evidence of the defendant's bad character. As a general rule, evidence of a defendant's bad character is inadmissible to prove that the defendant probably acted in accordance with that character and committed the crime. This is true regardless of the nature of the crime charged, with limited exceptions for certain sexual assault cases. (Note that "felony or crime of dishonesty or false statement" is relevant to the separate concept of impeaching witnesses with prior criminal convictions.) The general rule is that the prosecution cannot initiate evidence of the defendant's bad character merely to show that she is more likely to have committed the crime of which she is accused. However, if the defendant puts her good character into issue, the prosecution may rebut with evidence of the defendant's bad character. A defendant who testifies does not put her character in issue merely by testifying in the case; however, she does put her credibility into issue by testifying, and may be impeached.

If a defendant in a criminal case presents evidence of his own good character for a particular trait, which of the following is a permissible method of rebutting this evidence? a) the prosecution asks the defendant's character witness whether he has heard about a bad act committed by the defendant, and after the witness denies it, the prosecution proves it by extrinsic evidence b) The prosecution calls another witness to testify as to the defendant's bad reputation for the same trait c) The prosecution calls another witness to testify about a bad act committed by the defendant d) The prosecution introduces documentary proof of a bad act committed by the defendant (e.g., a criminal conviction)

If the defendant puts her character in issue, the prosecution may rebut the defendant's character evidence by calling qualified witnesses to testify to the defendant's bad reputation for the particular trait involved. The witness may also testify as to his own personal opinion regarding the trait at issue of the defendant. However, introducing evidence about specific acts by the defendant is not allowed (whether by calling witnesses or introducing documentary proof of the act). If the defendant puts her character in issue by having a character witness testify as to his opinion of the defendant or the defendant's reputation, the prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about (i.e., whether the witness knows of or has heard about specific instances of conduct by the defendant). If the witness denies knowledge of these specific instances of conduct, however, the prosecutor may NOT prove them by extrinsic evidence.

Witness has testified and implicated Defendant in a crime. Defense counsel, believing in good faith that Witness has previously committed perjury when testifying in an unrelated case, asks Witness whether he has ever perjured himself. Witness denies ever committing perjury. Defense counsel may now:

If the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer. The court has the discretion to allow or stop the inquiry. Eventually, the cross-examiner must accept the witness's answer and move on. Extrinsic evidence (e.g., calling another witness or introducing a record) of "bad acts" is not permitted, even where the witness denies committing the act on cross-examination. A specific act of misconduct, offered to attack the witness's character for truthfulness, can be elicited only on cross-examination of the witness. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.

When may the spousal immunity doctrine be invoked?

In criminal cases only, for matters that took place before or during the marriage When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding. Spousal immunity may be invoked in criminal cases only. The privilege lasts only during the marriage and terminates upon divorce or annulment. However, if a marriage exists, the privilege can be asserted even as to matters that took place before the marriage. Spousal immunity may not be invoked in civil cases. Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question tests your knowledge of spousal immunity.

A defendant is on trial for robbing a liquor store. The store clerk testified that the defendant came into the store at about 11 p.m., pointed a black gun with a silver grip at him, and demanded that he give him all the money in the cash register. The clerk testified that the store was well lit and that the defendant was not wearing a mask. The defendant's attorney called the clerk's employer to testify that when the clerk gave her a report of the robbery, he told her that the defendant pointed a silver gun with a black grip at him. How should the trial judge rule on the admissibility of this testimony?

Inadmissible because it is extrinsic evidence of a prior inconsistent statement on a collateral matter The testimony should be found inadmissible. Extrinsic evidence of a prior inconsistent statement may not be used to impeach a witness upon a collateral matter. The clerk testified that he could recognize the defendant's face, and so the color of the gun is not material to any issue in the case under the facts given. (A) and (B) are incorrect because, even if the evidence does have some bearing on the clerk's credibility as a witness, it will be excluded because it will possibly confuse the issues or because it is a waste of time. (D) is not correct because the defendant is not seeking evidence to prove the truth of any material issue, but to impeach the clerk. The hearsay rule does not apply.

On July 1, a cattle breeder, who was planning to retire soon, sent a note to his neighbor offering to sell his prize bull for $15,000. On July 10, the neighbor, who was also a cattle breeder, wrote the following note to the retiring breeder: "I have decided to take the bull. I will give you a cashier's check on delivery on Saturday, July 28." The retiring breeder did not respond. The retiring breeder did not want to deliver the bull on July 28 and did not think that the delivery day was agreed to. Instead, he delivered the bull on Monday, July 30. The neighbor refused the delivery and stated that he had found another bull he likes better. The retiring breeder sues the neighbor for breach of contract. Is the retiring breeder likely to prevail?

No, because he did not deliver the bull on July 28 The retiring breeder will not prevail because he did not deliver the bull on July 28. This is a contract for a sale of goods and thus is governed by the UCC. Under the UCC, an acceptance with additional terms does not constitute a rejection and counteroffer, but rather is an effective acceptance unless made expressly conditional on the assent to the additional terms. Here, the neighbor accepted the offer and added the additional term of a delivery date. Thus, there was a contract. Whether additional terms become part of the agreement depends on whether both parties are merchants. If both parties to the contract are merchants, additional terms in the acceptance will be included in the contract unless they materially alter the terms of the offer, the offer expressly limited the acceptance to its terms, or they are objected to within a reasonable time. Here, both parties are breeders in the cattle business and, thus, are merchants. The change in the delivery date does not materially change the offer (i.e., it does not change a party's risk or remedies), the offer did not limit the acceptance to its terms, and the retiring breeder did not object. Therefore, the July 28 delivery date became part of the contract. By delivering the bull on July 30th, the retiring breeder breached the contract. (A) is incorrect because this is a contract for the sale of goods, which requires perfect tender. Whether the breach was material or minor has no effect. (B) is incorrect because under the UCC, the July 28 term became part of the contract when the breeder failed to object to it. (C) is incorrect because, under the UCC, an acceptance is effective even if it includes additional terms. Thus, the neighbor's letter on July 10 was sufficient to create a contract.

A witness testified against a defendant in a contract action. The defendant then called the witness's neighbor to the stand, who testified that the witness had a bad reputation for truth and veracity. The defendant then also called the witness's employee to testify that the witness once perpetrated a hoax on an insurance company. The witness had in fact been convicted for perpetrating the hoax 20 years ago. Is the employee's testimony admissible?

No, because it is extrinsic evidence of a specific instance of misconduct The testimony is inadmissible because it is not a permitted way to impeach a witness. A witness may be impeached by cross-examining her about specific criminal or immoral acts, but extrinsic evidence is not permitted. A specific act of misconduct offered to attack the witness's character for truthfulness can be elicited only on cross-examination of the witness. If the witness denies it, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. Thus, the witness could be asked on cross-examination about the hoax, but her employee cannot properly be called to testify about it. (A) is incorrect because there is no specific rule limiting cumulative impeachment. (C) is incorrect. A witness may also be impeached by introducing evidence that the witness was convicted of a crime if the conviction required proof or admission of an act of dishonesty or false statements, or if the crime was a felony. However, the prior conviction will generally not be admitted if more than 10 years have passed since the date of conviction or release from confinement, whichever is the later date (although the judge has discretion to admit older convictions in extraordinary circumstances). Here the witness was convicted 20 years ago and the conviction is likely too remote. Additionally, the defendant did not attempt to introduce evidence of the witness's conviction; the proposed testimony only concerns the commission of the misconduct. (D) is incorrect because even though a hoax would impair a witness's credibility, it cannot be proven by extrinsic evidence, as discussed above.

During the defendant's trial for armed robbery, evidence was introduced establishing that a rifle was found in the trunk of the defendant's car when he was arrested. On direct examination, the defendant testified that when he was arrested and the rifle was found, he stated, "I keep that with me for protection." Should the court allow the testimony?

No, because it is hearsay not within an exception The court should not allow the testimony. The defendant's testimony is being offered to prove the truth of the matter asserted (i.e., that he keeps the rifle for protection) and is hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. A hearsay problem can arise even if the out-of-court declarant and the in-court witness are the same person, as is the case here. Because the statement is not within any exception to the hearsay rule, it must be excluded. (A) is incorrect because a party's statement is considered nonhearsay when offered by a party-opponent. This hearsay exclusion does not apply here because the defendant's testimony was elicited on direct examination-i.e., the defendant was introducing his own statement into evidence. (B) is incorrect because an excited utterance applies only if made in response to a startling event. Although the conditions of the search might have been stressful to the defendant, it is not the type of situation that gives rise to an excited utterance. (D) is incorrect. The fact that a statement is self-serving is not grounds for its exclusion. All of a criminal defendant's evidence can be considered self-serving in the sense that it furthers his claim of innocence.

Commercial fishing has long been one of the major industries of a coastal state. To protect the fishing industry and to promote the general welfare of the state's citizens, the legislature of the state enacted statutes requiring licenses for commercial fishing. An applicant for the license must pay a $300 fee and establish that he has been engaged in commercial fishing in the waters of the state for 10 years. A commercial fisherman residing in a neighboring state frequently takes his fishing boat up the coast. His favorite spot is approximately two miles off the coast of the legislating state. If the commercial fisherman challenges the constitutionality of the legislating state's statutes, should the court find the statutes constitutional?

No, because less restrictive means area available The court should not find the statutes constitutional, because less restrictive means are available. The statutes violate the Privileges and Immunities Clause of Article IV, which prohibits discrimination against nonresidents with respect to essential activities (e.g., pursuing a livelihood) unless (i) the discrimination is closely related to a substantial state purpose, and (ii) less restrictive means are not available. Here, other controls could be placed on fishing without discriminating against out-of-state fishermen. (A) is wrong because, even though Congress has not acted in this area, the statutes would still be unconstitutional in light of the negative implications of the "dormant" Commerce Clause. Congressional silence is, therefore, irrelevant. (B) states a due process test which, even if applicable, would not preclude a finding of unconstitutionality on other grounds. (D) is wrong because the activity here does not involve foreign commerce-this is a dispute between one state and a citizen of another state.

A state board considered two plans to reapportion state legislative districts. One plan provided for districts with less than a 3% difference in proportional representation between districts. The other plan was drawn up to conform state legislative districts as nearly as possible to county borders, resulting in differences in proportional representation between districts of up to 12%. The then-current apportionment resulted in differences of up to 15% between districts. The board ultimately selected the plan based on county borders, and this plan was approved by the state legislature. After the plan was implemented, a registered voter challenged the reapportionment in federal court. He claims the plan unconstitutionally diminishes his vote because there are 10% more voters in his district than the average number in other districts throughout the state. The voter lives in a district in which 55% of the voters are members of a racial minority group. In the absence of a federal statute applicable to the state, is the resident likely to prevail?

No, because preserving political subdivisions is a legitimate state interest that justifies the plan's variance in representation. The resident will not prevail because the reapportionment plan does not violate the Equal Protection Clause of the Fourteenth Amendment. That provision has been interpreted to prohibit state dilution of the right to vote, so that whenever a governmental body establishes voting districts for the election of representatives, the number of persons in each district may not vary significantly. However, for the purpose of electing representatives to a state or local governmental body, the variance in the number of persons included in each district can be greater than that permitted for congressional districts. Generally, if the deviation from mathematical equality between districts is reasonable and tailored to promote a legitimate state interest, the law establishing the districts will likely be upheld. The Court has held that maintaining the integrity of local political subdivision lines when establishing legislative districts is a legitimate state interest, as long as the final apportionment is substantially based on population. [SeeMahan v. Howell (1973)-16% variance upheld] Here, the reapportionment attempted to conform legislative districts as nearly as possible to county borders and had a maximum variance of 12%. Thus, it will probably withstand the resident's challenge. (A) is incorrect because the fact that an alternative plan has a lesser variance between the districts does not make the selected plan invalid. Because it satisfies the less stringent requirements for state and local governmental bodies discussed above, the plan does not violate the Equal Protection Clause. (B) is incorrect because no facts indicate that race was considered when drawing the districts. Moreover, race can be considered in drawing voting districts so long as race is not a predominant factor. If a plaintiff can show that a redistricting plan was drawn up predominantly on the basis of racial considerations (as opposed to the more traditional factors, such as compactness, contiguity, and community interest), the plan will violate the Equal Protection Clause unless the government can show that the plan is narrowly tailored to serve a compelling government interest (such as eliminating past discrimination). However, if a legislative redistricting map can be explained in terms other than race, the Court will not find that the law constitutes racial discrimination on its face. In such a case, the person attacking legislative districts as being based on racial classifications would have to show that district lines were drawn predominantly for a racially discriminatory purpose. Here, as discussed above, the state's interest in preserving political subdivisions (counties) is a legitimate government interest, and the voter will be unable to prove that this was not the predominant factor in the reapportionment. (D) is incorrect because the fact that the reapportionment plan reduces the existing population variance among districts does not make it constitutionally valid. The plan must satisfy the equal protection requirements established by the Court in apportionment cases.

As part of a deal to raise the federal debt limit, Congress passed a statute by a greater than two-thirds vote in both houses giving the President authority to cancel particular spending provisions that are contained within legislation that he signs into law. The statute provided that Congress could override the President's decisions only by a three-fourths vote. As soon as the statute went into effect, a Senator who had voted against the statute filed suit in federal district court, challenging its constitutionality. Is the Senator likely to succeed in her lawsuit?

No, because the Senator lacks standing to challenge the statute The Senator will not succeed because she lacks standing to challenge the statute. The Supreme Court has held that members of Congress lack standing to challenge a law authorizing the President to exercise a line item veto (such as the statute here), reasoning that the injury is not concrete and personal, but rather is institutional in that it is shared by all members of Congress. [Raines v. Byrd (1997)] (A) is incorrect even though it is a true statement. The Supreme Court has ruled that the President has no power to exercise a line item veto of just part of a bill because it violates the Presentation Clause of the United States Constitution; the President must either approve or reject a bill in toto. However, (A) is not the best choice here because the Senator is not a proper person to bring the challenge. (B) is incorrect. The statute itself is invalid regardless of the requirements for overriding the President's line item veto. However, as stated above, the Senator does not have standing to challenge the statute. (D) is incorrect because the success of the lawsuit challenging the statute does not depend on the strength of the vote passing the statute.

A group of students held a demonstration against the proliferation of weapons in space in one of the city's parks. The defendant spoke at the demonstration, and to make a point during her speech, she walked over to one of the trash barrels and dumped the contents out on the ground. As she did so, she told her listeners, "This is what outer space is starting to look like, cluttered with the trash of nuclear weapons." The meeting broke up 15 minutes later. The students left the park peacefully, but no one bothered to pick up the trash or right the overturned barrel. The defendant was arrested pursuant to the city's littering ordinance, which carried fines of up to $500 and was strictly enforced. She was convicted and fined $500. The defendant brings an appropriate appeal to have her conviction set aside on constitutional grounds. Is the defendant likely to succeed?

No, because the anti-littering ordinance furthers an important governmental interest and is not aimed at communication The anti-littering ordinance will be upheld because it furthers an important government interest unrelated to the content of the communication and is narrowly tailored to the furtherance of that interest. As a general rule, conduct that is intended to communicate is not immune from reasonable government regulation, even though it takes place in a public forum such as a park. The noncommunicative impact of speech-related conduct in a public forum can be regulated to further an important government interest independent of the speech aspects of the conduct as long as the incidental restriction on the ability to communicate that message is narrowly tailored to further the interest in question, so that alternative channels for communicating the message are available. The prevention of litter, as a means of maintaining public facilities in usable condition and protecting property values, is an important enough government interest to allow some type of regulation. The ban on littering is narrowly tailored to accomplish its purpose, unlike, for example, a ban on distributing leaflets that may end up on the ground. The regulation probably would not have precluded the defendant even from dumping the barrel if she had picked up the trash after her speech was over. (B) is incorrect because it is too broad; some speech-related conduct cannot be punished (e.g., burning a flag). The critical distinction is whether the offense relates to the communicative content of the conduct or to state interests independent of its communicative aspects. (C) is incorrect because the conduct aspect of symbolic speech can be regulated under the test indicated above. (D) is incorrect because the compelling interest standard only applies where the restrictions are based on the content of the message being communicated. Where the regulation is not based on content, the government need show only an important interest.

On July 1, a cattle rancher offered to sell his ranch to a dairy farmer for $150,000. The dairy farmer paid the cattle rancher $1,000 to hold the offer open for a period of 30 days. On July 10, the dairy farmer wrote to the cattle rancher, telling him that he could not pay more than $100,000 for the ranch, and that if he would not agree to accept that amount, he would not go through with the deal. The dairy farmer received no reply from the cattle rancher. On July 29, the dairy farmer mailed a letter to the cattle rancher telling him that he accepted his offer to sell the ranch and enclosed a check for $150,000. The cattle rancher received this letter on August 1. Has a contract been formed between the parties for the sale of the ranch?

No, because the cattle rancher did not receive the dairy farmer's acceptance within 30 days No contract was formed because the cattle rancher did not receive the dairy farmer's acceptance within 30 days. Under the mailbox rule, acceptance by mail or similar means creates a contract at the moment of dispatch. However, the mailbox rule does not apply to option contracts. An acceptance under an option contract is effective only upon receipt. [Restatement (Second) of Contracts §63] Here, an option contract existed because the dairy farmer paid the cattle rancher $1,000 to hold the offer open for 30 days. The dairy farmer mailed his acceptance within 30 days but it was not received by the cattle rancher within the 30-day period, so the acceptance was not effective. The option specified the period of time during which the offer would remain open, after which the offer terminated. Thus, (C) is correct, and (D) is wrong. (A) and (B) are wrong because an option contract is irrevocable for the time period stated. Thus, not even the dairy farmer himself could revoke the offer within the 30-day period.

The defendant was being sued for striking and seriously injuring a child with his car one evening while the child was playing in the street near the curb. At trial, the attorney for the child's parents seeks to have the defendant's then wife testify that he had told her what had happened as soon as he had gotten home, and that he had said, "Between you and me, just before all this happened, I took a quick peek at the back seat to make sure I brought my briefcase home with me. If I had kept my eyes on the road, I never would've hit the kid." The wife had become divorced from the defendant a week before trial and was eager to testify against him. The attorney for the child's parents also presented evidence that, unknown to either the defendant or his wife, their neighbor overheard this conversation through her open window. Assuming a proper objection by the defense attorney, will the wife be permitted to so testify?

No, because the defendant's statement was a confidential marital communication The defendant's statement to his wife was made in reliance upon the intimacy of what was at that time their marital relationship. Thus, he has a privilege to prevent her from disclosing the statement. Either spouse (whether or not a party) has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were married. Divorce does not terminate this privilege retroactively. At the time that the defendant made the subject statement to his wife, they were married. Given that the statement essentially constituted an admission of liability by the defendant, that he prefaced it with "between you and me," and that he made the statement in the privacy of their home, it seems likely that the statement was made in confidentiality and in reliance upon the intimacy of the marital relationship. Thus, both the defendant and his wife may refuse to disclose, and may prevent the other from disclosing, the statement. Consequently, the defendant can prevent the wife from testifying to the statement. (A) is incorrect because the communication was made during the marriage, and the privilege is not abrogated by a later divorce. (B) is incorrect because the fact that the neighbor heard the statement was unknown to the defendant and his wife. If the communication is made in the knownpresence of a stranger, it is not privileged. However, if the statement was not made within the known hearing of a third party and it is overheard, absent a showing of negligence on the part of the speaker, it remains privileged. Nothing in these facts indicates negligence. Thus, the defendant can prevent his wife from testifying to the statement. (D) is incorrect because the privilege for confidential marital communications belongs to both spouses, rather than to just one. The trial here is a civil case, so the spousal immunity is inapplicable; this question involves the privilege for confidential marital communications. Furthermore, even if spousal immunity did apply, the federal privilege belongs to the witness-spouse, not the party-spouse.

The owner of a stationary bicycle wrote a letter to her friend offering to sell her stationary bicycle to him for $150. The friend received the letter on January 18. On January 19, he mailed a letter back saying that he was not interested in purchasing the bike because he had just purchased a gym membership. However, the friend changed his mind the next day and mailed a letter to the owner accepting her offer to sell the bicycle and enclosing a certified check for $150. The owner received the friend's rejection letter on January 21 but put it aside without reading it. The next day, she received the friend's acceptance letter, which she opened and read immediately. Do the parties have a contract?

No, because the mailbox rule does not apply - whichever is received first controls The parties do not have a contract, because the mailbox rule does not apply when the offeree sends a rejection, followed by an acceptance. In such a case, whichever is received first controls. Under the mailbox rule, acceptance by mail or similar means creates a contract at the moment of posting, with a couple of exceptions not relevant here. Rejection, on the other hand, is effective when received. So, if the mailbox rule had applied, there would have been a contract, because the friend's acceptance was mailed before his rejection letter was received. But because the mailbox rule does not apply here, and the matter is decided based on which letter was received first, there is no contract, because the friend's rejection letter was received by the bicycle owner a day before his acceptance letter was received by her. (A) is incorrect because, as discussed above, the mailbox rule does not apply when a rejection is sent before an acceptance; rather, whichever is received first controls. The fact that the bicycle owner did not read the rejection does not matter; it still was received by her before the acceptance. [See Restatement (Second) Contracts §68] (B) is incorrect because whether the friend paid for the bicycle is irrelevant. He sent the certified check (and his acceptance) after he sent his rejection, and the rejection was received first. (C) is incorrect because when a rejection by mail is followed by an acceptance by mail, the rule is that whichever is received first controls, not whichever is dispatched first. Thus, although it is true that there is no contract between the parties, it is because the friend's rejection letter was received by the bicycle owner first, rather than because it was mailed first.

A city council passed a zoning ordinance banning the operation of adult-oriented businesses in any "residential" or "commercial" zone of the city. Such businesses were allowed to operate only in areas zoned "industrial." The ordinance was passed due to concerns about the "secondary effects" of adult bookstores, such as increases in petty crimes. The owner of a profitable chain of adult bookstores and video rental operations sought a zoning variance to allow the owner to locate a store in a commercial zone of the city. The variance was denied. The owner then filed suit in federal court, claiming the denial of the variance violated his free speech rights. Is the owner likely to prevail?

No, because the ordinance is designed to serve a substantial governmental interest and does not unreasonably limit alternative avenues of communication The city is likely to prevail because the zoning ordinance is a constitutional restriction on the operation of adult-oriented businesses. The Supreme Court has held that businesses selling material that is sexually explicit, although not necessarily obscene, may be regulated through land use ordinances designed to reduce the secondary effects of such businesses. Thus, a zoning ordinance prohibiting the location of adult bookstores and theaters in areas close to residential zones and restricting such theaters to a limited area of the city is permissible if it is designed to promote substantial government interests (e.g., property interests) and does not prohibit all such entertainment in the community. [City of Renton v. Playtime Theaters, Inc. (1986)] Because the city's ordinance is a legitimate part of its zoning scheme and does not prevent the businesses from operating in other areas of the town, it will probably be upheld. (A) is incorrect because it is too broad. The type of regulation in this question cannot be based simply on what residents find "offensive"; only regulations that are based on substantial government interests and do not entirely prohibit the activity have been permitted by the Supreme Court. (C) is incorrect because the regulation here, even if it is arguably content-based, is permissible because it is based on the legitimate local interest of preserving property values from the secondary effects of such businesses. (D) is incorrect because a city may restrict the location of speech-related businesses under the circumstances here without having to establish that the content of the speech is obscene.

Intending to encourage long-time resident aliens to become American citizens, a state passed a law denying numerous state and municipal jobs to persons who had been resident aliens for longer than 10 years. Those already in the state had to apply for American citizenship within a year after the law took effect. Persons who had acquired resident alien status prior to achieving the age of majority had until age 30 to acquire such status or be automatically disqualified from obtaining such a job. A 40-year-old man who has been a resident alien in the state for 15 years applied for a job as a police emergency response telecommunications expert. He had not filed for citizenship within the one-year grace period. May the state constitutionally rely on the statute to refuse to hire the man?

No, because the reasons for application of the law to the man do not appear compelling The law probably is unconstitutional as applied to the man in question. An equal protection issue is involved. Under the Equal Protection Clause, state classifications based on alienage are subject to strict scrutiny and so must serve a compelling interest to be constitutional. No compelling purpose seems to be present here. Thus, (D) is correct. (A) is incorrect because, although there is an exception from the strict scrutiny standard where a state or local government discriminates against aliens when hiring persons for jobs involving "self-government" processes, the job here (emergency communications for a police department) is a technical position and probably would not be found to be related to the self-government process; in any event, the statute applies to all positions and not just to jobs involving only the self-government process. (B) is incorrect because, although it is true that aliens are not entitled to the privileges and immunities of state citizenship, the law here is still unconstitutional under the Equal Protection Clause, as discussed above, which applies to aliens. (C) is incorrect because the discrimination would be unconstitutional even if it did apply to all aliens equally, as discussed above.

The police department of a small city has jurisdiction within the city limits and over a defined portion of the surrounding rural communities within the county. A farmer lives in one of the rural communities receiving police protection from the city. The farmer does not pay any tax to the city directly, but a portion of the farmer's county property tax is turned over by the county to the city in order to support the city's police department. The farmer's property was vandalized several times over the past several months, and the farmer became unhappy with the police protection that the city was providing. After his complaints to the police department and city hall did not improve the situation, the farmer wanted to vote against the mayor in the next election, but a city ordinance provides that only residents of the city may vote in city elections. If the farmer brings a suit to compel the city to allow him to vote in the city's mayoral election, is he likely to prevail?

No, because the resident voting limitation appears to be rationally related to a legitimate government interest. The farmer is not likely to prevail because the rational relationship test applies. Although the right to vote is a fundamental right, laws prohibiting nonresidents from voting are generally valid, provided that they meet the minimal scrutiny, or "rational basis," standard. Under this standard, a law will be upheld as long as it is rationally related to a legitimate government interest. Limiting the voters in a city's mayoral election to residents of the city serves the interests of efficiency and prevents persons with little personal interest in the city from voting. Thus, a court would likely uphold the ordinance. Answer (B) is incorrect because it sets out the strict scrutiny standard. While voting is a fundamental right and governmental action affecting fundamental rights generally is reviewed under strict scrutiny, that is not the case with laws limiting voting to residents. Answer (C) is incorrect. The Privileges or Immunities Clause of the Fourteenth Amendment prohibits a state from denying its citizens certain privileges or immunities of national citizenship. The voting restriction here does not affect any national right, except, perhaps, the right to travel. Even if that right is impacted here, as discussed above, the Supreme Court has approved limiting the right to vote to residents. Answer (D) is incorrect. While "no taxation without representation" was a rallying cry for the war of independence, it is broader than the constitutional doctrines applicable here.

An indictment was filed in federal district court charging the defendant with violations of federal bank robbery statutes. At trial, the government attempted to introduce into evidence the testimony of the defendant's wife, who would testify that she had seen the defendant arm himself on several occasions with weapons identical to those used in the bank robberies, had seen him return to their home carrying sacks filled with money with the markings of the robbed banks, and had overheard, while serving meals, the defendant and his co-defendants discussing plans for robbing the various banks and concealing the loot. The defendant's attorney objected, and the district court judge ruled that the wife's testimony was within the spousal privilege and could not be admitted over the defendant's objection. Was this ruling correct?

No, because the spousal privilege may be asserted only by the testifying spouse - she may not be compelled to testify nor be foreclosed from testifying Federal Rule 501 provides that federal courts shall apply rules of privilege developed at common law except in diversity cases, wherein state law controls, but this is not a diversity case. The United States Supreme Court has held that the privilege not to testify may be asserted only by the testifying spouse, and if she is willing to so testify against her husband, the marital relationship is so disharmonious that there is nothing left for the privilege to preserve. Thus, (A) is correct and (B) and (C) are incorrect. (D) is incorrect because it states the privilege for confidential marital communications, which is different from the spousal privilege. Further, the confidential communication was between the defendant and his co-defendants, not between the defendant and his wife.

A state statute provided that only residents of the state can be granted a license to practice medicine within the state. The statute was passed after a series of well-publicized mistakes by a nonresident physician led to a public consensus that nonresidents were less likely to be familiar with the medical standards followed in the state, making them more likely to commit malpractice. A respected surgeon who lived and was licensed in a neighboring state was offered and accepted the position of chief surgeon at a hospital in the state with the residency statute. Because he lived only 20 minutes away from the hospital, he did not wish to move. He filed an action in federal court challenging the residency requirement, alleging that the statute discriminated against nonresidents in violation of the Privileges and Immunities Clause of Article IV. Is the federal court likely to find that the statute is constitutional?

No, because the statute is not necessary to achieve an important government purpose The statute is likely unconstitutional because the statute is not necessary to achieve an important government purpose (put another way, state does not have a substantial justification for the statute). The Privileges and Immunities Clause of Article IV protects against discrimination by a state in favor of its own citizens when it affects a fundamental right, such as the pursuit of a livelihood. Any statute that results in such discrimination violates the Clause unless the state shows that it has a substantial justification for the discriminatory treatment. In effect, it must show that nonresidents either cause or are part of the problem it is attempting to solve, and that there are no less restrictive means to solve the problem. Here, the state statute clearly discriminates against nonresidents in favor of residents. The reason offered by the state to justify the discrimination, i.e., that nonresident physicians are less likely to be familiar with the medical standards imposed by the state, does not meet the test of necessary to achieve an important government purpose. The state can find less restrictive means to ensure that all physicians are familiar with its medical standards. Accordingly, (A) is incorrect. (B) is incorrect, because a "privilege" under the Privileges and Immunities Clause includes those professions that are important to the national economy, which the practice of medicine clearly is. (D) is incorrect because it states the wrong standard. The state does not have to show a compelling interest for the discrimination. It must show an "important" one, a lower standard.

Under the Federal Rules, a statement by an opposing party offered for the truth of the matter asserted is:

Nonhearsay Although traditionally an exception to the hearsay rule, a statement by an opposing party (also known as an "admission by a party-opponent") is not hearsay at all under the Federal Rules. It is immaterial whether the party is a testifying witness. This requirement only applies to the other specific nonhearsay categories under the Federal Rules (prior inconsistent statements, prior consistent statements, and prior statements of identification).

Under the Federal Rules, when offered to prove the truth of the matter asserted, a testifying witness's prior inconsistent statement made at a deposition is:

Not hearsay, as long as the witness is subject to cross-examination A testifying witness's prior inconsistent statement made at a deposition is not hearsay because the statement was made under penalty of perjury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are considered nonhearsay under the Federal Rules as long as the declarant is now testifying and subject to cross-examination (i.e., willingly responding to questions). Whether the witness is given an opportunity to explain or deny the inconsistent statement relates to whether extrinsic evidence of the statement can be used to impeach the witness. It does not relate to the hearsay analysis.

As a general rule, evidence of a prior bad act or crime is not admissible to prove -

Propensity to commit crime Prior acts or crimes are generally not admissible to show criminal propensity (although there are limited exceptions in sexual assault or child molestation cases). However, Federal Rule 404(b) goes on to say that such prior acts or crimes may be admissible for other purposes (e.g., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident).

A letter of revocation of an offer becomes effective at the moment it is __________.

Received by the offeree A letter of revocation of an offer is effective when it is received by the offeree. At common law, a written communication is considered to have been "received" when it comes into the possession of the person addressed (or of someone authorized by him to receive it) or when it is deposited in some place authorized as the place for this or similar communications to be deposited. Similarly, under the UCC, a person receives notice when it comes to his attention, or it is delivered at a place of business through which the contract was made or another location held out by that person as the place for receipt of such communications. An organization receives a communication at the time it is brought (or should have been brought) to the attention of the individual conducting the transaction. Thus, the written revocation need not be actually read by the offeree to be effective. A revocation generally is effective when received while, in contrast, an acceptance generally is effective when dispatched (i.e., the mailbox rule). Under the mailbox rule, if the offeree dispatches an acceptance before he receives a revocation sent by the offeror, a contract is formed.

One of the requirements for standing in federal court is that a decision in the plaintiff's favor will eliminate the harm to the plaintiff. This concept is known as ____________.

Redressability Redressibility is the part of standing that provides that a decision in the plaintiff's favor must be able to remedy the harm. Justiciability refers to the concept that a case may be tried in court. In federal courts it is a broad term that encompasses a number of more specific topics, such as ripeness, mootness, and standing. Remediability means something that can be remedied. While it is closely related in meaning to the concept of redressability, it is not the term that the Supreme Court uses to describe the concept that a decision in the plaintiff's favor will eliminate the harm to the plaintiff.

In a civil case, when director is directly in issue, that character may be proved by evidence in the form of --

Reputation, opinion, or specific acts When proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, it is said that character is "directly in issue." Although character is rarely an essential issue in a civil case, character evidence is admissible in such circumstances. Under the Federal Rules, any of the types of evidence (reputation, opinion, or specific acts) may be used to prove character when character is directly in issue.

A woman whose children attended a charter school learned that the children of the woman's neighbor who attended a parochial school received a hot lunch paid for, in part, through federal expenditures enacted under Congress's spending power. The charter school received no funding from the federal government and was not allowed to participate in the hot lunch program. The woman challenged this federal expenditure as a violation of the Establishment Clause. For her to bring the suit, at the very least what must the woman allege?

She pays federal income taxes and the use of federal funds in this manner is an improper taxing and spending method The woman must allege that she pays federal income taxes and that the use of federal funds in this manner is improper under Congress's taxing and spending power. In general, a taxpayer has no standing to challenge the expenditure of federal funds. The major exception to this rule is where the taxpayer alleges that the expenditure was enacted under Congress's taxing and spending power and exceeds some specific limitation on that power, in particular the Establishment Clause. Typically, neutral benefit programs that provide aid to private schools do not violate the Establishment Clause if they treat religious schools the same as other eligible private schools. This program, however, may be problematic because it provides a benefit to religious schools that isn't available to other schools. Thus, the woman would have standing to contest this federal expenditure. The woman does not have to have children to bring this challenge, let alone children in the charter school. However, she would have to be a taxpayer. Thus, (A), (C), and (D) are wrong.

Prior misconduct evidence is inadmissible if the danger of unfair prejudice __________ the probative value.

Substantially outweighs Under Federal Rule 404(b), prior misconduct evidence is inadmissible if the danger of unfair prejudice substantially outweighs the probative value. The other statements of the standard are incorrect. Additionally, independently relevant uncharged misconduct by the defendant will only be admissible, without a preliminary ruling, if there is sufficient evidence to support a jury finding that the defendant committed the prior act (i.e., the standard of Federal Rule 104).

A hair salon was robbed and a suspect arrested and charged with the robbery. At trial, a witness for the prosecution testified on direct examination about what she saw. The time of the robbery was an important issue. When asked to state the time of the robbery, the witness could not remember the exact time; she knew her appointment was at 11 am, but she could not recall when the robbery took place. The prosecutor seeks to show her the police report with her statement that the robbery occurred at or about 11:45 am. Should the trial court allow the prosecutor to show the police report to the witness?

Showing the witness the police report with her statement is a proper attempt to refresh her recollection. A witness may use any writing or thing for the purpose of refreshing her present recollection. This is also known as "present recollection revived." Under most circumstances, the witness may not read from the writing while she actually testifies because the writing is neither authenticated nor in evidence. Here, the writing was shown to this witness solely to refresh her recollection and is, therefore, proper. (A) is incorrect. Aiding a witness's present recollection has nothing to do with bolstering the witness's credibility (which generally may not be done until the witness has been impeached). (B) is incorrect. What the prosecutor is asking to do does not constitute a traditional "leading question," which generally calls for a "yes" or "no" answer or is framed to suggest the desired answer. Furthermore, the ordinary rules on leading questions may be waived when the witness needs help to respond because of loss of memory. (D) is incorrect. Recorded recollection, also known as "past recollection recorded," is a hearsay exception [Fed. R. Evid. 803(5)] allowing the writing itself to be introduced into evidence if a proper foundation is laid for its admissibility. Here, there is no attempt to enter the police report into evidence.

Under the Privileges and Immunities Clause of Article IV, Section 2, __________.

States may not discriminate against nonresidents regarding fundamental rights Under the Privileges and Immunities Clause, states may not discriminate against nonresidents regarding fundamental rights-i.e., those involving important commercial activities (such as pursuit of a livelihood) or civil liberties-absent a substantial justification: i.e., the state shows that nonresidents either cause or are part of the problem the state is attempting to solve, and that there are no less restrictive means to solve the problem. For example, states may not charge nonresident commercial fishermen substantially more for a license than they charge residents absent substantial justification. While it is true that states may not deny their own citizens rights of national citizenship, this rule comes from the Privileges or Immunities Clause of the Fourteenth Amendment rather than from the Article IV Privileges and Immunities Clause. Corporations are NOT protected as well as natural persons under the Article IV Privileges and Immunities Clause. The Clause has been held to extend only to natural persons. Aliens are NOT protected as well as citizens under the Article IV Privileges and Immunities Clause. The Clause has been held to extend only to citizens.

The defendant is being tried for murder in the bludgeoning death of his brother. The defendant denies any involvement in the crime. He calls a witness to the stand, who testifies that, in his opinion, the defendant is a nonviolent, peaceable man. Which of the following, if offered by the prosecution, would most likely be admissible? a) A neighbor's testimony that the defendant has beaten his wife on several occasions b) A police officer's testimony that the defendant has a general reputation in the community as a violent person c) A neighbor's testimony that the defendant has a reputation for being untruthful d) Evidence that the defendant has a conviction for aggravated battery

Testimony of the defendant's reputation as a violent person is admissible to rebut the defendant's character evidence. The general rule is that the prosecution cannot initiate evidence of the bad character of the defendant merely to show that he is more likely to have committed the crime of which he is accused. However, if the defendant puts his character in issue by having a character witness testify as to his opinion of the defendant, the prosecution may rebut with evidence of the defendant's bad character. One means of rebutting a defendant's character evidence is by calling qualified witnesses to testify to the defendant's bad reputation for the particular trait involved in the case. Here, the defendant put his character in issue by having his witness testify to the defendant's nonviolent nature, which is relevant to whether he committed the crime charged. The prosecution, assuming that it can show that the police officer has knowledge of the defendant's reputation in the community, can have the officer testify that the defendant had a reputation as a violent person. (A) is incorrect because the prosecution cannot prove the defendant's bad character for the pertinent character trait with evidence of specific bad acts like beating his wife. The prosecution may only introduce character evidence in the form of reputation or opinion testimony after the defendant has first introduced evidence of his good character. The prosecution may also cross-examine the defense witness with questions about specific acts of misconduct by the defendant, but the prosecution may not prove those acts with extrinsic evidence. (C) is incorrect. While the defendant has "opened the door" to evidence of his bad character by presenting testimony of his good character, the evidence must pertain to the particular trait involved in the case. Here, the defendant's capacity for violence has been placed in issue by the defendant, but his reputation for truthfulness is not relevant to whether he has committed the crime for which he is charged. (And because the defendant has not placed his credibility in issue by taking the stand as a witness, his reputation for truthfulness cannot be offered for impeachment purposes.) (D) is incorrect because the basic rule is that when a person is charged with one crime, extrinsic evidence of his other crimes or misconduct is inadmissible if offered solely to establish a criminal disposition, regardless of whether the defendant has placed his character in issue. [Fed. R. Evid. 404(b)] While evidence of other crimes is admissible if it is independently relevant to some other issue (e.g., motive, intent, or identity), the defendant's battery conviction in this case appears to have no relevance other than as evidence of his violent disposition. It is therefore inadmissible.

The state legislature of state A enacted legislation prohibiting the use of tractor-trailer rigs weighing more than 100,000 pounds gross, on the basis that superheavy trucks rapidly degrade the state's roadways and pose a greater safety danger than smaller trucks. A trucking firm that frequently uses state A's highways for trips between state B and state C purchased several tractor-trailer rigs weighing over 100,000 pounds when loaded. The trucking firm brings an action for declaratory relief in federal court in state B, seeking to have the state A legislation declared unconstitutional. It presents expert testimony that the heavier trucks are no less safe than smaller models. State A produces no evidence, but asserts that the legislation is justified as an exercise of its police power. How should the trial court rule?

That the legislation is unconstitutional because it violates the Commerce Clause The legislation violates the Commerce Clause. As a general matter, a state may regulate in ways that impact on interstate commerce as long as the regulation does so only indirectly and the benefits outweigh the burdens imposed by compliance with the regulation. [Kassel v. Consolidated Freightways Corp. (1981)] When, as here, only a bare assertion that the regulation would increase safety is involved, a court will generally find that the regulation is invalid. This does not mean that a state could not prevail if it proved that the benefits of the regulation do in fact outweigh the burdens. Indeed, the Court intimated that such would be the case in Bibb v. Navajo Freight Lines, Inc.(1959). But state A has not made a sufficient showing here, and the trucking firm has presented colorable "expert" evidence to the contrary. (A) is incorrect because economic and social regulations are tested at the rational basis level for due process purposes, and even the minimal showing here would suffice for the state. (C) states a correct premise (i.e., that the state is regulating for highway safety), but an incorrect result, and is wrong. (D) is wrong because the state has in fact made no such showing before the court. Thus, while there is a normal presumption of constitutionality, the state here has not met its burden in defending the measure in the face of contrary, expert evidence.

A defendant is charged with beating a victim to death with a set of brass knuckles during the course of a fight in a tavern. The victim was found to have a pistol on his person at the time of the fight. During the course of the trial, the defendant took the stand in his own defense and testified that the victim threatened him with a gun and the defendant had hit the victim with the brass knuckles in self-defense. To rebut the defendant's claim, the prosecution wishes to place the bartender on the stand, who will testify that two years prior to the attack on the victim, she had seen the defendant approach a customer in her tavern from behind, put on a pair of brass knuckles, and strike the customer a severe blow on the side of the face with a brass-knuckled fist. The prosecutor has complied with all notice requirements regarding the bartender's proposed testimony. As soon as the bartender is sworn in, the defense attorney raises an objection. How should the court rule on the admissibility of the bartender's testimony?

The bartender's testimony is inadmissible because the defendant's prior fight in the tavern cannot be admitted to prove his propensity to beat someone to death. The basic rule is that when a person is charged with one crime, extrinsic evidence of his other crimes or misconduct is inadmissible if such evidence is offered solely to establish a criminal disposition. [Fed. R. Evid. 404(b)] The danger is that the jury may convict because of past conduct rather than because of guilt of the offense charged. While evidence of other crimes is admissible if it is independently relevant to some other issue (e.g., motive, intent, or identity), the defendant's prior fight appears to have no relevance other than as evidence of his violent disposition. It is therefore inadmissible. (A) is incorrect because it suggests that the bartender's testimony should be admitted to show the defendant's propensity for violence. As stated above, extrinsic evidence of his prior misconduct is inadmissible if offered solely to establish a criminal disposition. Evidence of specific acts of the person in question as demonstrating that person's character is permitted only in the few instances when character is itself one of the ultimate issues in the case. [Fed. R. Evid. 405(b)] The defendant's propensity for violence is not an ultimate issue in this case. (B) is incorrect because extrinsic evidence of the defendant's previous bad acts cannot be used to impeach him. A specific act of misconduct must be probative of truthfulness (i.e., an act of deceit or lying) and can be elicited only on cross-examination of the witness. Extrinsic evidence is not permitted. Therefore, testimony concerning the defendant's prior incident is not admissible for impeachment. (D) is incorrect because it is irrelevant. It is true that the defendant has not put his character in issue in this case simply by pleading self-defense. Even if he had, however, the prosecutor could not rebut by having a witness testify as to prior instances of misconduct; only reputation or opinion evidence would be admissible.

A bank executive was on trial for embezzling $10,000 from the bank where he worked. A key witness for the prosecution was called to testify, but on the stand he had difficulty remembering the specifics of a conversation he had with the executive regarding the executive's accounting procedures. To refresh the recollection of the witness, the prosecutor showed the witness a memorandum that the witness had written for his file, detailing the conversation. The witness reviewed the memorandum, and then testified that he recalled the conversation. He proceeded to testify about the specifics of the conversation. The defense counsel then asked that the memorandum be introduced into evidence. How should the court rule on the memorandum?

The court should admit the evidence if it was used to refresh the witness's recollection. Because the witness read the notes, and then had an independent recollection of events, this qualifies as a present recollection refreshed. Normally a writing used to refresh is not placed into evidence. However, under Federal Rule of Evidence 612, if a writing is used to refresh the recollection of a witness, the opposing party has a right to introduce the document into evidence. Thus, (A) and (B) are incorrect. (C) is incorrect because, if the witness's memory was not refreshed, the memorandum would have to be introduced as a past recollection recorded. The proper foundation has not been laid for admission of a past recollection recorded.

During the defendant's trial for embezzlement, the defense calls a witness to testify as to the defendant's reputation for honesty and veracity. The prosecution objects. Should the court allow the testimony? a) Yes, because the prosecution put the defendant's character for truthfulness in issue by filing charges against him b) Yes, because it is admissible character evidence c) No, because a party cannot bolster the testimony of his witness until he has been impeached d) No, because the evidence is inadmissible hearsay

The court should allow the testimony. A criminal defendant may introduce character testimony about his good reputation for a pertinent trait to show that he is innocent of the charged crime. Here, the defendant is offering the testimony of a witness as to his reputation for honesty and veracity, which is a trait directly pertinent to his embezzlement charge. Therefore, the testimony should be allowed, and the prosecution will have the opportunity to rebut the testimony on cross-examination. (A) is incorrect because only the defendant can put his character in issue, and the filing of criminal charges does not have the effect of putting the defendant's character in issue. (C) is incorrect because there is no impeachment issue here and the defense is not attempting to bolster the testimony of its witness (which is generally done after the credibility of the witness is attacked on cross-examination), but rather to offer an opinion as to the defendant's character. (D) is incorrect because, to the extent that the witness's testimony is hearsay, it falls within the exception to the hearsay rule for reputation evidence of a person's character.

A state enacted health care legislation to provide comprehensive insurance coverage on prescription drugs for all of its citizens. The legislation provided state reimbursement for the cost of all prescription drugs with one exception-a drug commonly known as the "abortion pill," which was prescribed to induce early term abortions without surgery. All other prescription drugs for pregnant women were covered. A pregnant woman who had received a prescription for the drug and was subsequently denied reimbursement filed suit in federal district court challenging the constitutionality of the legislation. Which of the following best describes the appropriate standard by which the court should review the constitutionality of the state legislation? Responses Press Enter or Space to submit the answerCorrectABecause the state legislation does not improperly discriminate against a suspect class or burden a fundamental right, the woman will have to show that the legislation is not rationally related to any legitimate state interest.Because the state legislation does not improperly discriminate against a suspect class or burden a fundamental right, the woman will have to show that the legislation is not rationally related to any legitimate state interest.BBecause the state legislation discriminates against women by not providing coverage for all of their prescription medications as it does for men, the state will have to demonstrate that the legislation is substantially related to an important government interest.Because the state legislation discriminates against women by not providing coverage for all of their prescription medications as it does for men, the state will have to demonstrate that the legislation is substantially related to an important government interest.CBecause the state legislation impinges on a woman's constitutional right to choose whether to terminate her pregnancy, the state will have to show that the legislation does not constitute an undue burden on that right.Because the state legislation impinges on a woman's constitutional right to choose whether to terminate her pregnancy, the state will have to show that the legislation does not constitute an undue burden on that right.DBecause the state legislation discriminates against women seeking to exercise their fundamental right to terminate their pregnancy in favor of women incurring the regular expenses of pregnancy, the state will have to demonstrate that the legislation is necessary to vindicate a compelling state interest.

The court should require the woman to show that the legislation is not rationally related to any legitimate state interest. The Supreme Court recently overruled the line of cases that held that women had a fundamental right to obtain an abortion. However, even before that, the Court had ruled that neither federal nor state government has a duty to grant medical benefit payments for abortions, even if it grants benefits for childbirth services. The Court applied the rational basis test reflected in this choice. [SeeMaher v. Roe (1977)] (B) is incorrect because the legislation does not create a gender-based classification that would require application of an intermediate scrutiny standard. The fact that the restriction applies to a drug prescribed only to women does not establish gender-based discrimination. [See Geduldig v. Aiello (1974)] (C) and (D) are wrong because, as discussed above, the Court has held that the federal Constitution does not provide a fundamental right to obtain an abortion and that government has no duty to fund abortions in any event.

The defendant is on trial for assault with a deadly weapon. The sole prosecution witness is the victim, who testifies as to his version of the events leading up to and including the charged assault. The defense's first witness contradicts the victim's testimony that the defendant engaged in an unprovoked attack. The witness testifies that the victim pulled a knife on the defendant and that the defendant, in defending himself, wrested the knife away and accidentally stabbed the victim. The defense's next and final witness intends to testify that the defendant's reputation in the community for honesty and veracity is very good. Aware of the intended testimony, the prosecutor moves in limine to exclude it. How should the court rule? a) For the state, because the defendant may not introduce evidence of his character to prove that he acted in conformity therewith b) For the state, because the testimony as to the defendant's honesty and veracity is irrelevant c) For the defendant, Because of a criminal defendant may put his character in issue d) For the defendant, because a criminal defendant's reputation for honesty and veracity is always at issue

The court should rule for the state. A criminal defendant, to show his innocence of the charged crime, may call a qualified witness to provide reputation or opinion testimony regarding the defendant's good character for a trait involved in the case (i.e., to prove that he acted in conformity with that good trait during the events at issue). Therefore, (A) is incorrect. Here, however, the defendant is charged with a crime of violence, so his character for honesty and veracity is not pertinent to the case. Furthermore, although any witness may be impeached with reputation or opinion evidence of his bad character for honesty and veracity, the defendant did not testify. For these reasons, the proffered evidence is irrelevant. Thus, (C) is incorrect. A criminal defendant may offer evidence of character for a certain trait only when the trait is relevant to the charges, and so (D) is a misstatement of law.

In a personal injury action, a doctor sat in court and listened to all of the evidence regarding the plaintiff's injuries. The defense subsequently calls that doctor to testify as to his opinion about whether the plaintiff's injuries will prevent the plaintiff from ever working again. May the doctor testify to this?

The doctor may testify. An expert's opinion may be based on one or more of the following sources of information: (i) facts that he knows from his own observation, (ii) facts presented in evidence at the trial and submitted to the expert, or (iii) facts not in evidence that were supplied to the expert out of court and which are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject. Here, the doctor's testimony will be based on facts presented in evidence at the trial. Thus, (C) is correct. (A) is incorrect because personal examination by the doctor is not required in order to provide expert testimony as to the plaintiff's injuries. (B) is incorrect because whether the plaintiff's injuries will prevent her from ever working again is an issue that requires specialized knowledge to assist the jury in its determination; it is not an issue left for the jury to ultimately decide. (D) is incorrect because the doctor's qualification as an expert is based on his specialized knowledge, skill, experience, etc. Personal examination of the plaintiff is not a prerequisite to testifying as an expert.

A pedestrian sued the driver of a car that hit him, alleging that the driver ran a stop sign. The driver denies this, maintaining that the pedestrian carelessly darted into the street. At trial, the pedestrian calls her husband to testify for her. The husband offers testimony that the pedestrian invariably looks both ways before crossing a street. The driver objects to the admission of this evidence. How should the court rule on the driver's objection?

The driver's objection should be overruled. The husband's testimony is a classic example of evidence regarding habit-it is a regular response (looking both ways) to a regular set of circumstances (crossing a street). The pedestrian's habit is relevant to the issue of whether she was at fault in the accident. (A) is wrong because neither the Federal Rules nor the prevailing common law requires the corroboration of habit evidence. (B) and (C) are wrong because the testimony is evidence of habit, not character. Furthermore, this is not the type of civil case where character is directly in issue (e.g., defamation or negligent hiring cases).

A contractor for a large multistory building used an excavation subcontractor to dig the excavation for the foundation, and a structural subcontractor to begin structural work on the foundation. Just after the foundation was completed, an employee of the structural subcontractor was killed when the walls of the excavation collapsed. The employee's survivors brought an appropriate action against all of the involved parties. At trial, the structural subcontractor calls a civil engineer licensed by the state to testify that he examined the geologist's reports of the soil conditions surrounding the construction site, as well as a report by the investigator who examined the site of the collapse, and that it is his (the engineer's) opinion that the collapse was caused by the excavation subcontractor's failure to take into consideration the composition of the soil being excavated. Is the engineer's testimony admissible?

The engineer's testimony is admissible as relevant opinion testimony by an expert witness. The Federal Rules permit witnesses qualified as experts to testify in the form of an opinion if the subject matter is one where scientific, technical, or other specialized knowledge will assist the jury in understanding the evidence or determining a fact in issue. [Fed. R. Evid. 702] Under Federal Rule 703, the expert may base his opinion on facts not known personally but supplied to him outside the courtroom (e.g., reports of other experts). Such facts need not be admissible in evidence as long as the facts are of a kind reasonably relied on by experts in the particular field. Here, the engineer, who was licensed by the state, probably qualifies as an expert on the subject of his testimony and therefore can state his opinion as to the cause of the collapse of the excavation wall. As choice (A) states, he may base his opinion on the geologist's and the investigator's reports if civil engineers in his field rely on this type of data in reaching conclusions such as his. Thus, choice (D) is incorrect. Choice (B) is incorrect because whether this analysis constitutes professional negligence is irrelevant to its admissibility; this fact can be brought out by cross-examination. A prudent analysis will still be inadmissible if it was based on materials that experts in his field did not reasonably rely on. Choice (C) is incorrect; Federal Rule 704(a) provides that otherwise admissible opinion testimony is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.

A defendant is being tried for the murder of a victim, which occurred during the burglary of the victim's house. In its case-in-chief, the prosecution seeks to offer evidence that the defendant, who was arrested several days after the crime, had been caught with several grams of cocaine in his car. All notice requirements have been met. This evidence will most likely be:

The evidence will likely be inadmissible. Other crimes and wrongdoings of a defendant are sometimes admissible to prove motive, opportunity, intent, preparation, plans, knowledge, identity, or absence of mistake [Fed. R. Evid. 404(b)], provided, however, that the probative value of the evidence is not substantially outweighed by prejudice or other Rule 403 considerations. On these facts, the probative value of possession of cocaine seems very slight and is highly prejudicial. Therefore, the evidence will probably be inadmissible. (A) is wrong. Other crime evidence is sometimes admissible to show motive, opportunity, etc., even if the defendant does not place his character in issue. Also, if the defendant offers evidence of good character, the prosecutor cannot for that reason alone offer extrinsic evidence of specific crimes. (C) is wrong. The issue is whether the defendant murdered the victim during a burglary, not what he did with the money. It is true that the evidence tends to show that the defendant had money, but the probative value that he committed the crime charged would be very slight and clearly outweighed by prejudice. (D) is wrong. If the evidence were offered to prove that the defendant is capable of committing serious crimes, it would be inadmissible character evidence.

A plaintiff sued his neighbor over a 10-foot-high stockade fence that the neighbor was building adjacent to the plaintiff's backyard. The local zoning ordinance permitted a fence of this height unless it was a "spite fence," defined as a fence erected solely for the purpose of interfering with neighboring landowners' use and enjoyment of their property. The plaintiff alleged that the neighbor was building the fence to block sunlight to the garden that the plaintiff had planted. The neighbor denied that she was building the fence for that purpose. The plaintiff wishes to introduce evidence that the neighbor had sprayed herbicide towards the garden previously. Should the judge permit the plaintiff's testimony?

The judge should permit the plaintiff's testimony because evidence of specific acts of misconduct is admissible to show motive. Under Federal Rule 404(b), evidence of other acts may be admissible in a criminal or civil case if they are relevant to some issue other than character, such as motive. Here, whether the neighbor was motivated by an improper purpose in building the fence is the key issue in the lawsuit by the plaintiff. The neighbor's prior misconduct in spraying herbicide toward the plaintiff's garden is circumstantial evidence that her hostility toward the garden motivated her to build the fence. (A) is wrong because even though the neighbor's motivation and intent are at issue in the case, her character is not. In the absence of character being directly in issue in the case, evidence of character to prove the conduct of a person in the litigated event is not admissible. (C) and (D) are wrong even though they correctly state general rules: evidence of specific acts of misconduct is generally inadmissible, and character evidence is generally inadmissible in a civil case. However, when the specific acts are being offered for a purpose other than to show bad character or conduct in conformity to character, they are admissible in both criminal and civil cases.

A plaintiff sued a defendant for negligence when the tractor that he was driving at a construction site collided with the plaintiff's car. The plaintiff alleged that she was driving in a proper lane when the tractor collided with her car. The plaintiff's counsel called the responding police officer to testify that the defendant's employee made a statement to the police officer, in the defendant's presence, that the defendant "accidentally went too far into traffic," and the defendant did not say anything. Should the trial judge rule that this evidence is admissible?

The judge should rule the evidence admissible as an adoptive statement of an opposing party. Statements by or attributable to a party and offered against that party are not considered hearsay under the Federal Rules. If a party fails to respond to accusatory statements where a reasonable person would have spoken up, his silence may be considered an adoptive statement. Although it is arguable that a person who may be liable for negligence would reasonably remain silent when in the presence of a police officer, this is the best answer. (D) is wrong because there need be no foundation evidence. (C) is wrong; the silence is deemed the adoption of the employee's statement. Thus, both the employee's statement and the defendant's silence would be admissible. (A) is wrong because the statement against interest exception does not apply here. To fall within the exception, a statement must be against the declarant's own interest when made-here, the employee's statement was against the defendant's interest, not his own. Furthermore, the exception requires the unavailability of the declarant (i.e., the employee), and there is no indication that the employee is unavailable.

A doll collector knew that an acquaintance from her doll collectors' club coveted one particular doll that she owned. The doll collector mailed a letter to the acquaintance on May 3 offering to sell the doll to her for $750. Her letter arrived on May 4. On May 5, the doll collector changed her mind and immediately mailed a revocation to the acquaintance. This revocation arrived on May 7. As the mail carrier handed it to her, the acquaintance simultaneously handed to the mail carrier her own letter to the doll collector, unequivocally accepting her offer. What is the result of the actions here?

The outcome would turn on the court's determination as to whether the doll collector's letter had been received by the acquaintance before she had entrusted the letter of acceptance to the mail carrier The outcome would turn on the court's determination as to whether the doll collector's letter had been received by the acquaintance before she had entrusted the letter of acceptance to the mail carrier. At common law, an acceptance is effective upon dispatch (e.g., upon mailing a properly addressed and stamped letter) under the mailbox rule. The mailbox rule does not apply to revocations, however-revocations are effective only upon receipt. Receipt does not require knowledge of the revocation, but merely possession of it. The communication need not be read by the recipient to be effective. [See Restatement (Second) of Contracts §68] The facts here present a close question as to whether there has been a dispatch of the acceptance before the receipt of the revocation. The outcome of this question will depend on the court's determination as to what came first (the posting of the acceptance or receipt of the revocation). This will decide the existence or nonexistence of the contract. (A) is incorrect because, as indicated above, revocation is effective only upon receipt, not mailing. (B) is incorrect because whether the acceptance is effective depends on whether the revocation was received before the acceptance was dispatched, and whether the revocation was received first is not dependent on whether the acquaintance had knowledge of its contents, but rather it depends on whether she had possession of it. (D) is incorrect because the mailbox rule makes an acceptance effective upon posting, and there is no reason to hold that handing a properly addressed, stamped letter to a mail carrier is not a valid posting.

The defendant was on trial on a hit and run charge, whereby the prosecution asserted that the defendant's vehicle struck and injured an elderly pedestrian, and then the defendant sped away from the scene of the accident without stopping to assess the pedestrian's injuries or to render assistance. The defendant took the stand and denied the charge. A priest is ready to testify that he has known the defendant for 12 years, and that the defendant is a highly responsible person who would not run away from his obligations by leaving the scene of an accident. If the prosecution objects to the priest's proposed testimony, should the court bar the priest from testifying? a) No, because the testimony shows that the defendant is a person of good character b) No, because the testimony is habit evidence tending to show that it was unlikely that the defendant was the perpetrator c) Yes, because one may not use character evidence to bolster one's own testimony d) Yes, because the prosecution has not made an issue of the defendant's character

The priest's testimony as to the defendant's responsible nature is admissible as circumstantial evidence that he was not driving the hit-and-run vehicle. The accused in a criminal case can introduce evidence of his good character to show his innocence of the alleged crime. Federal Rule 405 allows the defendant to call a qualified witness to testify as to his personal opinion concerning a trait of the defendant that is involved in the case. In this case, whether the defendant was the driver of the hit-and-run vehicle is a critical issue in the case; thus, testimony that the defendant is a responsible person who would not leave the scene of an accident pertains to a relevant character trait. The priest, having known the defendant for 12 years, is qualified to give his personal opinion as to the defendant's character. The court should therefore permit the priest to testify. (B) is incorrect because the priest's testimony is character evidence rather than habit evidence. Both habit evidence and character evidence are admissible to show how a person probably acted on a particular occasion. However, habit evidence describes one's regular response to a specific set of circumstances, while character evidence describes one's disposition in respect to general traits. Here, there is no specific repeated situation that the defendant regularly responded to (such as regularly failing to stop at a certain stop sign). Rather, it is the defendant's general trait of responsibility that is being offered as evidence. (C) is incorrect because the priest's testimony is admissible as relevant character evidence. As a general rule, a party may not bolster the testimony of his witness until the witness has been impeached. Here, even though the priest's testimony bolsters the defendant's unimpeached testimony that he did not drive the hit-and-run vehicle, it is independently admissible as character evidence that supports the defendant's case. The fact that the defendant is testifying in his own defense when the priest is called to support him does not make the priest's testimony inadmissible. (D) is incorrect because it reverses the rule. In a criminal case, the defense does not need to have the prosecution put the defendant's character in issue before the defense can rebut it; the defense can initiate evidence of the defendant's character. On the other hand, the prosecution cannot make an issue of the defendant's character until the defendant has elected to put his character in issue.

A character witness testifies regarding the defendant's good character for peacefulness. The prosecution may rebut this evidence by: a) Calling the defendant's girlfriend as a rebuttal witness to testify that he beat her three weeks prior to this incident b) Asking the witness, "Did you know that the defendant beat his girlfriend three weeks prior to this incident?" c) Showing the witness an arrest report indicating that the defendant beat his girlfriend three weeks prior to this incident d) Asking the witness, "Have you heard that the defendant embezzled money from his previous employer?"

The prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about. Under Federal Rule 405(a), cross-examination inquiry is allowable as to whether the character witness knows of, as well as whether he has heard of, specific instances of misconduct by the defendant. Therefore, it is proper for the prosecution to ask the witness about the defendant's prior violent act. However, it would not be proper to ask about the defendant's prior dishonest act (embezzling money) because the witness testified about the defendant's character for violence, not his character for truthfulness. If the witness denies knowledge of specific instances of misconduct by the defendant, the prosecutor may not prove them by extrinsic evidence (e.g., a rebuttal witness or an arrest report); he is limited to inquiry on cross-examination.

Under the rules the Supreme Court currently uses regarding abortion, __________.

The states may regulate abortions at all stages of a pregnancy because the right to an abortion is not protected by the United States Constitution

A boater and a water skier were involved in a boating accident. Shortly after the accident, the water skier prepared a written summary of the events surrounding the accident. At trial two years later, the water skier is on the stand and is unable to accurately recall the details of the accident, even after reviewing the aforementioned account of the accident. Assuming a proper foundation is laid, may the summary of the accident be read into evidence?

The summary of the accident may be read into evidence. If the witness on the stand has insufficient recollection to testify to a relevant event fully and accurately, Federal Rule 803(5) permits the introduction of an out-of-court memorandum or other record of the event made by the witness at a time when the witness's memory of the event was fresh. The fact that the witness's memory of the actual event is insufficient even after reviewing the summary would satisfy that standard, assuming a proper foundation has been laid for reading the statement into evidence. If the past recollection recorded is admissible, the record itself may not be admitted; unless it is offered into evidence by the adverse party, the offering party may only read the record to the jury, as here. (A) is incorrect. There is no question that the document which is read must satisfy the best evidence rule and be either the original or a duplicate, or there must be a satisfactory excuse for nonproduction of an original. There is no indication in this case that the summary in the witness's possession would fail to satisfy the best evidence rule. It appears to be her original notes. The real question here is whether the document in question is admissible despite the hearsay rule. (C) is incorrect. If a record is used to refresh the memory of a witness who then proceeds to testify from her own memory as to the matter, then the memorandum is not evidence coming within the past recollection recorded exception under Federal Rule 803(5). A document which is used to refresh a witness's memory may not be read to the jury. Instead, the witness will testify from her refreshed memory. (D) is incorrect. The hearsay rule applies in general to any out-of-court statement, whether or not the declarant is available for cross-examination. However, this statement comes within the hearsay exception for a past recollection recorded under Federal Rule 803(5). Under that Rule, the contents of the memorandum may be read to the jury. Exam Tip: The difference between present recollection refreshed and past recollection recorded is a recurring exam favorite.

A plaintiff was injured in an automobile accident when her car was hit by a pickup truck driven by the defendant. At trial of her personal injury action, the plaintiff alleges that the defendant was driving on the wrong side of the road in excess of the posted speed limit. The defendant denies these allegations and denies liability for the accident. The plaintiff seeks to introduce evidence that the defendant has a reputation in the community for being a daredevil and for being somewhat irresponsible. In fact, the plaintiff's witness would testify that the defendant is known by all his friends as "the Menace." Is the proffered testimony admissible?

The testimony of the plaintiff's witness should not be admitted to show that the defendant was negligent. Character evidence as proof of conduct in the litigated event is not admissible in a civil case unless character is directly in issue (e.g., in a defamation action). Character is not directly in issue here, and so (A) and (D) are incorrect. The defendant in a criminal, but not a civil, case can introduce evidence of good character, which can then be rebutted. (B) is incorrect because, although such evidence is clearly relevant, courts exclude this evidence because its slight probative value is outweighed by the danger of unfair prejudice, the possible distraction of the jury from the main question in issue, and the possible waste of time required by examination of collateral issues.

The plaintiff sued the defendant, alleging that the defendant allowed her dogs to roam onto the plaintiff's land and cause significant damage to his landscaping. The defendant denied the allegations and called a witness to testify on her behalf. The witness testified on direct examination that she visited the defendant every day and that the defendant never allowed her dogs to leave the perimeter of her property. On cross-examination, the plaintiff's counsel presented the witness with a letter written by the witness to a friend in which she expressed her dismay that the defendant allowed her dogs to roam throughout the neighborhood. The plaintiff's counsel requests that the witness read the letter to herself prior to cross-examination. The defendant objects. May the witness refer to the letter?

The witness may not refer to the letter. Generally, a memorandum can be used to refresh the recollection of a witness, to substitute for forgotten testimony, or on cross-examination. Here, the plaintiff's counsel can use the letter to impeach the witness's testimony because it is a prior inconsistent statement. To do so, he can cross-examine her as to the contents of the letter (as opposed to having her read it to herself prior to cross-examination, as he attempted to do) to show that she has made statements contrary to her testimony, thereby discrediting her testimony. (A) is incorrect because refreshing recollection does not apply. A witness may use a writing for the purpose of refreshing her present recollection while she is testifying, but here the witness has testified and has not claimed any inability to remember the facts about which she testifies. (B) is similarly incorrect. If the witness states that she has an insufficient recollection of events even after consulting a memorandum or other record, the record may be read into evidence as a recorded recollection. Again, however, there is no indication of insufficient recollection. Therefore, there is no basis for the plaintiff's counsel to ask her to read the letter to herself prior to beginning cross-examination. (C) is incorrect because the memorandum does not need to be offered into evidence; a witness may simply refer to it to refresh recollection prior to giving her testimony.

A defendant is on trial for arson of a restaurant. Chemical tests by the fire department indicate that gasoline was used as the igniting agent of the fire. The prosecution calls to the stand a waitress who works at a diner near the burned restaurant. She will testify that on the night of the fire, the defendant came into the diner smelling like gasoline. Should the court admit this testimony over the defendant's objection?

The witness should be allowed to testify as to what she perceived. To be admissible under the Federal Rules, evidence must be probative of a material issue in the case and must be competent (i.e., not otherwise excludable). Evidence is material if it relates to an issue in the case, and it is probative if it tends to prove the fact for which it is offered. Evidence is competent if it does not violate a specific exclusionary rule. At issue here is whether the defendant started the restaurant fire. If gasoline was used to start the fire, the fact that the defendant was seen near the fire and smelled like gasoline makes it more likely that he started the fire, so the proffered evidence is material and relevant. It is also competent; under the Federal Rules, opinion testimony by lay witnesses is admissible when it is: (i) rationally based on the perception of the witness; (ii) helpful to a clear understanding of her testimony or to the determination of a fact in issue; and (iii) not based on scientific, technical, or other specialized knowledge. Matters involving sense recognition, such as what something smelled like, are common subjects of opinion testimony. Here, the witness's testimony satisfies all three requirements and should be admitted. Thus, (C) is correct and (A) is incorrect. (D) is incorrect because to testify as an expert one must have special knowledge, skill, experience, or education as to the subject of her testimony, and if everyone who drives a car knows the smell of gasoline, there is nothing special about that knowledge. (B) is incorrect because the best evidence rule requires that the original document be produced only when the terms of the document are material and sought to be proved. The fact to be proved-that gasoline was used-exists independently of any written record of the chemical tests; therefore, the best evidence rule does not apply.

In its lead editorial in the Sunday edition, a suburban daily newspaper characterized a real estate developer as a "common thief." The developer promptly filed suit against the newspaper for defamation. During the course of the presentation of the plaintiff's case, he sought to put a witness on the stand who is prepared to testify that the plaintiff once saved the life of a fellow soldier in combat. If the newspaper's lawyer objects, should the court rule that the testimony is admissible?

The witness's testimony is inadmissible because it is not probative of a material issue (i.e., whether the plaintiff is a thief). Relevant evidence tends to prove or disprove a material fact in issue. Here, the testimony tends to prove that the plaintiff is brave and selfless, but it is not relevant as to the fact in issue, which is whether he is honest. (A) is incorrect because character evidence is admissible in a civil suit only when, as here, proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense. However, even when character is in issue, the evidence must be relevant to the particular character trait in issue; here, it is not relevant to the issue of the plaintiff being a thief. (B) is incorrect for the same reason; to be admissible, the evidence must be relevant. (D) is incorrect because proof of specific instances of a person's conduct is admissible when character is directly in issue. [Fed. R. Evid. 405(b)]

While a driver was driving someone else's car, he hit a plaintiff who was walking in a pedestrian right-of-way. The plaintiff sued both the driver and the owner of the car, alleging that the driver had negligently driven the car and that the owner had negligently permitted an unfit driver to use her car. At trial, the plaintiff calls his first witness. The witness testifies that within the last several months he is aware of three instances in which the driver has engaged in reckless driving. Both the driver and the owner object to the admission of this evidence. How should the court rule on the objection?

The witness's testimony of three instances of reckless driving by the driver would be considered character evidence. Character evidence is not admissible in a civil case if offered to show that a party probably acted in conformity with that character. Character evidence is admissible in a civil case when the character of a person is an issue in the case. The plaintiff is suing the owner on a negligent entrustment theory, and thus the driver's character as a safe driver is in issue in the case against the owner, but not in the case against the driver himself. (A) is wrong; as stated, the driver's character is in issue in determining whether the owner was negligent. (B) is wrong because specific instances of conduct may be used to prove character when character is an issue in the case. [Fed. R. Evid. 405(B)] (D) is wrong because this is not a criminal case.

Regarding the privilege for confidential marital communications, __________ spouse can prevent anyone from disclosing confidential communications made __________ a valid marriage.

either; during Either spouse (whether a party or not) can prevent any other person from disclosing the confidential communication (or can refuse to disclose the communication). The privilege applies to communications made during the marriage. The privilege cannot be asserted as to communications made before the marriage. Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question tests your knowledge of the marital communications privilege.

At the trial of a lawsuit that arose out of a collision between the plaintiff's and the defendant's cars, the plaintiff's attorney calls an automobile mechanic as a witness, who testifies that he has 12 years' experience and was the only witness to the accident. The witness also testifies that he arrived at the scene immediately after the accident, which caused both cars to overturn, and saw the wheels on both cars still spinning. He testifies that the wheels of the defendant's car were spinning faster than the wheels of the plaintiff's car. The plaintiff's attorney asks the witness to testify as to what speed the respective cars were traveling at the time of the accident based upon his observations of the spinning wheels. The defendant's attorney objects. Should the testimony regarding the speed of the cars be admitted?

The witness's testimony regarding the speed of the cars should not be admitted because he has not been qualified as an expert in accident reconstruction. If the subject matter is such that scientific, technical, or other specialized knowledge is required to render an opinion, expert testimony is admissible and appropriate. In fact, in such an area, opinions by laypersons would not be permitted. To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. The expert must possess reasonable certainty or probability regarding his opinion. Here, the witness is being asked to testify as to the speed of the cars, not based on actually viewing the cars while in motion (in which case lay opinion is often accepted), but on his observation of the spinning wheels after the accident. Determination of the speed of vehicles based upon observation of the spinning wheels of such vehicles after a collision would certainly call for the application of technical or specialized knowledge, thus making the subject matter appropriate for expert testimony. To testify as an expert, the witness must be qualified by virtue of having special knowledge or experience regarding accident reconstruction, which encompasses rendering opinions on the speed of vehicles based on the spinning of their wheels. The witness's experience as an auto mechanic would not suffice to establish him as an expert in accident reconstruction. Since he is not qualified as an expert, his opinion testimony as to the speed of the cars based upon his observation of the spinning wheels will not be admitted. (A) is incorrect because, as has been explained, the witness's personal opinion is not admissible without proper qualification as an expert. (B) is incorrect because, if the witness is not qualified as an expert, the fact that his opinion is supported by a proper factual basis (i.e., personal observation) will not render that opinion admissible. (D) is incorrect because the presence of a witness at the scene of events to which his testimony relates need not be corroborated by another witness.

A church developed a sex education program for children of church members, ages 12 to 16. The program included lectures and slides, including some slides depicting explicit sexual activity between males and females. Parents would be required to give their consent before any child could participate. The program was conducted by the church board, consisting of the minister, a doctor, and a psychologist. The church board called the program "an integral part of involving the church in the real world of a teenager." A state statute provides in relevant part, "It is unlawful to sell, give, or display to any person under the age of 17 any lewd or obscene article, picture, or depiction." If the church board members are convicted of violating the above statute and they appeal, what is the likely outcome?

Their convictions will be reversed if it can be shown that the statute is being applied only to interfere with religion The convictions will be reversed if it can be shown that the statute is being applied only to interfere with religion. The Free Exercise Clause prohibits government from punishing religious belief. The Clause prevents government from punishing conduct merely because it is religious and from regulating conduct for the purpose of interfering with religion. However, the Clause does not prohibit government from regulating general conduct, even if the regulation happens to interfere with a person's ability to conform conduct to sincerely held religious beliefs. Thus, if it can be shown here that the statute is not really a regulation of general conduct but rather is being applied only to interfere with religion, the convictions will be reversed. (A) is incorrect because, as stated above, a person's conduct can be regulated by a generally applicable conduct regulation; religiously motivated conduct has very narrow protection. (C) is incorrect because it implies that the court will balance the interests involved in determining the validity of the application of the statute here. Since Employment Division v. Smith (1990), the Court has abandoned the balancing approach in favor of the approach discussed above. (D) is incorrect because the church board would have standing. All that is required is a concrete stake in the outcome of the litigation; having been prosecuted for violating the statute, the board's stake is about as concrete as it can get.

On September 15, a manufacturer of office furniture received an email purchase-order form from a retailer of office furniture. The order was for 100 executive leather swivel chairs and specified a delivery date no later than November 1, at a total cost of $10,000, as quoted on the manufacturer's website. Two days later, the manufacturer emailed its own purchase-order acceptance form to the retailer, who was a new customer and had never seen the form before. The purchase-order acceptance form stated that it was an acceptance of the specified order, was signed by the manufacturer's sales manager, and contained all of the terms of the retailer's form, but it also contained an express warranty and a clause disclaiming all implied warranties such as the implied warranty of merchantability. Assuming that there were no further communications between the parties, what is the status of the relationship between the parties?On September 15, a manufacturer of office furniture received an email purchase-order form from a retailer of office furniture. The order was for 100 executive leather swivel chairs and specified a delivery date no later than November 1, at a total cost of $10,000, as quoted on the manufacturer's website. Two days later, the manufacturer emailed its own purchase-order acceptance form to the retailer, who was a new customer and had never seen the form before. The purchase-order acceptance form stated that it was an acceptance of the specified order, was signed by the manufacturer's sales manager, and contained all of the terms of the retailer's form, but it also contained an express warranty and a clause disclaiming all implied warranties such as the implied warranty of merchantability. Assuming that there were no further communications between the parties, what is the status of the relationship between the parties?

There is an enforceable contract between the parties, the terms of which do not include the disclaimer of implied warranties in the manufacturer's form The manufacturer and the retailer have a contract without the disclaimer. In contracts for the sale of goods, a definite expression of acceptance operates as an acceptance even if it states additional terms. Between merchants, additional terms proposed by the offeree in an acceptance automatically become part of the contract unless (i) they materially alter the original terms of the offer (e.g., they change a party's risk or the remedies available); (ii) the offer expressly limits acceptance to the terms of the offer; or (iii) the offeror had already objected to the additional terms or objects within a reasonable time. Here, a clause was added by the manufacturer (the offeree) providing for an express warranty and a disclaimer of all implied warranties, including the warranty of merchantability. The disclaimer materially altered the original terms of the offer. Therefore, the disclaimer would not become part of the contract. (A) is therefore incorrect. (C) is incorrect because it reflects the common law "mirror image" rule, which the UCC has rejected in sale of goods cases. (D) is incorrect because under the UCC, the inclusion of a material additional term does not prevent formation of a contract; instead, a contract is formed without the inclusion of that additional term.

Large semi-trailer trucks use one of two basic designs of tires. There are some differences in the two designs of the tires, but both are deemed to be equally safe by independent testing labs. A state has enacted a statute banning the use of one of the tire types. The other tire design is legal and available for sale in all states. A trade association of interstate trucking firms has brought suit to have the statute declared unconstitutional. The state argues that no burden exists because the other tire design can be used in all states. How should the Court rule on the constitutionality of the statute?

Unconstitutional because it is an undue burden on interstate commerce The statute banning the use of one of the tire designs is an unconstitutional burden on interstate commerce even though an equally safe alternative is available in all 50 states. If Congress has not enacted laws regarding a subject, a state may regulate local aspects of interstate commerce if the regulation: (i) does not discriminate against out-of-state competition to benefit local economic interests; and (ii) is not unduly burdensome (i.e., the incidental burden on interstate commerce does not outweigh the legitimate local benefits). The facts do not suggest that Congress has regulated the subject of truck tires on state roads. The facts also do not indicate whether either tire design is manufactured in the state, so discrimination in favor of local economic interests is absent. The final test is a balancing test to determine whether the regulation is unduly burdensome, and here the regulation probably will fail. In Bibb v. Navajo Freight Lines (1959), the Supreme Court invalidated an Illinois statute requiring trucks to use contour mudguards rather than flat mudguards. One aspect of the burden on commerce in that case was that another state required flat mudguards rather than contour mudguards, precluding trucking companies from using one type of mudguard in all 50 states and indicating that the safety benefits that Illinois was claiming for contour mudguards had not been conclusively established. In this case, because the other tire design is legal in all 50 states, the burden on interstate commerce is not as great. Nevertheless, it is still significant. By not permitting equally safe alternative types of tires, which might be cheaper or more readily available, the state is imposing an undue burden on all trucking companies in other states whose trailers might at some time pass through the state. On the other side of the equation, the Illinois mudguard regulation in Bibb arguably was a safety measure, which is an area of legitimate local concern. Here, there is no evidence of any safety benefit; both types of tires have been deemed equally safe by independent testing labs. On balance, therefore, the statute is unconstitutional because its incidental burden on interstate commerce outweighs any legitimate local benefits. (A) is incorrect because the equivalence in safety makes the state's argument weaker. Had the permitted tire design been shown to be substantially safer than the design that was banned, the state would be able to argue that a legitimate local benefit outweighs the burden on interstate commerce. (B) is incorrect because the state power to regulate highway safety is not absolute, but must be balanced against the federal commerce power. If a safety regulation imposes a significant burden on interstate commerce, particularly where the objective of the regulation could be achieved by less restrictive alternatives, the Court will probably find it unconstitutional. (D) is incorrect for two reasons: First, the Privileges and Immunities Clause of Article IV applies only to citizens of a state, and neither the trade association nor the corporations it is composed of are considered citizens of a state. More importantly, the Clause only prohibits discrimination by a state in favor of its own citizens concerning fundamental rights. Even an individual truck driver who is a citizen of another state could not use the Clause to challenge the statute because it also bars state residents from using the tires.

Which of the following is a civil claim where character evidence may be admissible because character is "directly in issue?" a) Battery claim, to show that defendant is violent and likely liable b) Negligent hiring claim, to show that the person hired by the defendant is unstable c) Breach of contract claim, to show that defendant is untrustworthy and likely to have breached the contract d) Product liability claim, to show that defendant is careless and likely liable

When a person's character itself is at issue in the case, character evidence is not only admissible, but indeed is the best method of proving the issue. Character is said to be at issue in a civil case when proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense. For example, when a defendant in a negligent hiring case is alleged to have hired an unstable employee, the character of the employee is indeed at issue in the case. Defamation cases are another example of where character is at issue (e.g., defendant may use character evidence as part of her affirmative defense that she spoke the truth when she called plaintiff a thief). However, these types of situations are rare. In a typical breach of contract, battery, or product liability case, the character of the parties is not directly at issue. Such circumstantial use of prior behavior patterns for the purpose of drawing the inference that, at the time and place in question, the actor probably acted in accord with her prior behavior pattern is not permitted in civil cases.

A state legislature enacted a statute requiring the parents of every child to have the child vaccinated for chicken pox before the child's second birthday. Failure to comply was a misdemeanor. A parent refused to have her child vaccinated, claiming that any injections or vaccinations violate the tenets and beliefs of her religion. If the state commences a criminal prosecution against the parent for violation of the statute, as to what issue may the state court constitutionally inquire?

Whether the parent sincerely believes the tenets of her religion The sincerity of the parent's religious beliefs is a factor that can be inquired into as a way of determining whether she can avail herself of the protection of the Free Exercise Clause. The Free Exercise Clause of the First Amendment, applicable to the states through the Fourteenth Amendment, prohibits punishing people for their religious beliefs. When a person claims that she is being punished for her religious beliefs, the court may consider whether the person challenging the law sincerely holds those beliefs. Thus, the court may consider whether the parent's beliefs are sincerely held. (A) is incorrect because the First Amendment forbids a court from determining whether a person's religious beliefs are true. A court must respect a sincerely held religious belief, even if it appears to be illogical or incapable of proof. (B) is incorrect because the Free Exercise Clause protects all sincerely held religious beliefs, regardless of whether a specific religion is deemed to be "established" or "traditional." (C) is incorrect because religious beliefs need not be theistic to qualify for constitutional protection. An asserted religious belief must occupy a place in the believer's life parallel to that occupied by orthodox religious beliefs. Even an internally derived belief is entitled to protection.

A large delivery truck collided with a car. At the time of the accident, the driver of the truck said to the car driver, "The accident was my fault; I wasn't paying any attention. Don't worry, my company will make it right." The delivery company had not authorized the truck driver to make that statement. The subsequent investigation of the accident by the delivery company revealed that the truck driver had been drinking on the day of the accident. He was fired. The car driver brings an appropriate action against the delivery company for damages resulting from the accident. The truck driver has disappeared. The car driver now seeks to testify as to what the truck driver said at the time of the accident. Is the evidence admissible?

Yes, as a statement attributable to the defendant The evidence is admissible. This question raises the issue of whether an employee's out-of-court statement will be attributed to the employer, and thus considered a vicarious statement of an opposing party. The statement can be attributed to the employer, provided (i) it was made while the person was employed by the employer (not before or after the period of employment) and (ii) the statement related to the employment. Thus (A) is correct. The truck driver's statement was made while he was employed by the delivery company, and it related to his employment since it pertained to an accident that occurred when he was driving a company truck, presumably in the course of employment. Thus, (C) is incorrect. That the truck driver is no longer employed by the delivery company does not bear on the admissibility of his statement; what counts is that he was employed at the time he made the statement. (D) is also incorrect. That the delivery company did not authorize the truck driver to make the statement does not preclude it from being admissible. Although one basis for attributing an employee's statement to the employer is the employer's authorization for the employee to speak on its behalf about the matter, that is not the only one. (B) is incorrect because there is little reason to conclude that the truck driver's statement was an "excited utterance" within the meaning of that hearsay exception. The question does not indicate that the truck driver spoke in an excited manner or that he was agitated. That the truck driver spoke shortly after the accident would not alone be sufficient to make his statement an "excited utterance."

The plaintiff, an electrical contractor, sued the defendant homeowner for refusal to pay for extensive wiring repairs performed on his home by the plaintiff's employee. The plaintiff called the employee to the stand. The employee, under oath, testified that he did not perform any work at the defendant's home. The employee also denied writing a letter to a friend telling the friend that the employee was going to do electrical work on the home. Without releasing the employee as a witness, the plaintiff offers into evidence the letter written by the employee to his friend. If the employee's letter to his friend is properly authenticated, should the court admit the letter?

Yes, as both substantive and impeachment evidence The letter is admissible as substantive evidence as well as for impeachment purposes. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. This may be done by first questioning the witness as to the prior inconsistent statement that he has made. If the witness denies having made the statement or fails to remember it, the making of the statement may be proved by extrinsic evidence. A proper foundation must be laid by giving the witness an opportunity to explain or deny the statement, and it must be relevant to some issue in the case. Here, the plaintiff's employee has denied that he wrote the letter to his friend. The plaintiff can then impeach the employee by offering the letter into evidence. Because the employee has not been released as a witness, he will have an opportunity to explain or deny the statement, and it is relevant to whether any work was done at the home. Because prior inconsistent statements are generally hearsay, they often are admissible only for purposes of impeachment. The Federal Rules do categorize a testifying witness's prior inconsistent statement as nonhearsay if it was made under penalty of perjury at a prior trial, hearing, or proceeding, or in a deposition. Here, of course, the employee's letter to the friend was not made under oath, so it is hearsay. However, it is still admissible as substantive evidence because it falls within an exception to the hearsay rule. Under Rule 803(3), a statement of a declarant's then-existing state of mind is admissible as a basis for a circumstantial inference that the declarant acted in accordance with his state of mind. [See also Mutual Life Insurance Co. v. Hillmon (1892)] The employee's statement that he was going to do electrical work on the home is admissible as circumstantial evidence tending to show that he followed through with his plans and did the electrical work, which is what the statement is being offered to establish. In this case, therefore, the letter should be admissible as both substantive and impeachment evidence, making (B) correct and (A) incorrect. (C) is incorrect because the Federal Rules provide that the credibility of a witness may be attacked by any party, including the party calling him. [Fed. R. Evid. 607] (D) is incorrect. The letter is hearsay because it is being offered to prove the truth of the matter asserted-that the employee was going to do electrical work on the home-as a basis for inferring that the employee did do the work. Additionally, it is not categorized as nonhearsay under the Federal Rules because it was not made under oath. However, as discussed above, it falls within the "present state of mind" exception to the hearsay rule.

The complainant was robbed by a man wielding an unusual knife with a pearl-studded handle. The defendant was arrested and charged with armed robbery of the complainant. At trial the prosecution calls a witness to testify that, three days after the robbery of the complainant, she was robbed by the defendant with a knife that had a pearl-studded handle. All notice requirements have been met. Should the court rule that the witness's testimony is admissible?

Yes, as establishing an identifying circumstance The court should admit the evidence for purposes of establishing identity. Other crimes and wrongs are generally not admissible to prove that a person acted in conformity with his bad character. However, they are sometimes admissible for other purposes, such as to establish the identity of the accused. Other crimes are admissible on identity when they are committed in a unique way that shows what amounts to a "signature" of the perpetrator. Given the highly unusual weapon in this case, the court should hold that the evidence is admissible to show that the defendant was the perpetrator. Because the evidence is relevant for a purpose other than conformity, (C) is wrong. Theoretically, even signature crimes can be excluded if the judge determines that the probative value is substantially outweighed by the danger of unfair prejudice. However, a crime qualifying as a signature crime is highly probative and would rarely be excluded under that theory. Therefore, (D) is wrong. (A) is wrong. One other crime could not establish habit.

The plaintiff sued a local restaurant, claiming that she injured her teeth, gums, and mouth when she bit into a hamburger that contained a large, jagged piece of glass. The plaintiff called to the stand a waiter for the restaurant, who testified that, when he heard the plaintiff scream, he looked in her direction and saw her remove a piece of glass from her bleeding mouth. On cross-examination, the defense asked the waiter, "Isn't it a fact that three months ago you were fired by the restaurant for serving drinks to your friends and not charging for them?" The waiter responded, "Yes, but I wasn't trying to steal anything. I just forgot to charge them." The defense then asked, "Isn't it a fact that last month you threw a rock through the plate glass window at the restaurant?" The waiter replied, "That's not true; I was there but I didn't throw the rock." The defense then offered the testimony of a witness who was prepared to testify that she saw the waiter throw the rock through the restaurant's window. Assuming that there have been no criminal charges filed as a result of the broken window, is the witness's testimony admissible?

Yes, as evidence of bias The witness's testimony is admissible to show bias. A witness can be impeached, either on cross-examination or by extrinsic evidence, with evidence that suggests a bias on the part of the witness, because it tends to show that the witness has a motive to lie. Evidence that the witness disliked the party he is testifying against would qualify as evidence of bias. The witness could testify that she saw the waiter throw the rock through the restaurant's window, because such evidence would help establish the waiter's bias against the restaurant. (A) is incorrect for two reasons: Federal Rule 608 provides that, if offered to impeach, prior bad acts may not be proved through extrinsic evidence but may be inquired into during cross-examination. Furthermore, if the prior bad act also helps establish bias, the courts have held that extrinsic evidence also will be admissible. (B) is incorrect as well for this latter reason. (D) is too broad a statement. In a broad sense, the evidence is offered to impeach the credibility of the waiter and to suggest to the jury that he may be lying under oath. However, the defense does not need to establish that the waiter lied; the reason the evidence is relevant and does not constitute impeachment on a collateral matter is because it is offered to show bias, making (C) the better answer.

A man was a permanent resident alien of the United States who was awaiting an opportunity to become a citizen. He filed an application to become an instructor in the local public high school but was denied the position solely on the ground that he was not a citizen. The man now brings suit, alleging that his status as a resident alien was not a proper ground for denying him a position as an instructor. May the state deny a permanent resident alien employment as an instructor in the public high school?

Yes, because citizenship bears some rational relationship to the interest that is being protected The state's action would be reviewed under the rational basis standard. Although state classifications based on alienage are generally suspect, a state may reserve a government position for citizens if it is related to self-governance, involves policymaking, or requires exercise of important discretionary power over citizens. In these cases, only a rationality test is used. A public school teacher at the primary and secondary school level performs an important governmental function (e.g., he influences students' attitudes about government, the political process, citizenship, etc.), and therefore the exclusion of aliens is rationally related to the state's interest in furthering educational goals. [Ambach v. Norwick (1979)] (C) is, accordingly, incorrect. The principle articulated in (A) is correct, but has no bearing here, where the question is whether a distinction based on alienage is permissible. (D) is true, but irrelevant; the state may deny the man's application regardless of his ultimate intentions, so long as he remains an alien.

A recent nursing school graduate mailed a letter to a classmate on July 1 telling her that she was moving to take a nursing position in another city and asking her whether she wanted "the stuff in my house" for $2,500. The classmate received the letter on July 2, and on July 3 she sent the newly minted nurse a letter accepting the offer. The next day the classmate changed her mind, called the nurse, and told her to forget the deal. Later that same day, the nurse received the letter that her classmate had sent on July 3. Is there a contract between the nurse and her classmate?

Yes, because the classmate's letter of acceptance was effective when she mailed it The classmate accepted the nurse's offer when she mailed the letter on July 3; thus, a contract was formed. Under the mailbox rule, acceptance of an offer by mail creates a contract at the moment the acceptance is posted, properly stamped, and addressed. If the offeree sends both an acceptance and a rejection, whether the mailbox rule will apply depends on which the offeree sent first, the acceptance or the rejection. If the offeree first sends an acceptance and later sends her rejection, the mailbox rule does apply. Thus, even if the rejection arrives first, the acceptance is effective upon mailing (and so a contract is formed) unless the offeror changes his position in reliance on the rejection. Here, the classmate first sent an acceptance, then called with her rejection. The mailbox rule applies, and because there is nothing in the facts to show that the nurse relied on the rejection, a contract was formed. (A) is wrong because it implies that a rejection must be in writing. There is no such requirement. Also, the rejection (absent detrimental reliance) has no effect on the contract because the offer had already been accepted and the contract formed. (C) is wrong because, as stated above, under the mailbox rule the fact that the rejection was received before the acceptance is irrelevant (unless there has been detrimental reliance on the rejection, which was not the case here). The contract was formed when the classmate sent her acceptance. (D) is wrong because the description, although somewhat ambiguous, can be made reasonably certain by evidence of the subjective understanding of the parties and extrinsic evidence of what was in the house, which a court will consider to clarify an ambiguous term.

A state statute has detailed classifications of civil servants for both state and city positions. It provides that all civil servants who have been employed for over 18 months may be dismissed only for "misconduct" and also requires that state and city agencies comply with all procedures set forth in any personnel handbook issued by that agency. The personnel handbook of the state tollway authority sets forth detailed procedures for dismissal of civil servant employees. The handbook provides that written notice of the grounds for dismissal must be given to the employee prior to dismissal, and that the employee must, on request, be granted a post-dismissal hearing within three months after the dismissal takes effect. An employee is entitled to present witnesses and evidence at the post-dismissal hearing, and is entitled to reinstatement and back pay if the hearing board decides that the employer has not shown by a preponderance of the evidence that the dismissal was justified. A state tollway employee who had been employed for three years recently was fired. After an investigation by state auditors, the employee was notified by registered letter that he was being dismissed because of evidence that he took bribes from construction firms in exchange for steering contracts to them. He was informed of his right to a hearing and requested one as soon as possible. Three weeks after his dismissal, the state personnel board conducted a hearing at which the employee denied the charges and presented witnesses to attest to his honesty. At the conclusion of the hearing, the board upheld his dismissal, finding that it was supported by a preponderance of the evidence. If the employee files suit in federal court challenging his dismissal on constitutional grounds, will he be likely to prevail?

Yes, because the employee had a right to have an opportunity to respond to the charges prior to his dismissal The employee will likely prevail because the procedures taken to terminate his employment did not satisfy due process. Under the Due Process Clause of the Fourteenth Amendment, a public employee who is subject to removal only for "cause" under a statute, ordinance, or personnel document has a property interest in continued employment that cannot be taken away without due process of law. The Court has held that such an employee generally must be given notice of the charges and a pretermination opportunity to respond to those charges. The employee must also be given a subsequent evidentiary hearing regarding the termination (with reinstatement if the employee prevails). [Cleveland Board of Education v. Loudermill (1985)] Here, the employee was notified of the charges but was not given any opportunity to respond to the charges until after his termination. Hence, his termination did not satisfy due process requirements. (A) is incorrect because the employee does not have to be given a full, formal hearing before his termination, as long as he is given oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity to tell his side of the story. (C) is incorrect because the fact that the state created the employee's property interest in his job does not permit the state to define what procedures may be used to terminate the interest. The procedures to which the employee was entitled are determined by independent constitutional standards. (D) is incorrect because, as discussed above, the procedures followed here did not satisfy due process standards. The Supreme Court has held that an employee can be suspended from his job without a prior hearing if the government has a significant reason for removing the employee from the job and providing him with only a post-termination hearing. [Gilbert v. Homar (1997)-campus police officer suspended after being arrested and charged with felony drug offense] Here, however, there is no substantial reason why the employee could not have been given the opportunity to respond to the charges prior to dismissal.

After the failure of a state bill granting gay and lesbian couples the right to marry, 30 students from a local university marched on the state capitol to protest, carrying signs with slogans such as "let gays marry" and "no religious tyranny." As they marched, about 15 people began following them, shouting anti-gay remarks. At the capitol building, they were met by 50 officers in full riot gear. The leader of the students addressed his followers in the park across the street, vigorously denouncing the legislature's actions, which caused the counter-protestors to become more vocal. The officer in charge told the leader that he must end his speech because a riot was about to start. The leader refused and was arrested and convicted of disorderly conduct. If the leader appeals his conviction on constitutional grounds, will the conviction be reversed?

Yes, because the leader's arrest constituted an interference with his 1A right to free speech The speaker's conviction will be reversed. A park is a public forum. The government can limit rights of speech in such a forum only when there is a serious and imminent threat to the public order. It can restrict the speech of a speaker because of an unruly audience only in the rare case when the police are absolutely unable to control the crowd. [See Feiner v. New York (1951)] In this question, the conditions under which the police can prevent a speaker from continuing because of an unruly crowd have not been met. There were 50 police officers who would have been able to restrain or subdue anyone who appeared to be intent on committing violence. Hence, (C) is incorrect. (B) is incorrect. No one in the audience has raised any constitutional argument. The speaker probably cannot raise the audience members' First Amendment rights in this situation. (D) is incorrect. The state may not limit access to a public forum on the sole basis that there are other times and places where the right of free speech can be exercised. The state must show a more substantial reason.

During the course of his trial for assault, the defendant placed his neighbor on the stand. The neighbor testified that the defendant had a good reputation in their community for being a peaceable man. On cross-examination, the prosecutor asked the neighbor if she filed a false income tax return last year. The neighbor has in fact been convicted of filing a false tax return; however, the defense immediately objected. Should the court permit the question?

Yes, because the question is relevant to the truthfulness and credibility of the witness The court should require the neighbor to answer the question because it is relevant to her truthfulness and credibility as a witness. Under the Federal Rules, a witness may be impeached on cross-examination with her prior specific acts of misconduct that are probative of truthfulness. Specific "bad acts" that show the witness unworthy of belief (i.e., acts of deceit or lying) are probative of truthfulness. Filing a false income tax return reflects on the neighbor's veracity and, thus, her credibility. Therefore, the neighbor should be required to respond. (A) is incorrect because inquiry into bad acts to impeach a witness's credibility is permitted even if the witness was never convicted of a crime relating to the act. Even though the neighbor could have been impeached by evidence of her conviction for the crime, here she is just being asked about her conduct rather than the criminal conviction. (C) is incorrect because Federal Rule 608 permits inquiry about specific acts of misconduct, within the discretion of the court, if they are probative of truthfulness. An important limitation is that extrinsic evidence is not admissible to prove such acts; here, however, the impeachment was properly limited to inquiry on cross-examination. (D) is incorrect because the question relates to truthfulness, and a witness's credibility is always relevant.

A state located in the southern half of the United States experienced a strong influx of retirees, due in part to its mild winters and in part to the generous health benefits that the state historically provided to its elderly residents who fell below the federal poverty line. The state's Office of Budget Management determined that the influx of retirees would bankrupt the state's health care benefit fund within five years. To preserve the fund and ensure the health of its citizens, the state revised its health care statute to make persons ineligible for coverage until they have lived in the state for at least one year. If a retiree who was denied benefits because she just moved to the state challenges the constitutionality of the statute in federal court, is she likely to prevail?

Yes, because the requirement improperly burdens the right of interstate travel in violation of the Equal Protection Clause of 14A The court will likely find that the one-year residency requirement is unconstitutional because it burdens the right to travel. An individual has a fundamental right to travel from state to state, and a state law that is designed to deter persons from moving into the state is likely to violate the Equal Protection Clause (as well as the Fourteenth Amendment Privileges or Immunities Clause). When a state uses a durational residency requirement (a waiting period) for dispensing benefits, that requirement normally should be subject to the strict scrutiny test, and usually will be found not to have satisfied the test. One such requirement that has been invalidated on this basis is a one-year waiting period for state-subsidized medical care, such as the one here. [See Memorial Hospital v. Maricopa County (1974)] (A) is incorrect. The Supreme Court has specifically held that a state's interest in fiscal integrity is not sufficient to justify a one-year waiting period for welfare or health benefits. (B) contains a true statement-the states have no constitutional duty to provide health care benefits for those below the poverty line. However, once a state chooses to provide such benefits, it may not do so in a manner that violates the Constitution, and, as explained above, the restriction here violates the right to travel. (D) is incorrect because the privileges and immunities protection of Article IV prohibits discrimination by a state against nonresidents when fundamental national rights are involved. Here, the restriction differentiates between residents. While that could violate the Fourteenth Amendment Privileges or Immunities Clause, Article IV is not implicated.

A state law prohibits physicians from practicing medicine within the state without a state license. Among other things, the grant of a state license requires a physician to have been a resident of the state for at least one year. A physician moved to the state from a nearby state and immediately applied for a license to practice medicine. Although otherwise qualified, the physician's request for a license was denied based on the residency requirement. The physician brought suit, alleging that the residency requirement violated the United States Constitution. Will the physician likely succeed?

Yes, because the requirement violates the Privleges or Immunities Clause of 14A The physician will succeed. The Privileges or Immunities Clause of the Fourteenth Amendment prohibits states from denying their citizens the privileges and immunities of national citizenship. This includes the right to travel, and the Court has held that the right to travel includes the right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state. A state law that distinguishes between new residents solely on the length of their residency will serve no legitimate state interest. Thus, a law limiting medical licenses to persons who have resided in the state for a year runs afoul of the clause. (A) is incorrect. The Privileges and Immunities Clause of Article IV prohibits discrimination by a state against nonresidents. Here, the physician is a resident of the state discriminating against him. Hence, the Article IV privileges and immunities protection does not apply. (C) is not as good an answer as (B) because the law here involves discrimination based on duration of residency-making the Privileges or Immunities Clause more direct. (D) is incorrect because duration of residency does not impact the welfare of residents.

The state police wished to infiltrate a racist organization devoted to the goal of creating an "all white America." The police were aware that the organization would welcome a person into their group only after multiple in-person meetings and rounds of socializing with the members. The police therefore decided to create a new undercover position for the person who would infiltrate the racist organization by attending its meetings. The chief of police invited only white police officers to apply for the undercover position. A Black state police officer applied for the position, but the chief refused to accept his application. If the plaintiff sues to require the chief to give serious consideration to his application, should the court rule that the chief has acted in a manner in accordance with the principles of the United States Constitution?

Yes, because the state has a compelling interest in infiltrating the racist organization to promote the general welfare of its citizens The court should rule in favor of the chief. This is one of the very rare situations in which a distinction based on race is likely to be upheld. The government, based on the facts, has a compelling interest in infiltrating the racist group. Due to the nature of the group and the need to have someone meet the group in person, a white police officer would be necessary for this task. This means the action meets both elements of the strict scrutiny test: the interest is compelling and the means selected are narrowly tailored because no other nondiscriminatory action would work. (A) is incorrect because the rational basis test is never used for racial discrimination. Strict scrutiny always is employed. (C) is incorrect because even discriminatory conduct is permissible if it is necessary to achieve a compelling government interest and the means selected are narrowly tailored. (D) is incorrect because, based on the facts of the question, the group prohibits association with Black persons. Thus, even if there is a slight chance that a Black person could win the confidence of the group, the court would still likely hold that the chief had a compelling interest to impose that qualification.

The Supreme Court has ruled that a few categories of speech are not protected by the First Amendment. Among these categories is speech presenting a clear and present danger of imminent lawless action. In determining whether speech falls within this category, the Supreme Court applies the clear and present danger test. Under the clear and present danger test, speech may be sanctioned whenever it __________.

is directed to producing or inciting imminent lawless action and is likely to produce such action Speech may be punished or banned under the clear and present danger test whenever it is directed to producing or inciting imminent lawless action and is likely to produce such action. "Advocates the use of force against the government, whether presently or in the future" is incorrect because while such action would be lawless, this choice lacks the imminence requirement. That call to lawlessness has to be "now" and it must be under circumstances likely to produce the action in order to be unprotected speech. The choice "advocates lawless action, whether presently or in the future," is wrong for the same reason. The choice "is patently offensive in affronting contemporary community standards" is part of the test to determine whether something is obscene and is not part of the clear and present danger test.

The Federal Communications Commission ("FCC") issued a lengthy set of regulations regarding personal radar detectors. The regulations deal with the safety of such detectors and the frequencies on which they may operate, so as not to interfere with FCC-licensed radio and television stations or with radar used by commercial airliners and private aircraft. May a state constitutionally ban the use of radar detectors on its roads?

Yes, because the state has a legitimate interest in regulating the use of radar detectors in order to promote sage driving The state may ban the radar detectors. States may regulate local aspects of interstate commerce as long as the local regulation does not conflict with, or is not preempted by, federal regulation and the regulation meets the following tests: (i) the regulation does not discriminate against out-of-state competition in order to benefit local economic interests, and (ii) the incidental burden on interstate commerce does not outweigh the local benefits of the regulation. In this case, the federal regulations do not conflict with the state ban and are not so comprehensive as to preempt nonconflicting state regulation. With regard to the two-part test, the first standard is met because the regulation is not discriminatory against out-of-state products (because it bans all radar detectors regardless of origin). The second part is a balancing test, in which the court will consider whether the regulation promotes legitimate state interests and whether less restrictive alternatives are available. Here, the ban clearly promotes the state's legitimate interest in highway safety by making it harder for speeding motorists to evade detection. Anything less than a ban would not be effective in preventing the use of the detectors, and their use makes radar, the state's best means of preventing speeding, much less effective. On balance, the ban's local safety benefits outweigh its burden on interstate commerce and transportation. (A) is incorrect because a field will be held to be preempted only where the federal statute is so comprehensive that it appears that Congress intended to occupy the whole field, and here the federal regulations concern only safety of the devices and use of frequencies. (B) is incorrect because it is too broad-not every law that burdens interstate commerce is unconstitutional. Rather, a balancing test will be applied. (C) is not as good an answer as (D). The fact that a state ban affecting interstate commerce operates only within the state does clear one hurdle to validity, because a state does not have the power to regulate interstate commerce. However, the mere fact that the ban would not operate outside the state does not go as far as (D) in addressing other Dormant Commerce Clause issues (e.g., is the law preempted, are its benefits to the state outweighed by its burden on interstate commerce).

A state statute makes it a felony for anyone in the corridors or on the grounds of any building in which a court may be in session to make a speech or carry a sign intended to improperly influence judicial proceedings. When the head of a street gang was on trial for murder, a gang member was arrested for carrying a sign on the steps of the courthouse warning that if the gang leader was not freed, "the judge will die." May the gang member be convicted of violating the state statute?

Yes, because the statute does not violate the freedom of expression guaranteed by the 1A The gang member can be convicted because the statute does not violate the First Amendment. Certain public property (e.g., public streets or parks) is so historically associated with the exercise of First Amendment rights that speech thereon can be regulated only by content-neutral proscriptions. Other places controlled by the government, however, are not so historically linked to speech activities, and in such locations free speech might interfere with the intended use of such locations. Thus, the government can regulate access to these limited public forums and nonpublic forums based on the subject matter of the speech, as long as the regulation is reasonably related to the purpose served by the property and is not designed merely to suppress a particular point of view. A courthouse and its grounds are not a public forum. (The surrounding sidewalks are, but that is not in issue here.) The statute, although based on the subject matter of speech, is viewpoint neutral and reasonably related to the courthouse purpose of promoting a stable, orderly atmosphere in which judicial proceedings can take place, free of improper outside influence or coercion. Thus, the statute is valid and the gang member can be convicted for his actions. (A) is wrong because it is based on an overbreadth argument and the statute here is not overbroad. A regulation of speech that restricts substantially more speech than necessary is unenforceable, even if the speech in question could have been properly restricted by a narrower statute. This doctrine is inapplicable here because the statute is not overbroad: It reaches only speech in the courthouse or on its grounds and only that speech that might improperly influence the judicial proceedings; it does not limit all speech at that location. (B) is wrong because the gang member's personal intent to harm the judge is irrelevant. The statute makes it a crime to make a speech or carry a sign intended to influence the judicial proceeding. The statute does not require that the violator intend to harm anyone. Since the state is entitled to regulate speech or conduct in the courthouse or on its grounds that might interfere with the judicial proceedings, it is entitled to convict the gang member for his actions here regardless of his intent to harm the judge. (C) is wrong because it improperly applies the "clear and present danger" test to these facts. Under the current version of the "clear and present danger" test, a state cannot forbid advocating the use of force or violation of law unless such advocacy is (i) directed to producing or inciting imminent lawless action, and (ii) likely to produce such action. The state statute here does not purport to punish advocacy of force or lawlessness, but rather seeks to further the purpose of maintaining the stability and integrity of the judicial proceedings by regulating access to certain nonpublic areas. Therefore, the restrictions are constitutionally valid and the "clear and present danger" test is inapplicable.

A state statute provided for the suspension or revocation of a retail business license where there have been "repeated violations" of specified regulatory statutes by any one individual or business. A store owner had already been fined three times under the statute. Several days later, the store owner received a notice from the regulatory agency that was created by the statute stating that his business license will be suspended for 21 days for violation of the statute. If the store owner files suit to set aside the suspension, will the owner most likely prevail?

Yes, because the store owner has not been given a hearing before the agency The most obvious problem in this situation is that the store owner has not been afforded the right to a hearing either before or after his license was suspended. A business license is a valid property right, and procedural due process under the Fourteenth Amendment requires notice and an opportunity to be heard before the government may deprive a person of property. Thus, the store owner should be granted a hearing before his license can be suspended. Thus, (C) is wrong, because regardless of how the agency construes violations of the statute, revoking a business license still involves interference with a property right, and a hearing is thus required before this can be done. The agency obviously had enforcement powers; therefore, (D) is wrong. (A) is an arguable complaint by the store owner, but, because there appears to be a regulatory agency that can make rules regarding the enforcement of the statute, the agency can construe "repeated violations" so as to comport with due process requirements.

A defendant was visiting with his girlfriend in his apartment when a visitor came to see him. The defendant and the visitor engaged in a conversation relating to the distribution of illegal narcotics in the girlfriend's presence. Two months later, the defendant and his girlfriend married. Subsequent to the marriage, the defendant was arrested and charged under federal law with the sale and distribution of drugs. The prosecutor wants the defendant's wife to testify about the conversation between the defendant and the visitor, but the defendant forbids it. May the defendant's wife testify about the conversation?

Yes, but only if she chooses to do so The wife may testify if she chooses to do so. In federal court, the privilege of spousal immunity belongs to the witness-spouse. There are two privileges based on the marital relationship. Under spousal immunity, a person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against her spouse in any criminal proceeding. In federal court, one spouse may choose to testify against the other in a criminal case, with or without the consent of the party-spouse. Spousal immunity lasts only during the marriage and terminates upon divorce. However, as long as a marriage exists, the privilege can be asserted even as to matters that occurred prior to the marriage. Because the defendant is a criminal defendant, his wife cannot be compelled to testify about his conversation with the visitor. She may, however, choose to testify, and the defendant cannot stop her. The other choices reflect elements of the privilege for confidential marital communications. Under that privilege, either spouse (whether or not a party) may refuse to disclose, and may prevent another from disclosing, a confidential communication made between the spouses while they were husband and wife. The communication must be made during a marriage, and must be in reliance upon the intimacy of the marital relationship, which is presumed in the absence of contrary evidence. This privilege is not afforded to a communication that is made in the known presence of a stranger. Both spouses jointly hold this privilege. The conversation between the defendant and the visitor cannot qualify as a confidential marital communication for several reasons. Most importantly, it was not a communication between the defendant and his wife. Moreover, the incident did not occur during the marriage. Thus, the privilege for confidential marital communications does not apply, and the defendant cannot prevent his wife's testimony should she choose to testify. (A) is wrong because it states a reason why the privilege for confidential marital communications does not apply. Spousal immunity still applies; thus (B) is a better choice because it reflects the fact that the wife's testimony cannot be compelled. (C) is wrong because, in federal court, spousal immunity does not permit the defendant-spouse to foreclose testimony by the witness-spouse. As discussed above, the privilege for confidential marital communications, under which both spouses may prevent disclosure, does not apply here. (D) is wrong for the same reason.

The plaintiff sued the defendant for injuries suffered when the defendant's car struck the plaintiff as she was crossing a busy intersection. The plaintiff planned to have a bystander who had witnessed the accident testify on her behalf, but he died prior to trial. At trial, the plaintiff called the wife of the bystander to testify that, although she had been facing the other way, she had heard her husband exclaim, "My God, the woman was crossing on the green light!" Over objection, the statement was admitted as an excited utterance. The defendant now wishes to call the bystander's friend, who is prepared to testify that, a few hours after the accident, the bystander said to him: "You know that accident I saw this afternoon? The driver didn't run a red light. The light was yellow." Should the friend's testimony be admitted over the plaintiff's objection?

Yes, but only to challenge the credibility of the bystander's earlier inconsistent statement The friend's testimony is admissible only to challenge the credibility of the bystander's earlier inconsistent statement. Because the credibility of a hearsay declarant is as much at issue as the credibility of an in-court witness, Federal Rule 806 allows statements of a hearsay declarant to be impeached to the same extent as those of an in-court witness. Thus, a statement of the declarant made at any time that is inconsistent with his hearsay statement may be offered into evidence for impeachment purposes. Here, the bystander's hearsay statement (which was admissible as an excited utterance) was testified to by his wife. His subsequent statement to his friend is inconsistent with his hearsay statement and is therefore admissible to discredit that statement. (B) is wrong because the statement is hearsay not within any exception, and thus not admissible as substantive evidence. Under Federal Rule 801(d)(1), a prior inconsistent statement is only considered nonhearsay when (i) the declarant is now testifying at trial and subject to cross-examination and (ii) it was made under penalty of perjury at a prior trial, hearing, or other proceeding, or in a deposition. Here the bystander is not testifying at trial and did not make the statement to the friend under penalty of perjury. so the statement is hearsay. Furthermore, it does not fall within any apparent hearsay exception. (C) is wrong because the general requirement that an impeached witness be given an opportunity to explain or deny an apparently inconsistent statement does not apply to hearsay declarants. Because hearsay statements are often admissible at trial after the declarant has died or is otherwise unavailable, Rule 806 provides that the declarant need not be given an opportunity to explain or deny statements that are inconsistent with the declarant's hearsay statement. (D) is wrong. While it is true that the statement is hearsay not within an exception (and thus inadmissible as substantive evidence), it is still admissible for the purpose of impeachment.

A woman was injured when the car she was driving was struck by a moving truck. The woman brings an action for personal injuries against the moving company. The complaint alleges that the driver was drunk at the time of the accident and that the moving company was negligent in hiring him and permitting him to drive knowing that he had a drinking problem and convictions for drunk driving. The driver is called as a witness by the moving company and is expected to testify that he was not drunk at the time of the accident. Instead, the driver states on direct examination that he had had several beers as he drove his truck that evening and was under the influence of drugs when his truck struck the woman's car. The counsel for the moving company wants to confront the driver with his deposition testimony that he was completely sober at the time of the accident. Will this evidence be permitted?

Yes, it can be used to impeach the driver and as substantive evidence that the driver was sober The evidence will be permitted to impeach and as substantive evidence. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Furthermore, a testifying witness's prior inconsistent statement made while under oath and subject to penalty of perjury in a deposition or prior hearing is not hearsay under the Federal Rules, and is therefore admissible as substantive evidence of the facts asserted. (A) is therefore incorrect. (B) is incorrect because the Federal Rules permit a party to impeach its own witness, even if not "surprised." (C) is incorrect because it is too narrow; the evidence is admissible as substantive evidence as well as to impeach the driver.

The state passed a law stating that "only persons living with their parents or guardians who are bona fide residents of the state shall be entitled to free public education; all others who wish to attend public schools within the state may do so, but they must pay tuition of $3,000 per semester." A 15-year-old girl moved in with her friend so that she could attend the public schools in the state, and the state legislature passed the tuition statute just as she completed her junior year. The girl wants to complete her senior year in the state high school, but cannot afford to pay tuition. If the girl sues in federal court to strike down the tuition statute, is the court likely to rule that the statute is constitutional?

Yes, unless the girl can show that the statute is not rationally related to a proper state interest The court is likely to rule that the statute is constitutional. A bona fide residence requirement, such as this statute, that is not based on a suspect classification and does not limit the exercise of a fundamental right, is judged by the rational basis test. Thus, (A) is incorrect. The statute provides free education for all children who are bona fide residents of the state. Thus, it uniformly furthers the state interest in assuring that services provided for its residents are enjoyed only by residents. (C) is incorrect because education is not a fundamental right. (D) is incorrect because this statute does not impair the right of interstate travel. Any person is free to move to the state and establish residence there. This statute does not deter people from moving into the state.

In federal court, standing requires __________.

a concrete stake in the outcome A concrete stake in the outcome is required for standing in federal court. A person has standing if she can demonstrate a concrete stake in the outcome of the controversy shown by an injury in fact-caused by the government-that can be remedied by a ruling in the plaintiff's favor (i.e., causation and redressability). At least $75,000 in controversy is not a standing requirement. It is a requirement to establish diversity jurisdiction. An economic injury is not required for standing in federal court. The injury to the plaintiff does not have to be economic. An impact on a person's well-being or enjoyment of the environment has been found by the Supreme Court to be sufficient harm for standing. Allegations of a Taxing and Spending Clause violation are not required for standing in federal court. Standing can be based on any injury in fact. Moreover, in most suits by taxpayers involving allegations of violations of the Taxing and Spending Clause, standing will not be found because the taxpayer's interest is too remote

There are three requirements for silence in the face of an accusatory statement to qualify as an adoptive statement of an opposing party: (i) the party must have heard and understood the statement; (ii) the party must have been physically and mentally capable of denying the statement; and (iii) __________.

a reasonable person would have denied the accusation under the same circumstances For silence to be admissible as an opposing party's statement, the following requirements must be met: (i) the party must have heard and understood the statement; (ii) the party must have been physically and mentally capable of denying the statement; and (iii) a reasonable person would have denied the accusation under the same circumstances. It is immaterial whether the party later denied the accusation, or whether there is corroborating evidence. Additionally, failure to reply to an accusation or statement made by the police in a criminal case can almost never be used as an implied admission of a criminal act.

A lay witness will likely be allowed to testify as to her opinion that: a) The defendant seemed drunk b) A person has typhoid fever c) Her employer directly authorized her to enter into a contract, where that is at issue in the case d) Skid marks found at the accident scene indicate that the plaintiff was speeding before the collision

a) Testimony about whether a person was intoxicated is likely admissible because it is based on the perception of the witness rather than on specialized knowledge. Although testimony as to the general appearance or condition of a person is admissible, testimony that a person is suffering from a specific disease or a specific injury is inadmissible because it usually requires the knowledge of an expert. When agency or authorization is in issue, a lay witness generally may not state a conclusion as to her authorization. Thus, a lay witness cannot testify that her employer directly authorized her to enter into a contract where that is at issue in the case. It is true that a lay witness may testify that a vehicle was going "fast," and may even estimate the speed of a moving object if a proper foundation is laid. However, accident reconstruction is a field that requires specialized knowledge; thus, a lay witness would not be permitted to testify about the significance of skid marks at an accident scene.

A defendant is being tried for the murder of a bank teller, which occurred during the robbery of a bank. At trial, a witness, who knew the defendant, is called to testify that on the day after the robbery he saw the defendant buying some groceries, and when the defendant removed a large roll of money, the witness had asked, "You didn't steal that from someone, did you?" The defendant nodded. This evidence is:

admissible; because it is not hearsay The nod constitutes nonverbal conduct intended as an assertion and would thus be considered a "statement" for purposes of the hearsay rule. However, this statement constitutes a statement of a party-opponent and hence is not hearsay under Federal Rule 801. (C) is therefore incorrect. Likewise, (A) is incorrect, because (i) an excited utterance is an exception to the hearsay rule and this is not hearsay, and (ii) even if it were hearsay, this does not constitute an excited utterance because the statement was not made during or soon after the startling event and under the stress of that event. (D) is incorrect. The defendant responded to the question with a nod. If the defendant had failed to respond and the prosecutor wished to introduce his silence as an adoptive statement, then it would be necessary to determine whether there was a reason to respond.

Despite the Free Exercise Clause, if relevant to a particular case, a court may __________.

assess the sincerity of a person's religious beliefs A court MAY assess the sincerity of a person's religious beliefs when relevant to a particular case. Although the Free Exercise Clause protects the freedom of belief, perhaps absolutely, a court may assess whether a person who says he acted based upon religious beliefs actually held the beliefs claimed. For example, if a person says that he performed an act because "God told him to," a court may assess whether the person really believes that "God told him to" so act. The Free Exercise Clause prohibits the courts from assessing the veracity of a particular religion's beliefs. Many religious beliefs are a matter of faith rather than fact, and the Free Exercise Clause prohibits the courts from weighing in on matters of faith. The Free Exercise Clause would prohibit the courts from requiring litigants to swear an oath on the Bible, although litigants may be permitted to so swear or given the choice to swear or affirm. Particular religious beliefs cannot be made prerequisites to testifying in court or holding public office. The Free Exercise Clause prohibits the courts from limiting the term "religion" to belief systems involving a supreme being. The Supreme Court has not adopted a definition of the term "religion," but it has made clear that belief in a supreme being is not a prerequisite.

Under the Federal Rules, a party may be held vicariously responsible for the statement of someone with any of the following relationships to the party: a) Partner; co-conspirator; co-party; principal-agent b) Authorized spokesperson; partner; co-conspirator; principal-agent c) Authorized spokesperson; partner; co-conspirator; co-party d) Co-conspirator; co-party; principal-agent; authorized spokesperson

b) A statement may be attributable to an opposing party without being made by that party in an individual capacity. A party can be held vicariously liable for statements made by people with the following relationships to the party: Authorized Spokesperson: The statement of a person authorized by a party to speak on its behalf (e.g., statement by company's press agent) can be admitted against the party. Principal-Agent: Statements by an agent concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal. Therefore, if a truck driver-employee has an accident while on the job and admits that she was negligent, this statement may be introduced against her employer even if she was not authorized to speak for the employer. Partners: After a partnership is shown to exist, a statement of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners since, as to such matters, each partner is deemed the agent of the others. Co-Conspirators: The Supreme Court has held that statements of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or a civil wrong, at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. In contrast, statements of a party are not receivable against her co-plaintiffs or co-defendants merely because they happen to be joined as parties to the action.

Under Article 2, when an offeree proposes additional or different terms as part of an otherwise valid acceptance, the acceptance __________.

is effective, unless the acceptance is expressly made conditional on assent to the additional or different terms The Article 2 battle of the forms provision provides that the proposal of additional or different terms by the offeree in a definite and timely acceptance is effective as an acceptance, unless the acceptance is expressly made conditional on assent to the additional or different terms. Whether the additional or different terms become part of the contract depends on whether or not both parties are merchants. Article 2 has abandoned the mirror image rule, which insists on an absolute and unequivocal acceptance of each and every term of the offer. Under that rule, any different or additional terms in the acceptance make the response a rejection and counteroffer.

Which of the following statements regarding the basis of expert testimony is false? a) An expert may give opinion testimony on direct examination without disclosing the basis of the opinion b) An expert's opinion may be based on facts supplied to him outside the courtroom only if those facts are in evidence c) An expert's opinion may be based on his previous examination of a person about whom he is testifying d) An expert's opinion may be based on evidence introduced at the trial and communicated to the expert by counsel

b) Under Federal Rule 703, the expert may base an opinion upon facts not known personally but supplied to him outside the courtroom, and such facts need not be in evidence or even of a type admissible in evidence, as long as the facts are of a kind reasonably relied upon by experts in the particular field. However, if the facts are of a type inadmissible in evidence, the proponent of the expert opinion must not disclose those facts to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. An expert's opinion may be based on personal observation. If the expert has examined the person about whom he is testifying, he may relate those facts observed by him and on which he bases his opinion. An expert may give opinion testimony on direct examination without disclosing the basis of the opinion, unless the court orders otherwise. However, the expert may be required to disclose such information on cross-examination. An expert's opinion may be based upon the evidence introduced at the trial and communicated to the expert by counsel, usually in the form of a hypothetical question.

Which of the following opinions of a lay witness is likely to be inadmissible? a) A person seemed cheerful b) A person was suffering from malaria c) An object was heavy and bulky d) A person was intoxicated

b) Testimony as to the general appearance or condition of a person is admissible, but testimony that a person is suffering from a specific disease or a specific injury is inadmissible because it usually requires the knowledge of an expert. Testimony involving sense recognition (e.g., an object was heavy and bulky ), a state of emotion (e.g., a person seemed cheerful), and whether a person was intoxicated are admissible because they are based on the perception of the witness rather than on specialized knowledge.

Statements by an opposing party (also known as "admissions by a party-opponent") are considered nonhearsay under the Federal Rules. For a party's statement or act to qualify as an opposing party's statement, it must __________.

be attributable to a party and offered against that party To qualify as a "statement by an opposing party," a party's statement must be offered against him. (In contrast, if a party introduces his own prior statement into evidence, it may be hearsay.) Lack of personal knowledge does not necessarily exclude an opposing party's statement. An opposing party's statement may even be predicated on hearsay. An opposing party's statement need not have been against the party's interest at the time it was made. An opposing party's statement may be in the form of an opinion. The only requirement is that it concern one of the relevant facts.

Under the Article 2 battle of the forms provision, whether additional or different terms proposed by the offeree during acceptance ultimately become part of a contract depends on whether or not __________.

both parties are merchants Whether the additional or different terms become part of the contract depends on whether or not both parties are merchants. If any party to the contract is not a merchant, the additional or different terms are considered to be mere proposals to modify the contract. They do not become part of the contract unless the offeror expressly agrees. If both parties are merchants, additional terms in the acceptance become part of the contract unless they materially alter the terms of the offer, the offer expressly limits acceptance to the terms of the offer, or the offeror has already objected to the terms (or objects within a reasonable time after notice of them is received). Between merchants, some courts treat different terms in an acceptance the same as additional terms; other courts apply the knockout rule (i.e., conflicting terms are knocked out and replaced by gap-filling terms under the UCC).

Which of the following statements concerning impeachment by "prior bad acts" is false? a) The FRE do not provide for the exclusion of prior bad acts on the basis of remoteness b) The cross-examiner may ask the witness about a prior bad act only if she has a reasonable basis for believing that the witness may have committed the act c) Extrinsic evidence of prior bad acts is permissible where the witness on cross-examination denies committing the bad act d) If the witness denies the prior bad act on cross-examination, the cross-examiner may, in good faith, continue the cross-examination in the hope that the witness will change his answer

c) Extrinsic evidence of "bad acts" is not permitted, even where the witness denies committing the act on cross-examination. If the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer. The cross-examiner must act in good faith with some reasonable basis for believing that the witness may have committed the "bad act" inquired about. The Federal Rules do not provide guidelines for the exclusion of prior bad acts on the basis of remoteness. Prior convictions, however, must not be too remote.

An attorney wants to cross-examine a witness about the witness's prior bad act that is probative of truthfulness. Which statement best describes the trial court's discretion to allow this inquiry? a) The court may allow the inquiry, but only if the act resulted in a criminal conviction b) The court must not allow the inquiry; this method of impeachment is not allowed c) The court may allow the inquiry d) The court must allow the inquiry; the cross-examiner is entitled to impeach the witness with the prior bad act as a matter of right

c) Federal Rule 608 permits inquiry on cross-examination into prior acts of misconduct that are probative of truthfulness (i.e., an act of deceit or lying), in the discretion of the court. Thus, the court may allow such inquiry, but because it is discretionary with the court, "must" is a wrong choice. Impeachment by this method is permitted even if the act did not result in a criminal conviction.

The defendant was being sued by the plaintiff for driving his car negligently and injuring the plaintiff. The defendant called as a witness his brother, who was in the passenger seat of the defendant's car when the accident occurred. His brother testified that the defendant was driving safely and well below the posted 55-mile-per-hour speed limit. Shortly before the trial began, the brother's secretary telephoned the plaintiff and told him that the brother has been understating his income to the government for years. The Internal Revenue Service has never charged the brother with tax evasion, but the secretary's information was accurate. On cross-examination, the plaintiff's attorney asked the brother, "Have you ever cheated on your tax returns?" The defendant's attorney objects. Should the objection be sustained? a) Yes, because the question is not relevant to the facts of the case at bar b) Yes, because witnesses may not be impeached through the use of collateral material c) No, because the brother's tax evasion shows a tendency to lie d) No, because the brother's acts constitute a felony punishable by at least one year in prison

c) The objection should be overruled because the question is a proper means of impeaching the brother's character for truthfulness through specific instances of misconduct. Under Federal Rule 608(b), subject to the discretion of the trial judge, a witness may be interrogated on cross-examination with respect to any specific act that may impeach his character and show him to be unworthy of belief, as long as the act is probative of truthfulness (i.e., an act of deceit or lying). A conviction of a crime is not necessary under this rule. Cheating on one's taxes is lying, so this would be a specific act of misconduct reflecting on the brother's character for truthfulness. (A) is incorrect. Any matter that tends to prove or disprove the credibility of a witness is relevant because it affects the weight that the trier of fact should give to his testimony. (B) is incorrect because the brother is not being impeached by collateral extrinsic evidence (which is not permitted by Rule 608(b)); he is only being interrogated on cross-examination. (D) is incorrect because it states a requirement for impeachment by a prior conviction under Federal Rule 609, rather than by prior bad acts under Rule 608(b), which does not require that the conduct constitute a felony. Rule 609 is inapplicable because it requires a criminal conviction, and the brother has never even been charged with tax evasion.

In certain instances, a party may prove a witness's prior inconsistent statement by use of extrinsic evidence. Which statement regarding the permissibility of extrinsic evidence is FALSE? a) A hearsay declarant's inconsistent statements may be used to impeach her despite the lack of foundation b) Generally, a witness must be given an opportunity to explain or deny her inconsistent statement c) The prior inconsistent statement may concern any matter that casts doubt on the witness's credibility, whether or not it is related to the case d) The prior inconsistent statement must be relevant to the case

c) To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is not enough that the prior inconsistent statement cast doubt on the witness's credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter. Furthermore, the witness generally must be given an opportunity to explain or deny her statement at some point during trial, and the adverse party must be given an opportunity to examine the witness about the statement. There are certain exceptions to this foundational requirement. For instance, if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation. Furthermore, the foundation is not required when the inconsistent statement qualifies as an opposing party's statement

Which of the following statements is true regarding the impeachment of a hearsay declarant who is not available to testify at trial? a) An unavailable hearsay declarant may be impeached, but her credibility may not be rehabilitated b) An unavailable hearsay declarant may be impeached, but not with prior inconsistent statements because there is no opportunity for the declarant to explain or deny the statement c) An unavailable hearsay declarant may be impeached by evidence that would be admissible if the declarant had testified as a witness d) An unavailable hearsay declarant may not be impeached by any method because she is not present at trial

c) Under Federal Rule 806, the credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. There is no requirement that a declarant must be present at trial to be impeached. If the declarant is impeached with evidence of her prior inconsistent statement, the foundational requirement that she must explain or deny her statement does not apply. Furthermore, where the declarant's credibility is impeached, it may also be rehabilitated.

The "recorded recollection" exception to the hearsay rule allows the offering party to: a) Use a memorandum as a substitute for an unavailable declarant's testimony b) Admit a memorandum into evidence as an exhibit c) Introduce a memorandum into evidence by reading it aloud d) Refresh the witness's recollection with a memorandum but not read it to the jury

c) Under the "recorded recollection" exception to the hearsay rule (also called "past recollection recorded"), where a witness's memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event, a party may introduce the record into evidence by reading it aloud to the jury. The "recorded recollection" exception is in contrast to "present recollection revived," which allows a party to use any writing for the purpose of refreshing the witness's memory on the stand. In that case, the writing may be used solely to refresh the witness's recollection and is not introduced into evidence. If admitted under the "recorded recollection" exception, a record may be read into evidence and heard by the jury, but it is not received as an exhibit unless offered by the adverse party. The "recorded recollection" exception only applies when a testifying witness is unable to remember the contents of the record (and when several other foundational requirements are met). It does not apply when a declarant is unavailable.

Under the "recorded recollection" exception to the hearsay rule, certain records made by a declarant at or near the time of the event in question may be admissible. Which of the following statements regarding this exception to the hearsay rule is true? a) The record may be reviewed by the witness to aid in her testimony, but may not be read into evidence or heard by the jury b) The witness need not have known about the record prior to trial, as long as it concerns the event in question c) The exception applies where the witness's memory of the event cannot be revived by looking at the record d) The declarant must be unavailable for trial

c) Under the "recorded recollection" exception to the hearsay rule, where a witness's memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event, a party may introduce the record into evidence. There is no requirement that the declarant be unavailable for the exception to apply. Rather, the exception applies when the witness is on the stand and unable to recall the event even after reviewing the record. There are several foundational requirements for the admission of a record under this exception. One is that the record must have been made by the witness, made at the witness's direction, or adopted by the witness. Thus, the witness must have known about the record before trial. If admitted under this exception, a record may be read into evidence and heard by the jury (but not received as an exhibit unless offered by the adverse party). This is in contrast to "present recollection revived," which allows a party to use any writing for the purpose of refreshing the witness's memory on the stand. In that case, the writing may be used solely to refresh the witness's recollection and is not introduced into evidence.

A criminal defendant may introduce evidence of her own good character to show her innocence of the alleged crime. Under the Federal Rules, which of the following is an impermissible manner of showing the defendant's good character? a) Calling a witness to give his personal opinion concerning the trait in issue of the defendant b) Calling a witness to testify as to the defendant's good reputation for the trait involved in the case c) Calling a witness to testify to the defendant's specific act of conduct to prove the trait in issue d) Calling a witness to testify that he has heard nothing bad regarding the defendant's reputation for the trait involved in the case

c) A criminal defendant may introduce evidence of her own good character to show her innocence of the alleged crime. Under the Federal Rules, which of the following is an impermissible manner of showing the defendant's good character?

Which statement regarding the privilege for confidential marital communications is true? a) the confidential communication must have been spoken aloud b) the privilege may be asserted as to communications made after divorce c) Either spouse may prevent anyone from disclosing confidential marital communications d) The privilege may be asserted as to communications made before the marriage

c) either spouse may prevent anyone from disclosing confidential marital communications Both spouses jointly hold the privilege, and either spouse can prevent any other person from disclosing the confidential communication or can refuse to disclose the communication. The privilege cannot be asserted as to communications made before the marriage. In any civil or criminal case, either spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were husband and wife. The communication must be made during a valid marriage. Divorce will not terminate the privilege retroactively, but communications after divorce are not privileged. The confidential communication need not be spoken; it may be made by conduct intended as a communication. Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question tests your knowledge of the marital communications privilege.

In federal courts, spousal immunity __________.

can be asserted as to matters that took place before the marriage The privilege lasts only during the marriage and terminates upon divorce or annulment. If a marriage exists, the privilege can be asserted even as to matters that took place before the marriage. Spousal immunity is not held by both spouses jointly. In federal courts, only the witness-spouse may invoke the privilege against adverse spousal testimony. Thus, one spouse may testify against the other in criminal cases, with or without the consent of the party-spouse, but the witness-spouse may not be compelled to testify, nor may she be foreclosed from testifying (except as to confidential communications). Some states ( e.g., California) follow the federal view. In some state courts, the privilege belongs to the party-spouse. Thus the witness-spouse may not be compelled to testify, and she may be foreclosed from testifying if the party-spouse asserts the privilege. The privilege lasts only during the marriage and terminates upon divorce or annulment. Spousal immunity may be invoked in criminal cases only. When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding. Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question is testing your knowledge of spousal immunity.

A memorandum used by a party at trial to refresh a witness's present recollection: a) Is then introduced into evidence by the party using it b) Is usually read by the witness while testifying c) Is considered an exception to the hearsay rule d) Need not be authenticated

d) When a memorandum is used at trial to refresh a witness's recollection, it may be used solely to refresh her recollection and need not be authenticated. The writing is intended to help the witness to recall by jogging her memory, but the witness usually may not read from the writing while testifying. The memorandum is not introduced into evidence by the party using it to refresh the witness's recollection (although it may be introduced by the adverse party). Because a memorandum used solely to refresh a witness's recollection is not introduced into evidence, it is not hearsay and need not fall within a hearsay exception.

The Federal Rules of Evidence permit a party to cross-examine a witness regarding the witness's prior act of misconduct only where the act __________.

is probative of truthfulness Federal Rule of Evidence 608 permits inquiry into a witness's act of misconduct, in the discretion of the court, only if the act is probative of truthfulness (i.e., is an act of deceit or lying). This is narrower than the traditional majority rule, which provides that, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal act of his life that may affect his character and show him to be unworthy of belief. Extrinsic evidence of "bad acts" is not permitted. A specific act of misconduct, offered to attack the witness's character for truthfulness, can be elicited only on cross-examination of the witness. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. A witness may be impeached by her prior act of misconduct even if the act did not result in a criminal conviction. However, the act of misconduct must be probative of truthfulness.

At common law, a written communication revoking an offer is considered "received" by an offeree at the moment:

it comes into the offer's physical possession A written revocation of an offer is effective when it is received by the offeree. At common law, a written communication is considered to have been "received" as soon as it comes into the physical possession of the person addressed (or of someone authorized by him to receive it) or when it is deposited in some place authorized as the place for this or similar communications to be deposited. The rule for revocation is different from the rule for acceptance, which generally creates a contract at the moment of dispatch, provided that the mail is properly addressed and stamped. The offeree need not review the contents of the revocation for it to be effective.

A law or government program that contains a preference for one or some religious groups over others will be invalid unless __________.

it is necessary to serve a compelling government interest A law or government program must be necessary to serve a compelling government interest if it includes a preference for some religious groups over others. Government actions that include sect preferences must meet a strict scrutiny standard to be valid under the Establishment Clause. "Necessary to serve an important government interest" is incorrect because it states a more lenient, intermediate scrutiny standard. Whether a government action has a primary effect that neither advances nor inhibits religion and does not produce excessive government entanglement with religion, both are elements of a test that is no longer in use.

Under current Supreme Court precedent, the First Amendment Free Exercise Clause __________.

prohibits government from pubishing conduct just because it is religious The Free Exercise Clause prohibits government from punishing conduct just because it is religious. If the intent of the law is to interfere with religion, or if the law punishes conduct solely because it is religious, the law is invalid. For example, a law may not prohibit ritual slaughter of chickens while otherwise allowing the slaughter of chickens. The Free Exercise Clause does NOT require laws of general applicability to have an exception for religiously motivated conduct. Religiously neutral laws of general applicability generally are valid under the Free Exercise Clause without religious exemptions with two historic exceptions: the Amish must be exempted from mandatory schooling beyond eighth grade, and workers fired for refusing to perform tasks on religious grounds may not automatically be exempted from unemployment compensation. The Free Exercise Clause does NOT prohibit every government regulation that interferes with religious practices and that can't pass the strict scrutiny test or intermediate scrutiny test. Generally applicable laws or other government action that burdens religious practices will be upheld under the Free Exercise Clause unless it can be shown that the law or action was motivated by a desire to interfere with religion (in which case, it will be upheld only if it passes strict scrutiny).

In First Amendment free speech cases, public property that historically has been open to speech-related activity is called a __________.

public forum A public forum is public property that historically has been open to speech-related activity. Examples include sidewalks and public parks. A designated public forum is public property that usually is not used for speech-related activity, but that the government has opened for such activity at particular times (e.g., a public school gym that can be reserved by the public for use when not being used by the school). A limited public forum is public property that usually is not used for speech-related activity, but that the government has opened up for such activity for a particular purpose (e.g., a school gym that has been opened up to host a political debate). A community forum is not a term used by courts to describe forums for First Amendment purposes. However, there is a fourth forum designation: nonpublic forum, which is public property not open for speech-related activity. A county office building would be an example of a nonpublic forum except to the extent that it is specifically opened to the public for speech-related activities.

Under the one person, one vote principle __________.

regarding congressional districts, almost exact mathematical equality between the congressional districts within a state is required Regarding congressional districts, almost exact mathematical equality between the congressional districts within a state is required under the one person, one vote principle. The rationale is that voting is a fundamental right, diluting one person's vote compared to another's raises equal protection concerns, and there is no compelling interest that would justify more than a couple of percentage points difference from district to district. Regarding state government districts, almost exact mathematical equality between districts is NOT required under the one person, one vote principle. In state government districts, the variance from district to district may not be unjustifiably large. But this is a much more lenient standard than the almost exact mathematical equality standard. Regarding congressional districts, a variance of 10% is NOT permissible. In congressional districts almost exact mathematical equality is required and a variance of even a couple of percentage points might be ruled invalid. Regarding state government districts, a variance of more than 3% is NOT invalid under the one person, one vote principle. The variance may not be unjustifiably large, but a variance of even 16% has been found to be valid.

The Privileges or Immunities Clause prohibits states from infringing upon their citizens':

right to travel The Privileges or Immunities Clause prohibits states from denying their citizens the rights of national citizenship, which includes the right to travel. Other rights protected include the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to enter public lands. Freedom of speech is not a right of national citizenship under the Privileges or Immunities Clause of the Fourteenth Amendment. In The Slaughterhouse Cases, the Supreme Court held that rights of national citizenship do not include all of the rights in the Bill of Rights, although some rights under the Bill of Rights may be held applicable to the states as incidents of due process. The right to earn a living is not a right of national citizenship under the Privileges or Immunities Clause of the Fourteenth Amendment, although the right is protected under the Privileges and Immunities Clause of Article IV, which limits states from discriminating against nonresidents. The right to an attorney is not a right of national citizenship under the Privileges or Immunities Clause of the Fourteenth Amendment. Although the right is included in the Bill of Rights under the Sixth Amendment, as discussed above, the Supreme Court held in The Slaughterhouse Cases that rights of national citizenship do not include the Bill of Rights.

In order for a defendant's prior misconduct to be admissible for some relevant non-character purpose (motive, intent, etc.), there must be:

sufficient evidence to support a jury finding that the defendant committed the prior misconduct Under Federal Rule 404(b), independently relevant uncharged misconduct by the defendant will be admissible, without a preliminary ruling, as long as there is sufficient evidence to support a jury finding that the defendant committed the prior act. Hence, clear and convincing evidence, proof beyond a reasonable doubt, or proof by a prior conviction are incorrect. (Note that the standard Rule 403 test also applies; the probative value of the evidence also must not be substantially outweighed by the danger of unfair prejudice.)

Under Article 2, when an offeree proposes additional or different terms during acceptance, the court will apply __________ to determine whether the additional or different terms become part of the contract.

the battle of the forms provision The battle of the forms provision of Article 2 lists specific rules for determining what terms are included in a contract when the terms of acceptance do not match the terms of the offer. Article 2 has abandoned the mirror image rule, which requires an absolute and unequivocal acceptance of each and every term of the offer. Gap fillers are used when certain terms are not included in the contract; it does not apply to additional or different terms in the acceptance. The mailbox rule is applied to determine the timing of acceptance of a contract.

A regulation of speech on a particular topic in a nonpublic forum may not limit the speech to one position, to the exclusion of other positions. This rule reflects the fact that such a regulation must be __________.

viewpoint neutral Speech in a nonpublic forum or limited public forum may be reasonably regulated but the regulation must be viewpoint neutral-it cannot permit presentation of one side of an argument and exclude the other. The term content neutral refers to a regulation that is neutral as to subject matter as well as to viewpoint. The terms narrowly tailored and necessary refer to whether a regulation burdens or does not burden substantially more speech than is required to advance the particular government interest.

To be valid, a time, place, and manner regulation of a limited public forum must be __________.

viewpoint neutral and rationally related to a legitimate government purpose To be valid, a time, place, and manner regulation of a limited public forum must be viewpoint neutral and rationally related to a legitimate government purpose. "Viewpoint neutral and narrowly tailored to achieve an important government interest" is incorrect because regulations of limited public forums need not be narrowly tailored to achieve an important government interest-the standard is lower (rationally related to a legitimate government purpose) as indicated above. "Content neutral and rationally related to a legitimate government purpose" is incorrect because regulation of a limited public forum can be based on content, but it must not be based on viewpoint. For example, a school gym might be opened to the public to host a debate on a specific issue (e.g., whether the city should grant a permit to an abortion clinic). The school can prohibit people from raising other issues (e.g., whether the city needs new storm sewers) to regulate the content in the open forum during the debate, but the school cannot allow people against the clinic to speak while prohibiting those in favor from speaking, because that would not be viewpoint neutral. "Content neutral and narrowly tailored to achieve an important government interest" is incorrect because, as discussed above, it states both parts of the test incorrectly.

The police arrested the defendant and charged him with murder. After the defendant's arrest, two police officers went to his home, where they found his wife. The victim had been killed on the night of March 13, and the officers asked the wife to give them the jacket that the defendant wore on the evening of March 13. Without saying a word, the wife handed the officers a jacket that was covered with bloodstains. Crime lab tests established that the blood on the jacket matched the victim's blood characteristics. At the defendant's trial for murder, the prosecution seeks to introduce the jacket into evidence. Assuming the prosecution successfully establishes a foundation, if the defense objects to the jacket's admissibility, should the court admit the jacket?

yes, as relevant evidence linking the defendant to the crime The jacket is admissible as relevant evidence linking the defendant to the crime. Generally, all relevant evidence is admissible if offered in an unobjectionable form and manner (i.e., if it does not violate an exclusionary rule, such as hearsay). Clearly, the bloodstained jacket makes it more probably true that the defendant committed the murder than it would have been without the jacket; therefore, the jacket is relevant evidence. Because it does not violate any exclusionary rule, the jacket is admissible. (B) is incorrect because neither spousal immunity nor the privilege for confidential marital communications applies in this situation. Spousal immunity prohibits the prosecution from compelling one spouse to testify against the other in a criminal proceeding; that clearly is not at issue here. The privilege for confidential marital communications protects communications (i.e., expressions intended to convey a message) between spouses made in reliance on the intimacy of the marital relationship. Nothing in the facts suggests a confidential communication with respect to the jacket. No privilege applies to observations of a spouse's condition, actions, or conduct. Furthermore, this is a testimonial privilege and probably would not prevent the wife from handing over real evidence. (C) is incorrect because a jacket is not a "statement," and the hearsay rule excludes out-of-court statements that are offered for their truth. While the wife's conduct in handing over the jacket arguably may be a statement and perhaps hearsay, the jacket itself is not. (D) is incorrect because the jacket does not incriminate the wife, and she is the person who gave it to the police. More importantly, the privilege against self-incrimination applies only to testimony, not real evidence.