MBE Mixed-subject MBE PQs 2

A plaintiff filed a complaint against a defendant in federal district court, alleging that the defendant violated the state's consumer protection law and that the plaintiff was entitled to damages of $75,000. The plaintiff was a citizen of the state where the action was filed. The defendant was a small business incorporated and headquartered in a neighboring state. After a bench trial, the judge found in favor of the plaintiff and awarded the damages sought by the plaintiff. The defendant appealed the judgment, arguing that the trial court lacked subject-matter jurisdiction. The issue of subject-matter jurisdiction had not been previously raised by either party. Will the defendant's appeal be successful? AYes, because the case did not satisfy the requirements for diversity jurisdiction. BYes, because a federal court lacks jurisdiction to decide issues of state law. CNo, because the plaintiff and defendant were citizens of different states. DNo, because the defendant waived the jurisdictional issue by failing to raise it in the trial court.

Answer choice A is correct. A federal court may exercise diversity jurisdiction over a state law claim if (i) no plaintiff is a citizen of the same state as any defendant and (ii) the amount in controversy in the action exceeds $75,000. An objection to subject-matter jurisdiction can be presented by any party at any stage of a proceeding, including on appeal. In this case, there was no basis for federal jurisdiction because the amount in controversy did not exceed $75,000. Answer choice B is incorrect because a federal court may decide claims arising out of state law provided the court has diversity jurisdiction or if those claims are pendent to federal law claims (i.e., if there is supplemental jurisdiction). Answer choice C is incorrect because, as explained above, the action does not meet the requirements for diversity jurisdiction. Although the plaintiff and defendant were citizens of different states, that is only one part of the rule. The amount in controversy must exceed $75,000 in order for diversity jurisdiction to exist, which was not the case here. Answer choice D is incorrect because the issue of subject-matter jurisdiction may not be waived; rather, an objection may be raised at any time by any party, even on appeal.

A 22-year-old defendant was charged with voluntary manslaughter. At the trial, the defendant testified on his own behalf. On cross-examination, in order to impeach the defendant's character for truthfulness, the prosecution sought to question the defendant about being adjudicated delinquent with respect to a burglary when he was 16 years old. If prosecuted as an adult, the defendant could have been subject to up to 25 years of imprisonment. Should the court permit the prosecution to introduce such evidence? ANo, because a defendant-witness's character for truthfulness may not be impeached by a juvenile adjudication. BNo, because burglary is not a crime involving proof of a dishonest act or false statement. CYes, because not more than 10 years have passed since the adjudication. DYes, because an adult witness may be impeached with evidence that he was adjudicated delinquent with respect to a burglary as a minor.

Answer choice A is correct. The defendant in a criminal case who testifies on his own behalf may not be impeached by a juvenile adjudication to show that the defendant is untruthful. Answer choice B is incorrect because, even though burglary is not a crime that involves proof of a dishonest act or false statement, a defendant may be impeached by a conviction for felony burglary when the probative value of the evidence outweighs its prejudicial effect to the defendant. Answer choice C is incorrect because, even though the defendant's juvenile adjudication is less than 10 years old, a defendant in a criminal case may not be impeached by such an offense. Answer choice D is incorrect because, although in limited circumstances a non-defendant witness in a criminal case may be impeached with a juvenile adjudication for an offense, this exception does not apply to a defendant in a criminal case.

A supplier regularly sold sand to a concrete maker. The supplier knows that concrete must be made with a certain ratio of sand, water, and cement to be stable. The sand supplier correctly suspects that the concrete maker uses less sand than is necessary in the manufacture of the concrete, although the sand supplier has nothing to do with the concrete maker's blending process. A building made with the concrete maker's concrete collapses due to the improper ratio, injuring several people. The injured people sue the sand supplier for their injuries, though all parties agree that the sand itself was not defective. Is the sand supplier liable? ANo, because the sand was not defective. BNo, because the supplier of a component part is not liable to the ultimate consumer if the final product is defective. CYes, because the supplier of a component part is strictly liable for defects in the final product. DYes, because the supplier failed to warn of the concrete's deficient quantity of sand.

Answer choice A is correct. The commercial supplier of a component, such as sand used in manufacturing cement, is subject to liability if the component itself is defective, but not when the component is incorporated into a product that is defective for another reason. However, the commercial supplier of a component may be liable if that supplier substantially participates in the process of integrating the component into the design of the assembled product and that product is defective due to the integration. Here, the sand is a component part of the concrete and the sand itself was not defective. In addition, the supplier did not substantially participate in the integration of the sand into the concrete. Therefore, the supplier is not liable. Answer choice B is incorrect because it is too broad; the supplier of a component part may be held liable for injuries caused by the final product if the component part itself is defective or if the supplier substantially participates in the integration of the component into the final product and the product is defective due to the integration. Answer choice C is incorrect because the supplier of a component part is only liable for defects in the component part; the supplier is not strictly liable for the finished product as a whole unless he substantially participates in the process of integrating the component into the assembled product and the product is defective due to the integration. Answer choice D is incorrect because the supplier had no knowledge of the concrete maker's actual ratio and no duty to warn.

In a civil trial for damages that the plaintiff sustained as the result of an automobile accident, the defendant's attorney sought to admit into evidence the journal entry of a witness to the accident to demonstrate the witness's uncertainty of the events immediately after the accident. The entry contained a sentence that stated, "I don't think the defendant was at fault." The witness claimed that she was unable to remember the event well enough to testify, even after looking at the journal entry on the witness stand. She did, however, indicate that she wrote the journal entry only 30 minutes after witnessing the accident. After the defendant's motion to admit this journal entry, the plaintiff's attorney objected to the introduction of the journal entry into evidence. Assuming the defendant's attorney can lay the proper foundation, how should the court proceed? AThe court should allow the journal entry to be read to the jury, but should not admit the entry as an exhibit. BThe court should admit the journal entry as an exhibit, but should not allow it to be read to the jury. CThe court should both allow the journal entry to be read to the jury and introduce the entry as an exhibit. DThe court should neither allow the journal entry to be read to the jury nor introduce the entry as an exhibit.

Answer choice A is correct. The journal entry, an out-of-court statement offered to prove the truth of the matter asserted, does constitute hearsay. However, there are many exceptions to the hearsay rule that apply regardless of whether the declarant is unavailable. Under Federal Rule of Evidence 803(5), if a witness is unable to testify about a matter for which a record exists, that record may be admitted into evidence if the proper foundation is established: (i) the record contains a matter of which the witness once had knowledge, (ii) the record was prepared or adopted by the witness when the matter was fresh in the witness's memory, (iii) the record accurately reflects the witness's knowledge; and (iv) the witness states that she has insufficient recollection of the event to testify fully and accurately, even after consulting the writing while on the stand. The record may be read to the jury but may not be introduced as an exhibit unless it is offered by the opposing party. Here, the witness indicated that she was unable to testify because she couldn't remember the event, even after reading on the witness stand the journal entry she wrote about it. However, if the attorney laid the proper foundation (proved that the entry contains a description of the event about which the witness once had knowledge, that the witness wrote the entry when the crash was fresh in her head, and that the entry accurately reflects her knowledge at the time) the journal entry should be read to the jury as a past recollection recorded. Answer choice B is incorrect because the evidence may be read to the jury and admitted as evidence. Answer choice C is incorrect because while the evidence can be read to the jury, it cannot be introduced as an exhibit unless the opposing party (in this case, the plaintiff's attorney) seeks to have it admitted. Answer choice D is incorrect because the entry qualifies as an exception to the hearsay rule and may accordingly be read to the jury and admitted as evidence.

A golf instructor posted an advertisement for his services in a local newspaper. The advertisement read, "Do you want to improve your golf game? I want to help you. A lesson that normally would cost you $100 will be only $50. To get this fantastic rate, be the first at the driving range this Thursday at 8 AM with your clubs or be the first to give me a call to setup another time." A duffer, who had heard of the instructor through a friend but had not seen the ad, called the instructor. The duffer made an appointment to meet the instructor for a lesson at the driving range on Thursday at 9 AM. The price of the lesson was not discussed, but the duffer was the only person who called the instructor about a lesson prior to Thursday afternoon. Wednesday evening the duffer saw the instructor's ad for the first time. The duffer showed up at the driving range on Thursday at 8 AM with his clubs. No one else appeared for a lesson. The instructor gave the duffer a lesson. After the lesson, the duffer handed $50 to the instructor. The instructor stated that his fee was $100. The duffer refused to pay the additional $50. In a breach of contract action by the instructor against the duffer, which of the following would NOT be an argument that the duffer could raise in his defense?

Answer choice B is correct because an offeree cannot accept an offer of which the offeree is unaware. Here, the duffer did not accept the offer by calling the instructor and making an appointment for a lesson because the duffer was not aware of the ad at the time of the call. Answer choice A is incorrect because, while an advertisement is generally an invitation to make an offer rather than an offer, the language in the instructor's ad is sufficiently specific to constitute an offer. The ad indicates the subject matter of the offer (i.e., a golf lesson), who may be the offeree (i.e., the first person who contacts the instructor or who shows up at the specified time and place), and the methods by which the offer may be accepted (i.e., contacting the instructor or being the first to appear at the driving range at 8 AM), and the price (i.e., $50 per lesson). The fact that the offer was not made to a specific person whose identity was known to the offeror at the time of the making of the offer will not prevent the offer from being an offer, since the offeree is otherwise specifically identified. Answer choice C is incorrect because the ad provides that the offer may be accepted by being the first to appear at the driving range at the specified time. Since the duffer accomplished this act, he accepted the offer. Answer choice D is incorrect because an offeror may not withdraw an offer after it has been accepted by the offeree. LEARN WHY NEXT QUESTION

A defendant was charged with burglary. At trial, the defendant's girlfriend testified that she was at home with the defendant when the alleged burglary occurred. Following the girlfriend's testimony, the prosecution called the girlfriend's colleague to the stand. The colleague testified that he believed the girlfriend was a liar, and gave several examples of instances in which she had lied about her progress on projects that they had worked on together. The defense objected to the colleague's testimony. The judge ruled that the witness's testimony that he believed the girlfriend was a liar was admissible, but that the testimony regarding her lying about work projects was inadmissible. On cross-examination, the defense questioned the colleague about a time when the girlfriend found and returned the colleague's lost wallet. The prosecution objected, and the judge sustained the objection, excluding the testimony about the wallet. Which of the judge's rulings was in error? AThe judge did not err in any of the above rulings. BThe judge erred in excluding the colleague's testimony regarding the lost wallet. CThe judge erred in excluding the colleague's testimony that the girlfriend lied about her progress on work projects. DThe judge erred in admitting the colleague's testimony that he believed the girlfriend was a liar.

Answer choice B is correct. A witness's credibility may be attacked by testimony regarding the witness's character for untruthfulness. Generally, this testimony must be about the witness's reputation for having a character for untruthfulness or in the form of an opinion of the witness's character for untruthfulness. A specific instance of conduct is not admissible to attack or support the witness's character for truthfulness. On cross-examination, however, a witness may be asked about specific instances of conduct if it is probative of the truthfulness or untruthfulness of (i) the witness or (ii) another witness about whose character the witness being cross-examined has testified. Here, the defense attorney intended to cross-examine the colleague regarding a specific instance illustrating the girlfriend's character for truthfulness - the return of the colleague's wallet - in response to an attack made on the girlfriend's character for truthfulness by the prosecution's witness. Answer choice A is incorrect because the judge erred in not allowing the defense to cross-examine the colleague regarding a specific instance illustrating her character for truthfulness. Answer choice C is incorrect because evidence as to a witness's character for truthfulness or untruthfulness is generally not admissible in the form of specific instances. Answer choice D is incorrect because opinion evidence regarding truthfulness is admissible.

Police set up a sobriety checkpoint after dark on a state highway. The police stopped every fourth car driving down the highway, without exercising any judgment as to whether the driver of the car was intoxicated. In the absence of any problem, a driver was detained less than a minute. The driver and only occupant of one such car stopped was an adult with a valid driver's license. The officer approached the car with a device for detecting alcohol on the driver's breath. The officer held the device, which looked like a flashlight, about 10 inches away from the driver's face, within the recommended range for the proper operation of the device. Upon obtaining a positive reading from the device, the officer asked the driver to step out of the car, even though the officer did not otherwise detect the presence of alcohol. The driver failed a field sobriety test. This provided the officer with probable cause to arrest the driver for driving while under the influence, which the officer did. The driver was taken to a police station where a breath test indicated that he was legally intoxicated. Of the following constitutionally based arguments which would be the strongest in favor of suppression of the evidence of the driver's intoxication? ABecause of the brevity of the stop, it did not constitute a seizure within the meaning of the Fourth Amendment. BThe police officer lacked reasonable suspicion to stop the driver's car. CThe search for the presence of alcohol on a driver's breath by a police officer using his sense of smell violates the driver's reasonable expectation of privacy. DThe use of a device that is not available to the general public to detect the presence of alcohol that the officer otherwise would not have detected violated the driver's reasonable expectation of privacy.

Answer choice D is correct. While not necessarily a winning argument, the Supreme Court held in Kyllo v. US that the use of a device that is not available to the general public (a heat-sensing device) and that is capable of detecting lawful activity can constitute an unlawful search. Here, the device, a passive alcohol sensor, is not generally available to the public and is capable of detecting lawful activity; an adult driver is not prohibited from having consumed any alcohol prior to driving but instead may be punished only for driving while under the influence of alcohol. In addition, the court noted that the heat-sensing device gave the officer information that he could not have gained without entering the house. Here, the passive alcohol sensor gave the officer information about the presence of alcohol that he, through the use of his own senses, would not have had. Granted, the device in Kyllo was a thermal sensing device not a passive alcohol sensor and more significantly the search was made of a home rather than conduct in a car, but as noted below, each of the other answer choices have clearly been rejected by the Supreme Court. Answer choice A is incorrect because stopping a car and detaining its occupants constitutes a seizure even though the detention is quite brief. Answer choice B is incorrect because the stopping of a car without reasonable individualized suspicion is permitted at a sobriety checkpoint. Answer choice C is incorrect because an officer, relying on his own sense of smell, may test a driver's breath for alcohol. Moreover, the officer is not relying on his own sense of smell, but instead on a device that enhances his own sense of smell.

A niece provided live-in assistance to her uncle in his home, and the uncle promised to leave the home to her upon his death. While the uncle was hospitalized shortly before his death, the niece conveyed the home by a general warranty deed to a buyer who paid fair market value. The buyer was unaware that the niece did not own the home at the time of the conveyance. True to his word, the uncle devised the home to his niece in his will. Having second thoughts about moving out of her uncle's home, the niece then contested the buyer's right to home. Which of the following would provide the least support to the buyer's contention that he is entitled to possession of the home? AAfter-acquired property doctrine. BThe niece's breach of the covenant of the right to convey. CEstoppel by deed doctrine. DThe niece's conveyance of the home by a general warranty deed.

Answer choice B is correct. Although the niece did breach the covenant of the right to convey (as well as the covenant of seisin), this breach gives rise to the right to monetary damages. Since the buyer is instead seeking possession of the home, this breach would not aid the buyer's cause. Answer choice A is incorrect because under the after-acquired property doctrine, if a person (such as the niece) purports to transfer property that she does not own, the subsequent acquisition of the property by the transferor automatically operates to transfer ownership of the property to the transferee. Therefore, application of this doctrine would support the buyer's claim. Answer choice C is incorrect because under the estoppel by deed doctrine, the niece would be estopped from denying the validity of the deed upon her subsequent acquisition of ownership of the property. This doctrine would therefore also support the buyer's claim. Answer choice D is incorrect because both the after-acquired property doctrine and the estoppel by deed doctrine apply where the conveyance of property has been made by a general warranty deed. Therefore, the niece's conveyance of the home by a general warranty deed prior to her actual acquisition of the property would support the buyer's claim. Note that had the transfer been by a quitclaim deed, these doctrines would not apply.

A builder borrowed $10,000 from a lender to finance a small construction job under a contract with a homeowner. The builder gave the lender a writing that stated, "Any money I receive from the homeowner will be paid immediately to the lender, regardless of any demands from other creditors." The builder died after completing the job but before the homeowner paid. The lender demanded that the homeowner pay the $10,000 due to the builder directly to the lender. The homeowner refused, saying that he would pay directly to the builder's estate everything that he owed the builder. Is the lender likely to succeed in an action against the homeowner for $10,000? ANo, because the builder's death terminated the lender's right to receive payment directly from the homeowner. BNo, because the writing the builder gave to the lender did not transfer to the lender the right to receive payment from the homeowner. CYes, because the builder had manifested an intent that the homeowner pay the $10,000 directly to the lender. DYes, because the lender is an intended beneficiary of the builder-homeowner contract

Answer choice B is correct. An assignment arises when the holder of a right, an obligee, manifests the intent to make a present transfer of that right to another, the assignee. Upon an assignment, the assignor's rights are extinguished and transferred to the assignee. An assignment is to be distinguished from a promise to do something in the future, such as the payment of money. Here, the writing in which the builder promised to pay the lender the $10,000 he received from the homeowner did not transfer to the lender the right to receive payment directly from the homeowner, and thus it did not create an assignment. Answer choice A is incorrect because the builder never gave the lender a valid assignment. Answer choice C is incorrect. It may have been the builder's subjective intent to have the homeowner pay the $10,000 directly to the lender if the builder died, but more was required in order for the lender to have the right to receive that direct payment. The dispositive issue here is whether the builder gave the lender a valid assignment. As discussed with respect to answer choice B, the builder did not. Answer choice D is incorrect. Because any rights that may have been granted to the lender were not created by the contract between the builder and the homeowner, the lender did not acquire third-party beneficiary status. Again, the dispositive issue here is whether the builder gave the lender a valid assignment.

An employer owed an employee $200 in unpaid wages. A law of the state in which the employer and the employee reside and in which the employee works provides that the courts of that state must decide claims for unpaid wages within 10 days of filing. After the employee filed a claim in state court pursuant to this law, the employer filed a voluntary bankruptcy petition in federal bankruptcy court. In the bankruptcy proceeding, the employer sought to stay further proceedings in the unpaid wages claim on the basis of a federal statute which provides that a person who files a federal bankruptcy petition receives an automatic stay of all proceedings against him or her in all federal and state courts. No other federal laws apply. In addition to the supremacy clause of Article VI, what is the most obvious constitutional basis for the imposition of a stay of the unpaid wages claim in the state court? ACongress's power to provide for the general welfare. BCongress's power to provide uniform rules of bankruptcy. CCongress's power to regulate the jurisdiction and procedures of the courts. DCongress's power to regulate commerce among the states.

Answer choice B is correct. Congress's power to provide uniform rules of bankruptcy offers the most obvious constitutional basis for a federal statute requiring a stay of court proceedings against a person who has filed a federal bankruptcy petition. Answer choice A is incorrect. Congress's power to provide for the general welfare authorizes only taxing and spending laws. Because the statute requiring the imposition of a stay of the unpaid wages claim concerns neither taxing nor spending, it is not authorized by the general welfare clause. Answer choice C is incorrect. The constitutional provisions that give Congress the power to regulate the jurisdiction and procedures of federal courts do not authorize Congress to regulate state courts. Answer choice D is incorrect. A federal statute providing for a stay of court proceedings against a person who has filed a federal bankruptcy petition is not authorized by the commerce clause, because it is not a regulation of the channels or instrumentalities of interstate commerce, nor does it regulate an economic or commercial activity.

An independent truck driver often received assignments to transport cargo for a delivery company. The driver was one of the delivery company's most reliable contractors. When the driver was in need of a new truck, the delivery company contracted with a truck manufacturer to purchase the truck on an installment basis. The manufacturer retained a security interest in the truck until all payments were made. The contract between the delivery company and the manufacturer provided that the delivery company "shall not assign this contract without the prior written consent" of the manufacturer. Nonetheless, the delivery company assigned the contract, in writing, to the truck driver. The truck driver made all payments on the truck for two years until she was involved in a serious collision that destroyed the truck. The insurance proceeds on the destroyed truck were paid to the manufacturer. After the manufacturer used the proceeds to satisfy the contract balance, $20,000 remained. The truck driver delivered a copy of the assignment to the manufacturer, and demanded the remainder of the proceeds. The truck manufacturer stated that the contract was non-assignable, and that it would only pay the proceeds to the delivery company. The truck driver then filed suit to compel the truck manufacturer to pay her the proceeds. Is she likely to succeed? AYes, because the written assignment from the delivery company to the truck driver was a novation. BYes, because the contract was assigned to the truck driver. CNo, because the contract between the delivery company and the truck manufacturer was non-assignable. DNo, because the truck driver was merely an incidental beneficiary of the contract between the delivery company and the truck manufacturer.

Answer choice B is correct. Most contracts can be assigned. Even if the contract by its terms prohibits assignment, a party retains the power to assign, although an assignment operates as a breach of the contract. Consequently, the truck manufacturer has a claim against the delivery company, but cannot refuse to recognize the assignment to the truck driver. Consequently, it must disburse the remainder of the insurance proceeds to her. For that reason, answer choice C is incorrect. Answer choice A is incorrect because a novation is the substitution of a new contract for an old one; in this case, a novation could only have occurred with the consent of the truck manufacturer, which was not sought, much less given. Answer choice D is incorrect because the truck driver's status as either an intended or incidental beneficiary of the contract does not bear upon the validity of the assignment of the contract to her.

Toxic materials being transported by truck from a manufacturer's plant to a warehouse leaked from the truck onto the street a few miles from the plant. A driver lost control of his car when he hit the puddle of spilled toxic materials on the street, and he was injured when his car hit a stop sign. In an action for damages by the driver against the manufacturer based on strict liability, is the driver likely to prevail? ANo, because the driver's loss of control was an intervening cause. BNo, because the driver's injury did not result from the toxicity of the materials. CYes, because the manufacturer is strictly liable for leaks of its toxic materials. DYes, because the leak occurred near the manufacturer's plant.

Answer choice B is correct. Strict liability in this situation would be based on the abnormally dangerous nature of the toxic materials. But a successful strict liability action requires that the risk that materializes be the same risk that led courts to label the activity "abnormally dangerous" in the first place. Here, the toxicity of the materials did not contribute to the driver's injury, so his only cause of action would be in negligence. Accordingly, answer choice C is incorrect. Answer choice A is incorrect because the driver's loss of control was not intentional, nor was it either unforeseeable or unusual. For that reason, it should raise no proximate cause problem. Answer choice D is incorrect because the manufacturer would be strictly liable for injuries caused by its toxic materials regardless of where the leak occurred, so long as the manufacturer could be said to be responsible for the leak.

A man told his girlfriend that he was planning to rob a 24-hour convenience store and would split the proceeds from the robbery if she agreed to drive the getaway car. The girlfriend agreed and drove the man to the store so he could commit the robbery. While holding up the cashier in the store, the man's gun went off accidentally, killing the cashier. The man left through the exit at the back of the store, leaving the girlfriend in the car outside the store to be arrested when the police arrived. For which of the following crimes may the girlfriend properly be convicted and punished? ARobbery only. BMurder only. CBoth robbery and murder. DNeither robbery nor murder.

Answer choice B is correct. The man committed a felony murder, by killing the cashier during the course of the robbery. It does not matter that the death was accidental. Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony. Robbery is one such inherently dangerous felony. The underlying felony merges into the crime of felony murder, so here, the robbery merges into the felony murder and the man can only be convicted of and punished for felony murder, not both felony murder and robbery. As an accessory before the fact, the girlfriend is liable to the same extent as the man. Accordingly, she can properly be convicted or and punished for murder, but not robbery. Answer choices A, C, and D are therefore incorrect.

A state law imposed substantial regulations on insurance companies operating within the state with respect to their rates, cash reserves, and financial practices. A privately owned insurance company operating within the state advertised that it wanted to hire a new data processor. After reviewing applications for that position, the company hired a woman who appeared to be well qualified. The company refused to consider the application of a man who was better qualified than the woman, because he was known to have radical political views. The man sued the company, alleging only a violation of his federal constitutional right to freedom of expression. Is the man likely to prevail? ANo, because hiring decisions are wholly discretionary and thus are not governed by the First Amendment. BNo, because the company is not subject to the provisions of the First and Fourteenth Amendments. CYes, because the company is affected with a public interest. DYes, because the company is substantially regulated by the state, and thus its employment decisions may fairly be attributed to the state.

Answer choice B is correct. The man is unlikely to prevail, because the First and Fourteenth Amendments generally apply only to the actions of governments and government officials, not to the actions of privately owned companies such as the insurance company. Answer choice A is incorrect because the First Amendment applies to discretionary decisions of governments and government officials. Answer choice C is incorrect because the question whether the First and Fourteenth Amendments apply to the actions of a privately owned company does not turn on whether the company is affected with a public interest. Answer choice D is incorrect because the fact that the company is substantially regulated by the state does not make the company's actions subject to the First and Fourteenth Amendments.

In a telephone conversation, a jewelry maker offered to buy 100 ounces of gold from a precious metals company if delivery could be made within 10 days. The jewelry maker did not specify a price, but the market price for 100 ounces of gold at the time of the conversation was approximately $65,000. Without otherwise responding, the company delivered the gold six days later. In the meantime, the project for which the jewelry maker planned to use the gold was canceled. The jewelry maker therefore refused to accept delivery of the gold or to pay the $65,000 demanded by the company. Is there an enforceable contract between the jewelry maker and the company? ANo, because the parties did not agree on a price term. BNo, because the parties did not put their agreement in writing. CYes, because the absence of a price term does not defeat the formation of a valid contract for the sale of goods where the parties otherwise intended to form a contract. DYes, because the company relied on an implied promise to pay when it delivered the gold.

Answer choice B is correct. The parties failed to comply with the writing requirement of UCC § 2-201(1). Under that section, a contract for the sale of goods for a price of $500 or more is not enforceable unless there is a writing indicating a contract of sale that is signed by the party against whom enforcement is sought. In this case, the absence of such a writing signed by the jewelry maker renders the parties' oral agreement unenforceable. An exception to the writing requirement arises when a seller delivers goods that are accepted by the buyer, but in this case, the jewelry maker did not accept the gold. Answer choice A is incorrect. Under UCC § 2-305, a contract may be enforceable in the absence of a price term so long as the parties otherwise intended to enter into a contract. In this case, the dispositive issue is whether the parties' oral agreement is enforceable. Answer choice C is incorrect. While it is true that a contract may be enforceable in the absence of a price term so long as the parties otherwise intended to enter into a contract, in this case, the dispositive issue is whether the parties' oral agreement is enforceable. Answer choice D is incorrect. As explained above, the dispositive issue in this case is whether the parties' oral agreement is enforceable absent a writing.

An environmental organization's stated mission is to support environmental causes. The organization's membership is generally open to the public, but its bylaws permit its officers to refuse to admit anyone to membership who does not adhere to the organization's mission statement. In a recent state administrative proceeding, the organization opposed plans to begin mining operations in the mountains surrounding a small town. Its opposition prevented the mine from being opened on schedule. In an effort to force the organization to withdraw its opposition, certain residents of the town attended a meeting of the organization and tried to become members, but the officers refused to admit them. The residents sued the organization, claiming that the refusal to admit them was discriminatory and violated a local ordinance that prohibits any organization from discriminating on the basis of an individual's political views. The organization responded that the ordinance is unconstitutional as applied to its membership decisions. Are the residents likely to prevail in their claim? ANo, because the membership policies of a private organization are not state action. BNo, because the organization's right to freedom of association allows it to refuse to admit potential members who do not adhere to its mission statement. CYes, because the action of the officers in refusing to admit the residents as members violates equal protection of the laws. DYes, because the ordinance serves the compelling interest of protecting the residents' free speech rights.

Answer choice B is correct. The residents are not likely to prevail in their claim, because it would violate the environmental organization's First Amendment right to freedom of association if the state were to force the organization to accept the residents as members. The U.S. Supreme Court has held that the forced inclusion of an unwanted person in a group violates the group's freedom of association if including that person would significantly affect the group's ability to express its viewpoints. The freedom of association entitles the environmental organization to refuse membership to the residents, because admitting them would effect a change in the organization's viewpoint on the mining operations. Answer choice A is incorrect because, while it is true that the membership policies of a private organization are not state action, the local ordinance on which the residents base their suit is state action, and it is subject to the requirements of the First Amendment. Answer choice C is incorrect because the action of the officers in refusing to admit the residents as members is not subject to the equal protection clause. The environmental organization is a private entity, and therefore the conduct of the organization's officers does not constitute state action. Answer choice D is incorrect because the U.S. Supreme Court has held that even statutes that support compelling interests do not justify the severe burden on an organization's freedom of association that would result from forcing an organization to accept members who would significantly affect the organization's ability to express its viewpoints.

A man obtained a bank loan secured by a mortgage on an office building that he owned. After several years, the man conveyed the office building to a woman, who took title subject to the mortgage. The deed to the woman was not recorded. The woman took immediate possession of the building and made the mortgage payments for several years. Subsequently, the woman stopped making payments on the mortgage loan, and the bank eventually commenced foreclosure proceedings in which the man and the woman were both named parties. At the foreclosure sale, a third party purchased the building for less than the outstanding balance on the mortgage loan. The bank then sought to collect the deficiency from the woman. Is the bank entitled to collect the deficiency from the woman? ANo, because the woman did not record the deed from the man. BNo, because the woman is not personally liable on the loan. CYes, because the woman took immediate possession of the building when she bought it from the man. DYes, because the woman was a party to the foreclosure proceeding.

Answer choice B is correct. The woman took title to the office building subject to the mortgage but did not assume the mortgage debt. The debt is to be satisfied out of the building. The building is the principal, and the man, as transferor, is the only party liable for any deficiency. This situation can be contrasted with one in which a buyer expressly assumes the mortgage debt. In that case, the buyer would be primarily liable for any deficiency and the seller, absent a release by the mortgagee, would be secondarily liable. Answer choice A is incorrect. The woman took title to the office building subject to the mortgage debt, which means that the debt was to be satisfied out of the building. Recording the deed would give the bank constructive notice of the transfer but would have no effect on the collection of the deficiency. Answer choice C is incorrect. The woman took title to the building subject to the mortgage. Her title to the building allowed her to take possession of the building, but her possession has no effect on the payment of any deficiency judgment. Taking title to the building subject to the mortgage means that the debt is to be satisfied out of the building. Answer choice D is incorrect. Because the woman took title to the building subject to the mortgage debt, she was a necessary party to the foreclosure proceeding. However, the fact that she took title to the building subject to the mortgage means that the debt is to be satisfied out of the building.

A defendant was charged with burglary of a store and faced up to 25 years of imprisonment. At the trial, the prosecution called a critical witness who had contacted the police after the burglary and supplied information for the defendant's arrest. The witness testified that he lived near the store and that he saw the defendant outside the store just after the crime occurred. On cross-examination, the defense attempted to show that the witness had a motive to lie in order to divert suspicion away from himself. The defense sought to impeach the witness by questioning him about his juvenile conviction for breaking and entering another neighborhood store two years ago, for which the witness was currently on probation. May the defense properly question the witness about the juvenile adjudication? ANo, because it is a juvenile adjudication. BNo, because the witness is on probation with regard to the juvenile adjudication. CYes, because the juvenile adjudication is being used to show the witness's motive. DYes, because the defendant was charged with a crime that was punishable by imprisonment for more than one year.

Answer choice C is correct. A criminal defendant may impeach a witness by introducing evidence of a witness's juvenile adjudication to show motive to lie or bias. (Note: A criminal defendant may also impeach a witness's character for truthfulness with the witness's juvenile adjudication when an adult's conviction for the offense would be admissible to attack the adult's credibility and admitting the evidence is necessary to fairly determine guilt or innocence.) Answer choice A is incorrect because, although a witness may generally not be impeached by a juvenile adjudication, a witness may be impeached under these circumstances. Answer choice B is incorrect because the penalty for a juvenile adjudication or conviction is not determinative as to whether the juvenile adjudication or conviction can be used for impeachment purposes. Answer choice D is incorrect because the admission of a juvenile adjudication is not necessarily dependent on the potential imprisonment for the crime. The juvenile adjudication may be admitted in this case to show a motive to lie. LEARN WHY NEXT QUESTION

A restaurant supplier sent a letter to a regular customer offering to sell the customer an industrial freezer for $10,000. Two days later, the customer responded with a letter that stated: "I accept your offer on the condition that you provide me with a warranty that the freezer is merchantable." In response to the customer's letter, the supplier called the customer and stated that the offer was no longer open. The supplier promptly sold the freezer to another buyer for $11,000. If the customer sues the supplier for breach of contract, is the customer likely to prevail? ANo, because the customer's letter added a term, making it a counteroffer. BNo, because the subsequent sale to a bona fide purchaser for value cut off the claims of the customer. CYes, because the customer's letter was an acceptance of the supplier's offer, since the warranty of merchantability was already implied in the sale. DYes, because the supplier's letter was a firm offer that could not be revoked for a reasonable time.

Answer choice C is correct. It is true that a purported acceptance that is conditioned on an offeror's assent to a term additional to or different from the terms contained in an offer is a counteroffer. In this case, however, the customer's letter constituted an acceptance rather than a counteroffer. Under UCC § 2-314, a warranty of merchantability is implied in every contract for the sale of a good by a seller who is a merchant with respect to goods of that kind. Therefore, the condition contained in the customer's letter merely stated a term that was already implied in the sale. A contract arose when the customer mailed its letter accepting the offer. Accordingly, the supplier's attempted revocation of its offer was ineffective, and its sale of the freezer to the third party breached its contract with the customer. Accordingly, answer choice A is incorrect. Answer choice B is incorrect. Under some circumstances, the sale of goods to a bona fide purchaser may cut off the claims of other parties. In this case, however, the dispositive issue is whether the customer's letter in response to the supplier's offer constituted an acceptance or a counteroffer. As discussed with respect to answer choice C, the condition contained in the customer's letter merely stated a term that was already implied in the sale. Answer choice D is incorrect. The supplier's letter did not create a firm offer because it failed to give assurance that the offer would be held open, a principal requirement of a firm offer under UCC § 2-205. As discussed above, a contract arose when the customer mailed its letter accepting the offer. Accordingly, the supplier's attempted revocation of its offer was ineffective, and its sale of the freezer to the third party breached its contract with the customer.

After federally funded studies on the fiscal impact of mail delivery in the United States, Congress enacts the Postal Limitations Act, which attempts to decrease the amount of paper used in the mail delivery process by limiting advertisements mailed by grocery stores. The studies outlined three main conclusions. First, the paper used in grocery store advertisements destroys thousands of trees each year. Second, by limiting the amount of advertisements that are mailed each week, Congress would save millions of dollars, which would help to avoid the necessity of a bankruptcy filing by the U.S. Postal Service. Third, the studies indicate that advertisements by grocery stores were not only the most common type of unwanted mail in the country but also required substantially more paper than any other type of business. The Act limits grocery stores from sending advertisements via mail more than once per week, unless they decrease the amount of paper used to advertise to a specific, defined amount. The grocery stores are not limited in any other form of advertising, such as online advertising or advertising within the store. After one of the largest grocery stores in the country is banned from sending its daily advertisement and coupons, its representative sues in federal court to have the Act struck down. Do the limitations set forth in the Postal Limitations Act exceed Congressional authority? AYes, because the Act abridges freedom of speech. BYes, because Congress cannot limit the right to send or receive mail. CNo, because Congress has the exclusive power to establish post offices. DNo, because Congress may impose reasonable restrictions on the use of mail.

Answer choice D is correct. Congress has the exclusive power "to establish post offices and post roads" under Article I, Section 8, Clause 7. Congress may impose reasonable restrictions on the use of the mail (such as prohibiting obscene or fraudulent material to be mailed), but the postal power may not be used to abridge any right guaranteed by the Constitution (e.g., the First Amendment). The Postal Limitations Act appears to regulate commercial speech, which is protected by the First Amendment. Restrictions on commercial speech are reviewed under a four-part test: i) The commercial speech must concern lawful activity and be neither false nor misleading (fraudulent speech or speech which proposes an illegal transaction may be prohibited); ii) the asserted government interest must be substantial; iii) the regulation must directly advance the asserted interest; and iv) the regulation must be narrowly tailored to serve that interest. In this context, narrowly tailored does not mean the least restrictive means available; rather, there must be a "reasonable fit" between the government's ends and the means chosen to accomplish those ends. Here, the Congressional limitations pass the four-part test, as the government interest in avoiding bankruptcy and decreasing the impact on the environment is substantial. The Act is a reasonable fit between the government end and means. Answer choice A is incorrect because while this type of Congressional regulation cannot abridge rights guaranteed by the Constitution, the Act here does not abridge such rights, as it passes the four-part commercial speech test. Answer choice B is incorrect because Congress can limit such a right, provided it does not abridge other federally protected rights. Answer choice C is incorrect because while Congress does have this exclusive right, it cannot exercise that right in a manner that abridges other federally protected rights.

A buyer sued a dishwasher manufacturer in a federal district court sitting in diversity jurisdiction. The buyer alleged that a manufacturing defect in his dishwasher caused it to leak dirty water into the wall behind the washer. The buyer sought damages to his property as well as personal injury damages arising out of exposure to the mold that resulted from the leak. Prior to commencing suit, the buyer consulted a mold expert. After the expert gave the buyer a written report about the possible health consequences stemming from the presence of the mold, the buyer decided not to call the mold expert as a witness at trial. Instead, he sought out a manufacturing expert whom he believed would be better qualified to testify as to the defect in the dishwasher. In making his required disclosures after filing the complaint, the buyer identified only the manufacturing expert as an expert expected to be called at trial and provided his expert report. The manufacturer, learning that the buyer had consulted a mold expert, moved to compel production of the mold expert's report. The buyer refused. Which of the following is least likely to support the buyer's refusal to produce the mold expert's written report? AThe manufacturer can obtain a substantial equivalent to the report without undue hardship. BThe manufacturer has not shown a substantial need for the written report. CThe mold expert will not testify at trial. DThe report is cumulative because the buyer intends to show damages with his other expert's testimony.

Answer choice D is correct. The court is required to limit the frequency or extent of discovery otherwise allowed by the rules if it determines that the discovery sought is unreasonably cumulative or can be obtained from some other source that is more convenient or less expensive. Because the mold expert likely provided different information than the manufacturing expert provided, and because this information was likely relevant to the injuries, this argument is unlikely to permit the buyer to refuse to produce the report. Answer choice A is incorrect. In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. To discover such work product, the manufacturer would have to establish both that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Therefore, answer choice A would support the protection of the report under the work product privilege. Answer choice B is also incorrect because discovery of work product requires that the requesting party shows both substantial need and an inability to obtain a substitute without undue hardship. Therefore, answer choices A and B would each independently support the buyer's refusal to produce the report as protected work product. Answer choice C is incorrect. If an expert was retained or specially employed by another party in anticipation of litigation or to prepare for trial but is not expected to be called as a witness, then discovery of the expert's opinions is permitted only on a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. Therefore, because the buyer does not intend to call the mold expert, his report is likely undiscoverable.

An honest dispute develops between a homeowner and an electrician over whether wiring and circuit breakers installed by the electrician satisfied contractual specifications. If the wiring and circuit breakers meet those specifications, the homeowner owes the electrician $10,000 under the terms of the contract. The homeowner offers to pay the electrician $8,000 in satisfaction of the homeowner's contractual obligations, if the electrician replaces the circuit breakers with a different brand. The electrician accepts the homeowner's offer. After the electrician replaces the circuit breakers, the homeowner refuses to pay the electrician. In a breach of contract action brought by the electrician, the fact-finder determines that the wiring and circuit breakers originally installed by the electrician did satisfy the contract specifications. The fact-finder also determines that the electrician and the homeowner entered into an accord for which the homeowner failed to provide the required satisfaction. What is maximum amount that the electrician can seek in damages from the homeowner? A$18,000 B$10,000 C$8,000 DNothing

Answer choice B is correct. Since the electrician and the homeowner entered into an accord for which the homeowner failed to provide the required satisfaction, the electrician may seek damages under the accord of $8,000 or may seek damages under the original contract of $10,000. Since $8,000 is less than $10,000, answer choice C is incorrect. Answer choice A is incorrect because, even though the homeowner has breached both the original contract and the accord by failing to pay the electrician, the electrician must elect to receive damages under either the original contract or the accord. Answer choice D is incorrect since the homeowner has breached both the accord and the original contract.

A plaintiff sued a defendant in federal district court for the western district of a state. The plaintiff, who lived in the same city as the court was located, asserted a cause of action that arose under federal law. The defendant, a lifelong resident of a town located in the eastern federal judicial district of the state, was served with the complaint and summons at his home. The federal district court for the western district, which issued the summons, is located more than 100 miles from the defendant's home. The defendant timely filed a motion to dismiss the complaint for lack of personal jurisdiction. How should the court rule on this motion? ADeny the motion, because the plaintiff and the defendant live in different judicial districts. BDeny the motion, because the defendant was a lifelong resident of the forum state. CGrant the motion, because the forum court was located more than 100 miles from the defendant's home. DGrant the motion, because the plaintiff and defendant are residents of the same state.

Answer choice B is correct. The court has personal jurisdiction over the defendant because the defendant, as a lifelong resident of the forum state, is domiciled in the forum state. Domicile of the defendant in the forum state is a sufficient basis on which a federal court in that state can exercise personal jurisdiction. Answer choice A is incorrect. Personal jurisdiction is concerned with the defendant's relationship to the forum state, not to a particular federal judicial district within the state. The fact that the plaintiff and defendant live in different judicial districts of the same state is not relevant to the question of whether the court can exercise personal jurisdiction over the defendant. Answer choice C is incorrect because the court has personal jurisdiction over the defendant, as discussed with answer choice B. While the "bulge provision" can confer personal jurisdiction over a party on a federal court when the party is served with the summons within 100 miles of the court, this provision does not apply to the service of process on an original defendant, but only to service on a third-party defendant joined under Rule 14 and a necessary party joined under Rule 19. The "bulge provision" is not applicable under these facts. Answer choice D is incorrect because the court has personal jurisdiction over the defendant, as discussed with answer choice B. In addition, personal jurisdiction is concerned with the defendant's relationship to the forum state, and not, as is the case with subject-matter jurisdiction, with whether the defendant and the plaintiff are citizens of different states. LEARN WHY NEXT QUESTION

A plaintiff filed a claim against a defendant corporation in federal district court sitting in diversity jurisdiction, alleging negligence in the design of an automobile manufactured by the defendant. The plaintiff asserted that, when she was driving the automobile on a highway, the steering mechanism failed, causing her injuries. On April 1, the defendant served a request for admission on the plaintiff, asking the plaintiff to admit that at the time of the accident she was driving in excess of the posted speed limit. As of May 2, the plaintiff had not served any written answer to the defendant's request for admission. How will the court treat the defendant's April 1 request for admission? AThe matter in the defendant's request for admission is deemed denied. BThe matter in the defendant's request for admission is deemed admitted. CThe matter in the defendant's request for admission is neither deemed admitted nor denied, but the defendant may be able to recover any expenses incurred in proving the matter. DThe court will require the defendant to make an application for an order to compel an answer to the request before the matter is admitted.

Answer choice B is correct. Under Rule 36, a party may serve upon any other party a written request for the admission of any relevant, non-privileged matters discoverable under Rule 26. A matter will be admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or her attorney. Here, the plaintiff failed to serve a written answer or objection to the request for admission. More than 30 days have passed since the time the request for admission was served on April 1. Therefore, the matter is admitted pursuant to Rule 36. Answer choice A is incorrect since the matter is admitted under the rule. Answer choice C is incorrect because the matter in the defendant's request for admission is admitted when 30 days pass from the time the request for admission was served and no written response is provided. Answer choice D is incorrect. The matter is automatically admitted once 30 days pass from the date of service of the request for admission. There is no need for a motion to compel an answer to the request in order to have the matter admitted.

A woman borrowed $100,000 from a bank and executed a promissory note to the bank in that amount. As security for repayment of the loan, the woman's brother gave the bank a mortgage on a tract of land solely owned by him. The brother did not sign the promissory note. The woman subsequently defaulted on the loan, and after acceleration, the bank instituted foreclosure proceedings on the brother's land. The brother filed a timely objection to the foreclosure. Will the bank succeed in foreclosing on the tract of land? ANo, because the bank has an equitable mortgage rather than a legal mortgage. BNo, because a mortgage from the brother is invalid without a mortgage debt owed by him. CYes, because the bank has a valid mortgage. DYes, because the bank is a surety for the brother's mortgage.

Answer choice C is correct. A mortgage is security for the performance of an act. The performance may be by the mortgagor or by some other person. The mortgage granted by the brother to secure the debt of the woman is valid even though the woman also has personal liability on the debt. Therefore, the mortgage granted by the brother to secure the debt of the woman is valid, and the bank may foreclose on it. Accordingly, answer choice B is incorrect. Answer choice A is incorrect because an equitable mortgage arises when an apparent unrestricted transfer of title in actuality comes with obligations, i.e., a "disguised mortgage." An equitable mortgage was not created under these facts. Answer choice D is incorrect because the bank is the mortgagee under the mortgage and not a surety. The bank may foreclose on the mortgage, however, because the mortgage is valid and the debt is in default.

A shareholder in a closely held corporation brought an action against the corporation to compel it to make a $100,000 distribution that had been authorized by the board of directors. The shareholder filed the action in a federal district court for the state in which the corporation was incorporated and had its principal place of business. The shareholder was born and grew up in a neighboring state, but recently moved to a foreign country with the intent to live there permanently, but with no intent to surrender her United States citizenship or acquire foreign citizenship. Does the court have subject-matter jurisdiction over this action? AYes, because the shareholder is domiciled in a foreign country. BYes, because the shareholder is a United States citizen. CNo, because diversity jurisdiction does not exist. DNo, because the corporation is not a federal corporation.

Answer choice C is correct. In order for diversity jurisdiction to exist with respect to an individual who is a party to an action, the party must either be a citizen of a state or a citizen (or subject) of a foreign country. State citizenship of a party turns on whether the party is domiciled in the state. Here, the shareholder is no longer domiciled in the neighboring state, but instead is domiciled in the foreign country where she currently lives and has the intent to remain permanently. Unlike state citizenship, citizenship in a foreign country generally does not depend on domicile but on whether the individual has taken the necessary steps to become a citizen. Here, since the shareholder does not plan to renounce her United States citizenship or acquire foreign citizenship, she continues to be a United States citizen. As a consequence, she is neither a citizen of a state nor a citizen (or subject) of a foreign country and cannot be a party to an action brought in federal court on the basis of diversity. Answer choice A is incorrect because, although the shareholder is domiciled in a foreign country, she is not a citizen of that country, but instead remains a United States citizen. Consequently, alienage jurisdiction does not exist. Answer choice B is incorrect because, although the shareholder remains a citizen of the United States, she is not a citizen of any state since her domicile, which is the test for state citizenship, is now a foreign country. Answer choice D is incorrect because a corporation need not be a federal corporation in order to be sued in federal court.

A state enacted a statute imposing a tax on all negotiable notes issued by banks, including national (i.e., federal) banks, not incorporated within the state. Would the statute be valid as applied to a national bank located in the state? AYes, because the state has absolute authority to tax non-commercial activities in the state. BYes, because the tax does not violate the dormant commerce clause. CNo, because the national bank would be immune from state taxation. DNo, because the tax is a means of regulation within the state's borders.

Answer choice C is correct. The federal government and its instrumentalities (such as a national bank chartered by the federal government) are immune from taxation by the states. States may, however, impose generally applicable indirect taxes so long as they do not unreasonably burden the federal government (e.g., state income taxes on federal employees). The tax here is not so indirect as to be permitted, especially as it would create a burden on the federal government, which would be forced to apply different taxes to notes issued in national banks across the country. Answer choice A is incorrect because the state has no such absolute authority. This answer is overly vague, and further, the exchange of bank notes would be considered commercial. Answer choice B is incorrect because even if the tax does not violate the dormant commerce clause, it could still possibly be invalidated if it was unconstitutional for other reasons (such as the national bank's immunity from state taxation.) The commerce clause analysis would not be the end of the analysis. Answer choice D is incorrect because the tax is clearly a tax and not a regulation. Had it been a regulation, a different analysis would have applied. Regulation by the state would be even less likely to be permitted unless Congress had permitted the regulation or if the regulation was consistent with federal policy. LEARN WHY NEXT QUESTION

A fatal virus recently infected poultry in several nations. Some scientific evidence indicates that the virus can be transmitted from poultry to humans. Poultry farming is a major industry in several U.S. states. In one such state, the legislature has enacted a law imposing a fee of two cents per bird on all poultry farming and processing operations in the state. The purpose of the fee is to pay for a state inspection system to ensure that no poultry raised or processed in the state is infected with the virus. A company that has poultry processing plants both in the state and in other states has sued to challenge the fee. Is the fee constitutional? ANo, because although it attaches only to intrastate activity, in the aggregate, the fee substantially affects interstate commerce. BNo, because it places an undue burden on interstate commerce in violation of the negative implications of the commerce clause. CYes, because it applies only to activities that take place wholly within the state, and it does not unduly burden interstate commerce. DYes, because it was enacted pursuant to the state's police power, which takes precedence over the negative implications of the commerce clause.

Answer choice C is correct. The fee does not violate the dormant commerce clause (i.e., the Negative Commerce Clause), because it does not discriminate against interstate commerce, and its burden on interstate commerce is not clearly excessive in relation to the legitimate public health benefit the inspection system will bring to the state. Accordingly, answer choice B is incorrect. Answer choice A is incorrect because having a substantial effect on interstate commerce does not make the fee unconstitutional. The fee in this case is constitutional, because it does not violate the dormant commerce clause, for the reasons explained with regard to answer choice C. Answer choice D is incorrect because the fee was enacted pursuant to the state's police power, but the supremacy clause of the Constitution prohibits state laws that violate federal constitutional limits on state authority.

A builder constructed a residence and sold it to a buyer. The contract of sale stated that the residence was sold "as is." Before the buyer could move into the residence, he was killed in an accident, and his estate sold the residence to a new owner. The owner lived in the house for several years, during which the winters were uncharacteristically mild. One winter, by contrast, produced more typical, extremely cold temperatures. When attempting to heat her residence, the owner discovered that the size of the furnace was inadequate to properly do so. Due to an erroneous calculation, the builder had installed an incorrectly sized furnace. After unsuccessful attempts to convince the builder to install an adequately sized furnace, the owner brought suit against the builder for breach of the warranty of suitability, which has been recognized by the courts of the state in which the residence sits. Which of the following is the builder's strongest defense to the owner's suit? AThe builder was not aware that the size of the furnace was inadequate. BThe builder disclaimed the warranty of suitability by selling the residence "as is." CThe owner did not bring the suit within a reasonable time. DThe owner did not purchase the residence from the builder.

Answer choice C is correct. The warranty of suitability is subject to a reasonable time limit. A delay of several years may be unreasonable and hence provide the builder with a possible defense. Because the other answer choices would not provide a defense to the builder, this is the strongest argument. Answer choice A is incorrect because the warranty of suitability is an assertion by the seller that he has used adequate materials and good workmanship in constructing a residence. This implied warranty may be breached by a seller's negligent behavior or intentional conduct. Consequently, the builder's lack of awareness as to the inadequately sized furnace does not serve as a defense. Answer choice B is incorrect because a warranty of suitability (also known as a warranty of fitness, quality, workmanlike construction, performance, or habitability), which is implied in a land sales contract for the purchase of a newly constructed residence, cannot be disclaimed by general disclaimer language, such as "property is sold as is." Answer choice D is incorrect because the warranty of suitability action may be brought in most jurisdictions by a subsequent homeowner as well as by the initial purchaser of the residence. LEARN WHY NEXT QUESTION

A few weeks before the beginning of a murder trial, a witness to the murder identified the defendant in a photo array as the person who killed the victim. Between the time of the photo array and the trial, the witness died. The witness was the only eyewitness to the crime, aside from the victim and the murderer, so the prosecution wants to admit at the trial the witness's identification of the defendant from the photo array. The defendant's attorney objects to the introduction of the statement, but the prosecutor claims that as a prior statement of identification, it is admissible. Is the statement admissible as a prior statement of identification? A Yes, because prior statements of identification are admissible as non-hearsay. B Yes, because the witness is unavailable to testify. C No, because the witness did not testify at the present trial. D No, because the witness did not testify under oath at a previous trial, hearing, or deposition as to the identity of the murderer.

Answer choice C is correct. Under Federal Rule of Evidence 801(d), a prior statement of identification, which otherwise would qualify as hearsay, is treated as non-hearsay. Under Rule 801(d)(1)(C), a previous out-of-court identification of a person after perceiving that person is admissible as substantive evidence, but only if the witness testifies at the present trial or hearing and is subject to cross-examination concerning the identification. Here, since the witness died before the trial, her previous out-of-court identification of the defendant is inadmissible. Accordingly, answer choice B is incorrect. While some hearsay exceptions only apply when the witness is unavailable to testify, prior out-of-court identifications require that the declarant testify at trial. Answer choice A is incorrect because not all prior statements of identification are admissible as non-hearsay. As explained above, the witness must be available to testify and subject to cross-examination for the prior out-of-court identification to be admissible (or some other exception must apply, such as the prior statement of identification was made under oath). Answer choice D is incorrect because it is not necessary for a witness to testify under oath at a previous trial, hearing, or deposition for a prior statement of identification to be admissible. Additionally, even if the witness had previously testified under oath, the witness would still have to be subject to cross-examination at the current trial. As explained above, the witness must testify at the present trial or hearing and be subject to cross-examination concerning the identification.

The owner of an antique pocket watch took it to a jeweler for a cleaning. The jeweler, who also sold watches, convinced the owner that the expensive watch had little value and fraudulently purchased it from the owner for $50. The jeweler sold the watch to a collector for $5,000 after regaling the collector with the story of its acquisition. Does the collector have good title to the watch? AYes, because the jeweler was a merchant who dealt in pocket watches. BYes, because the collector did not participate in the jeweler's acquisition of the watch. CNo, because the jeweler obtained the watch by fraud. DNo, because the collector was not a good faith purchaser of the watch.

Answer choice D is correct. A person who purchases goods from the true owner can transfer good title to a good faith purchaser, even if the true owner could void the sale to the original purchaser because it was fraudulent. However, the collector was not a good faith purchaser of the watch from the jeweler because the collector knew that the jeweler acquired the watch through fraud. Answer choice A is incorrect because, although a merchant without good title in goods can transfer good title to a purchaser where the merchant has been entrusted with the goods by the true owner, the jeweler gained possession of the watch through purchase not by entrustment. Answer choice B is incorrect because, even though the collector did not participate in the jeweler's swindle of the watch owner, the collector, at the time the collector purchased the watch, was aware of the jeweler's fraudulent acquisition of the watch and consequently cannot be a good faith purchaser. Answer choice C is incorrect because, even though the jeweler's acquisition of the watch was fraudulent, the jeweler had the power to transfer good title to the watch to a good faith purchaser.

A federal counterintelligence unit has been trying to locate a specific terrorist group for over a decade. A newspaper reaching an international audience gains knowledge of the unit's specific location and a plan for capturing members of the terrorist group. The plan for the capture of the terrorist group coincides with the imminent anniversary date of a prior terrorist attack by the group. Just prior to that date, the newspaper intends to publish an article that focuses on the prior attack, but in light of the plan, ends with the following words: "And to those who attacked our citizens: We know where you are, and we are coming to get you." The government files a motion for an injunction to prevent the newspaper from printing the story with that ending. The government asserts that the publication will alert the group to the impending attack and provide them with time to avoid capture. The government requests that the publisher not be allowed to publish the article as is until further notification from the counterintelligence unit. In responding to the motion, the publisher alleges that the article does not threaten national security, but fails to assert that the article is protected speech. Which of the following would the court least likely consider in its decision? AThe words included in the article are insufficient to cause a particular harm. BThe publisher was given a hearing before the injunction was issued. CThe publisher cannot publish the article within the foreseeable future. DThe publisher did not prove that the article was protected speech.

Answer choice D is correct. A prior restraint is a regulation of speech that occurs in advance of its expression (e.g., publication or utterance). In prior restraint cases, the burden is on the government to prove that the material to be censored is not protected speech. The publisher would therefore have no such burden, even if national security had been threatened. Answer choice A is incorrect because whether a particular harm might be avoided by prior restraint would be an important consideration. Answer choice B is incorrect because such a hearing would be evidence of a procedural safeguard highly relevant to determining whether a prior restraint is constitutional. Answer choice C is incorrect because a definite term for the restraint would be a safeguard available to the speaker. The fact that the restraint would occur "until further notification" is too indefinite and would be problematic for the censoring body.

During military drills that occurred during a severe storm, a military jet was forced to make an emergency landing. As there were no airports nearby, the jet was forced to land on a farmer's property. The landing destroyed acres of growing crops, resulting in a substantial economic loss for the farmer. The landing destroyed not only the growing crops (which he intended to sell months later), but also the possibility of growing further crops for the rest of the season. However, the farmer will be able to plant crops the following spring as normal. The farmer filed suit under constitutional law principles on the basis that he is owed just compensation for the value he would have been able to receive months later when selling the crops. He has not yet filed any tort claim related to the destruction of his crops. Which of the following amounts would constitute the most likely amount to be received by the farmer based on the current suit? AThe value of the crops at the time they were destroyed, because the action constituted a taking. BThe value of the crops at the time they would be sold, because the actions constituted a taking. CNothing, because the farmer was not planning to sell the crops when they were destroyed by the landing. DNothing, because the landing would not constitute a taking.

Answer choice D is correct. A taking is almost always found in the following situations: (i) When there is an actual appropriation or destruction of property, or the government permanently physically invades the property; and (ii) when there is a permanent, total loss of economic value in the land. Note that a decrease in economic value, a temporary denial of economic use, utility rate regulation, and zoning ordinances do not necessarily result in a taking, unless the above rules are met. Further note that even if there is destruction or actual occupation of private property, a taking is less likely to be found in emergency situations. Here, while the damage is severe for the season, it does not permanently destroy the land: only a temporary denial of economic use occurs. Also, because the jet was forced to land due to an emergency, a taking would be even less likely to be found. Answer choice A is incorrect because the action would not constitute a taking, and the man would not be eligible to receive any compensation. Answer choice B is incorrect because not only did the landing not represent a taking, but if it was a taking, he would be only entitled to the fair market value of the crops at the time of the taking. Answer choice C is incorrect because regardless of the value of the land at the time of the taking, the landing did not constitute a taking. Further, although the crops were not yet ready for sale, there was some economic value attributable to the crops.

A shareholder of a corporation brought a derivative action on behalf of the corporation against a director of the corporation for breach of her duty of loyalty. The shareholder sought to call the director's ex-husband to testify to a private conversation between the director and ex-husband while they were married, in which the director stated, "I'm going to buy that land and then resell it to the corporation. I'll make a killing." Which of the following grounds would be the best ground upon which the director could object to the admission of this testimony? AHearsay. BBias. CSpousal immunity privilege. DMarital communications privilege.

Answer choice D is correct. The marital communications privilege protects confidential communication made between spouses while they are married. Either spouse may assert the privilege. As discussed below, none of the other choices provide adequate grounds on which to prevent the admission of the ex-husband's testimony. Answer choice A is incorrect because, although the relevant out-of-court statement made by the director was being offered to prove the truth of the matter asserted (i.e., that the director sought to usurp a corporate opportunity), the statement is non-hearsay because it was made by an opposing party. Answer choice B is incorrect because, while a witness may be impeached with evidence of bias, the fact that a witness is biased is not grounds for preventing the witness from testifying. Answer choice C is incorrect because the spousal immunity privilege applies only in criminal cases and only where the witness and a party are currently married, and may be asserted only by the witness-spouse. None of these requirements are satisfied in this instance.

In the most recent deed in the chain of title to a tract of land, a man conveyed the land as follows: "To my niece and her heirs and assigns in fee simple until my niece's daughter marries, and then to my niece's daughter and her heirs and assigns in fee simple." There is no applicable statute, and the common law Rule Against Perpetuities has not been modified in the jurisdiction. Which of the following is the most accurate statement concerning the title to the land? AThe niece has a life estate and the daughter has a contingent remainder. BThe niece has a fee simple and the daughter has no interest, because after the grant of a fee simple there can be no gift over. CThe niece has a fee simple and the daughter has no interest, because she might not marry within 21 years after the date of the deed. DThe niece has a defeasible fee simple determinable and the daughter has an executory interest.

Answer choice D is correct. The niece has a defeasible fee simple—specifically, a fee simple determinable subject to an executory interest—because of the limitation placed on the estate by the words "until my niece's daughter marries." If the niece's daughter marries, the estate in the niece will end automatically and will pass to the holder of the future interest (the niece's daughter). The future interest given to the daughter, a third-party grantee, is an executory interest. The executory interest in this case does not violate the common law Rule Against Perpetuities, because it will be known within the lifetime of the validating lives--the niece and the niece's daughter--whether the condition of marriage has occurred. Accordingly, answer choice B is incorrect. Answer choice A is incorrect because the gift to the niece was to the niece "and her heirs and assigns," thereby creating a fee estate rather than a life estate. The fee simple estate was made defeasible by the addition of the words of limitation "until my niece's daughter marries." A remainder interest may follow a life estate; however, a remainder does not follow a fee simple estate. Answer choice C is incorrect. The niece was granted a defeasible fee simple. The express limitation was the marriage of the niece's daughter. If the limitation occurs, the estate transfers automatically to the niece's daughter. The future interest held by a grantee following a defeasible estate is an executory interest. Executory interests are subject to the common law Rule Against Perpetuities; however, the niece and the niece's daughter are both validating lives and the condition of the marriage either will or will not occur during their lifetimes. The additional 21 years after the death of all validating lives is not needed, and the rule is not violated.

The defendant, a private employer, summarily fired the plaintiff as a result of a negative performance review. The defendant's Employee Handbook, however, promised employees that they had 60 days to address concerns raised in performance reviews, before the defendant made a final decision on their employment. The plaintiff's attorney filed a signed complaint in federal court reciting the foregoing facts and claiming that the defendant violated the Fourteenth Amendment's Due Process Clause by failing to follow its handbook procedures before firing the plaintiff. Since this Amendment was ratified, however, the Supreme Court has consistently and unanimously held that only state-not private-actors can violate this Amendment. The attorney believes that the Court should reverse this law because it hurts parties, like his client, who are victimized by private actors' procedural mistakes. The defendant moves for Rule 11 monetary sanctions against the plaintiff. Should the motion be granted? AYes, because the plaintiff's factual contentions lack evidentiary support. BYes, because the plaintiff's claims are not warranted by either existing Fourteenth Amendment law or a non-frivolous argument for reversing that law. CNo, because the plaintiff's claims are warranted by a non-frivolous argument for reversing existing Fourteenth Amendment law. DNo, because a court cannot impose a monetary sanction against a represented party on the ground that his claims are not warranted by existing law or a non-frivolous argument for reversing it.

Answer choice D is correct. Under Rule 11, the court generally has discretion to impose a monetary sanction against the plaintiff's attorney for violating Rule 11(b). However, under Rule 11(c), the court is not permitted to impose a monetary sanction against a represented party for violating the requirement that legal contentions be warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law. Here, it is frivolous for the attorney to argue that the Supreme Court should reverse its bedrock "state action" doctrine because he believes that it hurts parties like his client (which is not a legal argument at all). Therefore, a court cannot impose monetary sanctions against the plaintiff, a party represented by an attorney, on this ground. Answer choice A is incorrect because the plaintiff's factual contentions have evidentiary support; the problem is that these facts do not justify his legal claim. Answer choices B and C are incorrect for reasons already described.

An avid bicyclist brought a federal diversity action against a bicycle manufacturer based on strict products liability. The bicyclist sustained significant injuries when a defect in his bicycle's braking mechanism caused him to crash while competing in a road race. During discovery, the bicycle manufacturer provided the names, addresses, and telephone numbers of all the individuals likely to have discoverable information regarding the manufacture and design of the bicycle's brakes. Although it possessed a series of emails discussing the construction and manufacture of the braking mechanism that it planned to use in its defense, the bicycle manufacturer failed to provide the emails to the bicyclist. Twenty-one days after the discovery conference, the bicyclist petitioned the court for sanctions against the bicycle manufacturer for failure to disclose the emails. Should the court grant the bicyclist's request to sanction the bicycle manufacturer? AYes, because disclosure of the emails was mandatory. BYes, because the bicycle manufacturer failed to comply with a court order. CNo, because the bicycle manufacturer still had time to make the disclosure. DNo, because the bicyclist did not first serve a motion to compel on the bicycle manufacturer.

Answer choice D is correct. Under Rule 37, if a party fails to make the automatic disclosures required by Rule 26(a) or fails to respond to discovery that has been properly served, the party seeking the information may move to compel such disclosure or discovery. Generally, making a motion to compel is a prerequisite to obtaining any sanctions under Rule 37. In this case, the bicycle manufacturer failed to disclose the emails that it planned to use to support its defense. This information was subject to automatic disclosure under Rule 26(a). However, the bicyclist did not first serve a motion to compel on the bicycle manufacturer prior to seeking sanctions—a prerequisite to obtaining sanctions under Rule 37. Therefore, the court should not grant the bicyclist's request. Answer choice A is incorrect. Although the emails constituted information subject to mandatory and automatic disclosure and the failure to disclose thus violated Rule 26(a), the bicyclist must serve a motion to compel before seeking sanctions. Answer choice B is incorrect because the facts do not indicate that there was a court order in this case regarding discovery or disclosure. Rather, the bicycle manufacturer was required to disclose pursuant to the initial disclosure requirement of Rule 26(a)(1). Answer choice C is incorrect. Initial disclosures under Rule 26(a)(1), such as the emails here, must be made at or within 14 days after the parties' discovery conference, unless a different time is set by stipulation or court order. In this case, the facts indicate that the bicycle manufacturer still had not disclosed the emails 21 days after the discovery conference. Therefore, it did not have time remaining in which to properly make the disclosure.