MBE- OPE 1

A mother whose adult son was a law school graduate contracted with a tutor to give the son a bar exam preparation course. "If my son passes the bar exam," the mother explained to the tutor, "he has been promised a job with a law firm that will pay $55,000 a year." The tutor agreed to do the work for $5,000, although the going rate was $6,000. Before the instruction was to begin and before any payment was made, the tutor repudiated the contract. Although the mother or the son reasonably could have employed, for $6,000, an equally qualified instructor to replace the tutor, neither did so. The son failed the bar exam, and the law firm refused to employ him. It can be shown that had the son received the tutor's instruction, he would have passed the bar exam. If the mother and the son join as plaintiffs and sue the tutor for breach of contract, how much, if anything, are they entitled to recover? (A) $1,000, beca

$1,000 because all other damages could have been avoided by employing another qualified instructor- The victim of a breach is entitled to recover only those damages that could not reasonably have been avoided. Failure to take reasonable steps to mitigate damages defeats any claim for consequential damages. It does not, however, deprive the victims of the breach of the opportunity to claim damages measured by the difference between the contract price and the market price. Here, the mother and son could have paid $1,000 more to hire another instructor, and they are entitled to recover this amount—which is the amount they would have needed to spend to put them in the position they contracted for.

A carpenter contracted with a homeowner to remodel the homeowner's home for $10,000, the contract price to be paid on completion of the work. On May 29, relying on his expectation that he would finish the work and have the homeowner's payment on June 1, the carpenter contracted to buy a car under the following terms: "$10,000 in cash, if payment is made on June 1; if payment is made thereafter, the price is $12,000." The carpenter completed the work according to specifications on June 1 and demanded payment from the homeowner on that date. The homeowner, without any excuse, refused to pay. As a result, the carpenter became very excited, suffered a minor heart attack, and incurred related medical expenses of $4,000. The reasonable value of the carpenter's services in remodeling the homeowner's home was $13,000. In an action by the carpenter against the homeowner, which of the following should be the carpenter's measure of recovery?

$10,000 the contract price- The carpenter is entitled to the contract price for the work done. The other items of damage are unrecoverable either because they were unforeseeable at the time the contract was made or because they were not caused by the breach. No unjust enrichment claim is viable on these facts, because an unjust enrichment claim cannot exceed the contract price when all of the work giving rise to the claim has been done and the only remaining obligation is the payment of the contract price.

A four-year-old child sustained serious injuries when a playmate pushed him from between two parked cars into the street, where he was struck by a car. The child, by his representative, sued the driver of the car, the playmate's parents, and his own parents. At trial, the child's total damages were determined to be $100,000. The playmate's parents were determined to be 20% at fault because they had failed to adequately supervise her. The driver was found to be 50% at fault. The child's own parents were determined to be 30% at fault for failure to adequately supervise him. The court has adopted the pure comparative negligence doctrine, with joint and several liability, in place of the common law rules relating to plaintiff's fault. In addition, the common law doctrines relating to intra-family liability have been abrogated. What is the maximum amount, if anything, that the child's representative can recover from the driver?

$100,000- . Under joint and several liability, the entire amount can be collected from any one of the defendants. That defendant, in turn, can seek to recover a proportional share of the damages from the other defendants.

In January, a teacher contracts with a summer camp to serve as its head counselor at a salary of $10,000 for 10 weeks of service from the first of June to the middle of August. In March, the camp notified the teacher that it had hired someone else to act as head counselor and that the teacher's services would not be needed. In April, the teacher spent $200 traveling to interview at the only other summer camp for a position as its head counselor. The teacher was not chosen for that job. The teacher then took a position teaching in a local summer school at a salary of $6,000 for the same 10-week period as the summer camp. In a breach of contract action against the camp, to which of the following amounts as damages, is the teacher entitled?

$4,200- because the teacher is entitled to be put in the position would have been had contract been performed. Mitigation expenses can be recovered if they are reasonable.

A buyer entered into a written contract to purchase from a seller 1,000 sets of specially manufactured ball bearings of a nonstandard dimension for a price of $10 per set. The seller correctly calculated that it would cost $8 to manufacture each set. Delivery was scheduled for 60 days later. Fifty-five days later, after the seller had completed production of the 1,000 sets, the buyer abandoned the project that required the specially manufactured ball bearings and repudiated the contract with the seller. After notifying the buyer of his intention to resell, the seller sold the 1,000 sets of ball bearings to a salvage company for $2 per set. The seller then sued the buyer for damages. What damages should the court award to the seller?

$8 per set, representing the lost profits plus the unrecovered cost of production- The Uniform Commercial Code controls in this situation. The seller is entitled to be put in the position it would have been in if the contract had been performed. The proper measure of damages here is set out in UCC § 2-708(2), which provides that a seller is entitled to the profit the seller would have made ($2 per set), plus an allowance for costs reasonably incurred ($8 per set), minus payments received for resale of the goods ($2 per set)—here, the salvage. Accordingly, the seller should recover $2 + $8 - $2 = $8 per set

In a criminal trial, the evidence has shown that the defendant's neighbor entered the defendant's house with a knife and told the defendant that she was going to kill him. The defendant ran to his bedroom, picked up a gun, and told the neighbor to back off. The neighbor did not stop and stabbed the defendant in the arm. The defendant then shot the neighbor twice. The neighbor fell to the floor and lay quietly moaning. After a few seconds, the defendant fired a third shot into the neighbor. The case has gone to the jury, which has thus far found that the neighbor died instantly from the third shot and that the defendant was no longer in fear of being attacked by her when he fired the third shot. Of which of the following degrees of criminal homicide, if any, can the jury properly convict the defendant?

Murder or manslaughter- Whether the defendant is guilty of murder or manslaughter depends on whether the jury finds that he fired the third shot in the heat of passion provoked by the neighbor's earlier attack.

A city zoning ordinance requires that anyone who proposes to operate a group home obtain a special use permit from the city zoning board. The zoning ordinance defines a group home as a residence in which four or more unrelated adults reside. An individual applied for a special use permit to operate a group home for convicts during their transition from serving prison sentences to their release on parole. Although the proposed group home met all of the requirements for the special use permit, the zoning board denied the individual's application because of the nature of the proposed use. The individual sued the zoning board seeking declaratory and injunctive relief on constitutional grounds. Which of the following best states the appropriate burden of persuasion in this action?

Because the zoning board's action is in the nature of an economic or social welfare regulation, the individual seeking the permit must demonstrate that the denial of the permit is not rationally related to a legitimate state interest- The zoning board's denial of the permit discriminated against neither a suspect class nor a quasisuspect class. Nor did it unduly burden the exercise of a fundamental right. The denial therefore triggers rational basis scrutiny

A landlord leased an apartment to a tenant by written lease for 2 years ending on the last day of a recent month. The lease provided for $700 monthly rental. The tenant occupied the apartment and paid the rent for the first 15 months of the lease term until he moved to a job in another city. Without consulting the landlord, the tenant moved a friend into the apartment and signed an informal writing transferring the friend his lease rights for the remaining 9 months of the lease. The friend made the next four monthly $700 rental payments to the landlord. For the final 5 months of the lease term, no rent was paid by anyone, and the friend moved out with 3 months left of the lease term. The landlord was on an extended trip abroad and did not learn of the default and the vacancy until last week. The landlord sued the tenant and the friend, jointly and severally, for $3,500 for the last 5 months's rent. What is the likely outcome of the lawsuit?

Both the tenant and the friend are liable for the full $3,500, because the tenant is liable on privity of contract and the friend is liable on privity of estate as an assignee- tenant had privity of contract and estate with the landlord, then assigned their interest to friend for the remaining 9 months of the lease and friend became in privity of estate with the landlord to all promises that run with the land, including the covenant to pay rent. Tenant was not released by landlord so remains liable on privity of contract.

A woman decided to steal a necklace that belonged to her neighbor. She knew where the neighbor kept the necklace because she had been in the neighbor's house on many occasions when the neighbor had taken off the necklace and put it away in a jewelry box in the bathroom. One night, the woman went to the neighbor's house. The neighbor was away, and the house was dark. The woman opened the bathroom window, saw the jewelry box on the counter, and started to climb inside. As her leg cleared the window sill, the neighbor's dog began to bark loudly. Terrified, the woman jumped back outside and fled. The crimes below are listed in descending order of seriousness. What is the most serious crime, if any, committed by the woman?

Burglary- The woman is guilty of burglary because she unlawfully entered the neighbor's house at night with intent to commit a felony (larceny). The woman's actions constituted the requisite entry of the neighbor's house.

Congress enacted a federal statute providing that any state may "require labeling to show the state or other geographic origin of citrus fruit that is imported into the receiving state." Pursuant to the federal statute, a state that produced large quantities of citrus fruit enacted a law requiring all citrus fruit imported into the state to be stamped with a two-letter postal abbreviation signifying the state of the fruit's origin. The law did not impose any such requirement for citrus fruit grown within the state. When it adopted the law, the state legislature declared that its purpose was to reduce the risks of infection of local citrus crops by itinerant diseases that have been found to attack citrus fruit. A national association of citrus growers has sued to have the state law declared unconstitutional. The association claims that the law is prohibited by the negative implications of the commerce clause of the Constitution. Which of the following is the best argument in favor of the state's effort to have this lawsuit dismissed?

Congress has the authority to authorize specified state regulations that would otherwise be prohibited by the negative implications of the commerce clause, and it has done so in this situation- Congress may use its commerce power (Article I, Section 8, Clause 3 of the Constitution) to permit states to discriminate against interstate commerce. The federal statute here explicitly authorizes states to enact state-of-origin labeling requirements on imported citrus fruit.

A construction company was digging a trench for a new sewer line in a street in a high-crime neighborhood. During the course of the construction, there had been many thefts of tools and equipment from the construction area. One night, the construction company's employees neglected to place warning lights around the trench. A delivery truck drove into the trench and broke an axle. While the truck driver was looking for a telephone to call a tow truck, thieves broke into the truck and stole $350,000 worth of goods. The delivery company sued the construction company to recover for the $350,000 loss and for the damage to its truck. The construction company has stipulated that it was negligent in failing to place warning lights around the trench and admits liability for damage to the truck, but it denies liability for the loss of the goods. On cross-motions for summary judgment on the claim for the goods, how should the court rule?

Deny both motions, because there is evidence to support a finding that the construction company should have realized that its negligence could create an opportunity for a third party commit a crime- A negligent tortfeasor is not generally liable for the criminal acts of third parties made possible by his negligence, but there is an exception when the tortfeasor should have realized the likelihood of the crime at the time of his negligence. The issue of foreseeability is generally a question for the jury. In this case, there had been many thefts from the construction area during the course of construction. Accordingly, there is enough evidence to support a jury verdict for the delivery company, but it is not so overwhelming as to require the judge to take the rare step of granting summary judgment for the delivery company

A man bought an antique car from a car dealer in State A. Under State A law, a person who buys from such a dealer acquires good title, even if the property was stolen from a previous owner. The man showed the car at an antique car show in State B. A woman recognized the car as having been stolen from her. Under State B law, a person whose property is stolen may reclaim it, even if the current possessor is an innocent purchaser. The woman sued the man in a State B court to reclaim the car. In his defense, the man claimed that he had good title under the law of State A. Nevertheless, the State B court applied State B law, and the woman prevailed. The man did not appeal. The sheriff had the car returned to State B and gave the woman possession of the car. Several months later, the woman moved to State A, bringing the car with her. The man brought a new suit against the woman in a State A court, claiming that the State B court in the prior suit should have applied the State A law, which protects innocent purchasers. The woman appeared and moved to dismiss the suit. What should the State A court do?g

Dismiss the suit, because the State A court must give full faith and credit to the State B judgment- The full faith and credit clause of the Constitution (Article IV, Section 1) prohibits state courts from re-litigating cases in which the courts of another state have rendered final judgment. Accordingly, the court in State A should dismiss the suit.

A car owner washed her car while it was parked on a public street, in violation of a local ordinance that prohibits the washing of vehicles on public streets during specified hours. The statute was enacted only to expedite the flow of automobile traffic. Due to sudden and unexpected cold weather, the car owner's waste water formed a puddle that froze in a crosswalk. A pedestrian slipped on the frozen puddle and broke her leg. The pedestrian sued the car owner to recover for her injury. At trial, the only evidence the pedestrian offered as to negligence was the car owner's admission that she had violated the ordinance. At the conclusion of the evidence, both parties moved for a directed verdict. How should the trial judge proceed?

Grant the car owner's motion, because the pedestrian has failed to offer adequate evidence that the car owner was negligent- The pedestrian offered no evidence supporting the claim of negligence except the ordinance violation. The ordinance was not adopted to reduce the risk of accumulating ice on public walkways. In fact, compliance with the ordinance by washing the car in a private driveway rather than on the street would not have reduced the risk of ice accumulating on a pedestrian walkway and may even have increased that risk. Accordingly, the car owner's motion should be granted.

A woman who is a computer expert decided to dedicate herself to exposing persons who trafficked in child pornography. She posted a number of sexually oriented photographs on her website. The file for each photograph contained an embedded Trojan horse program (a program that would allow the woman to enter the computer of anyone who downloaded the photograph). A man downloaded one of those photographs onto his personal computer. Using the embedded program, the woman entered the man's computer and found a file containing a pornographic photograph of a child. She copied the file and turned it over to a federal law enforcement agency. A federal agent told her that a successful prosecution would require more than one photograph and offered her a monetary reward for additional photographs leading to the man's conviction. The woman entered the man's computer again, and this time she found hundreds of child pornography photographs, which she turned over to the federal agency. The man was charged with multiple counts of violating federal child pornography statutes. He has moved to suppress the photographs that the woman discovered on his computer. The motion is based on both the Fourth Amendment and a federal statute forbidding interception of electronic communication without permission. The parties have stipulated that the woman's conduct in downloading photographs from the man's computer violated the interception statute. How should the court rule on the defendant's motion to suppress?

Grant the motion only as to the second set of photographs- Because authorities encouraged and offered to reward the woman for the second computer search, the woman was acting as a government agent with regard to that search, which violated the Fourth Amendment because it was conducted without a warrant.

A defendant was charged in federal court with selling a controlled substance (heroin) in interstate commerce. At trial, the prosecutor introduced evidence that the defendant had obtained the substance from a supplier in Kansas City and had delivered it in Chicago. The defendant denied that the substance in question was heroin, but he introduced no contrary evidence on the issue of transportation. Which of the following instructions regarding judicial notice may the judge legitimately give the jury?

If you find that the defendant obtained the drugs in Kansas City and delivered them to Chicago, then you may, but you are not required to, find the transaction was interstate in nature.

A defendant is on trial for attempted fraud. The state charges that the defendant switched a price tag from a cloth coat to a more expensive fur-trimmed coat and then presented the latter for purchase at the cash register. The defendant has testified in her own behalf that someone else must have switched the tag. On cross-examination, the prosecutor asks whether the defendant was convicted on two prior occasions of misdemeanor fraud of a retailer by the same means of switching the price tag on a fur-trimmed coat. Is the question about the prior convictions proper either to impeach the defendant or to prove that the defendant committed the crime?

It is proper both to prove the defendant committed the crime and to impeach the defendant- Under Federal Rule of Evidence 404(b), prior bad acts can be admitted to prove the defendant's conduct if offered for some purpose other than to show that the defendant is a bad person. In this case, the bad acts are very similar to the acts in dispute and may be admitted for other purposes such as proving intent, knowledge, lack of accident, and modus operandi (i.e., that the defendant has a tendency to engage in particularized activity that sets her apart from others). Thus the bad acts can be offered as proof that the defendant committed the crime charged. Moreover, the convictions are automatically admissible to impeach the defendant's character for truthfulness; fraud convictions clearly involve dishonesty or false statement, and so the court "must" admit the convictions under Rule 609(a)(2)

A businessman owned a hotel, subject to a mortgage securing a debt he owed to a bank. The businessman later acquired a nearby parking garage, financing a part of the purchase price with a loan from a financing company, secured by a mortgage on the parking garage. Two years thereafter, the businessman defaulted on the loan owed to the bank, which caused the full amount of that loan to become immediately due and payable. The bank decided not to foreclose the mortgage on the hotel at that time, but instead properly sued for the full amount of the defaulted loan. The bank obtained and properly filed a judgment for that amount. A statute of the jurisdiction provides: "Any judgment properly filed shall, for 10 years from filing, be a lien on the real property then owned or subsequently acquired by any person against whom the judgment is rendered." There is no other applicable statute, except the statute providing for judicial foreclosure of mortgages, which places no restrictions on deficiency judgments. Shortly thereafter, the bank brought an appropriate action for judicial foreclosure of its mortgage on the hotel and of its judgment lien on the parking garage. The financing company was joined as a party defendant, and appropriately sued for foreclosure of its mortgage on the parking garage, which was also in default. All procedures were properly followed, and the confirmed foreclosure sales resulted in the following: The net proceeds of the sale of the hotel to a third party were $200,000 less than the bank's mortgage balance. The net proceeds of the sale of the parking garage to a fourth party were $200,000 more than the financing company's mortgage balance. How should the $200,000 surplus arising from the sale of the parking garage be distributed?

It should be paid to the bank- The foreclosure sale of the bank's mortgage on the hotel was insufficient to pay the businessman's debt to the bank. The bank had received a judgment against the businessman for the entire amount of the defaulted loan. This judgment was properly filed, and the judgment lien applied to all property owned by the businessman during the 10-year time period, including the parking garage. After the financing company was paid in full from the funds generated by the foreclosure sale of its mortgage on the parking garage, the additional funds generated by that sale would be paid to the bank not as a deficiency judgment, but because of the unsatisfied amount of the prior money judgment.

A state legislature passed a statute providing that juries in criminal trials were to consist of 6 jurors, rather than 12, and that jury verdicts did not have to be unanimous but could be based on 5 votes out of 6 jurors. A defendant was tried for murder. Over his objection, he was tried by a jury composed of 6 jurors. The jurors found him guilty by a vote of 5 to 1, and over the defendant's objection, the court entered a judgment of conviction, which was affirmed on appeal by the state's highest court. The defendant seeks to overturn his conviction in a habeas corpus proceeding in federal court, claiming that the trial court violated his constitutional rights by allowing both a non-unanimous jury verdict and a jury composed of fewer than 12 members. How is the federal court likely to rule in this action?

It will set aside the conviction, because the 6-person jury verdict was not unanimous- the constitution requires unanimity when a 6 person jury is used

A customer asked to see an expensive watch in a jewelry store. In conversation with the store clerk, the customer falsely claimed to be the son of the mayor. When handed the watch, the customer asked if he could put it on, walk around a bit so he could see how it felt on his wrist, and then briefly step outside to observe it in natural light. The clerk agreed, saying, "I know I can trust someone like you with the merchandise." The customer walked out of the store wearing the watch and did not return. A week later, the clerk was at a gathering when she spotted the customer wearing the watch. She told him that he must either pay for the watch or give it back. He hissed, "You'll be sorry if you mess with me." Intimidated, the clerk backed off. The following list of crimes is in descending order of seriousness. What is the most serious crime the customer committed?

Larceny- The customer committed a trespassory taking and carrying away of another's property with the intent to steal it. He obtained possession of, but not title to, the watch by lying about a present fact.

A man, despondent and angry over losing his job, was contemplating suicide. With his revolver in his pocket, he went to a bar and drank until he was very intoxicated. He overheard a customer on the next barstool telling the bartender how it was necessary for companies to downsize in order to keep the economy strong. The man turned to the customer and said, "Why don't you shut the hell up." The customer responded, "This is a free country, and I can say what I want," all the while shaking his finger at the man. The man became enraged, snatched his revolver from his pocket, and shot the customer, killing him. A state statute defines first-degree murder as "knowingly causing the death of another person after deliberation upon the matter." Deliberation is defined as "cool reflection for any length of time, no matter how brief." Second-degree murder is defined as "knowingly causing the death of another person." Manslaughter is defined as at common law. What crime did the man commit?

Murder in the second degree, because he knowingly caused the customer's death without deliberation- While the man's intoxication prevented the kind of "cool reflection" required for first-degree murder, it did not preclude the mental state required for second-degree murder.

A bus passenger was seated next to a woman whom he did not know. The woman stood to exit the bus, leaving a package on the seat. The passenger lightly tapped the woman on the back to get her attention and to inform her that she had forgotten the package. Because the woman had recently had back surgery, the tap was painful and caused her to twist and seriously injure her back. If the woman sues the passenger to recover for the back injury, will she be likely to prevail?

No, because she is presumed to have consented to the ordinary contacts of daily life- The woman gave no indication that she did not want to be subjected to the ordinary contacts that are part of life in a crowded society. In the absence of such an indication from her, the passenger was entitled to believe that she implicitly consented to a light tap to get her attention. The passenger's touch was intentional, but it was neither unreasonable nor inconsistent with ordinary social norms privileging such contacts.

A husband and wife took their 12-year-old son to a political rally in an auditorium to hear a controversial United States senator speak. The speaker was late, and the wife stepped outside the auditorium to smoke a cigarette. While there, she saw a man placing what she believed to be a bomb against the back wall of the auditorium. She went back inside and told her husband what she had seen. Without alerting anyone, they took their son and left. Some 20 minutes later, the bomb exploded, killing 8 persons and injuring 50. In the jurisdiction, murder in the first degree is defined as an intentional homicide committed with premeditation and deliberation; murder in the second degree is defined as all other murder at common law; and manslaughter is defined as either a homicide in the heat of passion arising from adequate provocation or a homicide caused by gross negligence or reckless indifference to consequence. As to the deaths of the eight persons, what crime, if any, did the wife commit?

No crime- The wife did not have a legal duty to warn others of the bomb

Four men are being tried for conspiracy to commit a series of bank robberies. Nine successful bank robberies took place during the period of the charged conspiracy. Because the robbers wore masks and gloves and stole the bank surveillance tapes, no witnesses have been able to directly identify the robbers. Some circumstantial evidence ties each of the men to the overall conspiracy. During cross-examination, a prosecution witness testified that one of the men was in jail on other charges during the last six robberies. That man's lawyer has moved for a judgment of acquittal at the close of the government's case. Should the motion be granted?

No, because a conspirator need not be present at the commission of each crime conspired upon- A co-conspirator need not be present at the commission of each crime, nor does the arrest of one co-conspirator automatically terminate the conspiracy where other co-conspirators continue to carry out the goals of the conspiracy.

A bakery offered a chef a permanent full-time job as a pastry chef at a salary of $3,000 per month. The chef agreed to take the position and to begin work in two weeks. In her employment application, the chef had indicated that she was seeking a permanent job. One week after the chef was hired by the bakery, a hotel offered the chef a position as a restaurant manager at a salary of $3,500 a month. The chef accepted and promptly notified the bakery that she would not report for work at the bakery. Is the bakery likely to prevail in a lawsuit against the chef for breach of contract?

No, because a contract for permanent employment would be interpreted to mean the chef could leave at any time- The characterization of employment as "permanent" creates an employment-at-will relationship. In an employment-at-will relationship, either party can terminate the agreement at any time, without the termination being considered a breach (unless the termination violates an important public policy—which is not the case here). Accordingly, the chef is not liable for breach.

A defendant was charged with assault and battery in a jurisdiction that follows the "retreat" doctrine, and he pleaded self-defense. At his trial, the evidence established the following: A man and his wife were enjoying a drink at a tavern when the defendant entered and stood near the door. The wife whispered to her husband that the defendant was the man who had insulted her on the street the day before. The husband approached the defendant and said, "Get out of here, or I'll break your nose." The defendant said, "Don't come any closer, or I'll hurt you." When the husband raised his fists menacingly, the defendant pulled a can of pepper spray from his pocket, aimed it at the husband's face, and sprayed. The husband fell to the floor, writhing in pain. Should the defendant be convicted?

No, because he had no obligation to retreat before resorting to non deadly force- There is no obligation to retreat from a threat of violence unless the defender intends to use deadly force.

An undercover police detective told a local drug dealer that she wanted to buy cocaine, but that she needed time to raise the necessary funds. The drug dealer said that he needed time to get the cocaine. They agreed to meet again in 10 days. An hour later, without a warrant, other officers forcibly entered the drug dealer's apartment and arrested him for attempted possession of a controlled substance. If the drug dealer is prosecuted in a common-law jurisdiction for attempted possession of cocaine, should he be convicted?

No, because he had not taken sufficient acts toward commission of the crime- common law attempt requires the D to commit some act (beyond preparation) toward bringing about the intended crime. Drug dealer took no steps to securing the cocaine.

In a civil trial arising from a car accident at an intersection, the plaintiff testified on direct that he came to a full stop at the intersection. On cross, the D'aw lawyer asked whether the P claimed that he was exercising due care at the time, and the P replied that he was driving carefully. At a sidebar conference, the D's lawyer sought permission to ask the P about two prior intersection accidents in the last 12 months where he received traffic citations for failing to stop at signs. The P's lawyer objected. Should the court allow defense counsel to ask the P about the two prior incidents?

No, because improperly failing to stop on the recent occasions does not bear on the P's veracity and does not contradict his testimony in this case- 608(b) allows impeachment with prior bad acts that bear on truthfulness and failing to stop at a stop sign does not bear on truthfulness. Carelessness is a character trait that is inadmissible in a civil trial to prove how a person acted on the occasion in question.

A state university adopted a new regulation prohibiting certain kinds of speech on campus. Students, staff, and faculty convicted by campus tribunals of violating the regulation were subject to penalties that included fines, suspensions, expulsions, and termination of employment. The regulation was widely unpopular, and there was a great deal of public anger directed toward the two tenured professors who had drafted and promoted it. The following year, the state legislature approved a severable provision in the appropriations bill for the university declaring that none of the university's funding could be used to pay the two professors, who were specifically named in the provision. In the past, the professors' salaries had always been paid from funds appropriated to the university by the legislature, and the university had no other funds that could be used to pay them. If the professors challenge the constitutionality of the appropriations provision, is the court likely to uphold the provision?

No, because it amounts to the imposition of a punishment by the legislature without trial- The provision is a bill of attainder in violation of Article I, Section 10, Clause 1 of the Constitution. A bill of attainder is a law that provides for the punishment of a particular person without trial. The challenged provision satisfies this definition because it deprives the two named professors of their salaries and thus their employment.

A toy manufacturer that has its headquarters and sole manufacturing plant in the state of green developed a "Martian" toy that simulates the exploration of Mars by a remote-controlled vehicle. It accurately depicts the martian landscape and the unmanned exploratory vehicle traversing it. The toy is of high quality, safe, durable, and has sold very well. Other toy manufacturers, all located outside green, developed similar toys that are lower in price. These manufacturers have contracts to sell their martian toys to outlets in Green. Although these toys are safe and durable, they depict the Martian landscape less realistically than the toys manufactured in Green. Nevertheless, because of the price difference, sales of these toys have cute severely into the sale of the Martian toys manufactured in Green. The Green legislature subsequently enacted a law "to protect the children of Green from faulty science and to protect Green toy manufacturers from unfair competition." This law forbids the sale in Green of any toy that purports to represent ET objects and does not satisfy specified scientific criterias. The Martian toy manufactured in Green satisfies all of these criteria; none of the Martian toys of the competing manufacturers meets the requirements. Is the Green law constitutional?

No, because it imposes an undue burden on interstate commerce- Congress has the power to regulate interstate commerce and restrict the power of the states to regulate interstate commerce, and state laws may not be protectionist or impose an undue burden on commerce. State law that is discriminatory is protectionist unless it serves a legitimate local interest that cannot be achieved by other nondiscriminatory measures. There were less discriminatory alternatives available.

A plaintiff sued her employer, alleging that poor working conditions had caused her to develop a stomach ulcer. At trial, the plaintiff's medical expert testified to the cause of the plaintiff's ulcer and stated that his opinion was based in part on information in a letter the plaintiff's personal doctor had written to the plaintiff's employer, explaining why the plaintiff had missed work. When offered to prove the cause of the plaintiff's condition, is the letter from the plaintiff's doctor admissible?

No, because it is hearsay not within any exception- The doctor's letter is not a business record under Federal Rule of Evidence 803(6), because it was not prepared in the ordinary course of a regularly conducted activity. In addition, it cannot be admitted simply because an expert relies upon it. Rule 703 does allow an expert to rely on hearsay in reaching a conclusion, so long as other experts in the field would reasonably rely on such information. But the rule distinguishes between expert reliance on the hearsay and admitting the hearsay at trial for the jury to consider. Generally speaking, hearsay will not be admissible when offered only because the expert relied upon it. The probative value of the hearsay in illustrating the basis of the expert's opinion must substantially outweigh its prejudicial effect. That strict balancing test is not met in this case. There is no other exception that appears even close to being applicable, so the letter is inadmissible hearsay.

In a personal injury case, the plaintiff sued a retail store for injuries she sustained from a fall in the store. The plaintiff alleged that the store had negligently allowed its entryway to become slippery from snow tracked in from the sidewalk. Before the lawsuit was filed, when the plaintiff first threatened to sue, the store's manager said, "I know that there was slush on that marble entryway, but I think your four-inch-high heels were the real cause of your fall. So let's agree that we'll pay your medical bills, and you release us from any claims you might have." The plaintiff refused the offer. At trial, the plaintiff seeks to testify to the manager's statement that "there was slush on that marble entryway." Is the statement about the slush in the entryway admissible?

No, because it was a statement made in the course of compromise negotiations- Federal Rule of Evidence 408 excludes evidence of conduct or statements made in compromise negotiations. Here, there was a dispute, and the manager's statement was made in an effort to settle that dispute. Therefore, the entire statement is inadmissible under Rule 408.

Several public high school students asked the superintendent of their public school district whether the minister of a local church could deliver an interdenominational prayer at their graduation ceremony in the school auditorium. None of the students or their guests at graduation would be required to pray while the minister delivered the prayer. Would the minister's delivery of such a prayer at the public high school graduation be constitutional?

No, because it would be an unconstitutional establishment of religion- The U.S. Supreme Court has held that officially sponsored prayers as part of public high school graduation ceremonies, like the prayer at issue in this case, violate the establishment clause of the First Amendment.

A defendant was charged with manslaughter. At the preliminary hearing, the magistrate dismissed the charge on the ground that the evidence was insufficient. The prosecutor then brought the case before a grand jury. After hearing the evidence presented by the prosecutor, the grand jury refused to return an indictment. The prosecutor waited a few months until a new grand jury had been impaneled and brought the case before that grand jury, which returned an indictment charging the defendant with manslaughter. The defendant has moved to dismiss the indictment on double jeopardy grounds. Should the motion be granted?

No, because jeopardy has not attached- Jeopardy does not attach at a preliminary hearing. Jeopardy attaches in a jury trial when the jury is sworn, and in a bench trial when the court begins to hear evidence.

9 gang members were indicted for the murder of a tenth gang member who had become an informant. The gang leader pleaded guilty. At the trial of the other 8, the state's evidence showed the following: The gang leader announced a party to celebrate the recent release of a gang member from jail. But the party was not what it seemed. The gang leader had learned that the recently released gang member had earned his freedom by informing the authorities about the gang's criminal activities. The gang leader decided to use the party to let the other gang members see what happened to a snithc. He told no one about his plan. At the party, after all present had consumed large amounts of liquor, the gang leader announced that the released gang member was an informant and stabbed him with a knife in front of the others. The 8 other gang members watched and did nothing while the informant slowly bled to death. The jury found the 8 gang members guilty of murder and they appealed. Should the appellate court uphold the convictions?

No, because mere presence at the scene of a crime is insufficient to make one an accomplice- the gang members took no affirmative steps and were merely present at the crime scene

The personnel director of an investment company told a job applicant during an interview that the company was worth millions of dollars and that the company's portfolio would triple in the next several months. The applicant was very excited about the company's prospects and accepted an offer to work for the company. Two days later, the applicant read in the newspaper that the investment company had filed for bankruptcy reorganization. As a result of reading this news, the applicant suffered severe emotional distress, but he immediately found another comparable position. Is the applicant likely to prevail in an action for negligent misrepresentation?

No, because the applicant did not suffer any physical injury or pecuniary loss- The situations in which a plaintiff can recover after suffering only emotional distress as a consequence of a defendant's negligence are limited, and this is not one of them. Recovery for negligent misrepresentation is usually limited to pecuniary loss unless it involves a risk of physical harm. In this case, the applicant found a comparable position promptly, so he suffered no harm from the personnel director's misrepresentation other than his emotional distress.

A grantor executed an instrument in the proper form of a warranty deed purporting to convey a tract of land to his church. The granting clause of the instrument ran to the church "and its successors forever, so long as the premises are used for church purposes." The church took possession of the land and used it as its site of worship for many years. Subsequently, the church decided to relocate and entered into a valid written contract to sell the land to a buyer for a substantial price. The buyer wanted to use the land as a site for business activities and objected to the church's title. The contract contained no provision relating to the quality of title the church was bound to convey. There is no applicable statute. When the buyer refused to close, the church sued the buyer for specific performance and properly joined the grantor as a party. Is the church likely to prevail?

No, because the grantor's interest prevents the church's title from being marketable- The warranty deed conveyed a fee simple determinable title to the church, and the grantor retained the future interest, which is the possibility of reverter. The future interest becomes possessory immediately upon the occurrence of the limitation. A title is unmarketable when a reasonable person would not purchase it. This buyer planned to use the land as a site for business purposes, which would cause the limitation to occur and the title to be forfeited automatically to the grantor.

A host pointed an unloaded revolver at her guest, threatening to shoot him. The guest knew that the revolver was not loaded, and that the ammunition for the revolver was stored in a locked basement closet, two stories below where the two were then standing. In an action brought by the guest against the host for assault, will the guest be likely to prevail?

No, because the host did not put her guest in apprehension of an imminent contact- The tort of assault requires that the plaintiff have an apprehension of an imminent harmful or offensive bodily contact. That result did not occur here, because the guest knew that the revolver was not loaded and that the ammunition was in a locked basement closet

In a civil trial for professional malpractice, the plaintiff sought to show that the defendant, an engineer had designed the plaintiff's flour mill with inadequate power. The plaintiff called an expert witness who based his testimony solely on his own professional experience but also asserted, when asked, that the book Smith and Milling Systems was a reliable treatise in the field and consistent with his views. On cross-examination, the defendant asked the witness whether he and Smith were ever wrong. The witness answered, "Nobody's perfect." The defendant asked no further questions. The defendant called a second expert witness and asked, "Do you accept the Smith book as reliable?" The second witness said, "It once was, but it is now badly out of date." The plaintiff requested that the jury be allowed to examine the book and judge for itself the book's reliability. Should the court allow the jury to examine the book?

No, because the jury may consider only passages read to it by counsel or witness- 803(18) learned treatise hearsay exception allows statements to be read into evidence, but the publication may not be received as an exhibit. Jury is not allowed to bring learned treatises into the jury room because might rely on part of publication not relevant to the case.

An innkeeper, who had no previous experience in the motel or commercial laundry business and who knew nothing about the trade usages of either business, bought a motel and signed an agreement with a laundry company for the motel's laundry services. The agreement was for a term of one year and provided for "daily service at $500 a week." From their conversations during negotiation, the laundry company owner knew that the innkeeper expected laundry services seven days a week. When the laundry company refused to pick up the motel's laundry on two successive Sundays and indicated that it would never do so, the innkeeper canceled the agreement. The laundry company sued the innkeeper for breach of contract. At trial, clear evidence was introduced to show that in the commercial laundry business "daily service" did not include service on Sundays. Is the laundry company likely to succeed in its action?

No, because the laundry company knew the meaning the innkeeper attached to daily service and therefore the innkeeper's meaning will control- When parties attach significantly different meanings to the same material term, the meaning that controls is the one "attached by one of them if at the time the agreement was made . . . that party did not know of any different meaning attached by the other, and the other knew the meaning attached by the first party." Restatement (Second) of Contracts § 201. In this case, the innkeeper did not know, at the time of contract formation, that the laundry company attached a different meaning to the term "daily service" than its apparent meaning of every day of the week. Conversely, the laundry company knew that the innkeeper thought he was contracting for service seven days a week. Accordingly, the innkeeper's understanding of the term will control.

A customer fell and injured himself when he slipped on a banana peel while shopping at a grocery store. The banana peel was fresh and unblemished except for a mark made by the heel of the customer's shoe. In an action brought by the customer against the store, these are the only facts in evidence. Should the trial judge permit the case to go to the jury? (A) No, because the customer had an obligation to watch wher

No, because there is not a reasonable basis for inferring that the grocer knew or should have known of the banana peel- Unlike slip-and-fall cases in which res ipsa loquitur is appropriate, the condition of the banana peel in the present case indicates that it had not been on the floor for a significant amount of time. Therefore, there is not enough evidence to support a jury verdict that the store's employees were negligent in failing to find the banana peel and remove it before the customer fell.

A group of students at a state university's law school wished to debate the future of affirmative action in that state and at that law school. For this debate, they requested the use of a meeting room in the law school that is available on a first-come, first-served basis for extracurricular student use. Speakers presenting all sides of the issue were scheduled to participate. The law school administration denied the use of its meeting room for this purpose solely because it believed that "such a debate, even if balanced, would have a negative effect on the morale of the law school community and might cause friction among the students that would disrupt the institution's educational mission." Is the law school's denial of the use of its meeting room for this purpose constitutional?

No, because the law school administration cannot demonstrate that its action was necessary to vindicate a compelling state interest- The law school's denial of the meeting room to the student group violates the speech clause of the First Amendment. The meeting rooms are a limited public forum, because the law school makes the rooms generally available for extracurricular student use. Because the meeting rooms are a limited public forum, the law students had a First Amendment right to use the rooms for expressive activity consistent with their purpose (i.e., extracurricular student use). Because the law school's denial of the room use was based on the content of the students' expression, the denial must be tested by strict scrutiny, which requires the law school to prove that its denial was necessary to serve a compelling government interest. It is unusual for the courts to uphold content-based speech restrictions under a strict scrutiny analysis, and the law school's concerns here are clearly insufficient to meet that test.

In financial straits and needing $4,000 immediately, a nephew asked his uncle for a $4,000 loan. The uncle said that he would lend the money to the nephew only if the nephew's mother would "guarantee" the loan. At the nephew's suggestion, the uncle then telephoned the nephew's mother, told her about the loan, and asked if she would guarantee it. She replied, "Yes. Lend my son the $4,000, and I'll repay it if he doesn't." The uncle then lent $4,000 to the nephew, and the nephew orally agreed to repay that amount in six weeks. The next day, the nephew's mother wrote to him and concluded her letter with the words, "Son, I was happy to do you a favor by promising your uncle I would repay your six-week $4,000 loan if you don't. /s/ Mother." Neither the nephew nor his mother repaid the loan when it came due, and the uncle sued the mother for breach of contract. In that action, the mother raised the statute of frauds as her only defense. Will the mother's statute-of-frauds defense likely be successful?

No, because the mother's letter satisfied the statute-of-frauds requirement- There is a statute-of-frauds requirement in cases of promises to answer for the debt of another. But the memorandum sufficient to satisfy the statute need not be written at the time of the making of the promise, nor need it be a writing addressed to the promisee. In this case, the mother's letter to her son, the nephew, satisfies the writing requirement of the statute of frauds.

A driver, returning from a long shift at a factory, fell asleep at the wheel and lost control of his car. As a result, his car collided with a police car driven by an officer who was returning to the station after having responded to an emergency. The police officer was injured in the accident. The police officer sued the driver in negligence for her injuries. The driver moved for summary judgment, arguing that the common-law firefighter's rule barred the suit. Should the court grant the motion?

No, because the police officer's injuries were not related to any special dangers of her job- driver can be held liable for negligence because being struck by a car in traffic is not a special risk inherent to police work. Firefighter's rule bars claims for injuries resulting from special or unique risks to P's inherently dangerous work.

An associate professor in the pediatrics department of a local medical school was denied tenure. He asked a national education lobbying organization to represent him in his efforts to have the tenure decision reversed. In response to a letter from the organization on the professor's behalf, the dean of the medical school wrote to the organization explaining truthfully that the professor had been denied tenure because of reports that he had abused two of his former patients. Several months later, after a thorough investigation, the allegations were proven false, and the professor was granted tenure. He had remained working at the medical school at full pay during the tenure decision review process and thus suffered no pecuniary harm. In a suit for libel by the professor against the dean of the medical school, will the professor be likely to prevail?

No, because the professor invited the libel- The professor can state a prima facie case of defamation, but he cannot prevail because the dean has a valid defense based on the dean's reasonable belief that the professor had invited him to speak. By authorizing his agents to investigate his case, the professor had apparently consented to limited publication in response to their inquiries. Ill will, if it existed, would be irrelevant to this defense.

During a comprehensive evaluation of an adult patient's psychiatric condition, the psychiatrist failed to diagnose the patient's suicidal state. One day after the misdiagnosis, the patient committed suicide. The patient's father immediately after having been told of his son's suicide, suffered severe emotional distress, which resulted in a stroke. The patient's father was not present at this son's appointment with the psychiatrist and did not witness the suicide. The father brought an action against the psychiatrist to recover for his severe emotional distress and the resulting stroke. Will the father prevail?

No, because the psychiatrist's professional duty did not extend to the harms suffered by the patient's father- a medical professional's duty of care only extends to their patient, the patient posed no threat to others so privacy and confidentiality lead the courts to deny a duty from therapists to non-patients when only the patient is at risk.

A dentist was anesthetizing a patient's jaw before pulling a tooth. Although the dentist used due care, the hypodermic needle broke off in the patient's gum tissue, causing injury. The needle broke because of a manufacturing defect that the dentist could not have detected. Is the patient likely to recover damages in an action against the dentist based on strict products liability and malpractice?

No, on neither basis- The strict products liability claim would fail because the dentist is not in the business of selling hypodermic needles, and the malpractice claim would fail because the patient cannot establish that the dentist departed from the professional standard of care.

The childhood home of a former U.S. president is part of a national park located in a city. The National Park Service entered into a contract with an independent antique collector to acquire items owned by residents of the city during the former president's lifetime. According to the contract, the collector purchases items and then sells them to the Park Service at a price equal to the collector's cost plus a 10% commission. Purchases by antique collectors are ordinarily subject to the sales tax of the state in which the city is located. The collector has filed suit in state court to enjoin collection of the tax on these purchases for the Park Service, claiming that the sales tax is unconstitutional as applied to them. Should the state court issue the injunction?

No, because the purchaser of these antiques, the collector rather than the federal government is liable for the tax- The responsibility for the state sales tax on the collector's purchases of antiques is on the collector, who is independent of the National Park Service. The fact that the collector passes the cost of the tax on to a federal agency when the collector sells an item to the agency does not change the responsibility for the tax on the collector's purchase. Accordingly, the court should not issue an injunction.

A seller and a purchaser signed a contract for the sale of a 60-year-old house. The contract required a warranty deed to be given at closing. The contract was silent regarding the condition of the house, and the purchaser did not ask. The purchaser received a warranty deed with all covenants of title at the closing and promptly recorded the deed. Approximately one month after the closing, the furnace in the house stopped working, the basement flooded, and the roof leaked so badly that the second floor could not be occupied. The seller, when told of the house's condition, was genuinely surprised. There is no applicable statute. The purchaser has sued the seller for damages. Will the purchaser likely be successful?

No, because the seller gave no warranty regarding the condition of the house- The seller made no representations about the condition of the house, and there was no statute in place requiring any disclosure regarding condition. Even when a seller has a duty of disclosure, it is only to disclose known defects.

A state statute requires, without exception, that a woman under the age of 18 notify one of her parents at least 48 hours before having an abortion. A proper lawsuit has challenged the constitutionality of this state statute. In that suit, should the court uphold the constitutionality of the statute?

No, because the state law does not provide a bypass procedure that would allow a court to authorize a minor to obtain an abortion without prior parental notification under appropriate circumstances- The U.S. Supreme Court has held that parental notification requirements violate a minor's right to an abortion unless there is a satisfactory judicial bypass procedure. Such a procedure must allow a court to approve an abortion for a minor without parental notification if the court finds that either (1) the minor is sufficiently mature and informed to make an independent decision to obtain an abortion or (2) the abortion would be in the minor's best interest. Because no such bypass procedure is included in the statute at issue, the court will hold the statute unconstitutional.

State troopers lawfully stopped a car driver on a turnpike for exceeding the speed limit by four miles per hour. One trooper approached the car to warn the driver to drive within the speed limit. The other trooper remained in the patrol car and ran a computer check of the car's license number. The computer check indicated that there was an outstanding warrant for the driver's arrest for unpaid traffic tickets. The troopers then arrested the driver based on the warrant, and they proceeded to search the driver. During the search, they discovered a package of heroin in one of the driver's pockets. Later, it was learned that the driver had paid the outstanding traffic tickets 10 days earlier and that the warrant had been quashed, but the clerk of the court had failed to update the computer, which continued to list the warrant as outstanding. The driver was charged with unlawful possession of heroin. Her attorney has filed a motion to suppress the use of the heroin as evidence. Should the motion be granted?

No, because the troopers could reasonably rely on the computer report and the search was incident to arrest- Evidence generally will not be suppressed where police officers reasonably held a good faith belief that their actions leading to the discovery of the evidence were authorized by a valid warrant. In this case, the computer check on the license number of the driver's car revealed that there was an outstanding warrant for the driver's arrest based on unpaid parking tickets. The police had no reason to believe that the warrant was invalid, so the search of the driver was proper incident to the arrest.

A defendant has pleaded not guilty to a federal bank robbery charge. The principal issue at trial is the identity of the robber. The prosecutor has called the defendant's wife to testify to the clothing that the defendant wore as he left their house on the day the bank was robbed, expecting her description to match that of eyewitnesses to the robbery. Both the defendant and his wife have objected to her testifying against the defendant. Should the wife be required to testify?

No, because the wife has a privilege not to testify against her husband in a criminal case- This is a correct statement of federal common law, established by the U.S. Supreme Court in Trammel v. United States. If the witness and the defendant are married at the time of trial, the witness cannot be placed in contempt for refusing to testify against the defendant. The rationale for the rule is to preserve marital harmony, which would otherwise be damaged by one spouse testifying against the other.

Police officers received a tip that illegal drugs were being sold at a certain ground-floor apartment. They decided to stake out the apartment. The stakeout revealed that a significant number of people visited the apartment for short periods of time and then left. A man exited the apartment and started to walk briskly away. The officers grabbed the man and, when he struggled, wrestled him to the ground. They searched him and found a bag of heroin in one of his pockets. After discovering the heroin on the man, the officers decided to enter the apartment. They knocked on the door, which was opened by the woman who lived there. The officers asked if they could come inside, and the woman gave them permission to do so. Once inside, the officers observed several bags of heroin on the living room table. The woman has been charged with possession of the heroin found on the living room table. She has filed a pretrial motion to suppress the heroin on the ground that it was obtained by an illegal search and seizure. Should the woman's motion be granted?

No, because the woman consented to the officer's entry- woman's consent justified the officer's entry and the heroin was properly seized because it was in plain view.

A federal statute requires the National Bureau of Standards to establish minimum quality standards for all beer sold in the United States. The statute also provides that public hearings must precede adoption of the standards, and that once they are adopted, the standards will be subject to judicial review. While the proposed standards have not yet been announced, several Bureau officials have publicly expressed opinions indicating a belief that pasteurized beer is safer than unpasteurized beer. However, these officials have not stated whether they intend to include a pasteurization requirement in the standards. A brewery that produces unpasteurized beer is concerned that, after the appropriate proceedings, the Bureau may adopt quality standards that will prohibit the sale of unpasteurized beer. The brewery has sued in federal district court to enjoin the Bureau from adopting standards that would prohibit the sale of unpasteurized beer. How should the district court proceed with the suit?

Refuse to adjudicate the merits of the suit, because it does not involve a justiciable case or controversy- The federal courts lack power to entertain a suit that is not ripe for adjudication, because such a suit does not present a "case" or "controversy" within the meaning of Article III, Section 2, Clause 1 of the Constitution. The court should dismiss the suit because the Bureau has yet to announce the beer-quality standards, and therefore the case is not ripe.

A woman drove her car through the drive-through lane of a fast-food restaurant one afternoon. When she reached the microphone used to place orders, she said, "There's a man across the street with a rifle. He can see everything you do. If you do not do exactly what I tell you, he will shoot you. Put all the money from the register into a sack and give it to me when I drive up." The clerk did not see anyone across the street and was unsure whether anyone was there. However, unwilling to risk harm to himself, he put $500 in a paper bag and handed it to the woman when she drove up to the delivery window. The woman drove off with the money but was arrested a short time later. She had lied about there having been a man with a rifle and had acted alone. Of what crime or crimes can the woman be convicted?

Robbery or larceny- All the elements of larceny and robbery (which may be thought of as aggravated larceny) were present. The woman's threat of immediate harm to the clerk was sufficient to constitute the intimidation required for robbery. However, because larceny is a lesser included offense of robbery, she cannot be convicted of both offenses for a single incident.

The President issued an executive order in an effort to encourage U.S. citizens to use the metric (Celsius) system of temperatures. Section 1 of the executive order requires the U.S. Weather Bureau, a federal executive agency, to state temperatures only in Celsius in all weather reports. Section 2 of the executive order requires all privately owned federally licensed radio and television stations giving weather reports to report temperatures only in Celsius. No federal statute is applicable. Is the President's executive order constitutional?

Section 1 is constitutional, but Section 2 is not- Section 1 of the executive order is constitutional. The President, as the chief executive officer of the U.S. government, has authority to direct the actions of federal executive agencies, so long as the President's directives are not inconsistent with an act of Congress. (The facts state that there is no applicable statute here.) Section 2 of the executive order is unconstitutional. At least as a general rule, the President does not have authority to direct the actions of persons outside the executive branch unless the President's direction is authorized by an act of Congress. There are no circumstances presented in the facts (such as a sudden attack on the United States) that might justify an exception to this general rule.

At a defendant's trial for a gang-related murder, the prosecution introduced, as former testimony, a statement by a gang member who testified against the defendant at a preliminary hearing and has now invoked his privilege against selfincrimination. If the defendant now seeks to impeach the credibility of the gang member, which of the following is the court most likely to admit?

Testimony by a witness that at the time the gang member testified, he was challenging defendant's leadership role in the gang- This is evidence of "bias." It shows that the gang member had a motive to implicate the defendant falsely, because by doing so he would remove the defendant from the position that he wanted to have. Evidence of bias is considered important and, generally speaking, is liberally admitted. Note that the gang member can be impeached even though he is not at trial to testify. Federal Rule of Evidence 806 allows parties to impeach a hearsay declarant in the same ways that would be permitted if the declarant were to testify. This is because a hearsay declarant is essentially a witness in the case.

A buyer and a seller entered into a written contract for the sale of an identified parcel of land. The contract expressly provided that the buyer was to pay $150,000 cash for the land at the time of the closing but did not state the closing date. The parties had not agreed on the closing date because the buyer was not sure at the time the contract was signed how she would raise the cash. Fifteen days after the contract was signed, the seller learned that he could sell the land to a third party for $200,000. The seller asked the buyer if she would agree to rescind the contract. The buyer refused. The seller then told her that he would not complete the transaction, contending that the contract was unenforceable under the statute of frauds because an essential element (time for performance) was not agreed upon by the parties and was not expressly stated in the written agreement. The seller sold the land to the third party. The buyer brought an appropriate action against the seller for breach of contract. For which party is the court likely to find?

The buyer, because the court will infer that performance within a reasonable time was intended- While the lack of an essential element may sometimes implicate the statute of frauds, there is no rule requiring parties to a contract for the sale of real property to agree in writing to the timing of performance. In such a case, a court will infer that performance within a reasonable time was intended.

In a civil action for breach of an oral contract, the defendant denied having entered into a contract with the plaintiff, although he admitted that he had discussed doing so. Which of the following standards of admissibility should the court apply to evidence proffered as relevant to prove whether a contract was formed?

Whether the evidence has any tendency to make the fact of contract formation more or less probably than without the evidence- This is the standard of relevance applied by the judge in determining admissibility under Federal Rule of Evidence 401. Under that rule, evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action."

A car dealer owed a bank $10,000, due on June 1. The dealer subsequently sold a car to a buyer at a price of $10,000, payable at $1,000 per month beginning on June 1. The dealer then telephoned the bank to ask whether the bank would accept payments of $1,000 per month for 10 months beginning June 1, without interest, in payment of the dealer's debt to the bank. The bank agreed to that arrangement, and the dealer then asked the buyer to make his car payments directly to the bank. When the buyer tendered the first payment to the bank, the bank refused the payment, asserting that it would accept payment only from the dealer. On June 2, the bank demanded that the dealer pay the debt in full immediately. The dealer refused to pay, and the bank sued the dealer to recover the $10,000. In this suit, which of the following arguments best supports the bank's claim for immediate payment?

The car dealer gave no consideration for the agreement to extend the time of payment- The bank had a right to insist on payment of the note and promised to allow the dealer to pay the debt in installments. There was no consideration, however, for the bank's promise. There would have been consideration if the dealer had assigned its right to receive payment from the buyer; the benefit to the bank would have been the addition of another obligor from whom it could expect payment. Because there was no assignment here, but merely an instruction to the buyer to redirect his payments, the bank may reinstate the due date despite its earlier waiver; it is not bound by the installment agreement and may demand full payment at once.

A bright 12-year-old child attended a day-care center after school. The day-care center was located near a man-made duck pond on the property of a corporation. During the winter, the pond was used for ice-skating when conditions were suitable. At a time when the pond was obviously only partially frozen, the child sneaked away from the center's property and walked out onto the ice over the pond. The ice gave way, and the child fell into the cold water. He suffered shock and would have drowned had he not been rescued by a passerby. At the time of the incident, the pond was clearly marked with numerous signs that stated, "THIN ICE—KEEP OFF." When the child sneaked away from the day-care center, the center was staffed with a reasonable number of qualified employees, and the employees were exercising reasonable care to ensure that the children in their charge did not leave the premises. There had not been a previous instance of a child coming onto the corporation's property from the day-care center. The jurisdiction follows a rule of pure comparative negligence. In a suit brought on the child's behalf against the corporation and based only on the facts above, who is likely to prevail?

The corporation, because the danger of thin ice may reasonably be expected to be understood by a 12 year old child- This is not a case in which the trespasser failed to appreciate the risk. The obviousness of the risk was buttressed by warning signs written in words that a "bright 12-year-old child" should be able to read and understand.

A creditor received a valid judgment against a debtor and promptly filed the judgment in the county. Two years later, the debtor purchased land in the county and promptly recorded the warranty deed to the land. Subsequently, the debtor borrowed $30,000 from his aunt, signed a promissory note for that amount, and secured the note with a mortgage on the land. The mortgage was promptly recorded. The aunt failed to make a title search before making the loan. The debtor made no payment to the creditor and defaulted on the mortgage loan from his aunt. A valid judicial foreclosure proceeding was held, in which the creditor, the aunt, and the debtor were named parties. A dispute arose as to which lien had priority. A statute of the jurisdiction provides: "Any judgment properly filed shall, for 10 years from filing, be a lien on the real property then owned or subsequently acquired by any person against whom the judgment is rendered." A second statute of the jurisdiction provides: "No unrecorded conveyance or mortgage of real property shall be good against subsequent purchasers for value without notice, who shall first record." Who has the prior lien?

The creditor because its judgment was filed first- This is a race-notice jurisdiction, which protects a bona fide purchaser for value without notice who records first. The creditor filed first, giving the aunt constructive notice of the judgment lien. Accordingly, the judgment lien has priority.

A landowner died, validly devising his land to his wife "for life or until remarriage, then to" their daughter. Shortly after the landowner's death, his daughter executed an instrument in the proper form of a deed, purporting to convey the land to her friend. A year later, the daughter died intestate, with her mother, the original landowner's wife, as her sole heir. The following month, the wife remarried. The wife then executed an instrument in the proper form of a deed, purporting to convey the land to her new husband as a wedding gift. Who now owns what interest in the land?

The daughter's friend owns the fee simple- The landowner's wife had a determinable life estate, evidenced by the words "for life" and "until remarriage" in the landowner's will. The daughter had a vested remainder and an executory interest. Both of the daughter's interests could be assigned to the friend. On the remarriage of the landowner's wife, the wife's determinable life estate ended and the land automatically went to the holder of the future interest, the daughter's friend

A landowner conveyed his land by quitclaim deed to his daughter and son "as joint tenants in fee simple." The language of the deed was sufficient to create a common law joint tenancy with right of survivorship, which is unmodified by statute. The daughter then duly executed a will devising her interest in the land to a friend. Then the son duly executed a will devising his interest in the land to a cousin. The son died, and later the daughter died. Neither had ever married. The daughter's friend and the cousin survived. After both wills have been duly probated, who owns what interest in the land?

The daughter's friend owns the fee simple- a joint tenancy with a right of survivorship is not devisable or inheritable and cannot be severed by a will. On the death of the son, the daughter's interest increased and she owned the land alone in a fee simple. She had the right to devise her entire interest by will to her friend.

A defendant was charged with aggravated assault. At trial, the victim testified that the defendant beat her savagely, but she was not asked about anything said during the incident. The prosecutor then called a witness to testify that when the beating stopped, the victim screamed: "I'm dying—don't let [the defendant] get away with it!" Is the testimony of the witness concerning the victim's statement admissible?

Yes, as an excited utterance- Federal Rule of Evidence 803(2) admits a hearsay statement that would otherwise be barred under Rule 802 where the statement "relat[es] to a startling event or condition, made while the declarant was under the stress of excitement that it caused." In this case, the assault was a startling event, and the victim made the statement immediately after the beating, trying to identify the perpetrator. Thus, all the admissibility requirements of Rule 803(2), the excited utterance exception, are met.

A bright 12-year-old child attended a day-care center after school. The day-care center was located near a man-made duck pond on the property of a corporation. During the winter, the pond was used for ice-skating when conditions were suitable. At a time when the pond was obviously only partially frozen, the child sneaked away from the center's property and walked out onto the ice over the pond. The ice gave way, and the child fell into the cold water. He suffered shock and would have drowned had he not been rescued by a passerby. At the time of the incident, the pond was clearly marked with numerous signs that stated, "THIN ICE—KEEP OFF." When the child sneaked away from the day-care center, the center was staffed with a reasonable number of qualified employees, and the employees were exercising reasonable care to ensure that the children in their charge did not leave the premises. There had not been a previous instance of a child coming onto the corporation's property from the day-care center. The jurisdiction follows a rule of pure comparative negligence. In a suit brought on the child's behalf against the day-care center and based only on the facts above, who is likely to prevail?

The day care center, because it was not negligent- Under the facts as described, there is no evidence of lack of reasonable care by the day-care center.

In a civil action, a plaintiff sued a decedent's estate to recover damages for injuries she suffered in a collision between her car and one driven by the decedent. At trial, the plaintiff introduced undisputed evidence that the decedent's car had swerved across the centerline of the highway into oncoming traffic, where it had collided with the plaintiff's car. The decedent's estate introduced undisputed evidence that, before he swerved across the centerline, the decedent had suffered a fatal heart attack, which he had no reason to foresee, and that, just prior to the heart attack, the decedent had been driving at a reasonable speed and in a reasonable manner. A statute makes it a traffic offense to cross the median of a highway. In this case, which party is likely to prevail?

The decedent's estate, because its evidence is undisputed- The plaintiff's evidence that the decedent violated the statute and crossed over the centerline establishes a prima facie case of negligence. However, the decedent's estate has successfully rebutted the plaintiff's evidence by providing an undisputed explanation of how the accident happened that is inconsistent with a finding of negligence (the decedent's unforeseeable heart attack made him unable to comply with the statute or, indeed, with any standard of care).

A state constitution provides that in every criminal trial "the accused shall have the right to confront all witnesses against him face to face." A defendant was convicted in state court of child abuse based on testimony from a six-year-old child. The child testified while she was seated behind one-way glass, which allowed the defendant to see the child but did not allow the child to see the defendant. The defendant appealed to the state's highest court, claiming that the inability of the child to see the defendant while she testified violated both the United States Constitution and the state constitution. Without addressing the federal constitutional issue, the state's highest court reversed the defendant's conviction and ordered a new trial. The court held that "the constitution of this state is clear, and it requires that while testifying in a criminal trial, a witness must be able to see the defendant." The state petitioned the United States Supreme Court for a writ of certiorari. On which ground should the United States Supreme Court DENY the state's petition?

The decision of the state supreme court was based on an adequate and independent state ground- The Supreme Court may not review a judgment by the highest court of a state if that judgment is supported entirely by state law and is wholly independent of the interpretation and application of federal law. In this case, although the defendant claimed a violation of the Sixth Amendment to the U.S. Constitution, the state's highest court based its decision entirely on the state constitution without addressing the federal constitutional issue.

When a homeowner became ill, he properly executed a deed sufficient to convey his home to his nephew, who was then serving overseas in the military. Two persons signed as witnesses to qualify the deed for recording under an applicable statute. The homeowner handed the deed to his nephew's friend and said, "I want [the nephew] to have my home. Please take this deed for him." Shortly thereafter, the nephew's friend learned that the homeowner's death was imminent. One day before the homeowner's death, the nephew's friend recorded the deed. The nephew returned home shortly after the homeowner's death, learned about the deed, and took possession of the home. The homeowner had died intestate, leaving a daughter as his sole heir. When she asserted ownership of the home, the nephew brought an appropriate action against her to determine title. The law of the jurisdiction requires only two witnesses for a will to be properly executed. If the court rules for the nephew and against the daughter, what will be the most likely explanation?

The deed was delivered when the homeowner handed it to the nephew's friend- A gift may be made of real estate. A deed is required as are the elements for a gift. The homeowner had the requisite donative intent as shown by his words. Delivery occurred when the homeowner physically handed the deed to the nephew's friend as the agent of the nephew. Acceptance is presumed if the gift is beneficial. At this point, the homeowner could not recall the gift.

A landowner lawfully subdivided his land into 10 large lots. The recorded subdivision plan imposed no restrictions on any of the 10 lots. Within two months after recording the plan, the landowner conveyed Lot 1 to a buyer, by a deed that contained no restrictions on the lot's use. There was then a lull in sales. Two years later, the real estate market in the state had generally improved, and during the next six months, the landowner sold and conveyed eight of the remaining nine lots. In each of the eight deeds of conveyance, the landowner included the following language: "It is a term and condition of this conveyance, which shall be a covenant running with the land for the benefit of each of the 10 lots [with an appropriate reference to the recorded subdivision plan], that for 15 years from the date of recording of the plan, no use shall be made of the premises herein conveyed except for single-family residential purposes." The buyer of Lot 1 had actual knowledge of what the landowner had done. The landowner included the quoted language in part because the municipality had amended its zoning ordinance a year earlier to permit professional offices in any residential zone. Shortly after the landowner's most recent sale, when he owned only one unsold lot, the buyer of Lot 1 constructed a one-story house on Lot 1 and then conveyed Lot 1 to a doctor. The deed to the doctor contained no reference to any restriction on the use of Lot 1. The doctor applied for an appropriate certificate of occupancy to enable her to use a part of the house on Lot 1 as a medical office. The landowner, on behalf of himself as the owner of the unsold lot, and on behalf of the other lot owners, sued to enjoin the doctor from carrying out her plans and to impose the quoted restriction on Lot 1. Who is likely to prevail?

The doctor, because Lot 1 was conveyed without the inclusion of the restrictive covenant in the deed to the first buyer and the subsequent deed to the doctor- To be binding, a restrictive covenant must be placed on property at the time it is conveyed. Here, neither the deed to the first buyer nor the deed to the doctor contained the restrictive covenant. The burden cannot be attached to Lot 1 at a later time by someone who has no interest in Lot 1. Therefore, the doctor may proceed with her plan to use part of the property as a medical office.

A landowner executed an instrument in the proper form of a deed, purporting to convey his land to a friend. The landowner handed the instrument to the friend, saying, "This is yours, but please do not record it until after I am dead. Otherwise, it will cause me no end of trouble with my relatives." Two days later, the landowner asked the friend to return the deed to him because he had decided that he should devise the land to the friend by will rather than by deed. The friend said that he would destroy the deed and a day or so later falsely told the landowner that the deed had been destroyed. Six months ago, the landowner, who had never executed a will, died intestate, survived by a daughter as his sole heir at law. The day after the landowner's death, the friend recorded the deed from him. As soon as the daughter discovered this recording and the friend's claim to the land, she brought an appropriate action against the friend to quiet title to the land. For whom should the court hold?

The friend, because the deed was delivered to him- a deed must be delivered to be valid, which is a question of intent. "This is yours" shows the intent to strip of dominion and control and immediately transfer title. Handing the deed to a friend raises a rebuttable presumption of delivery.

A landowner orally gave his neighbor permission to share the use of a private road on the landowner's land so that the neighbor could have more convenient access to the neighbor's land. Only the landowner maintained the road. After the neighbor had used the road on a daily basis for three years, the landowner conveyed his land to a grantee, who immediately notified the neighbor that the neighbor was not to use the road. The neighbor sued the grantee, seeking a declaration that the neighbor had a right to continue to use the road. Who is likely to prevail?

The grantee, because the neighbor had a license that the grantee could terminate at any time- A license is permission to use the land of another. It is revocable and is not subject to the statute of frauds. In this case, because the neighbor had the landowner's permission to use the road and did not expend any money, property, or labor pursuant to the agreement, the neighbor had a license that was effectively revoked by the grantee.

An investor purchased a tract of commercial land, financing a large part of the purchase price with a loan from a business partner that was secured by a mortgage. The investor made the installment payments on the mortgage regularly for several years. Then the investor persuaded a neighbor to buy the land, subject to the mortgage to his partner. They expressly agreed that the neighbor would not assume and agree to pay the investor's debt to the partner. The investor's mortgage to the partner contained a due-on-sale clause stating, "If Mortgagor transfers his or her interest without the written consent of Mortgagee first obtained, then at Mortgagee's option the entire principal balance of the debt secured by this Mortgage shall become immediately due and payable." However, without seeking his partner's consent, the investor conveyed the land to the neighbor, the deed stating that it was "subject to a mortgage to [the partner]" and giving details and recording data related to the mortgage. The neighbor took possession of the land and made several mortgage payments, which the partner accepted. Now, however, neither the neighbor nor the investor has made the last three mortgage payments. The partner has sued the neighbor for the amount of the delinquent payments. In this action, for whom should the court render judgment?

The neighbor, because she did not assume and agree to pay the investor's mortgage debt- A grantee who does not assume the mortgage, but rather takes subject to the mortgage, is not personally liable for the debt. In this case, there was no express assumption. In fact, the parties agreed that the neighbor was not assuming the mortgage debt. The debt is to be satisfied out of the land first, with the investor liable for any deficiency.

A seller entered into a written contract to sell a tract of land to an investor. The contract made no mention of the quality of title to be conveyed. The seller and the investor later completed the sale, and the seller delivered a warranty deed to the investor. Soon thereafter, the value of the land increased dramatically. The investor entered into a written contract to sell the land to a buyer. The contract between the investor and the buyer expressly provided that the investor would convey a marketable title. The buyer's attorney discovered that the title to the land was not marketable and had not been marketable when the original seller had conveyed to the investor. The buyer refused to complete the sale. The investor sued the original seller for breach of contract, claiming damages from the seller's failure to convey marketable title, which resulted in the investor's loss of the sale to the subsequent buyer. Who is likely to prevail on this count?

The original seller, because her contract obligations as to title merged into the deed- Although a covenant that title will be marketable is implied in a contract for the sale of land, the doctrine of merger provides that one can no longer sue on title matters contained in the contract of sale after the deed is delivered and accepted. The investor's remedy, if there is one, would be based on the deed he received and not on the contract of sale

A seller and a buyer have dealt with each other in hundreds of separate grain contracts over the last five years. In performing each contract, the seller delivered the grain to the buyer and, upon delivery, the buyer signed an invoice that showed an agreed-upon price for that delivery. Each invoice was silent in regard to any discount from the price for prompt payment. The custom of the grain trade is to allow a 2% discount from the invoice price for payment within 10 days of delivery. In all of their prior transactions and without objection from the seller, the buyer took 15 days to pay and deducted 5% from the invoice price. The seller and the buyer recently entered into a contract for a single delivery of wheat at a price of $300,000. The same delivery procedure and invoice were used for this contract as had been used previously. The seller delivered the wheat and the buyer then signed the invoice. On the third day after delivery, the buyer received the following note from the seller: "Payment in full in accordance with signed invoice is due immediately. No discounts permitted. s/Seller." Which of the following statements concerning these facts is most accurate?

The parties' course of dealing controls, and the buyer is entitled to take a 5% discount if he pays within 15 days- The Uniform Commercial Code controls in this situation. UCC § 2-202, which is the UCC embodiment of the parol evidence rule, explicitly provides that, while a final written expression of agreement may not be contradicted by any prior agreement, it may be explained or supplemented "by course of dealing or usage of trade or by course of performance." A course of dealing, when inconsistent with a usage of trade, controls under UCC § 1-303. Therefore, the agreement in this case should be interpreted to embody the parties' course of dealing, which provides for a 5% discount if payment is made within 15 days.

Congress passed a statute directing the United States Forest Service, a federal agency, to issue regulations to control campfires on federal public lands and to establish a schedule of penalties for those who violate the new regulations. The statute provides that the Forest Service regulations should "reduce, to the maximum extent feasible, all potential hazards that arise from campfires on Forest Service lands." The Forest Service issued the regulations and the schedule of penalties directed by Congress. The regulations include a rule that provides for the doubling of the fine for any negligent or prohibited use of fire if the user is under the influence of alcohol or drugs. Which of the following arguments best supports a finding that the rule providing for the fines is constitutional?

The rule is issued pursuant to a valid exercise of Congress's power to delegate rule-making authority to federal agencies- Congress may delegate rule-making authority to federal agencies through statutes that provide an intelligible principle governing the exercise of that authority. The Supreme Court has been very deferential in applying the intelligible principle requirement, and the statute's provision of authority to the Forest Service to issue regulations controlling campfires and establishing a penalty schedule likely satisfies the requirement.

According to a state law, state employees may be fired only "for good cause." A woman who was both a resident and an employee of the state was summarily fired on the sole ground that she had notified federal officials that the state was not following federal rules governing the administration of certain federally funded state programs on which she worked. The state denied the woman's request for a hearing to allow her to contest the charge. There is no record of any other state employee having been terminated for this reason. In a suit to reinstate her employment, which of the following claims provides the LEAST support for the woman?

The state's firing of her unconstitutionally denied her a privilege or immunity of a state citizenship protected by Article IV- privileges and immunities clause reaches state actions that discriminates against citizens of other states. The woman is a citizen of the state in which she is employed.

An uncle was the record title holder of a vacant tract of land. He often told friends that he would leave the land to his nephew in his will. The nephew knew of these conversations. Prior to the uncle's death, the nephew conveyed the land by warranty deed to a woman for $10,000. She did not conduct a title search of the land before she accepted the deed from the nephew. She promptly and properly recorded her deed. Last month, the uncle died, leaving the land to the nephew in his duly probated will. Both the nephew and the woman now claim ownership of the land. The nephew has offered to return the $10,000 to the woman. Who has title to the land?

The woman, because of the doctrine of estoppel by deed- Estoppel by deed applies to validate a deed, particularly a warranty deed, that was executed and delivered by a grantor who had no title to the land at that time, but who represented that he or she had such title and who thereafter acquired such title. In this case, estoppel by deed would apply in the woman's favor to estop the nephew from claiming ownership of the land after his uncle's death.

On May 1, an uncle mailed a letter to his adult nephew that stated: "I am thinking of selling my pickup truck, which you have seen and ridden in. I would consider taking $7,000 for it." On May 3, the nephew mailed the following response: "I will buy your pickup for $7,000 cash." The uncle received this letter on May 5 and on May 6 mailed a note that stated: "It's a deal." On May 7, before the nephew had received the letter of May 6, he phoned his uncle to report that he no longer wanted to buy the pickup truck because his driver's license had been suspended. Which of the following statements concerning this exchange is accurate?

There is a contract as of May 6- The uncle's original letter was not an offer. It was merely a statement indicating a possible interest in selling the truck, and a suggestion as to a price that might be acceptable. It would be regarded, if anything, as a statement soliciting an offer. The nephew's letter, mailed on May 3, constituted an offer to buy the pickup. The uncle's note, mailed on May 6, constituted an acceptance of the nephew's offer and was effective when mailed. A contract arose on May 6.

A buyer validly contracted in writing to buy improved land from a seller. The contract had no contingencies and was silent as to risk of loss if there was damage to, or destruction of, property improvements between contract and closing, and as to any duty to carry insurance. As soon as the parties signed the contract, the seller (who had already moved out) canceled her insurance covering the land. The buyer did not know this and did not obtain insurance. A few days later, three weeks before the agreed closing date, the building on the land was struck by lightning and burned to the ground. There is no applicable statute. In an appropriate action, the buyer asserted the right to cancel the contract and to recover his earnest money. The seller said that because the risk of fire loss had passed to the buyer before the fire, the buyer must perform. If the seller prevails, what will be the most likely explanation?

Upon execution of the contract, the buyer became the equitable owner of the land under the doctrine of equitable conversion - In a contract for the sale of land, absent a provision establishing a duty, neither the seller nor the buyer has a duty to carry insurance on the property. Although jurisdictions differ on which party has the risk of loss, a finding for the seller in this case means that the jurisdiction hearing the case places the risk of loss on the equitable owner of the property, the buyer, under the doctrine of equitable conversion.

A homeowner sued a plumber for damages resulting from the plumber's allegedly faulty installation of water pipes in her basement, which caused flooding. At trial, the homeowner is prepared to testify that when she first detected the flooding, she turned off the water and called the plumber at his emergency number for help and that the plumber responded, "I'll come by tomorrow and redo the installation for free." Is the homeowner's testimony regarding the plumber's response admissible?

Yes, as evidence of the plumber's fault- This is a party admission, admissible as a hearsay exemption under Rule 801(d)(2)(A). A statement made by a party cannot be excluded as hearsay when offered against him by the opponent. Moreover, the statement is probative. A person who makes a statement like this is likely to think he is at fault, and this statement is probative evidence that indeed he was at fault.

The defendant, a young doctor, was charged with falsely claiming deductions on her federal income tax return. At trial, a witness testified for the defendant that she has a reputation in the community for complete honesty. After a sidebar conference at which the prosecutor gave the judge a record showing that the defendant's medical school had disciplined her for altering her transcript, the prosecutor proposed to ask the witness on cross-examination: "Have you ever heard that the defendant falsified her medical school transcript?" Is the prosecutor's question proper?

Yes, because an affirmative answer will impeach the witness's credibility - The incident can be offered on cross-examination of the character witness to show that the witness's assessment of the defendant's character for honesty is not credible. The intent of the question is to test the witness's knowledge of the defendant's reputation on the one hand, and the quality of the community on the other. If the witness hasn't heard about the falsification, he might not be very aware of news in the community and so might be a poor reputation witness. On the other hand, if the witness answers "yes," then the jury might infer that the community in which the defendant has a reputation for complete honesty may be setting the honesty bar pretty low. In either case, the alleged falsification is probative impeachment whether or not it occurred. Note that the courts require that the cross-examiner have a good-faith belief that the event actually occurred before inquiring into the act on cross-examination. In this case, that good-faith standard is met by the evidence presented at the sidebar conference that the defendant was disciplined in medical school.

A man intensely disliked his neighbors. One night, intending to frighten them, he spray-painted their house with racial epithets and threats to kill them. The man was arrested and prosecuted under a state law providing that "any person who threatens violence against another person with the intent to cause that person to fear for his or her life or safety may be imprisoned for up to five years." In defense, the man claimed that he did not intend to kill his neighbors, but only to scare them so that they would move away. Can the man constitutionally be convicted under this law?

Yes, because his communication was a threat by which he intended to intimidate his neighbors- The Supreme Court has held that a threat communicated with the intent to intimidate the recipient, like the communication in this case, is not protected by the speech clause of the First Amendment.

A federal statute imposes an excise tax of $100 on each new computer sold in the United States. It also appropriates the entire proceeds of that tax to a special fund, which is required to be used to purchase licenses for computer software that will be made available for use, free of charge, to any resident of the United States. Is this statute constitutional?

Yes, because it is a reasonable exercise of the power of Congress to tax and spend for the general welfare- Congress gets broad power to tax and spend for the general welfare (Article 1 Section 8). Courts defer to reasonable taxing and spending measures.

A seller and a buyer entered into a contract obligating the seller to convey title to a parcel of land to the buyer in exchange for $100,000. The agreement provided that the buyer's obligation to purchase the parcel was expressly conditioned upon the buyer's obtaining a loan at an interest rate no higher than 10%. The buyer was unable to do so but did obtain a loan at an interest rate of 10.5% and timely tendered the purchase price. Because the value of the land had increased since the time of contracting, the seller refused to perform. The buyer sued the seller. Is the buyer likely to prevail?

Yes, because the buyer's obtaining a loan at an interest rate no higher than 10% was not a condition to the seller's duty to perform- Courts look beyond the words of a condition, and if it is clear that the intent of the condition was to benefit or protect one of the parties, the language of the condition will be interpreted as if that intent had been clearly expressed in the contract terms. In this case, it is clear that the condition was intended for the benefit of the buyer as a condition to the buyer's duty. The buyer's waiver of the condition required the seller to perform despite the nonoccurrence of the condition.

A consumer became physically ill after drinking part of a bottle of soda that contained a large decomposed snail. The consumer sued the store from which she had bought the soda to recover damages for her injuries. The parties agreed that the snail had been put into the bottle during the bottling process, over which the store had no control. The parties also agreed that the snail would have been visible in the bottle before the consumer opened it. Will the consumer be likely to prevail in an action against the store?

Yes, because the consumer was injured by a defective product sold to her by the store- The seller of a product with a manufacturing defect that makes the product dangerous to the health of a consumer is strictly liable for the injuries caused by the defect.

A landowner entered into a single contract with a builder to have three different structures built on separate pieces of property owned by the landowner. Each structure was distinct from the other two, and the parties agreed on a specific price for each. After completing the first structure in accordance with the terms of the contract, the builder demanded payment of the specified price for that structure. At the same time, the builder told the landowner that the builder was "tired of the construction business" and would not even begin the other two structures. The landowner refused to pay anything to the builder. Is the builder likely to prevail in a suit for the agreed-upon price of the first structure?

Yes, because the contract is divisible, but the landowner will be able to deduct any recoverable damages caused by the builder's failure to complete the contract- Contract law acknowledges the fact that parties sometimes incorporate obligations that are in most respects separable into a single document or agreement. The rules for damages permit the separable components to be treated separately, which is appropriate here, because the structures were to be built on separate pieces of land and there was a distinct price related to each structure.

A lumber supplier agreed to sell and a furniture manufacturer agreed to buy all of the lumber that the manufacturer required over a two-year period. The sales contract provided that payment was due 60 days after delivery, but that a 3%discount would be allowed if the manufacturer paid within 10 days of delivery. During the first year of the contract, the manufacturer regularly paid within the 10 day period and received the 3% discount. Fifteen days after the supplier made its most recent lumber delivery to the manufacturer, the supplier had received no payment from the manufacturer. At this time, the supplier became aware of rumors from a credible source that the manufacturer's financial condition was precarious. The supplier wrote the manufacturer, demanding assurances regarding the manufacturer's financial status. The manufacturer immediately mailed its latest audited financial statements to the supplier, as well as a satisfactory credit report prepared by the manufacturer's banker. The rumors proved to be false. nevertheless, the supplier refused to resume deliveries. The manufacturer sued the lumber supplier for breach of contract. Will the manufacturer prevail?

Yes, because the credit report and audited financial statements provided adequate assurance of due performance under the contract- a party to a k with reasonable grounds to worry may request adequate assurance of performance, manufacturer here provided adequate assurance when requested and supplier's refusal is a breach of k

On January 5, a creditor loaned $1,000 to a debtor under a contract calling for the debtor to repay the loan at the rate of $100 per month payable on the first day of each month. On February 1, at the debtor's request, the creditor agreed to permit payment on February 5. On March 1, the debtor requested a similar time extension and the creditor replied, "Don't bother me each month. Just change the date of payment to the fifth of the month. But you must now make the payments by cashier's check." The debtor said, "Okay," and made payments on March 5 and April 5 by cashier's check. On April 6, the creditor sold the loan contract to a bank but did not tell the bank about the agreement permitting payments on the fifth of the month. On April 6, the bank wrote to the debtor: "Your debt to [the creditor] has been assigned to us. We hereby inform you that all payments must be made on the first day of the month." Can the debtor justifiably insist that the payment date for the rest of the installments is the fifth of each month?

Yes, because the creditor could assign to the bank only those rights the creditor had in the contract at the time of the assignment- An assignee succeeds to a contract as the contract stands at the time of the assignment. In this case, the parties had modified the contract as to when the payments were due. (Note that there was consideration for the promise to accept payments later; the consideration was the debtor's promise to make future payments by cashier's check.) Accordingly, the debtor can insist that the payments be due on the fifth of each month.

During negotiations to purchase a used car, a buyer asked a dealer whether the car had ever been in an accident. The dealer replied: "It is a fine car and has been thoroughly inspected and comes with a certificate of assured quality. Feel free to have the car inspected by your own mechanic." In actuality, the car had been in a major accident, and the dealer had repaired and repainted the car, successfully concealing evidence of the accident. The buyer declined to have the car inspected by his own mechanic, explaining that he would rely on the dealer's certificate of assured quality. At no time did the dealer disclose that the car had previously been in an accident. The parties then signed a contract of sale. After the car was delivered and paid for, the buyer learned that the car had been in a major accident. If the buyer sues the dealer to rescind the transaction, is the buyer likely to succeed?

Yes, because the dealer's statement was intentionally misleading and the dealer had concealed evidence of the accident- When a seller induces a buyer's consent to a contract by means of a material misrepresentation, the resulting contract is voidable at the election of the buyer. In this case, the buyer asked a direct question about whether the car had ever been in an accident, and the dealer gave an answer that a reasonable buyer would take as an assurance that the dealer at least had no knowledge of the car's involvement in any accidents. The accident history of the car would be material to the decision of a buyer. The dealer's statement, taken in context and in light of the dealer's active steps to conceal evidence of the damage and repair, would be the legal equivalent of a statement that the car had not been in an accident. The dealer actively concealed damage.

A debtor owed a lender $1,500. The statute of limitations barred recovery on the claim. The debtor wrote to the lender, stating, "I promise to pay you $500 if you will extinguish the debt." The lender agreed. Is the debtor's promise to pay the lender $500 enforceable?

Yes, because the debtor's promise to pay part of the barred antecedent debt is enforceable- A promise to pay a debt after the running of the applicable statute of limitations, like the promise in this case, is enforceable without consideration. The enforcement of such a promise is a long-established exception to the requirement that there be consideration to support the enforcement of promises.

A purchaser bought land in the mountain foothills just outside a resort town and planned to build a housing development there. Soon thereafter, the county in which the land was located unexpectedly adopted a regulation that, for the first time, prohibited all construction in several foothill and mountain areas, including the area of the purchaser's property. The purpose of the county's regulation was "to conserve for future generations the unique natural wildlife and plant habitats" in the mountain areas. Since the adoption of the regulation, the purchaser has been unable to lease or sell the property at any price. Several realtors have advised the purchaser that the property is now worthless. The purchaser has sued the county, claiming that the regulation has effected a taking of the purchaser's property and that the county therefore owes the purchaser just compensation. Is the court likely to rule in favor of the purchaser?

Yes, because the effect of the county's regulation is to deny the purchaser's investment-backed expectation and essentially all economically beneficial use of the property- A government regulation that eliminates the investment-backed expectation and economic value of an individual's property is a taking within the meaning of the Fifth Amendment, as applied to the county by the Fourteenth Amendment. Because the regulation has this effect, it constitutes a taking of the purchaser's property, for which the county must pay just compensation. Because the county did not compensate the purchaser for the land, the county has violated the takings clause.

After a liquor store was robbed, the police received an anonymous telephone call naming a store employee as the perpetrator of the robbery. Honestly believing that their actions were permitted by the U.S. Constitution, the police talked one of the employee's neighbors into going to the employee's home with a hidden tape recorder to engage him in a conversation about the crime. During the conversation, the employee admitted having committed the robbery. The employee was charged with the robbery in state court. He has moved to suppress the recording on the grounds that the method of obtaining it violated both his federal and his state constitutional rights. Assume that a clear precedent from the state's highest court would result in a finding that the conduct of the police in making the recording violated the employee's rights under the state constitution, and that excluding the recording is the proper remedy. Should the court grant the employee's motion?

Yes, because the making of the recording violated the state constitution- A state may grant broader rights under its own constitution than are granted by the federal Constitution. Here, the state has a clear precedent establishing that the recording violated the employee's state constitutional rights and that it should be excluded from evidence as a remedy. The court should apply this precedent to grant the employee's motion.

A defendant was charged with burglary. At trial, a police officer testified that, after the defendant was arrested and agreed to answer questions, the officer interrogated him with a stenographer present, but that he could not recall what the defendant had said. The prosecutor presented the officer with a photocopy of the stenographic transcript of the interrogation. The officer, after looking at it, was prepared to testify that he recalled that the defendant admitted to being in the area of the burglary. The defendant objected to the officer's testimony on the ground that it violated the "original document" rule (also known as the "best evidence rule). Should the officer's testimony concerning the defendant's recorded confession be admitted?

Yes, because the prosecutor is not attempting to prove the contents of the document- prosecutor is trying to prove what the defendant said, not what the transcript says

A bottling company sent a purchase order to a wholesaler that stated, "Ship 100,000 empty plastic bottles at the posted price." Two days after receipt of this purchase order, the wholesaler shipped the bottles and the bottling company accepted delivery of them. A week after the bottles were delivered, the bottling company received the wholesaler's acknowledgment form, which included a provision disclaiming consequential damages. After having used the wholesaler's bottles in its bottling operations for two months, the bottling company discovered a defect in the bottles that caused liquids to leak from them. The bottling company recalled 10,000 of the bottles that had been filled, incurring lost profits of $40,000. Assuming that all appropriate defenses are timely raised, will the bottling company likely succeed in recovering $40,000 in consequential damages from the wholesaler?

Yes, because the wholesaler's acknowledgement did not alter the terms of an existing contract between the parties- Under Uniform Commercial Code § 2-206, an offer to buy goods for prompt shipment is accepted when the seller ships or promises to ship the goods. The contract was created in this case when the wholesaler shipped the bottles. The terms consisted of the negotiated terms plus UCC gap-fillers. The subsequent acknowledgment form was an ineffective effort to modify the terms, and the bottling company did not accept the proposed modification.

A homeowner owned a large poisonous snake which had been defanged and was kept in a cage. A storm damaged the homeowner's house and the snake's cage, allowing the snake to escape. During the cleanup after the storm, a volunteer worker came across the snake. The worker tried to run away from the snake and fell, breaking his arm. In a suit by the worker against the homeowner based on strict liability in tort to recover for his injury, will the worker prevail?

Yes, because the worker's injury was the result of his fear of the escaped snake- An owner of a wild animal or an abnormally dangerous animal is strictly liable for harm caused by that animal's dangerous nature. Even though the snake was defanged, the worker had no reason to know this; thus, his injury falls within the risk of injury caused by the snake's dangerous nature, because it was caused by the worker's foreseeable reaction to seeing the escaped snake.

A landowner and a contractor entered into a written contract under which the contractor agreed to build a building and pave an adjacent sidewalk for the landowner at a price of $200,000. Later, while construction was proceeding, the landowner and the contractor entered into an oral modification under which the contractor was not obligated to pave the sidewalk, but still would be entitled to $200,000 upon completion. The contractor completed the building. The landowner, after discussions with his landscaper, demanded that the contractor pave the adjacent sidewalk. The contractor refused. Has the contractor breaches the contract?

Yes, because there was no consideration for the discharge of the contractor's duty to pave the sidewalk- this contract is governed by common law which requires consideration for a modification of a contract to be enforceable. There was no consideration here for elimination of duty to pave the sidewalk.

In a civil trial for fraud arising from a real estate transaction, the defendant claimed not to have been involved in the transaction. The plaintiff called a witness to testify concerning the defendant's involvement in the fraudulent scheme. To the plaintiff's surprise, however, the witness testified that the defendant was not involved and denied having made any statement to the contrary. The plaintiff has now called a second witness to testify that the first witness had stated, while the two were having a dinner conversation, that the defendant was involved in the fraudulent transaction. Is the testimony of the second witness admissible?

Yes, but only to impeach the first witness- Prior statements that are inconsistent with a witness's present testimony impeach the witness's credibility because they tend to show that the witness's trial testimony is not believable. The prior inconsistent statement was not made under oath, and so does not fit the exclusion from hearsay provided by Federal Rule of Evidence 801(d)(1)(A). There is no other hearsay exception that is satisfied under the facts. Therefore the statement is admissible only to impeach the witness and not for its truth.

A law student rented a furnished apartment. His landlord began to solicit his advice about her legal affairs, but he refused to provide it. The landlord then demanded that he vacate the apartment immediately. The landlord also began engaging in a pattern of harassment, calling the student at home every evening and entering his apartment without his consent during times when he was at school. During these unauthorized visits, she removed the handles from the bathroom and kitchen faucets, making the faucets unusable, but she did not touch any personal property belonging to the student. The lease has a year to run, and the student is still living in the apartment. The student has sued the landlord for trespass. Is he likely to prevail?

Yes, for injunctive relief, compensatory damages and punitive damages- There is evidence supporting compensatory damages (for emotional distress and the removal of the faucet handles) and punitive damages (based on the landlord's malicious intent and ill will). Because the lease is still in effect and the trespasses are repeated and ongoing, injunctive relief should also be available.

At a civil trial for slander, the plaintiff showed that the defendant had called the plaintiff a thief. In defense, the defendant called a witness to testify, "I have been the plaintiff's neighbor for many years, and people in our community generally have said that he is a thief." Is the testimony concerning the plaintiff's reputation in the community admissible?

Yes, to prove that the plaintiff is a thief, and to reduce or refute the damages claim- In slander cases, where the defendant makes a statement that the plaintiff has an unsavory character, the plaintiff's character is considered "in issue" (i.e., an essential element of the claim or defense under the substantive law) in two respects: First, the plaintiff's actual character will determine whether the defendant was incorrect in his assessment, and thus liable for slander, because truth is a defense. Second, the plaintiff will allege that he has been damaged by the statement, which is another way of saying that his true character has been besmirched; but if the plaintiff actually has a bad reputation anyway, then damages are limited. Thus, in slander cases like the one in this question, character evidence is relevant both to whether the plaintiff has a certain character and to the extent of damages. Under Federal Rule of Evidence 405, when character is "in issue" it can be proved by evidence of reputation, opinion, or specific acts.

In a civil action for misrepresentation in the sale of real estate, the parties contested whether the defendant was licensed by the State Board of Realtors, a public agency established by statute to license real estate brokers. The defendant testified that she was licensed. On rebuttal, the plaintiff has offered a certification, bearing the seal of the secretary of the State Board of Realtors. The certification states that the secretary conducted a thorough search of the agency's records and all relevant databases, and that this search uncovered no record of a license ever having been issued to the defendant. The certification is signed by the secretary. Is the certification that there is no record of a license having been issued to the defendant admissible?

Yes, to prove the nonexistence of a public record- The certification is hearsay, but it qualifies under Federal Rule of Evidence 803(10), the hearsay exception for a certification offered to prove the absence of a public record. The certification is offered for the proper inference that if a license had been issued, it would have been recorded in the public record. Thus, the fact that there was no record found is probative evidence that a license was never issued. To be admissible, the certification must be prepared by a public official and must on its face indicate that a diligent search of the records was conducted. This certification satisfies the requirements of the exception.